NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RANDY S. BEAUVOIS, )
) Court of Appeals No. A-4030
Appellant, ) Trial Court No. 4FA-90-1596
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1244 - August 21, 1992]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell,
Judge, and from the Three-Judge Sentencing
Panel of the Superior Court, Jay Hodges,
Karen L. Hunt, and Mark C. Rowland, Judges.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for Appel
lant. Kenneth M. Rosenstein, Assistant Attor
ney 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.
Randy S. Beauvois appeals his conviction and sentence
for first-degree robbery, AS 11.41.500(a)(1). We affirm.
On May 22, 1990, M.G., a juvenile, was thrown out of
her home in Anchorage. She stole her mother's 1981 Corvette and
drove to Wasilla, where she picked up a friend, Glenn Barthelemy,
Jr.. Barthelemy and M.G. then drove to Big Lake. There, they
picked up Randy Beauvois, another friend of theirs, who was
hitchhiking.
The three decided to drive to Fairbanks. Upon their
arrival, Beauvois tried to convince Barthelemy to help him rob a
cab driver; Barthelemy talked him out of it. On May 27, the
three friends decided to return to Anchorage, but, on their way
out of town, they stopped at the Chena River Wayside campground.
In the middle of the night (approximately 2:50 a.m. on
May 28), Beauvois left the campground and walked the short
distance to a 7-Eleven convenience store. Beauvois gathered
various items and took them to the counter where Valorie Key, the
clerk, totaled Beauvois's purchase. Beauvois then said that he
needed one more item; when Key asked what it was, Beauvois told
her, "I'll take the money in the drawer." Key thought Beauvois
was joking, but Beauvois said that he was "as serious as a heart
attack". He then pulled out a fileting knife to corroborate his
words.
Beauvois took the money and the sack of groceries, then
ran out of the store, heading north toward the campground, where
his friends were waiting for him. When Beauvois arrived, he
jumped in the Corvette and said, "Quick, drive away." M.G.
started to drive out of the campground.
In the meantime, Key had called the Fairbanks police
and given them a description of Beauvois. Key also told the
police that Beauvois was heading north on foot. Officer Daniel
Hoffman, already in the vicinity, received the report of the
robbery and decided to search the area north of the store, toward
the Chena Wayside campground.
Within one minute, Hoffman was driving down University
Avenue, the only road into the campground. He saw no pedestrians
or vehicles moving along University Avenue. Hoffman then
surmised that the robber might have escaped on foot but was
fleeing to a vehicle waiting in the campground. Hoffman decided
to head toward the campground entrance and stop any moving
vehicle, under the assumption that, while most people would be
sleeping at 3:00 a.m., anyone who was awake might have seen
something.
As Hoffman neared the campground, he noticed a Corvette
leaving. He decided to stop the car to briefly check whether any
of the occupants fit Key's description of the robber. Hoffman
blocked the Corvette's exit, and he called in the car's license
plate number to his dispatcher. While Hoffman was doing this,
Glenn Barthelemy jumped out of the passenger side of the vehicle.
Hoffman, seeing that Barthelemy potentially matched the robber's
description, got out of his patrol car, conducted a pat-down
search of Barthelemy, and placed him in the patrol car. Upon
closer inspection, Barthelemy failed to match the description on
certain key points. Because of his doubt, Hoffman asked his
dispatcher to have the store clerk come to the scene to look at
Barthelemy.
At this time, the dispatcher informed Hoffman that the
Corvette had been reported stolen. Hoffman ordered the driver,
M.G., to get out of the car and identify herself. Hoffman then
learned from his dispatcher that M.G. had been reported as a
missing person.
Hoffman walked back to the Corvette and saw the knees
of a person wearing blue sweat pants protruding from beneath a
blanket in the back seat. Hoffman removed the blanket and
discovered Beauvois, who matched the description of the robber.
Beauvois was holding some crumpled money which he had stolen from
the 7-Eleven. When the store clerk arrived, she identified
Beauvois as the robber.
Beauvois was indicted for first-degree robbery. He
moved to suppress all evidence stemming from the stop of the
Corvette, arguing that this stop had been an illegal seizure
under the Fourth Amendment to the United States Constitution and
Article I, Section 14 of the Alaska Constitution.
Superior Court Judge Richard D. Savell denied
Beauvois's motion. Judge Savell found that, given the recent
occurrence of a serious felony, and given the information the
store clerk had furnished about the robber's escape on foot and
the direction the robber was headed, Hoffman's stop of the
Corvette and its occupants to ask questions was both justified
and minimally intrusive. When Barthelemy jumped out of the car
and appeared to match the description of the robber, Hoffman was
justified in further investigation. Thereafter, Judge Savell
found, unfolding events justified Hoffman's continuing
investigative efforts.
