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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT R. ROSS, )
) Court of Appeals No. A-2476
Appellant, ) Trial Court No. 3AN-S87-
3012CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. )
________________________________) [No. 1230 - June 26, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Linda K. Wilson, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Shelley
K. Chaffin, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Robert J. Ross was convicted by a jury of one count of
kidnapping and five counts of first-degree sexual assault. He
later entered a plea of no contest to a separate charge of second-
degree sexual assault. Superior Court Judge Peter A. Michalski
sentenced Ross to consecutive sentences totalling eighty-four
years' imprisonment. Ross appeals his kidnapping and first-
degree sexual assault convictions, contending that the trial
court erred in denying a continuance to allow Ross to find a
missing defense witness. Ross also challenges his composite
sentence as excessive.
We affirm Ross' convictions but remand for further findings on
his sentence.
Ross' convictions stem from two incidents that occurred
approximately a week apart. On January 30, 1987, Ross met V.B.
in a downtown Anchorage bar; at Ross' invitation, V.B. and
several friends accompanied Ross to his nearby house for some
beer. There, after V.B.'s friends left, Ross physically and
sexually assaulted V.B.
On February 6, 1987, Ross approached S.A. in a downtown
Anchorage bar, grabbed her arm, and commanded her to do as she
was told. He forced S.A. to walk to his house. There, Ross held
S.A. hostage for approximately eight hours, repeatedly subjecting
her to physical and sexual assaults. In the early morning hours
of February 7, S.A. managed to escape Ross' house and ran to the
house of an acquaintance, William Jones. She woke Jones up, told
him she had been raped, and asked for help. Jones went back to
sleep, telling S.A. he would help her later. Afraid to go
outside alone, S.A. remained at Jones' house. Later that
afternoon, Jones awoke and took S.A. to the home of her fianc‚;
S.A. immediately told her fianc‚ that Ross had raped her. Her
fianc‚ took her to the hospital, where she was examined and
reported the crime.
S.A.'s examination revealed that one of her front teeth
had been broken out and that S.A. had suffered other physical
injuries consistent with her claim of rape. The examining
physician found semen in the area between S.A.'s vagina and
rectum. Serology tests later established that the semen was
consistent with Ross' semen. S.A. provided the police with an
accurate description of Ross, showed them where he lived, and
later identified him from a photographic lineup. A search of
Ross' house yielded S.A.'s missing tooth.
For his January 30 assault on V.B., Ross was initially
charged with three counts of first-degree sexual abuse. For his
February 6-7 abduction and assaults on S.A., Ross was charged
with kidnapping and five counts of first-degree sexual assault
(three counts alleging acts of vaginal penetration and two of
anal penetration).
The charges involving S.A. came on for trial before
those involving V.B.1 Ross' basic theory of defense was alibi.
On October 27, 1987, as part of its case, the prosecution called
William Jones as a witness. Jones confirmed that S.A. had
awakened him early one morning. He testified that S.A. appeared
to have two missing front teeth, a black eye, and bruises on her
arms and legs. She was extremely upset and scared. S.A. asked
for help, saying she had been raped. Jones stated that, after
going back to sleep for awhile, he took S.A. to her fianc‚'s
house.
After subjecting Jones to a perfunctory cross-
examination, Ross' trial counsel indicated that he had no further
questions at that time but wanted Jones held under subpoena for
possible testimony during the defense case. The trial court told
Jones that he was still under subpoena and that he should remain
available to testify.
On November 4, 1987, six days after Jones testified as
a prosecution witness, the state rested its case-in-chief. Ross'
counsel then requested an overnight continuance, indicating that
the delay was necessary because he had been unable to locate
Jones, whom he now wanted to call as a defense witness. The
trial court granted the continuance and adjourned court until the
next day.
On the morning of November 5, Ross' counsel notified
the court that Jones was still missing. An Alaska State Trooper
who was in the courtroom described the efforts that the troopers
had made to locate Jones since the court recessed the previous
day. Those efforts included checking Jones' last known residence
and all of the downtown Anchorage locations that he frequented,
as well as contacting various Anchorage police officers who were
acquainted with Jones and other individuals who knew him. All
efforts had been unavailing. The troopers also followed up on a
lead that Jones might have gone to Bethel; they transmitted a
facsimile of Jones' subpoena to the Bethel Police Department and
spoke by telephone to the Bethel Chief of Police, requesting
assistance. The Bethel Police had been unable to locate Jones.
