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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH W. CAPWELL, )
) Court of Appeals No. A-3489
Appellant, ) Trial Court No. 3PA-S89-1215
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1184 - December 20, 1991]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Rich Curtner, Assistant Public
Defender, Palmer, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Joseph W. Capwell was convicted of criminally negligent
homicide, AS 11.41.130(a), for striking and killing a pedestrian
with his car. He appeals both his conviction and his sentence.
We affirm Capwell's conviction but remand for resentencing.
On July 11, 1989, around 4 o'clock in the afternoon,
Capwell was driving on Seward Meridian Road in Wasilla. Shelley
Cleveland was walking along the side of the road, accompanied by
her young niece. Capwell's car, traveling between 35 and 45
miles per hour, struck Cleveland; she was killed almost
instantly.
The weather was clear and sunny. Capwell's vehicle
drifted over the right-hand fog line of the road for no apparent
reason. Capwell did not apply his brakes either before or for
several seconds after he struck Cleveland. He stopped his car 50
or 60 yards down the road, sat there for several seconds, and
then backed up toward the site of the collision. But instead of
coming to check on Cleveland's condition, Capwell climbed out of
his car, walked around to the front, and inspected his bumper.
He then leaned against the side of his car and lit a cigarette.
Capwell did not attempt to help Cleveland, nor did he even look
toward her.
Capwell's defense was that, suffering chest pains, he
had been driving to Valley Hospital when the pain distracted him
and reduced his control of the vehicle, thus causing the
collision. When the State Troopers arrived at the scene, Capwell
told one trooper that he was suffering from chest pains. He also
told this to the emergency medical technicians who responded to
the collision and transported Capwell to Valley Hospital. About
an hour and a half after the accident, Capwell spoke with a
physician at Valley Hospital and elaborated on these statements:
Capwell told the doctor that he had been driving to the hospital
at the time of the collision so that he could be examined for
chest pains.
Evidence was presented that Capwell in fact suffers
from a medical condition that causes him chest pain: costochon
dritis, an inflammation of the ribs where they join the
breastbone.
In an effort to rebut Capwell's assertion that he had
been going to the hospital to be examined for severe chest pains,
the prosecution introduced the testimony of two emergency room
physicians, Dr. Janet Smalley and Dr. Donald Hudson. Both of
these physicians, one working in Palmer and the other in
Anchorage, testified that Capwell had come to their emergency
medical facilities numerous times. During the year preceding the
collision, Capwell made 17 appearances in the Palmer emergency
room. Capwell also made 26 visits to the Anchorage emergency
room. Each time, Capwell complained of pain -- often, pain in
his chest, but also dental pain, headaches, and backaches. Each
time, Capwell wanted medication, generally morphine, to ease the
pain.
Both Dr. Smalley and Dr. Hudson testified that, when a
patient accumulates a history like Capwell's, physicians suspect
that the patient is employing the emergency room as a source for
narcotics, with pain being the excuse rather than the real reason
for the numerous visits. Dr. Smalley sat down with Capwell on
two occasions and discussed her concern that he was becoming
narcotic dependent and was misusing the emergency room. Dr.
Smalley testified that, following these conversations, there were
two occasions on which Capwell arrived at the emergency room and
peeked into the nurses' station to see who was the on-duty
physician; when he saw that Dr. Smalley was the on-duty
physician, Capwell left the hospital without signing in as a
patient.
Capwell asserts that the trial court should not have
allowed the State to introduce the testimony of the two doctors.
Capwell argues that the jury became unfairly prejudiced against
him when it heard him referred to as a "drug seeker", and he
asserts that, since there was no testimony that he was using
drugs at the time of the collision, the doctors' testimony could
not have been relevant to any issue at the trial.
