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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WAYNE E. GEORGE, )
) Court of Appeals No. A-3886
Appellant, ) Trial Court No. 1KE-89-865 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1245 - August 28, 1992]
________________________________)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Thomas E. Schulz,
Judge.
Appearances: Gordon G. Goodman, Assistant
Public Advocate, and Brant G. McGee, Public
Advocate, Anchorage, for Appellant. Cynthia
L. Herren, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchor
age, and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Wayne E. George was convicted of first-degree murder,
AS 11.41.100(a)(1), first-degree robbery, AS 11.41.500(a)(3), and
second-degree theft, AS 11.46.130(a)(3), following a jury trial
in the Ketchikan superior court. For these crimes, George
received a composite sentence of 106 years' imprisonment. George
appeals both his convictions and his sentence. We affirm.
During the evening and early morning of June 29-30,
1989, George and three friends were out drinking in Ketchikan.
They wandered throughout the town and ended up behind Talbot's
Building Supply. There, a fisherman named Michael Tarbet joined
them. George and his friends shared some of their tequila with
Tarbet, and Tarbet shared some marijuana with George and the
others. Then George began to kick and punch Tarbet, not stopping
until Tarbet was semi-conscious. George took $11.00 from
Tarbet's wallet and left Tarbet lying on the dock.
A short time later, one of George's companions urged
him to go back to "do the job right and finish him off." George
returned to the dock where Tarbet lay, then he rolled Tarbet into
the water and watched him sink.
One month later, on July 21, the Alaska State Trooper
Tactical Diving Unit discovered Tarbet's body. That same day,
George was arrested in nearby Metlakatla for a liquor law viola
tion. Metlakatla Police Officer Larry Lower brought George to
the Metlakatla Police Department, where he read George his
Miranda rights and placed him in a cell.
George paced back and forth in his cell, repeatedly
saying that he needed to talk to someone. Officer Lower called
George's pastor at the Metlakatla church, Reverend Blewett,
asking him to come to the police department. After placing this
call, Lower left to return to his patrol duties.
George spoke with his pastor for ten to fifteen
minutes. After Reverend Blewett left, George asked the jailer,
Officer Littlefield, whether Littlefield had heard about the
recovery of a body in Ketchikan. Littlefield replied that he had
not heard about it. George then told Littlefield that he was the
one who had pushed that person over the dock, and that he wanted
to speak to Officer Lower. Littlefield summoned Lower back to
the police department.
Lower immediately contacted the Alaska State Troopers
to verify that a body had been found in Ketchikan. The troopers
confirmed that they had found a body; they gave Lower a
description of Tarbet and the place where he had been found.
Lower then returned to George, re-read him the Miranda rights,
and obtained George's written waiver of those rights. George
confessed to Lower that he had killed the person recently found
in Ketchikan; George described Tarbet and the details of how he
had met his death. Lower did not record this interview because
his tape recorder was broken.
Lower contacted the Ketchikan Police Department and
informed them of George's confession. Ketchikan Police Sergeant
Lee Meyer flew to Metlakatla the next day to interview George.
Sergeant Meyer again read George his Miranda rights, and George
again signed a written waiver of his rights. George then
repeated much of what he had told Littlefield and Lower.
However, George deviated from his prior statements in one crucial
respect: he told Meyer that he had not pushed Tarbet into the
water, but rather had hidden him on the dock behind some pallets.
Following his indictment by a Ketchikan grand jury,
George moved to suppress his statements to Littlefield, Lower,
and Meyer. George argued that his initial statement to
Littlefield should be suppressed because he had not been advised
of his Miranda rights. He argued that his follow-up statement to
Officer Lower should be suppressed because Lower had violated the
rule announced in Stephan v. State, 711 P.2d 1156 (Alaska 1985),
by failing to tape record his interview with George.
Superior Court Judge Thomas E. Schulz found that George
had been advised of his Miranda rights shortly after his arrest.
