NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
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attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
VICTOR M. STERN, )
) Court of Appeals No. A-3405
Appellant, ) Trial Court No. 3AN-88-8348 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1202 - February 14,
1992]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Mark C. Rowland,
Judge.
Appearances: Margi Mock, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Victor M. Stern was convicted of murder in the first
degree, AS 11.41.100(a)(1), following a jury trial in the
superior court at Fairbanks. He was sentenced to 99 years'
imprisonment with no possibility of parole. Stern appeals his
conviction, asserting first that the grand jury indictment
returned against him was vitiated by improper evidence, and
second that the trial judge abused his discretion when he
authorized Stern's shackling during the trial. Stern also
appeals his sentence, challenging the judge's decision to deny
Stern the possibility of parole release. We affirm.
In the early morning of December 26, 1988, Victor Stern
was drinking with friends at the house of Leon English. At some
time during the previous evening or earlier that morning, Stern
had borrowed English's car to pick up a friend from the hospital.
When Stern returned to English's house, he had a gun in a
holster; the gun appeared to be an automatic.
Around 6:00 a.m. that morning, English was driving
Stern and some other friends home in his yellow Cadillac. Stern
asked English to stop at the Carrs grocery store at the
intersection of Northern Lights and Muldoon. Stern and another
man named LeNeal Waters left the car and entered the store.
After a time, Waters decided they had been in the store long
enough. In an attempt to get Stern out of the store, and
thinking that Stern might not have enough money, Waters picked up
some cartons of cigarettes and offered to pay for them. Stern
did not respond to this offer; instead, he left the store.
Waters put the cigarettes down and followed Stern.
As Waters returned to the car, Bryan Roten, the produce
manager at Carrs, approached Stern: another Carrs' clerk had
seen Waters and had thought he was attempting to shoplift the
cigarettes. Stern allowed Roten to write down the license plate
number of English's Cadillac for future reference. The encounter
was low-key, without any insults or physical confrontation.
English then drove Stern and Jackie Robinson, Stern's
sister, to their mother's house. But after Jackie and Stern's
other sister had changed for bed, they noticed that Stern was
missing. Stern had left the house and returned to Carrs.
Between 7:45 and 8:00 a.m., Gene Courtney, an employee
at the Muldoon Carrs, was working in the parking lot when he saw
a man walk through the lot and enter the store. The man wore
dark clothes and a hat or ski mask.
Sterling Bouma, another Carrs' employee, was in the
produce aisle when he saw Bryan Roten on his knees with a man
standing over him; Roten's arms were outstretched. Bouma heard a
shot and then saw the man run away. Blood started coming from
Roten's head; Bouma saw a gun in the fleeing assailant's hands.
Lesley Scott, who was standing at the courtesy booth in Carrs,
also heard the shot and saw the man. Scott described the
assailant as being 5'8" tall, with an average build, and dressed
in black pants, a dark brown coat and a black knit cap.
Bouma, with Scott's help, called 911. Meanwhile, two
Carrs employees chased the assailant as he left the store; they
lost track of him near Glencaren Trailer Park. One of the employ
ees, Kurt Solberg, described the assailant as a dark-complexioned
man in his early twenties, about 150 pounds, hair just a couple
of inches high and wearing dark-colored clothing. Solberg
returned to Carrs and showed police officers two different sets
of footprints near the trailer park where they had lost the
assailant.
Two Anchorage police officers, Officer Shore and
Officer Butcher (a "K-9" or dog-handler officer), went to the
trailer park and began tracking the assailant with the assistance
of a dog. Because of the weather conditions, the dog had
difficulty tracking the scent. Officer Shore returned to where
the Carrs employees had lost the assailant. He identified a set
of tracks indicative of a running person, consistent with the
description given by the Carrs employees. Officer Shore then
located Officer Butcher and they began tracking the footprints by
sight.
The officers had lost the trail in the vicinity of
trailer park space 373, when a woman living in space 375, Debbie
Miller, stepped out of her trailer onto her porch. Miller was
agitated; a little earlier that morning, she had been awakened by
someone beating on her door. It was Stern.
Stern had come in and sat on Miller's couch. He
appeared out of breath. When Stern dropped his coat to the
floor, it made a "thump" as if it contained something heavy. As
they spoke, Stern started gagging; he went to Miller's kitchen
sink and threw up. Stern then sat back down, stripped off his
clothing except for his pants and shoes (both of which were
black), and told Miller to go wake her boyfriend, Robert
Waychoff.