We conclude that Judge Cutler acted within her proper
discretion when she admitted the doctors' testimony. Capwell's
defense was premised on the argument that he was suffering chest
pain at the time of the collision, pain so severe that it
distracted him from the road and prevented him from exercising
normal control over his vehicle. The testimony of Dr. Smalley
and Dr. Hudson tended to show that, even if Capwell had been
driving to the hospital as he asserted, his motivation was to
obtain narcotics, not to have a doctor alleviate unexpectedly
intense pain. The testimony thus had substantial relevance to a
major issue at trial: whether, as Capwell claimed, there was a
medical explanation for his failure to notice Cleveland walking
along the roadway. Moreover, Judge Cutler could reasonably find
that the probative force of this evidence outweighed whatever
potential for unfair prejudice it might have.
Capwell contests one other evidentiary ruling of the
trial court. Judge Cutler allowed the prosecution to introduce
evidence that, at the time of the collision, Capwell's driver's
license was suspended; Capwell's license had been suspended when
he failed to satisfy a judgement entered against him from an
earlier traffic accident. The prosecution contended, and Judge
Cutler agreed, that, because Capwell's license was suspended, it
was reasonable to conclude that Capwell's assertions of chest
pain had been fabricated in order to offer the authorities some
plausible reason why Capwell was driving.
In the trial court and now on appeal, Capwell asserts
that whatever motivation he might have had to explain his act of
driving while his license was suspended pales beside his
motivation to explain how he had run over and killed a
pedestrian. Capwell argues that, if his assertion of chest pain
was suspect, it was because of the homicide charge he faced, not
the driving with suspended license charge. Moreover, Capwell
asserts that this evidence carried great potential for unfair
prejudice: the jury could conclude, from the fact that a civil
judgement had been entered against him, that Capwell had been at
fault in the prior motor vehicle accident.
We agree with Capwell. The State was entitled to
introduce evidence of Capwell's possible motives to lie about
experiencing severe chest pain. However, under the circumstances
of this case, the motivation provided by the imminent homicide
charge far outweighed whatever additional motivation was provided
by the suspended status of Capwell's license. The possibility
that evidence of Capwell's license suspension might unfairly
prejudice the jury's deliberations -- that the jury, hearing
evidence indicating that Capwell had been at fault in a prior
traffic accident, might assume from this that he had probably
been negligent in this case -- outweighed the minimal incremental
probative value of the evidence.
Nevertheless, we are convinced that the admission of
this evidence did not have an appreciable effect on the jury's
verdict. Fields v. State, 629 P.2d 46, 51 (Alaska 1981); Love v.
State, 457 P.2d 622, 629-631 (Alaska 1969). The evidence at
trial provided no reasonable explanation for the collision absent
negligence on the part of Capwell.
The fact that Capwell suffers from costochondritis was
undisputed at trial. However, the medical testimony showed that
Capwell's condition does not normally cause the kind of pain that
would prevent him from driving or impair his ability to handle a
car. In this same vein, the testimony of Drs. Smalley and Hudson
revealed good reason to believe that, even though Capwell has
costochondritis, Capwell's journey to the hospital was not moti
vated by incapacitating chest pain.
Indeed, while Capwell complained of chest pain when he
spoke to the trooper at the scene of the collision and attributed
the collision, in part, to the fact that he had been distracted
by this pain, Capwell did not attribute the collision to chest
pain when he spoke an hour later with his treating physician at
Valley Hospital. Capwell explained the collision to the
physician by asserting that he had leaned over to flick his
cigarette into the car's ashtray and that, while his eyes were
off the road, he heard a thump. Capwell never asserted to the
doctor that he had been distracted by any pain he was suffering;
his only explanation for the collision was his attention to the
cigarette and the ashtray.
An additional factor in our harmless error analysis is
that the improper testimony did not play a major part in the
trial. Mention of Capwell's license suspension was confined to a
short opening portion of Capwell's interview with the state
trooper who arrived at the scene of the collision. While the
prosecuting attorney mentioned the license suspension in his
closing argument to the jury, this was done only once and in
passing.