Moreover, Judge Schulz ruled that George's statements to Little
field were volunteered, not the product of custodial
interrogation; thus, even if George had received no Miranda
warning, his statements to Littlefield would still be admissible.
George has not appealed this ruling.
With regard to George's statement to Lower, Judge
Schulz ruled that the taping requirement announced in Stephan did
not apply to the Metlakatla police, since Metlakatla is an Indian
reservation outside the normal jurisdiction of the Alaska police.
Judge Schulz also ruled that, if the taping requirement applied
to the Metlakatla police, the taping requirement was excused
because the testimony at the suppression hearing showed that the
Metlakatla police's tape recorder was broken when Lower
interviewed George. Finally, Judge Schulz ruled that the Stephan
rule did not apply to George's case because George had failed to
assert that any impropriety occurred during his interview with
Lower, apart from Lower's failure to tape the interview.
On appeal, George renews his argument that his
statements to Littlefield and Lower should have been suppressed
for violation of the Stephan taping rule. Both George and the
State have devoted considerable energy to arguing whether Alaska
law governing police procedures (and, specifically, the Stephan
rule) applies to the Metlakatla police. We find it unnecessary
to resolve this issue.
The Stephan rule applies only to custodial interroga
tions. Stephan, 711 P.2d at 1162. Judge Schulz found, and
George does not dispute, that George's statements to Littlefield
were not the product of custodial interrogation. See Rhode
Island v. Innis, 446 U.S. 291, 300-02; 100 S.Ct. 1682, 1689-1690;
64 L.Ed.2d 297 (1980). Thus, the admission of George's
statements to Littlefield does not violate Stephan.
With regard to George's statements to Lower, Judge
Schulz found that the Metlakatla police did not have a
functioning tape recorder. This fact excuses non-compliance with
the Stephan rule. Stephan, 711 P.2d at 1164. More importantly,
Stephan does not prohibit admission of a defendant's custodial
statement "if no testimony is presented that the statement is
inaccurate or was obtained improperly, apart from violation of
the [taping] rule." Id. at 1165. On appeal, George does not
contend that, apart from Lower's failure to tape the interview,
there was any impropriety in his interview with Lower. Thus,
George's statements to Lower are admissible under Stephan.
We turn now to George's sentencing arguments. Judge
Schulz sentenced George to a term of 99 years' imprisonment for
his first-degree murder conviction and a consecutive term of 7
years' imprisonment for his first-degree robbery conviction.
(Judge Schulz imposed an additional 2-year sentence for the
second-degree theft, but he made this sentence concurrent with
the robbery sentence.) Thus, George's total sentence is 106
years' imprisonment.
George argues that his 99-year sentence for first-
degree murder is excessive. In Riley v. State, this court
rejected a proposed benchmark sentence of 60 years' imprisonment
for first-degree murder, noting that Alaska decisions "have
consistently approved the imposition of maximum sentences" for
this offense. 720 P.2d 951, 952 (Alaska App. 1986). Judge
Schulz found that George's act of killing Tarbet was premeditated
and deliberate. The homicide thus would have qualified as first-
degree murder even under the more stringent, common-law
definition found in Alaska's former criminal code. Riley, 720
P.2d at 952 n.1. George's conduct therefore presents a
particularly serious form of first-degree murder.
Moreover, Judge Schulz found that, when George returned
to kill Tarbet, George knew that Tarbet was particularly
vulnerable due to his intoxication and the effects of George's
previous attack. If first-degree murder were governed by presump
tive sentencing, this would be an aggravating factor under
AS 12.55.155(c)(5). (Judge Schulz found that the first-degree
robbery was aggravated by this factor.) In addition, George's
psychological evaluations indicated that he suffered from an
antisocial personality disorder with aggressive and paranoid
features, a type of disorder that is difficult to treat.
Judge Schulz's remarks at sentencing show that he
analyzed George's offense under the criteria established in State
v. Chaney, 477 P.2d 441 (Alaska 1970), and concluded that a
maximum sentence was justified because of the seriousness of
George's crime, the need to reaffirm social values, George's poor
potential for rehabilitation, and the need to isolate George to
protect the public from further acts of violence. We do not find
George's 99-year sentence to be clearly mistaken. McClain v.