Ross' counsel then requested an additional continuance
until November 9. He revealed that he expected Jones to impeach
S.A.'s version of events. According to Ross' counsel, Jones
would testify that, when S.A. came to his house, she appeared to
have been drinking and did not say who had raped her. Ross'
counsel also expected Jones to testify that, at some point before
Jones took S.A. to her fianc‚'s house, Jones and she had sexual
intercourse together.
Although the prosecution expressed skepticism
concerning the materiality of Jones' proposed testimony, the
trial court granted Ross a further continuance until November 9.
On that day, however, Jones was still missing. Troopers and
police had been unable to locate him or develop any significant
leads as to his whereabouts, despite exhaustive efforts. Ross'
counsel acknow- ledged that the defense had no idea where Jones
might be or when he might be found.
Ross requested an additional continuance of several
days. Alternatively, Ross moved for a mistrial due to Jones'
unavailability. In support of these motions, counsel elaborated
on the offer of proof that he had originally made, indicating
that the offer was based on statements Jones had made to a
defense investigator. Ross' counsel asserted that the proposed
testimony would be relevant to discredit S.A.'s testimony that
she was not intoxicated when she came to Jones' house and that
she told Jones who had raped her. Ross' counsel also asserted
the relevance of Jones' claim that he had sexual intercourse with
S.A. at his house. According to counsel, this evidence might
explain the presence of semen on S.A.'s person; counsel also
asserted that S.A.'s claim of abduction and rape might seem less
plausible to the jury if S.A. were shown to have engaged in
consensual sex a short time after the alleged incident.
Judge Michalski denied Ross' motion for an additional
continuance and his alternative motion for a mistrial. In so
doing, the judge noted the exhaustive efforts that had been made
to locate Jones, the lack of any information concerning Jones'
current whereabouts, and the inability to predict when Jones
might be located. Judge Michalski found that further delay might
result in the need to declare a mistrial. Additionally, the
judge noted that Jones' proposed testimony was, at best,
impeachment evidence. Based on his observation of Jones'
demeanor as a prosecution witness, Judge Michalski commented that
his testimony was unlikely to carry much weight with the jury, in
any event. Judge Michalski concluded that, under the
circumstances, additional delay was unwarranted; the judge
further found a mistrial inappropriate, since the uncertainty
about Jones' whereabouts made it impossible to predict that Jones
would be available to testify for the defense, even in the event
of a retrial. On appeal, Ross contends that the trial court
erred in refusing to grant a further continuance or a mistrial.
The trial court is vested with broad discretion to
determine whether a mid-trial continuance should be granted in
order to allow a party to secure the testimony of an absent
witness. See, e.g., Williams v. State, 614 P.2d 1384, 1386
(Alaska 1980). In Salazar v. State, 559 P.2d 66 (Alaska 1976),
the Alaska Supreme Court articulated seven criteria to guide the
court in the exercise of that discretion:
(1) whether the testimony is material to the
case;
(2)whether the testimony can be elicited from
another source;
(3) whether the testimony is cumulative;
(4)probability of securing the
absent witness in a reasonable time;
(5)whether the requesting party was
diligent and acted in good faith;
(6) the inconvenience to the court and/or
others;
(7)the likelihood that the
testimony would have affected the jury's
verdict.
Id. at 72.
Under the Salazar criteria, the threshold question in
this case is the materiality of Jones' proposed testimony. Jones
would purportedly have testified that S.A. appeared to have been
drinking and did not identify her assailant. Although this
testimony would have tended to contradict S.A.'s trial testimony,
thereby impeaching her credibility, the subject matter of the
impeachment was essentially collateral to the principal issues
raised in the case: whether S.A. had been abducted and raped and
whether Ross was the person who had committed these offenses. As
extrinsic evidence offered to impeach a witness on a collateral
matter, the proffered testimony would have been of minimal
materiality.
Jones would also purportedly have testified that S.A.
had consensual sex with him after coming to his house. Assuming
that Alaska's rape shield statute2 would not have barred the
admission of this testimony for the purpose of establishing an
alternative source for the semen discovered on S.A. during her
medical examination,3 the materiality of this aspect of Jones'
testimony would have been greatly diminished by medical evidence
indicating that the semen found on S.A. was compatible with Ross'
semen. Ross failed to offer any comparable medical evidence
establishing Jones as a possible source of the semen. Moreover,
the state presented strong physical evidence (including S.A.'s
broken tooth) corroborating S.A.'s version of the incident, and
established that S.A. had identified Ross from a photographic
lineup. Under the circumstances, the trial court could properly
regard the materiality of Jones' proposed testimony as being
limited, at best.