Miller woke Waychoff; Waychoff took Stern to the
bedroom, where they talked. Stern told Waychoff that he had been
the "eye" (that is, the lookout) for a "hit man". Waychoff lent
Stern his cap and a rust-colored coat. He then drove Stern home.
Miller consented to have the officers search her
trailer. Inside Miller's residence the police discovered a black
baseball cap, black knit gloves, a ski mask, a dark blue
sweatshirt, and a black tank top, all wrapped in a white sheet.
Miller then showed the police where Stern lived.
In the meantime, Stern had arrived at his residence.
Shortly before he returned, some of his family members had seen a
television news report about the shooting. They mentioned the
shooting to Stern, and one or more of them told Stern that the
victim was still alive. Stern met this news with the question,
"[H]e's still alive? You mean he didn't die[?]" Stern then
changed his clothing again.
The Anchorage police obtained a search warrant for
Stern's house. When the police arrived to execute this warrant,
they asked everyone to come out. Before the family members left
the house, Stern's sister, Jacqueline Robinson, saw Stern wrap up
a dark, black object -- which she assumed to be a gun -- and hide
it above the closet ceiling of the northeast bedroom, in a hole
leading to the attic.
During their search of the house, the police found a
pair of black leather shoes whose soles had patterns similar to
the pattern found in the footprints outside of trailer space 375.
The police also found a maroon jacket, a black and white hat, and
a pair of black pants.
When the police searched the attic, they found a semi-
automatic Glock pistol containing four live rounds, wrapped up in
a multi-colored cloth. Forensic firearms specialist Robert Shem
examined the Glock pistol and its live rounds; he determined that
the bullet recovered from Bryan Roten's body had been fired from
this pistol.
After Stern was indicted for murder in the first
degree, he moved to dismiss this charge, asserting that improper
evidence had been admitted at grand jury. Superior Court Judge
Mark C. Rowland agreed with Stern that certain evidence had been
improperly admitted at grand jury, including testimony about a
"gun fight" on the night before the shooting, as well as other
evidence suggesting Stern's character for violence and the fact
that he had recently been released from prison. However, Judge
Rowland denied Stern's motion to dismiss the indictment,
concluding that this improper evidence had not appreciably
affected the grand jury's decision to indict Stern.
Stern's first argument on appeal is that Judge Rowland
used the wrong test to determine whether admission of this
evidence called for dismissal of the indictment. As Stern
correctly notes, when a defendant proves that the grand jury
heard improper evidence, the superior court must engage in a two-
part analysis. The superior court first subtracts the improper
evidence from the total case heard by the grand jury and
determines whether the remaining evidence would be legally
sufficient to support the indictment. If the remaining evidence
is legally sufficient, the court then assesses the degree to
which the improper evidence might have unfairly prejudiced the
grand jury's consideration of the case. The question the court
must ask itself is whether, even though the remaining admissible
evidence is legally sufficient to support an indictment, the
probative force of that admissible evidence was so weak and the
unfair prejudice engendered by the improper evidence was so
strong that it appears likely that the improper evidence was the
decisive factor in the grand jury's decision to indict. Oxereok
v. State, 611 P.2d 913, 916 (Alaska 1980); Panther v. State, 780
P.2d 386, 393-94 (Alaska App. 1989); Newman v. State, 655 P.2d
1302, 1306 (Alaska App. 1982).
Despite Stern's assertions on appeal, the record demon
strates that Judge Rowland understood that his task was to deter
mine not only whether the remaining evidence would support an
indictment but also whether the improper evidence "appreciably
affected" the grand jury's verdict -- whether there was a reason
able probability that the grand jury's decision would have been
different if it had not heard the improper evidence. Love v.
State, 457 P.2d 622, 631 n.15 (Alaska 1969). The following
exchange occurred during the argument on Stern's motion:
THE COURT: It appears to me that the
"subtraction" test logically is the test to
be used in determining [the] sufficiency [of
the evidence]. But where prejudicial
evidence is presented, it appears to me
[that] it's not logical to determine the
question of prejudice based on a
"subtraction" test. Obviously, if that's
[the only test], you [the prosecutor] can put
in anything you want, right? Who cares? You
can put in any prejudicial [evidence] you
want ... if you apply a straight subtraction
test. Wouldn't that be the result?
THE PROSECUTOR: Well, I think it would
be rather clear from reading grand jury tran
scripts whether or not a prosecutor would do
anything [wrong] intentionally. ...
THE COURT: Oh? Does it make sense to
you, the subtraction test? It doesn't seem to
me to be ...
THE PROSECUTOR: Until the court sees
bad faith or something improper on the part
of a prosecutor.