Finally, Judge Cutler gave the jury a lengthy
instruction that explained the reason for Capwell's license
suspension; Judge Cutler took pains to tell the jury that
Capwell's suspension did not stem from a violation of any
criminal statute or traffic regulation, but rather from his
failure to pay a civil judgement stemming from an accident. She
also emphasized that this judgement had been issued by default --
that no judge or jury had ever found Capwell to have been at
fault in the prior accident. Judge Cutler explicitly told the
jury that they were "to judge [Capwell's] negligence without
regard to whether or not he did have a license at the time [of
the collision]", and that the evidence of the license suspension
was to be used only to the extent that Capwell's knowledge that
his license was suspended might be relevant to some other
determination the jury would have to make.
Given the strength of the government's evidence against
Capwell, the small part that the license suspension evidence
played at Capwell's trial, and the detailed limiting instruction
fashioned by the trial court, we conclude that the error in
admitting evidence of Capwell's license suspension was harmless.
Sevier v. State, 614 P.2d 791, 794 (Alaska 1981); Stevens v.
State, 748 P.2d 771, 775-76 (Alaska App. 1988).
We turn now to Capwell's sentencing arguments. Judge
Cutler found that the State had proved three aggravating factors:
AS 12.55.155(c)(7) (commission of a prior felony of a more
serious class than the present one), (c)(4) (use of a dangerous
instrument during the offense), and (c)(10) (most serious type of
conduct encompassed by the statutory definition). Capwell
contests each of these aggravating factors.
In 1977, when Alaska's prior criminal code was still in
force, Capwell was convicted of assault with intent to commit
rape, former AS 11.15.160. This felony offense carried a penalty
of from one to fifteen years' imprisonment. Judge Cutler
concluded that this prior offense was of a more serious class
than Capwell's present offense and that aggravating factor (c)(7)
therefore applied to Capwell's case.
Capwell disputes this ruling. He points out that,
until the legislature enacted the current criminal code, felony
offenses were not given classifications. Therefore, he argues,
it is impossible to declare that a felony offense under the old
criminal code is of a more serious "class" than a felony offense
defined by the current code. Capwell also argues that it is
impossible to find an exact analogy to the former offense of
"assault with intent to commit rape" in the current criminal
code.
Capwell is correct that there is no exact analogy to
"assault with intent to commit rape" in the present criminal
code. However, when applying aggravator (c)(7) to felonies
committed under prior law, this court has looked to the offense
defined by current law that is the nearest equivalent to the
defendant's prior felony. See Hayes v. State, 785 P.2d 33, 37-38
(Alaska App. 1990); Gibson v. State, 719 P.2d 687, 691 (Alaska
App. 1986).
The nearest equivalent to Capwell's prior offense under
current law is "attempted sexual assault in the first degree" or,
because Capwell's offense involved a twelve-year-old child,
"attempted sexual abuse of a minor in the first degree". Both of
these offenses are class A felonies. AS 11.41.410, AS 11.41.434,
and AS 11.31.100(d)(2). The maximum penalty for class A felonies
is twenty years' imprisonment. AS 12.55.125(c). This maximum
penalty more closely approximates the fifteen-year maximum term
for "assault with intent to commit rape" than does the five-year
maximum term for class C felonies like negligent homicide.
Moreover, under current Title 11, offenses involving the
deliberate use of violence against another person are at least
class B felonies.
For these reasons, we conclude that Judge Cutler
properly treated Capwell's prior conviction for assault with
intent to commit rape as a felony of a more serious class than
his present negligent homicide conviction.
Capwell also argues that Judge Cutler should not have
found aggravator (c)(7) because there is no apparent connection
between Capwell's sexual attack on a minor in 1977 and his negli
gent homicide in this case. The answer to this contention is
that none is needed. While a complete lack of relationship
between a defendant's prior, more serious felony and his current
felony might be a reason for the sentencing judge not to rely
heavily on this aggravating factor, the factor is still proved.