Following the superior court's ruling, Beauvois entered
a plea of no contest, reserving the right to challenge this
ruling on appeal. See Cooksey v. State, 524 P.2d 1251 (Alaska
1974).
The validity of an investigative stop is a mixed
question of fact and law. On appeal, this court must accept the
trial court's findings of fact unless they are shown to be
clearly erroneous. Whether or not the investigative stop was
justified under those facts is a question of law subject to de
novo review. State v. Garcia, 752 P.2d 478, 480 (Alaska App.
1988).
Beauvois does not dispute the trial court's finding
that, once Barthelemy jumped from the car, Officer Hoffman's
actions were justified. Instead, Beauvois argues that Hoffman's
initial stop of the car was illegal because there was nothing to
link either the car or its visible occupants to the recently
committed robbery. Beauvois relies upon Ozhuwan v. State, 786
P.2d 918 (Alaska App. 1990), where this court invalidated an
investigative stop of a car found in a campground at night.
We believe that Ozhuwan is distinguishable from Beau
vois's case. In Ozhuwan, the police officer stopped the car
because its lights were off and because the campground was known
as a place where minors came at night to drink liquor. The
officer suspected that the occupants of the car were illegally
drinking or perhaps needed assistance. Id. at 920. This court
held that the investigative stop was illegal because the officer
was aware of no circumstances, other than the campground's
reputation, to justify his suspicion that the occupants of the
car were juveniles or were drinking alcoholic beverages.
Further, the officer had no information (apart from his knowledge
that the car was parked at night by the river with its lights
off) to justify his suspicion that the occupants needed
assistance. Id. at 922.
In Beauvois's case, on the other hand, Officer Hoffman
had uncontroverted evidence that a serious felony had just
occurred in the vicinity of the campground and that the robber
had fled on foot toward the campground. The time was three
o'clock in the morning, when most people are asleep. The streets
leading to the campground were deserted. Hoffman saw only one
vehicle moving: the Corvette leaving the campground. It was
reasonable to suspect that the occupants of the Corvette had been
awake in the campground when the robber came through, and that
they might have seen something. Under these circumstances, and
especially given the recency and the seriousness of the crime,
prompt investigative efforts were justified. Even though Hoffman
had no other information to link the Corvette or its occupants to
the robbery, he could validly stop the car and ask its occupants
if they knew anything or had seen anything that might aid
Hoffman's investigation of the crime that had just been
committed.
In Metzker v. State, 797 P.2d 1219 (Alaska App. 1990),
this court specifically recognized the authority of the police to
conduct investigative stops of potential witnesses to a recent
criminal occurrence, even when there is no reason to believe that
the person stopped participated in the crime.
Under appropriate circumstances, a police
officer may approach and stop a person for
the purpose of investigating a crime even
though the officer has no reason to believe
that the person stopped has committed the
crime which is being investigated. 3 W.
LaFave, Search and Seizure, 9.2(b), at 353-
57 (1987). ... [C]ourts generally seem to be
in agreement that the fourth amendment does
not allow the police to stop potential
witnesses to the same extent as suspects of a
crime. It appears the police are justified
in stopping witnesses only where exigent
circumstances are present, such as where a
crime has recently been reported. See, e.g.,
Baxter v. State, 274 Ark. 539, 626 S.W.2d
935, 937 (1982) (police entitled to stop car
in vicinity of recently committed armed
robbery to ask driver if he had seen anybody
nearby) ... .
Metzker, 797 P.2d at 1221.
Under the facts of this case, Hoffman was justified in
stopping the occupants of the Corvette.1 We therefore affirm
Beauvois's conviction for first-degree robbery.
Beauvois also challenges his sentence. As a first
felony offender, Beauvois was subject to a presumptive term of 7
years' imprisonment for committing first-degree robbery armed
with a deadly weapon. AS 11.41.500(b); AS 12.55.125(c)(2). At
Beauvois's sentencing hearing, Judge Savell agreed with Beauvois
that his conduct was among the least serious within the
definition of first-degree robbery, a mitigating factor under AS
12.55.125(d)(9). Beauvois asked Judge Savell to find the non-
statutory mitigating factor of uncommonly good potential for
rehabilitation, Smith v. State, 711 P.2d 561, 569-572 (Alaska
App. 1985), but Judge Savell ruled that Beauvois had failed to
prove this mitigating factor by clear and convincing evidence.