THE COURT: Well, if [our goal] were
punishing prosecutors ... , but there's anoth
er aspect, which is whether or not the defen
dant got a fair grand jury proceeding ... my
point being that it doesn't seem to me
logical to apply [merely] a subtraction test
to determine whether or not prejudice was
such that the grand jury should consider the
case again.
The judge and the prosecuting attorney then agreed that the
correct test was the "appreciably affected" test.
Stern recognizes that this is the correct test, but he
asserts that Judge Rowland was simply "paying lip service" to
this test when he denied Stern's motion to dismiss the
indictment. Stern points out that, during the ensuing discussion
between the court and defense counsel about the meaning of
"appreciably affected", Judge Rowland said that he construed that
phrase as requiring the court to ask the question, "if the grand
jury hadn't heard the [improper] evidence, would they have
returned a true bill?"
Stern interprets the judge's statement as a surrepti
tious or confused application of the subtraction test. But, even
viewed in isolation, Judge Rowland's comment was merely
ambiguous. When Judge Rowland's statement is interpreted in the
context of the entire discussion, it is clear that Judge Rowland
understood the additional analysis required after the improper
evidence had been subtracted from the evidentiary total.
Stern also contends that, even if Judge Rowland applied
the correct test, he reached the wrong conclusion. Stern argues
that the grand jurors must have been affected after hearing
evidence of his violent past actions and evidence that he had
served time in prison. Stern concedes that the case against him
was strong, but he argues that the strength of the case was
undercut because the evidence of Stern's guilt was only "circum
stantial".
However, Alaska law does not distinguish between a case
built on direct evidence and one built on circumstantial
evidence. Des Jardins v. State, 551 P.2d 181, 184-85 (Alaska
1976). Judge Rowland reviewed the grand jury record, applied the
correct legal test, and found that the improper evidence had not
appreciably affected the grand jury's decision to indict Stern.
His decision must be affirmed unless it constituted an abuse of
discretion. Stevens v. State, 748 P.2d 771, 774 (Alaska App.
1988). Stern has not shown that Judge Rowland abused his
discretion when he denied Stern's motion to dismiss the
indictment.
Stern's second argument on appeal challenges the trial
court's decision authorizing the State Troopers to put Stern in
leg shackles during the trial.
Two weeks before the trial commenced, the prosecutor
presented the court with a request from the Judicial Services
branch of the State Troopers that Stern be shackled as a security
measure. Arguing that Stern was a particularly dangerous and
unpredictable individual, the prosecutor presented Stern's prior
criminal record as well as the facts of the present case. The
prosecutor also asserted that Stern had a hatred of white people
in general, a hatred manifested by letters found at the jail in
which Stern spoke of the religious duty of eliminating the white
race. The prosecutor reported that there had been trouble at the
jail when white guards came near Stern or attempted to touch him.
The prosecutor also presented the court with a copy of a letter
Stern had sent to the Anchorage Police Department; in this
letter, Stern expressed happiness that a police officer had
recently been killed, and he declared that there would be more
officers killed, "all in the name of God and ... settling
accounts".
In addition to the prosecutor's argument, a Judicial
Services officer told the court that Stern had three prior
assault convictions, two misdemeanors and one felony. (The
officer was mistaken: Stern's three prior assault convictions
comprised two felonies and one misdemeanor.)
Stern's attorney conceded that Stern felt a certain
religious animosity toward white people, but she asked the court
to "take judicial notice that both Mr. Howard [Stern's other
defense attorney] and I are white, and we've had no problems with
[him]." Stern's attorney also pointed out that there had been no
allegation that Stern had ever tried to escape. She pointed out
that many defendants charged with serious or even heinous crimes
had been brought to trial without shackles or other restraints,
and she argued that courts should order shackling of a defendant
only when he or she posed an escape risk.
Judge Rowland took the matter under advisement, asking
the prosecutor to submit copies of all the letters and jail
records to which he had referred.
Ten days later on October 2, 1989, when the parties
appeared in court just before trial, they found that skirting had
been affixed to the prosecution and defense tables. The defen
dant's table was skirted so that the jury could not see Stern's
legs; the prosecutor's table was skirted as well, so that the
jury's attention would not be drawn to the skirting around the
defense table.
Stern's attorney objected, pointing out that the court
had never ruled on the prosecution's motion to shackle Stern:
DEFENSE ATTORNEY: Mr. Stern is not
shackled right now. He's not presently shack
led. And I don't see any reason to have the
skirting if he's not shackled.