Capwell's next argument is that Judge Cutler committed
error when she ruled that the State had proved aggravating factor
(c)(4), the use of a dangerous instrument. Capwell points out
that AS 12.55.155(e) precludes a sentencing court from enhancing
a sentence based on an aggravating factor listed in AS
12.55.155(c) if that factor "is a necessary element of the
present offense". He argues that this rule precluded Judge
Cutler from finding aggravator (c)(4). Capwell notes that the
definition of "dangerous instrument" contained in AS 11.81.900
(b)(11) and made applicable to presumptive sentencing by AS 12.
55.185(2) is quite expansive:
"dangerous instrument" means any deadly
weapon or anything that, under the circum
stances in which it is used ... is capable of
causing death or serious physical injury[.]
Based on this definition, Capwell argues that it is all but
impossible to commit a homicide without using a dangerous instru
ment, and thus the use of a dangerous instrument is a necessary
element of his crime, negligent homicide.
Capwell's argument has already been considered and
rejected in Krasovich v. State, 731 P.2d 598 (Alaska App. 1987).
In Krasovich, this court pointed out that there are (concededly
rare) instances in which a defendant could be held criminally
liable for a homicide even though the defendant had not used a
dangerous instrument. Id. at 600. Thus, use of a dangerous
instrument is not a necessary element of negligent homicide.
However, the Krasovich opinion also pointed out that
proof of an aggravating factor does not automatically lead to
enhancement of a presumptive term. The importance of an aggravat
ing factor must be evaluated in light of the specific crime
involved in the defendant's case; when the presence of a
particular aggravating factor is characteristic of the crime for
which the defendant has been convicted, then mere proof of that
aggravating factor will not, of itself, justify an enhancement of
the presumptive term. Id. at 600-01. With regard to the
specific issue Capwell raises, this court stated:
[U]se of dangerous instruments is charac
teristic of [negligent homicide] and the
automobile is ... characteristically used in
committing the offense[;] it would be unreal
istic to conclude that the use of an automo
bile is, in and of itself, a sufficient basis
for increasing the presumptive term.
Our inquiry must therefore shift to the
particular circumstances of the case before
us; we must determine whether there was any
thing uncharacteristically serious about the
manner or circumstances in which [the defen
dant] used his automobile.
Krasovich, 731 P.2d at 602. Thus, while Judge Cutler properly
concluded that aggravating factor (c)(4) had been proved, proof
of this factor would not ordinarily justify an increase in
Capwell's presumptive term.
Nevertheless, Judge Cutler's sentencing remarks point
to various circumstances showing Capwell's use of an automobile
to be atypically serious. Capwell had been convicted of five
moving violations; these included speeding, speeding in a school
zone, failure to stop (two separate convictions), and failure to
yield. Capwell's license had been suspended because he had
failed to pay for property damage he had caused in a previous
collision. Capwell knew he was not supposed to be driving at
all. He had been convicted once before of driving with a
suspended license. This conviction represented the second time
that Capwell had driven a car after his license had been
suspended; in the previous incident, the potential charge of
driving with a suspended license had been reduced to the lesser
offense of driving without a license.
To justify his act of driving in the present case,
Capwell contended that he had had a need for emergency medical
attention. Judge Cutler found that this proffered justification
was false.
Judge Cutler also found that Capwell's conduct was so
negligent that his offense approached the seriousness of the next
higher degree of criminal homicide, manslaughter. Capwell struck
a plainly visible woman walking along the side of the road. He
neither hit his brakes nor took evasive action to avoid the
collision. No explanation for the collision can be found in the
lighting or the weather or the condition of the road or the
condition of Capwell's vehicle. Judge Cutler concluded that
Capwell "just totally failed to perceive what was in [his] line
of travel".
These factors provide support for Judge Cutler's
decision to enhance Capwell's sentence based on aggravating
factor (c)(4). They also underlie and support Judge Cutler's
ruling that Capwell's crime was among the most serious
encompassed by the definition of the offense, aggravating factor
(c)(10).