(Beauvois does not challenge this ruling on appeal.)
Because Judge Savell found mitigating factor (d)(9), he
was authorized to reduce Beauvois's sentence to 3« years to
serve. AS 12.55.155(a)(2). Judge Savell decided, however, that
even this sentence would be manifestly unjust. He therefore
referred Beauvois's case to the three-judge panel under AS 12.55.
165. The three-judge panel ruled, however, that it would not be
manifestly unjust to sentence Beauvois to an adjusted presumptive
term of 3« years' imprisonment. The panel therefore returned the
case to Judge Savell under AS 12.55.175(b). When the case was
returned to him, Judge Savell sentenced Beauvois to 6 years'
imprisonment with 2« years suspended (3« years to serve).
On appeal, Beauvois does not challenge Judge Savell's
decision to impose suspended jail time, but he challenges the
ruling of the three-judge panel. Beauvois asserts that 3« years
to serve is manifestly unjust. He argues that the robbery was an
impulsive, out-of-character act, committed while he was depressed
and in desperate financial straits. Beauvois points out that he
has no prior criminal convictions and that the store clerk
suffered no physical injury.
The legislature has enacted a 7-year presumptive term
for first felony offenders who use a dangerous instrument in the
commission of first-degree robbery. This presumptive term - the
legislature's judgement as to the appropriate sentence for a
typical first offender committing a typical armed robbery -
represents the starting point for analyzing Beauvois's sentence.
Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App. 1982).
In its decision, the three-judge panel agreed with
Beauvois that the robbery appeared to have been an impulsive act.
However, the panel noted that Beauvois did not have exceptionally
good prospects for rehabilitation. The panel also found that the
robbery, while resulting in no physical injury to the clerk, had
had lasting psychological effects on her. The panel concluded:
We have in mind that the legislature has
provided a 7-year presumptive term for this
... class of offense, apparently believing
that it is amongst the most serious class of
offense that can be committed. [We also take
into consideration] that the ... existence
of a [statutory] mitigating factor in this
matter allows the trial court to reduce this
legislatively mandated benchmark by one-half.
We therefore remand this case to the trial
court for sentencing.
Beauvois points to State v. Price, 740 P.2d 476 (Alaska
App. 1987), as an instance in which this court upheld the three-
judge sentencing panel's decision that a youthful first offender
should receive less than 50 percent of the presumptive term. 740
P.2d at 482-83. However, Price's sentencing was referred to the
three-judge panel because Price had exceptionally good prospects
for rehabilitation. Id. at 480. In Beauvois's case, Judge
Savell declined to find this non-statutory mitigator, and
Beauvois has not appealed that ruling. The three-judge panel in
Beauvois's case expressly noted Beauvois's lack of exceptionally
good potential for rehabilitation as a reason supporting their
decision to send the case back to Judge Savell.
Moreover, it is the province of the sentencing court
(here, the three-judge panel) to evaluate the importance of the
various sentencing criteria under the particular facts of each
case. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973);
State v. Chaney, 477 P.2d 441 (Alaska 1970). Even though the
three-judge panel in Price chose to emphasize the defendant's
potential for rehabilitation and sentence him to less than the
minimum term otherwise required by the statutes, their action in
that case does not mean that the panel must evaluate every other
case the same way.
Based on our review of the record, the three-judge
panel was not clearly mistaken when they concluded that 3« years
to serve was not a manifestly unjust sentence for Beauvois.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Lloyd v.
State, 672 P.2d 152, 156 (Alaska App. 1983). We therefore uphold
the three-judge panel's decision to return Beauvois's case to
Judge Savell for sentencing.
The judgement of the superior court is AFFIRMED.
_______________________________
1 We recognize that, at the evidentiary hearing, Hoffman
stated that his intent in stopping the Corvette was to see if
anyone inside the car matched the description of the robber,
rather than to conduct the type of witness inquiry authorized in
Metzker. However, Hoffman's subjective intent when he stopped
the car is irrelevant. The test is whether, under the facts
known to the police officer, the stop of the car was objectively
justified. See W. LaFave, Search and Seizure (2nd ed. 1987),
3.2(b), Vol. 1, pp. 566-69 (objective test for probable cause),
and 9.3(a), Vol. 3, pp. 425:
[The] police must have a particularized and objective
basis [for making an investigative stop]. This test,
as is the case with the legal standard for arrest, is
purely objective and thus there is no requirement that
an actual suspicion by the officer be shown.
(emphasis in the original)