THE COURT: Well, the only reason to --
I [would] agree with you, if that were going
to be the case. But that's not going to be
the case. I've reviewed the materials which
were submitted by [the prosecutor]. I've
listened to the representations made here in
open court by the security people. The
reason Mr. Stern is not shackled this morning
is because we have available to us four
security people in this courtroom this
morning. There are two on the right and two
on the left. That's not possible every day.
... [When this is not possible], Mr. Stern
will be shackled based upon his conduct.
The defense attorney objected to this ruling. He
conceded that Stern's letters contained violent rhetoric, but he
argued that Stern's actual conduct had been unexceptional. The
following colloquy ensued:
THE COURT: Well, ... since our last
hearing, ... it's also come to my attention
that Mr. Stern has made representations to
the [Judicial Services] officers about how
many people it was going to take1, and one
thing or another. We can go into that at
this time, if you want.
DEFENSE ATTORNEY: No, that's fine, Your
Honor. Well, in light of that, then, my next
objection is to [the] placement of these
[security] officers. We have four officers,
and I object to that, for the record. Second
ly, I object to the location of these two
officers who are in plain clothes ... . The
two [who are against] the wall to the far
right, behind the jury box -- for the record
-- are in their uniform. But we're not fool
ing anybody by -- these people are basically
breathing down our backs, and if you're going
to have -- I object to them in the first
place, [but] if you're going to have them,
I'd ask that they be sitting somewhere in the
rows [farther] back.
It appears that Stern did not wear shackles during the
next two days of court proceedings. But as the court prepared to
recess on October 5, Stern's attorney again complained about the
skirting at the parties' tables and asked if the presence of the
skirting indicated that the court had decided to shackle Stern.
Judge Rowland replied that, although several Judicial Services
officers were present in the courtroom that day, the number of
available officers was about to decrease because of other court
proceedings. Since only two officers were guaranteed available
to guard the courtroom during the coming days of trial, Judge
Rowland ordered leg restraints.
A criminal defendant has a right to appear in front of
his or her jury without the badges of custody. This rule is
intended to insure that the jury is not prompted to relax the
presumption of innocence on account of the defendant's status as
a prisoner. Anthony v. State, 521 P.2d 486, 496 (Alaska 1974);
Newcomb v. State, 800 P.2d 935, 942 (Alaska App. 1990); Contreras
v. State, 767 P.2d 1169, 1172 (Alaska App. 1989).
However, this right is not absolute. A judge may order
the defendant physically restrained if the judge is convinced
that this action is reasonably necessary either to forestall the
defendant's escape, to protect the safety of participants and
spectators, or to insure the orderly process of the court.
Contreras, 767 P.2d at 1172; W. LaFave & J. Israel, Criminal
Procedure (1984), 23.2, Vol. 3, pp. 10-11; ABA Standards for
Criminal Justice (2nd ed. 1980), Standard 15-3.1(c) and
accompanying commentary. A trial judge's decision to order the
defendant physically restrained is not to be overturned unless
the decision is shown to be an abuse of discretion. Contreras,
767 P.2d at 1172.
On appeal, Stern argues that Judge Rowland abused his
discretion by abdicating his decision-making role and simply
acquiescing in the Judicial Services request for mere "administra
tive convenience". The record does not support this claim.
Judge Rowland heard argument on this issue and, following that
argument, he ordered the prosecution to supply written materials
to back up its assertions that Stern was violent and
unpredictable. Even when, on the basis of those materials, Judge
Rowland was persuaded that extra security measures were required,
he preferred the option of having additional Judicial Services
officers in the courtroom; he turned to the alternative of
shackles only when those extra officers became unavailable.
Stern additionally argues that, even if Judge Rowland
did make an independent decision, he made the wrong one. Stern
asserts that the record fails to show any substantial reason for
restraining him. He contends that, apart from his prior assault
convictions, there was no basis for Judge Rowland's decision to
require shackles other than "raw and unfounded speculation that
security personnel and courtroom spectators might be at risk if
Mr. Stern attempted to escape."
But Stern's argument ignores the materials submitted by
the prosecution. These materials document Stern's statements
(both oral and written) in which he advocated and anticipated the
killing of police officers, both in the name of religion and to
redress wrongs committed against black people, and in which he
assured Judicial Services officers that it would take more than
two of them to restrain him.
When Judge Rowland announced on October 5 that he had
been persuaded by these materials that either extra guards or
physical restraints were necessary, he offered Stern's attorneys
the chance to address the details of the State's proof. Stern's
attorney declined, responding, "No, that's fine, Your Honor."