We turn now to Capwell's argument that Judge Cutler
committed error when she sentenced Capwell to five years'
imprisonment, the maximum term for negligent driving.
The first problem to be discussed is whether Capwell
received a "maximum sentence". Judge Cutler believed that,
because she was not exercising her discretion under AS 12.55.115
to restrict Capwell's eligibility for parole, she was not sentenc
ing Capwell to the maximum term. The State's brief neither
endorses Judge Cutler's view of this issue nor formally concedes
error. If the State's failure to support Judge Cutler's ruling
indicates disagreement with it, this court would still be
required to independently assess the correctness of the trial
court's ruling. Marks v. State, 496 P.2d 66, 67-68 (Alaska
1972).
The Alaska Supreme Court has held that a sentencing
court does not impose a "maximum sentence" if the judge sentences
a defendant to the maximum term of imprisonment but then suspends
a portion of that term. Wertz v. State, 611 P.2d 8, 10 (Alaska
1980). However, Supreme Court cases have never drawn a
distinction between imposing the maximum term of years (none
suspended) and imposing the maximum term of years while
additionally restricting or denying parole eligibility. Instead,
the court has treated maximum terms of imprisonment without
parole restriction as "maximum sentences". See, for example,
Ferguson v. State, 606 P.2d 382 (Alaska 1980); Tommy v. State,
551 P.2d 179 (Alaska 1976); and State v. Wortham, 537 P.2d 1117
(Alaska 1975). But see Hansen v. State, 582 P.2d 1041 (Alaska
1978), where two members of the Supreme Court stated that parole
eligibility should not make a difference when deciding whether a
sentence is excessive, Id. at 1047 n.12, and two other members of
the court disagreed, Id. at 1048.
We conclude that the purposes of sentence review are
better served by the interpretation that a defendant receives a
"maximum sentence" if he or she is sentenced to the maximum term
of imprisonment, whether or not the sentencing judge restricts or
denies parole eligibility. Thus, Capwell's sentence of five
years' imprisonment with none suspended constitutes a "maximum
sentence".
In order to justify imposition of a maximum sentence,
the sentencing judge must find, either explicitly or implicitly,
that the defendant is a "worst offender". Jacinth v. State, 593
P.2d 263, 267 (Alaska 1979); Tommy v. State, 551 P.2d at 180 n.2;
Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971). This
determination can be based on the defendant's criminal record,
upon the circumstances of the present crime, or both. Moore v.
State, 597 P.2d 975, 976 n.4 (Alaska 1979).
The pre-sentence report shows that Capwell was
convicted of assault with intent to commit rape in 1977.
Capwell, who was thirty years old at the time, approached his
twelve-year-old stepdaughter with a knife in his hand; he put the
blade to her throat and ordered her to take off her clothes. The
girl escaped by jumping through a second-story window when
Capwell momentarily relaxed his guard. In her subsequent
interview with the police, the girl related how Capwell had raped
her at knife point when she was ten years old.
Capwell was sentenced to serve five years in jail for
this sexual assault. He was released on probation in May 1980.
In March 1982, Capwell was convicted of misdemeanor theft and was
given a suspended sentence. Between May 1983 and November 1987,
Capwell was convicted of the seven motor vehicle offenses
mentioned above.
Psychological evaluations done of Capwell in 1976
(while Capwell was awaiting trial and later awaiting sentencing
for sexually assaulting his stepdaughter) indicated that Capwell
had little insight into his behavior. Capwell could provide no
explanation for his attack on his stepdaughter. The examiner
concluded that Capwell's prognosis was "not the best", noting
that Capwell had had psychiatric problems for many years.