The second and third Salazar criteria have no
significant bearing here, since both assume the materiality of
the unavailable evidence: the fact that Jones' proposed
testimony was not cumulative and was unavailable from alternative
sources is inconsequential in light of its low materiality.
In contrast, the fourth Salazar criterion is of
critical importance. Even if Jones' testimony had only slight
probative value, a brief delay might have been warranted had
there been some assurance of Jones' availability. Here, however,
Jones' where- abouts remained completely unknown despite
concerted efforts to locate him, and no significant leads had
been developed. Under the circumstances, the trial court, having
already granted two continuances for a total of five days' delay,
had no reason to expect that any further delay -- no matter how
long or short -- would have resolved the problem.4
All other things being equal, the fifth Salazar
criterion -- the diligence and good faith of the moving party --
would tend to favor Ross in this case, since Judge Michalski
expressly ordered Jones to remain available as a possible defense
witness, and since Jones apparently violated the court's order.
Even so, it is worth mentioning that Ross had the opportunity to
elicit the proffered evidence during his cross-examination of
Jones, but apparently elected not to do so for tactical reasons.
Salazar's sixth criterion focuses on inconvenience to the court
and others. In the present case, Judge Michalski expressed the
well-grounded fear that additional delay would create a
substantial risk of problems that might necessitate a mistrial.
When balanced against the speculative prospects for locating
Jones, this risk was certainly not insubstantial.
Finally Salazar requires consideration of the
likelihood that Jones' testimony would have affected Ross'
verdict. In large measure, the significance of this factor is
governed by our conclusion concerning the materiality of the
disputed testimony. The relatively low probative value of the
proffered evidence, coupled with the strength of the physical
evidence corroborating S.A.'s testimony, renders it highly
unlikely that Jones' absence affected the outcome of Ross' trial,
particularly in light of Judge Michalski's impression -- based on
his observation of Jones as a prosecution witness -- that the
jury was unlikely to give his testimony much credence.
In summary, our application of the Salazar criteria to
this case convinces us that Judge Michalski did not abuse his
discretion in denying Ross' third motion for a continuance.
Ross next challenges his sentence as excessive. At the
time of his current offenses, Ross was 35 years of age. Ross had
one prior felony: a 1982 conviction for first-degree sexual
assault that involved circumstances similar to the assaults Ross
committed against V.B. and S.A. For the earlier crime, Ross
received an eight-year term; he was on parole for that offense
when he committed the current offenses.
For the incident involving S.A., Ross was convicted of
kidnapping and five counts of first-degree sexual assault.
Kidnapping, an unclassified felony, is punishable by a maximum
term of 99 years and a minimum of five; the crime is not subject
to presumptive sentencing. AS 11.41.300(c); AS 12.55.125(b).
First-degree sexual assault, also an unclassified felony, is
punishable by a maximum of thirty years; as a second felony
offender, Ross was subject to presumptive terms of fifteen years
for each of his first-degree sexual assault convictions. AS
11.41.410(b); AS 12.55.125(i)(3).
For the incident involving V.B., Ross was convicted of
one count of second-degree sexual assault, a class B felony. He
was subject to a four-year presumptive term for that offense. AS
11.41.420(b); AS 12.55.125(d).
Before imposing sentence, Judge Michalski found one
aggravating factor applicable to all of the charges as to which
Ross was subject to presumptive sentencing: that Ross was on
parole when he committed the offenses. AS 12.55.155(c)(20). As
to two of the first-degree sexual assault convictions, Judge
Michalski found an additional aggravating factor: that Ross'
conduct involved deliberate cruelty. AS 12.55.155(c)(2). Addi-
tionally, although presumptive sentencing did not formally apply
to the charge, Judge Michalski found Ross' kidnapping to involve
conduct among the most serious included in the definition of the
offense. AS 12.55.155(c)(10).
In imposing sentence, Judge Michalski concluded that
Ross was an extremely dangerous offender who had little chance
for rehabilitation. The judge thus stressed the need to isolate
Ross for the protection of the community. Judge Michalski
sentenced Ross to fifty years for kidnapping. The judge imposed
fifteen years for each count of first-degree sexual assault,
making the two counts involving anal penetration concurrent to
each other and the three counts involving vaginal penetration
concurrent to each other, but ordering each group of concurrent
sentences to be consecutive to the other group, as well as to the
kidnapping. This yielded a total of eighty years' imprisonment
for the offenses involving S.A.