In fact, Stern's attorney's remarks (quoted in more
detail above) might be taken as indicating a preference for
shackling rather than having several security officers present in
the courtroom. After Judge Rowland announced his decision that
extra security was needed, Stern's attorney declared, "Well, in
light of that, then, my next objection is to [the] placement of
these [security] officers. We have four officers, and I object
to that, for the record. ... [W]e're not fooling anybody by --
these people are basically breathing down our backs ... I object
to them[.]"
On this record, Stern has not demonstrated that Judge
Rowland abused his discretion when he ordered that Stern be
shackled when extra Judicial Services officers could not attend
the proceedings.
Stern also argues that, even assuming Judge Rowland's
decision was justified, the skirting attached to the counsel
tables was inadequate to keep knowledge of Stern's shackles from
the jury. He argues that the curtains initially attached to the
counsel tables kept coming unattached, requiring counsel to
continually prop them up, and that when brown paper skirting was
brought in as a replacement for the curtains, the paper rattled.
He also argues that, rather than screening Stern's shackles, the
skirting actually accentuated the security measures.
The record affirms Stern's claim that the curtains
originally attached to the tables tended to come unattached and
for this reason were replaced with brown paper. But when defense
counsel complained that the paper was rattling, Judge Rowland
agreed that the curtains would be reattached if some way could be
found to do it. The record contains no further reference to this
matter, so it may be presumed that defense counsel's request was
honored.
Moreover, whatever problems there may have been early
on with the skirting, those problems were rectified before Stern
actually began to wear shackles. The following discussion
occurred at trial about the skirting and the problems encountered
with it:
MR. STOCKLER: Your Honor, on the appel
late record on that, when we were first argu
ing the curtain [issue], the Court talked
about had they been falling down [sic], and I
... said mine's been falling down. I was
referring to the day of jury selection, when
[Stern] was not in leg irons. And I don't
want the Court of Appeals to think that the
jury saw the things falling down. Remember
when we switched from ...
THE COURT: Oh no, no, no, no.
MR. STOCKLER: ... I was referring to
the back of the table.
THE COURT: (to the defense attorneys)
You'll agree that the jury didn't see them
falling down, I'm sure.
MR. HOWARD: I don't ...
MS. EASTER: Well, they may have seen
them falling down, but we'll agree that, [on]
that particular day, Mr. Stern wasn't in leg
irons.
MR. STOCKLER: He wasn't in leg irons.
That was when the jury was seated behind me.
Mine kept falling down from behind.
THE COURT: It seems to me [that], at
that point in time, the only time [the jury]
would have seen Mr. Stern was in this court
room when he wasn't in leg irons, and it was
only after the jury was selected and we actu
ally began the trial, and there have been no
incidents since that time of them falling
down, have there?
MR. STOCKLER: No, none, for the record.
(No response from defense counsel.)
Finally, regarding Stern's claim that the skirting
called the jury's attention to his shackles rather than screening
them, there is no support in the record for this assertion.
Stern's attorney never suggested that the presence of the
skirting itself drew attention to the shackles. Rather, he
argued to Judge Rowland that the rattling of the brown paper
would draw the jury's attention. Judge Rowland disagreed with
this assessment, specifically finding that the brown paper
skirting did not draw the jury's attention to the security
measures. In any case, as indicated above, the brown paper
skirting was apparently a temporary measure; Judge Rowland
acquiesced in the defense request to have the curtains
reinstalled. Stern does not claim that this reinstallation did
not occur, nor does the record contain any further defense
objection concerning this issue.
At the conclusion of the trial, the jury convicted
Stern of first-degree murder. Judge Rowland sentenced Stern to
99 years' imprisonment without possibility of parole. On appeal,
Stern does not challenge the 99-year term of imprisonment. He
does, however, claim that Judge Rowland was clearly mistaken when
he decided to exercise his authority under AS 12.55.115 to
eliminate Stern's parole eligibility.
When a sentencing judge restricts parole eligibility,
the judge must specifically address the issue of parole
restriction, setting forth with particularity his or her reasons
for concluding that the parole eligibility prescribed by AS
33.16.090 and AS 33.16.100(c)-(d) is insufficient to protect the
public and insure the defendant's reformation. Newell v. State,
771 P.2d 873, 876 (Alaska App. 1989), quoting Spencer v. State,
642 P.2d 1371, 1377 (Alaska App. 1982). When the defendant's
sentence is lengthy, as in Stern's case, Alaska law presumes that
questions of discretionary release are better left to the Parole
Board, since the Board evaluates the advisability of parole
release in light of the defendant's tested response to Department
of Corrections rehabilitative measures. Lawrence v. State, 764
P.2d 318, 321 (Alaska App. 1988). However, because the Alaska
legislature has affirmatively given sentencing judges the power
to restrict or deny parole eligibility, this presumption (that
parole release of long-term prisoners should normally be
evaluated after the defendant has established an institutional
history) must remain rebuttable. Bloomstrand v. State, 656 P.2d
584, 591 (Alaska App. 1982). We conclude that Stern's case is
one of the few instances in which, even though the defendant
received a 99-year sentence, denial of parole eligibility was not
clearly mistaken.