Two years later, in 1978, Capwell was evaluated again
at the request of prison officials. Capwell expressed
displeasure with the Parole Board for refusing to parole him
until he had received psychiatric treatment. Although Capwell
had pleaded guilty to the sexual assault of his stepdaughter and
had provided the pre-sentence investigator with a written
statement in which he again confessed this crime, by 1978 Capwell
had changed his mind about the offense. He now told the
psychiatrist that he was not guilty and that he had pleaded
guilty "because of questioning by the police [and because] he did
not want his wife to go through the hassle of a lengthy hearing."
He asserted that the witnesses who had testified at the grand
jury were lying.
The psychologist who administered the Minnesota
Multiphasic Personality Inventory to Capwell in September 1978
concluded:
[Capwell] appears to be a person who
tries to deal with his problems by pretending
that they do not exist. In times of
emotional stress, he may express his
difficulties in functional complaints such as
headaches and stomach disorders.
He appears to be a rigid person who is
prone to fears, compulsive behavior and obses
sions. Despite worry and tension, he is
likely to be resistant about obtaining help
for his problems.
The test results ... are strongly sugges
tive of a major emotional disorder. The test
pattern resembles those of psychiatric out-
patients who later require in-patient care.
In May 1979, Capwell was evaluated again because he had
applied for parole. Capwell continued to protest that he was not
guilty of the sexual assault for which he had been sent to
prison.
During the sentencing hearing in the present case,
Judge Cutler confided that, as she began to prepare for Capwell's
sentencing, she believed she would impose no more than three
years to serve even if the State proved all of its aggravators.
However, as she read the pre-sentence report and became
acquainted with Capwell's past offenses and the psychological
evaluations of Capwell, Judge Cutler concluded that Capwell's
"cold and callous behavior" at the scene of the collision was
characteristic "of the way he functions. ... He just didn't
really [understand] how serious the situation was, and in a sense
maybe [he] still doesn't. That sort of person is very dangerous
because ... they have no self-controls when it comes to doing
those things that hurt other people, and they haven't really
learned anything significant about controlling their behavior ...
."
Judge Cutler pointed out that Capwell was a mature
adult who had already served a lengthy term of imprisonment and
who had been "offered about everything the system has for
rehabilitation". The judge added, "One person has been viciously
raped, somebody else has been killed, and what we seem to know
about Mr. Capwell from what's in the [pre-sentence] report is
that there really isn't much hope for improvement." Judge Cutler
continued,
[W]hen you read Mr. Capwell's pre-sen
tence report in its entirety, including the
old pre-sentence report [from the assault
with intent to rape conviction], the attach
ments to it, the numerous psychiatric and
psychological evaluations and opinions ... ,
his background from a small child until
today, the things he's done with his life
... , and you couple that with the
circumstances of this offense and [his
conduct following] this offense ... [,] it's
really incumbent on the court to protect the
public from Mr. Capwell.
Judge Cutler found that the chances for Capwell's
rehabilitation were "minimal" and that "isolation [of the
offender] is probably the most important goal here[,] in order to
protect other people."
Judge Cutler announced that she was "not prepared to
say that Mr. Capwell is the worst type of offender[.] But he is
certainly very close to the worst offender, and this is very
close to a worst offense[.]" For that reason, Judge Cutler
imposed a sentence that she viewed as "just slightly under the
maximum" --five years' imprisonment to serve, with normal
eligibility for parole.
Judge Cutler's view of the seriousness of Capwell's
offense, her view of the danger he poses to the public, and her
conclusion that there is little chance for his rehabilitation are
all supported by the record. A significant sentence of imprison
ment, exceeding even the three-year presumptive term for a third
offender, would not be clearly mistaken.
However, as discussed above, we conclude that Judge
Cutler's sentencing decision is premised on a misapprehension of
the definition of "maximum sentence". She in fact gave Capwell a
maximum sentence when she sentenced him to serve five years with
none suspended. For this reason, we reverse the superior court's
sentence and remand for imposition of a sentence consistent with
this opinion.
Capwell's conviction for negligent homicide is
AFFIRMED. His sentence is REVERSED. This case is REMANDED for
resentencing.