For the second-degree sexual assault conviction
involving V.B., Judge Michalski imposed an additional consecutive
term of four years. Relying on Ross' dangerousness and the need
to isolate him for the maximum possible time, Judge Michalski
ordered that Ross' eligibility for discretionary parole be
restricted on the kidnapping charge. Ross thus received a
composite term of eighty-four years without possibility of
parole.
On appeal, Ross does not challenge the aggravating
factors Judge Michalski found applicable to his case. He argues,
instead, that a composite term of 84 years is excessive for a
second felony offender convicted of kidnapping and sexual
assault.
In response, the state argues that Ross' sentence is justified in
light of his background and the seriousness of his current
crimes.
In our view, however, the sentencing court's findings are
inadequate to allow resolution of this issue on appeal.
This court recently had occasion to conduct an
extensive review of past sentencing decisions involving offenders
simultaneously convicted of rape -- or first-degree sexual
assault -- and kidnapping. See Williams v. State, 800 P.2d 955
(Alaska App. 1990), modified on reconsideration, 809 P.2d 931
(Alaska App. 1991). Our review indicated "a fair degree of
uniformity" in sentencing in such cases. Williams, 800 P.2d at
958. We noted that the cases fell into three benchmark
categories. The initial category consisted of first felony
offenders. For offenders in this category, we observed that
sentences exceeding twenty years of unsuspended time had rarely
been approved. Id. at 959. The second benchmark category
included kidnap/rape cases involving offenders who had one or
more prior felony convictions but whose criminal history was not
sufficiently extensive to place them in the dangerous offender
category. As to this category, we found that "precedents firmly
establish thirty years as the maximum composite sentence that
should ordinarily be imposed . . . ." Id. In the third benchmark
category, we found "a handful of decisions" approving composite
sentences of more than thirty years of unsuspended time; we
observed that "[w]ithout exception, those cases have involved
kidnappings of prolonged duration or offenders whose prior
criminal histories established them as persistent, violent
criminals." Id. at 960.
In a later opinion on reconsideration in Williams, we
emphasized that these three benchmarks do not represent immutable
sentencing limits: "Our benchmarks in Williams and other cases
are not intended to be inflexible rules confining the permissible
range of a sentence in a given case; rather, they are meant to
act as historically-based starting points for individualized
analysis . . . ." Williams v. State, 809 P.2d 931, 933 (Alaska
App. 1991). Indeed, shortly after our initial decision in
Williams, we found departure from the benchmarks justified,
approving a forty-year composite sentence for a second felony
offender in a particularly serious kidnap/rape case that involved
three separate incidents and three different victims. See Yearty
v. State, 805 P.2d 987, 996-97 (Alaska App. 1991).
Our opinion on reconsideration in Williams nevertheless
reaffirmed the fundamental need for consideration of historical
sentencing practices -- as reflected in benchmark sentences -- in
the sentencing process; we noted that this need springs from the
legislature's concern with promoting sentencing uniformity and
eliminating unjustified disparity -- a concern the legislature
expressed with "unmistakable clarity" in AS 12.55.005(1), which
requires the sentencing court to consider "the seriousness of the
defendant's present offense in relation to other offenses."
Williams, 809 P.2d at 934. We concluded:
At a minimum, . . . the principle of
reasonable sentencing uniformity requires a
sentencing judge who decides that an offender
deserves a sentence which is significantly
different from sentences previously given to
similarly situated offenders to expressly
find some legitimate basis for the difference
--some basis related to `legally relevant
sentencing criteria.' That basis should be
spelled out on the sentencing record, so that
the defendant and a reviewing court can
understand the reasons for the disparity.
Id. at 935 (citation omitted).
In the present case, Ross' composite sentence of eighty-
four years without eligibility for parole vastly exceeds the
second felony offender benchmark and, indeed, substantially
exceeds even the sentences imposed in some of the cases falling
within Williams' third benchmark category. Unlike other
offenders in Williams' third benchmark category, Ross' criminal
history -- consisting of a misdemeanor conviction for driving
while intoxicated and a single prior felony, albeit for a similar
crime -- is not so extensive as to qualify him as an habitual
offender, see, e.g., Contreras v. State, 767 P.2d 1169, 1175
(Alaska App. 1989), and does not appear to "establish an
ingrained, compulsive criminal pattern" of violent misconduct.