Stern was twenty-six years old at the time of
sentencing. His criminal history had begun eight years before.
In 1982, Stern was convicted of disturbing the peace. In May
1983, he was convicted of disorderly conduct (fighting). In
October of that same year, Stern was convicted of harassment for
attacking a waiter at a restaurant. Two months later, in
December, Stern committed fourth-degree assault, attacking his
wife and breaking her nose. In 1984, Stern was again convicted
of harassment, this time in connection with a trespass at Lathrop
High School in Fairbanks.
In 1986, Stern committed three felonies. Using
handguns that he knew had been stolen in a recent burglary, Stern
walked up to two strangers and, with a gun in each hand, cocked
the hammers and pointed the weapons at them. Stern had no
explanation for his assaults on these two people, other than to
say, "I was just having some fun." For this conduct, Stern was
convicted of two counts of third-degree assault and one count of
second-degree theft (by receiving).
In the 1986 pre-sentence report, Stern conceded that he
had a serious problem with alcohol, and he declared that he was
"definitely going to quit" drinking. The pre-sentence
investigator told the court:
[Stern] is a young man who, in the last few
years, has demonstrated an apparent disregard
for the safety of other people. When drink
ing, the defendant has assaulted his wife,
his friends, and, as illustrated in the
present offense, total strangers. [I
believe] the defendant is a serious threat to
the community.
For the two assault convictions, Stern received concur
rent sentences of 2« years in jail with 21 months suspended (9
months to serve). For the theft of the handguns, he received 4
years with 3 years suspended. Stern was released on probation in
August 1987.
Over the next nine months, Stern worked sporadically at
different jobs. On the night of March 29, 1988, Stern drank
himself into extreme intoxication and then began talking about
"putting sticks of dynamite in people's mouths and watching their
heads blow off". The next day, he voluntarily committed himself
to the Alaska Psychiatric Institute in Anchorage, claiming he was
afraid he was going to hurt someone.
Stern was initially diagnosed as having a paranoid
personality disorder. However, following two weeks in the
hospital during which Stern refused most treatment efforts and
finally asked for his discharge, the API staff diagnosed Stern as
having a personality disorder with sociopathic and borderline
features. API's prognosis for future treatment was poor. The
evaluating psychiatrist concluded that Stern "cannot benefit from
hospitalization and frankly had little intention of interacting
in any therapeutic way with anyone."
When Stern left API, the Department of Corrections
petitioned the superior court to revoke his probation. Stern was
held in jail for ten days and then was released on condition that
he report to the Salvation Army rehabilitation program. Stern
did so on May 3, 1988. Throughout May, June, and July 1988,
Stern apparently made good progress in the Salvation Army
program; he also started attending Alcoholics Anonymous meetings.
In July, Stern was accepted into the Southcentral
Counseling Center's substance abuse treatment program. He
entered the program on August 1. However, by August 8, Stern had
been terminated because he failed to appear four different times.
Stern then entered the Allvest drug rehabilitation program;
however, he was terminated from Allvest on September 19 because
he failed to appear on four different urine test dates.
At the same time, Stern was failing to make his appoint
ments with his probation officer. The Department of Corrections
petitioned to revoke his probation. On September 13, Stern
showed up for a status hearing on this petition, but then he
failed to make his next scheduled appearance on September 27 and
a warrant was issued for his arrest.
Stern remained in jail until mid-December. In late
November, his probation officer met with him at Cook Inlet
Pretrial Center. Stern asked to be re-assigned to Southcentral
Counseling. The probation officer also contacted the Salvation
Army, who said they would be willing to take Stern back.
Stern was released from jail on December 16, 1988.
Five days following his release Stern committed felony assault
and first-degree sexual assault on three people renting a house
from him at 6344 East 32nd Avenue in Anchorage.
These tenants owed Stern back rent. Shortly before
2:00 a.m. on December 22, Stern and two female accomplices
burglarized the house. Stern approached the first tenant, kicked
him in the ribs, then pointed a pistol at his head and threatened
to kill him. Stern then handed the pistol to one of his
accomplices, telling her to hold the gun to the tenant's head and
shoot him if he moved. Having incapacitated this first tenant,
Stern cuffed a woman tenant who had wakened and come out to see
what was happening. Then Stern sought out the third tenant, also
a woman, and threatened her. When she protested that she could
not pay the rent, Stern told her that he would come back and kill
her. Stern then forced this woman to perform oral sex on him.