State, 519 P.2d 811, 813-14 (Alaska 1974).
George also argues that, even if his murder sentence is
justified, Judge Schulz should not have imposed an additional
7 years' imprisonment for the robbery. Judge Schulz decided to
impose consecutive sentences for the robbery and the murder
because these crimes involved distinct societal interests and
because, under the facts of this case, the robbery and the murder
were distinct events. After committing the robbery and leaving
Tarbet incapacitated, George walked away from the dock; he
returned later for the specific purpose of killing the helpless
Tarbet. Judge Schulz justifiably viewed the robbery and the
murder as two separate crimes deserving separate punishments.
See Cooper v. State, 595 P.2d 648 (Alaska 1979) (one assault on
three victims; sentence greater than the maximum term for one
count of assault); Preston v. State, 583 P.2d 787 (Alaska 1978)
(unrelated crimes; sentence greater than the maximum term for the
more serious crime); Farmer v. State, 746 P.2d 1300 (Alaska App.
1987) (one assault on three victims plus unrelated crimes;
sentence greater than the most severe presumptive term); Jones v.
State, 744 P.2d 410 (Alaska App. 1987) (one assault on three
people; sentence greater than the most severe presumptive term).
Judge Schulz recognized, however, that Alaska law
restricts a sentencing judge's authority to impose consecutive
sentences that exceed the maximum sentence permitted for the
defendant's most serious crime:
THE COURT: [The fact that the robbery
and the murder were distinct crimes] does not
necessarily mean that the sentences should
exceed ... 99 years, because the court has
said in a number of cases that ..., in cases
that involve multiple felony convictions, ...
you start off with the presumption that you
sentence on the most serious felony and then
only exceed that [maximum sentence] when you
can make the finding that the defendant needs
to be incarcerated - isolated to protect the
public.
Here, Judge Schulz is referring to Mutschler v. State, 560 P.2d
377, 381 (Alaska 1977), and its progeny. See, for example, Ross
v. State, 808 P.2d 290, 292-93 (Alaska App. 1991).
Having recognized the applicability of this case law,
Judge Schulz premised his decision to sentence George to a total
of 106 years on specific findings that George was a dangerous
offender who had committed a particularly serious type of first-
degree murder, that George did not have a favorable outlook for
rehabilitation, and that therefore George needed to be isolated
for more than 99 years to protect the public. This decision was
not clearly mistaken. McClain, 519 P.2d at 813-14.1
The judgement of the superior court is AFFIRMED.
_______________________________
1 George relies on language from Thompson v. State, 768
P.2d 127 (Alaska App. 1989), where this court indicated in dictum
that a sentence exceeding 99 years' imprisonment should not be
affirmed unless the trial court has found that, in order to
protect the public, "the defendant must spend the rest of his
life in prison without any possibility of parole". 768 P.2d at
133-34. George interprets this language to mean that sentencing
judges must make a finding over and above the requirements of
Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977). To the
extent that such an interpretation is possible, it was
unintended.
Thompson cited two cases to support the "life without
parole" language: Nukapigak v. State, 663 P.2d 943 (Alaska
1983), and Hastings v. State, 736 P.2d 1157 (Alaska App. 1987).
Both cases involved defendants who were sentenced to several
consecutive 99-year terms and who, therefore, were clearly going
to spend the rest of their lives in prison without ever becoming
eligible to apply for parole. AS 33.16.100(d). However, George
(like the defendant in Thompson) received a total sentence of
slightly more than 100 years, with normal eligibility for parole.
George was 21 years old at the time of his sentencing, and thus
he will be eligible for parole well before he turns 60.
AS 33.16.090(c) and AS 33.16.100(c)-(d). Judge Schulz was not
required to find that a sentence of life without parole was
necessary to protect the public since George did not receive such
a sentence.