Schuenemann v. State, 781 P.2d 1005, 1009 (Alaska App. 1989).
And unlike other cases in the third benchmark category, Ross'
kidnapping did not entail an extraordinarily lengthy abduction.
See, e.g., Morrell v. State, 575 P.2d 1200, 1202-03 (Alaska
1978)(virtual enslavement of victim with repeated sexual assaults
over eight days).5
Despite the seemingly unprecedented length of the
composite term he imposed in this case, Judge Michalski failed to
discuss the seriousness of Ross' conduct in relation to other
similarly situated offenders. Although the judge gave general
consideration to the sentencing criteria specified in State v.
Chaney, 477 P.2d 441, 444 (Alaska 1970), he made no findings to
explain the apparent disparity between Ross' composite sentence
and sentences previously given to similarly situated offenders.
It seems to us that the aggravated nature of Ross'
conduct and the disturbing similarity of his prior sexual assault
make his case at least comparable to, and perhaps more serious
than, Yearty v. State. We are thus inclined to think that a
sentence exceeding Williams' second category benchmark of thirty
years would be justified here, as was the case in Yearty. On the
other hand, given Ross' limited criminal history, we are
skeptical that a sentence placing Ross in the third benchmark
category could be justified, particularly in light of the sketchy
psychiatric information contained in the sentencing record.6
At this juncture, however, it would be premature for us
to determine whether the sentence imposed below was excessive.
DeGross v. State, 768 P.2d 134, 138 (Alaska App. 1989). "A
reviewing court cannot determine the appropriateness of a
sentence where the sentencing court has failed to make adequate
findings . . . ." State v. Bumpus, 820 P.2d 298, 305 (Alaska
1991). Here, the sentencing court's failure to make express
findings concerning the seriousness of Ross' offenses in relation
to other similar cases and the court's consequent failure to
explain the apparent disparity of the sentence it elected to
impose preclude meaningful appellate review. We must therefore
remand this case for resentencing in light of Williams. On
remand, the sentencing court should make express findings in
conformity herewith.
The convictions are AFFIRMED. The sentences are
VACATED, and this case is REMANDED for resentencing.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. After being found guilty by a jury of the charges
relating to S.A., Ross entered a plea of no contest to a reduced
charge of second-degree sexual assault for the incident involving
V.B.; in exchange for the plea, the state dismissed the original
charges.
2. See AS 12.45.045.
3. Compare, e.g., People v. Martinez, 634 P.2d 26 (Colo.
1981), with State v. Williams, 773 P.2d 1368 (Utah 1989).
4. Indeed, the record contains nothing to suggest that
Jones' whereabouts were in fact discovered at any time prior to
Ross' sentencing, while jurisdiction of his case remained in the
superior court and that court retained the power to grant a new
trial. Similarly, there is nothing in the record to indicate
that Jones has been located during the pendency of Ross' appeal
or that he would be available to testify in the event of a
retrial.
5. Nor does Ross' conduct appear to have exposed his
victims to the type of imminent, life-threatening danger that
justified an exceptionally severe first-offense sentence of
thirty years in Wilson v. State, 670 P.2d 1149, 1154 (Alaska App.
1983). See also Williams v. State, 800 P.2d at 958.
6. The record contains a 1981 psychiatric evaluation
prepared in connection with Ross' prior sexual assault case. The
evaluation appears to have been based on an interview by a social
worker to determine Ross' personal history, coupled with a single
psychiatric interview. There is no indication that Ross was
subjected to any psychological testing. Under the heading
"diagnosis," the psychiatric evaluation lists alcohol abuse and
antisocial personality disorder. Although the report discusses
Ross' alcohol abuse problem extensively and makes specific
recommendations for treatment thereof, it is virtually silent
concerning the basis for diagnosing an antisocial personality
disorder, the nature of the disorder, or its significance in
terms of Ross' overall conduct. In his sentencing remarks, Judge
Michalski did not make any specific reference to the psychiatric
evaluation. On appeal, however, the state notes that Ross has
been diagnosed as having an antisocial personality disorder and,
apparently on this basis, argues that he has psychological
problems justifying skepticism concerning his prospects for
rehabilitation. In our view, however, it is questionable whether
any significance should properly be ascribed to the psychiatric
report's single, cryptic reference to a diagnosis of antisocial
personality disorder.