Stern and his female companions then left the house.
As they were leaving, one of the women told the tenants that, if
the rent was not paid soon, they would come back and assault them
again. Stern corrected her, "No, we're going to come back and
kill them."
Two days later, in the early morning of December 24,
1988, Stern entered the Carrs store at Muldoon and Northern
Lights. The music in the store was turned up too loud for Stern;
using profane language and threats of physical violence, he
demanded that the volume be lowered. When one store employee
left to turn down the music, Stern picked a fight with another
employee, addressing the employee with racist epithets.
A few minutes later, someone turned the music up again
and Stern began yelling and screaming. Stern was escorted from
the store. When he left, he declared, "Fuck you guys. I'll be
back." About an hour and a half later, Stern returned to the
store with a handgun and yelled, "White war! I'm back." He
pointed the gun at the first store employee he saw, demanding to
know "where in hell [were] the guys that jumped [me] earlier".
The employee told Stern that he had just arrived at work and did
not know what Stern was talking about. Stern told him to get out
of the way.
That employee went to the back of the store, warning
customers and other employees. He also called the police, who
arrived within a few minutes. By that time, Stern had left the
store and could not be found.
Forty-eight hours later, Stern murdered Bryan Roten
with a handgun he had stolen. Thus, in addition to first-degree
murder, Stern committed two other felonies: second-degree theft,
AS 11.46.130(a)(2), and first-degree misconduct involving
weapons, AS 11.61.200(a)(1) (felon in possession of a concealable
firearm).
Stern had a blood alcohol level of approximately .19
percent at the time of the murder. He acknowledged to the pre-
sentence investigator, as he also had acknowledged in 1986, that
he had a severe alcohol problem. The pre-sentence investigator
concluded:
[I]t is very clear that [Stern's] behavior
demonstrates a very angry, confused, and
damaged individual. Witnesses and members of
his family ... described a man totally out of
control, and threatening to almost everyone.
Mr. Stern's behavior during [the] short time
[between his release from jail and the shoot
ing of Bryan Roten] resulted in violence
being inflicted upon several members of our
community[.]
Judge Rowland concluded that Stern's crime was among
the worst first-degree murders. He found the crime to have been
premeditated and cold-blooded: Stern had gone home following his
first confrontation with Roten, had armed himself, and then had
returned to Carrs to shoot Roten. Judge Rowland also found the
murder to have been cruel, since Stern shot his victim after
watching him plead for his life.
As Judge Rowland found, Stern committed murder to exact
vengeance for an imagined slight. The killing was at least
partially motivated by Stern's racist hatred of white people.
Judge Rowland noted that Stern's criminal record demonstrated an
escalating pattern of violence, starting with his misdemeanor
convictions for disorderly conduct, harassment, and assault;
moving to Stern's three prior felonies (two assaults and a theft
of firearms); and culminating in the series of violent felonies
Stern committed during those four days in December 1988: murder,
multi-ple assaults with firearms, and sexual assault.
Judge Rowland found Stern to be a racist, a man full of
anger, a man with a severe alcohol problem, and a man with a
proclivity for assaulting people with firearms. The record
supports these conclusions.
Judge Rowland found that Stern, throughout his adult
life, has received treatment and other aid in support of his
rehabilitation from a variety of programs, and that all of these
attempts at rehabilitation have been unsuccessful. The record
supports this conclusion. Judge Rowland also noted that Stern
had just been released on felony probation when he murdered Bryan
Roten.
Judge Rowland then summarized why he concluded that
Stern should not be eligible for parole during his term of
imprisonment:
[First,] the defendant has committed the
worst class of offense within the framework
of our community values and notions of
criminal justice, and [he] is therefore
deserving of the severest sentence possible
to properly reflect community condemnation
and reaffirmation of community values, which
[goal] cannot be achieved unless parole is
restricted.
Second, I believe the defendant is incor
rigible and not amenable to presently avail
able rehabilitative techniques. [He is]
therefore extremely likely to re-offend ...
[and] the parole eligibility requirements set
forth by statute are insufficient to protect
the public, ... insure reformation, and
assure that the ... sentencing goals of
reaffirmation of social norms, community
condemnation, and deterrence are properly
served.
As this court noted in Bloomstrand, 656 P.2d at 591, a
finding that the defendant cannot be rehabilitated within the
prescribed parole eligibility period will justify parole restric
tion. In Stern's case, not only had he committed one of the most
heinous crimes, but this murder was the culmination of an escalat
ing series of violent acts. Stern's assaultive tendencies are
exacerbated by his racist hatred and by his seemingly uncontrol
lable addiction to alcohol.
Stern had already served, and was apparently unaffected
by, a substantial prison sentence for two senseless assaults that
he committed in 1986. Moreover, Stern has shown repeatedly that
he is not amenable to probationary supervision: he has committed
new crimes while on probation, has failed to abide by the
probation conditions established by the Department of Correc
tions, and has failed to comply with the requirements of various
rehabilitation programs.
In Weitz v. State, 794 P.2d 952 (Alaska App. 1990),
this court upheld a denial of parole eligibility during a
defendant's 169-year term of imprisonment. Like Stern, Weitz was
a clearly dangerous offender with little potential for
rehabilitation. Weitz's offense, like Stern's, was premeditated
murder, a crime justifying a finding of "worst offender". (A
defendant can be classified as a "worst offender" based on the
facts of his offense alone, or upon the defendant's criminal
history, or both. Hintz v. State, 627 P.2d 207, 210 (Alaska
1981).)
Weitz was 28 years old when sentenced, about the same
age as Stern. He had a lengthy criminal record that included
four previous felonies, all property crimes. He had a history of
drug and alcohol abuse. The sentencing record showed that Weitz
had made minimal efforts to address these problems even though he
had spent substantial time in prison and on probation.
Upon these facts, this court concluded that the
superior court had not been clearly mistaken when it denied
parole eligibility to Weitz during what amounted to a life
sentence. Weitz, 794 P.2d at 957-58.
Similarly, Stern's record supports that Judge Rowland's
conclusion that Stern was a clearly dangerous offender whose
capacity for parole supervision had been sufficiently tested (and
found wanting), and that Stern should not be paroled in the
future. See Newell v. State, 771 P.2d 873, 878-79 (Alaska App.
1989) (Singleton, J., dissenting).
Stern argues on appeal that Judge Rowland, when he
restricted parole eligibility, mistakenly relied on the idea that
Alaska Criminal Rule 35(b) was a procedural mechanism under which
Stern might come back to court and obtain a modification of this
parole restriction if he could show rehabilitative progress.
Stern points to a statement Judge Rowland made immediately after
he explained why he was denying parole eligibility:
I recognize that restricting parole does
not limit the defendant's access to the
courts for Rule 35 modification of parole
eligibility restrictions in the future, but
[the parole restriction] insures that the
court will have an opportunity ... if such
application is made, to insure that all of
the appropriate goals of the sentence are
carried out before the defendant is released
into the community again.
Stern argues that this statement shows that Judge
Rowland made his sentencing decision on the mistaken assumption
that he could review the sentence at a later time under Rule
35(b) and reduce the sentence if Stern could show good cause for
doing so. Stern points out that rehabilitation of the offender
is not a ground for sentence modification under Rule 35(b).
Bartholomew v. State, 779 P.2d 1253 (Alaska 1989); Fowler v.
State, 766 P.2d 588 (Alaska App. 1988).
However, when Judge Rowland's statement is read in the
context of his entire sentencing remarks, we do not believe it
indicates that Judge Rowland was trying to maintain continuing
supervision over Stern's sentence. Just before he made the
statement at issue, Judge Rowland declared that he believed Stern
to be "incorrigible" and "not amenable to presently available
rehabilitative techniques". It would seem incongruous for Judge
Rowland to find that Stern had no rehabilitative potential and
then make specific provision for Stern to return to court to
demonstrate his rehabilitative progress.
We believe, rather, that Judge Rowland's statement
indicates that his intention in denying parole eligibility was to
insure that, in the event Stern ever attempted to gain his
liberty by asserting rehabilitative progress, his arguments would
have to be made to the superior court, not to the Parole Board.
Judge Rowland did not manifest an intent to rely on Rule 35(b) as
a mechanism for tempering Stern's sentence at a future time.
Rather, operating under an erroneous assumption about the scope
of relief available under Rule 35(b), Judge Rowland declared
that, even if denying parole eligibility would not stop Stern
from trying to secure his release by arguing rehabilitative
progress, at least the parole restriction would insure that the
governmental body evaluating Stern's claim would be the court
which had heard all the evidence at trial and which had fully
reviewed Stern's background.
For these reasons, the judgement of the superior court
is AFFIRMED.
_______________________________
1 When Stern was returned to jail from his court appearance
on September 29, 1989, he told the Judicial Services officers,
"You guys think you're really tough, [but] it'll take more than
the two of you."
