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THE COURT OF APPEALS OF THE STATE OF ALASKA
EARL SAM, )
) Court of Appeals No. A-4041
Appellant, ) Trial Court No. 4BE-S89-638CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1260 - November 27, 1992]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Richard D. Savell, Judge.
Appearances: Andrew Haas, Assistant Public
Defender, Bethel, and John B. Salemi, Public
Defender, Anchorage, for Appellant. W.H.
Hawley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Earl K. Sam was convicted by a jury of one count
attempted murder in the first degree. AS 11.41.100(a)(1); AS
11.31.100. Superior Court Judge Richard D. Savell sentenced Sam
to a term of forty-five years with fifteen years suspended. Sam
appeals his conviction, arguing that the trial court erred in
refusing to preclude the state from presenting expert testimony
concerning Sam's capacity to form specific intent, in refusing to
give Sam's proposed instructions dealing with attempt, in
permitting the prosecutor to argue facts not in evidence, and in
limiting Sam's final argument. Sam also argues that his sentence
is excessive. We affirm.
Facts
In the early morning hours of July 24, 1989, J.E. was
shot in the back of the head while walking in Akiachak. He
managed to make his way to a nearby home, where he received
assistance. The Alaska State Troopers were summoned to Akiachak
from Bethel to investigate the shooting. They contacted various
people, including Sam. When Trooper Robert Baty first spoke with
Sam, Sam acknowledged that he had been waiting for the troopers
to come; he also admitted he had been carrying a gun earlier that
morning.
Trooper Warren Tanner then conducted a tape-recorded
interview with Sam, who was cooperative, but "elusive," according
to Tanner. In the course of the recorded interview, Sam
evidently made a number of statements that were exculpatory.
After completing the recorded interview, Sam agreed to show the
troopers his gun, which he had hidden in an old fuel truck. The
gun, a .12 gauge pump shotgun, was unloaded. Sam also led the
troopers to the location where J.E. had been standing when he was
shot. Nearby, in an area where the grass was matted, the
troopers found a spent shotgun shell. Sam admitted that he had
shot a person from this area.
Denial of Protective Order
After being indicted for attempted first-degree murder,
Sam filed a motion, through counsel, for a psychiatric evaluation
to determine his competency to proceed. He also served notice,
pursuant to AS 12.47.020(a), of his intent to raise a defense of
diminished capacity. After having been examined as an
outpatient, Sam requested and received an order of commitment to
the Alaska Psychiatric Institute (API) for further evaluation to
determine his competency to proceed.
The state subsequently sought an order directing all
experts who had examined Sam to supplement their competency
evaluations by indicating whether they believed Sam had the
capacity to form specific intent to kill. As support for its
request, the state cited AS 12.47.070(c)(5), which specifies that
if a mental examination is ordered to determine the competency of
a person who has given notice of intent to rely on a defense of
diminished capacity, the person performing the examination must
report not only on the issue of competency, but also on the
defendant's capacity to form the culpable mental state for the
offense charged. Sam eventually indicated that he did not oppose
the state's request.
Shortly before trial, however, Sam moved for a
protective order, seeking to preclude the state from calling Dr.
Criswell as an expert witness on the issue of diminished
capacity. Criswell, a staff member at API, had examined Sam for
purposes of determining his competency to proceed and had
concluded not only that Sam was competent, but also that he was
capable of forming specific intent to kill. In moving to
suppress, Sam argued, among other things, that Criswell's
testimony on diminished capacity should be excluded because
Criswell had failed to record his examination of Sam. According
to Sam, under Houston v. State, 602 P.2d 784, 796 (Alaska 1979),
Criswell should have been required to record the examination.
The trial court denied Sam's motion for a protective
order, ruling that Criswell could testify for the state if Sam
elected to present expert testimony in support of a diminished
capacity defense. Sam later abandoned his plan to raise
diminished capacity, claiming, for the record, that his decision
to do so was the result of the trial court's denial of his motion
for a protective order. Criswell never testified.
On appeal, Sam attempts to resurrect his claim that
Criswell's testimony should have been barred due to his failure
to record the psychiatric examination. In our view, however, the
Alaska Supreme Court's decision in State v. Wickham, 796 P.2d
1354, 1355-59 (Alaska 1990), mandates the conclusion that Sam's
abandonment of his diminished capacity defense bars him from
raising this issue on appeal.
In Wickham, the court, relying on Luce v. United
States, 469 U.S. 38 (1984), declared that a defendant who
declines to testify after receiving an unfavorable ruling on the
admissibility of prior convictions for impeachment purposes will
be deemed to have abandoned any resulting claim of error. The
Wickham court concluded that meaningful appellate review is
impeded in such situations by the uncertainty attendant to
determining whether any error might ultimately have proven
harmless. Wickham, 796 P.2d at 1358-59.
Sam argues that Wickham is distinguishable because it
deals with a purely evidentiary issue -- a nonconstitutional
claim that is subject to a relatively broad harmless error
standard. In Sam's view, because his motion for a protective
order was based on constitutional grounds and thus implicated a
narrower standard of harmless error, there is considerably less
room for uncertainty.
We are unpersuaded by this argument. The uncertainty
that the supreme court spoke of in Wickham is essentially
unrelated to the standard by which harmless error is measured in
a given case. Wickham addressed the inherent uncertainty and
artificiality of applying a harmless error analysis in a purely
hypothetical or abstract context, a problem that is largely
unaffected by the applicable harmless error standard.1
Given the core concern of Wickham, we believe that the
circumstances of the present case militate even more strongly
against appellate review than did the circumstances in Wickham.
In Wickham, the defendant disclosed his proposed testimony in a
clear and detailed offer of proof, which the trial court found
acceptable; the state, for its part, unequivocally announced its
intent to offer the prior convictions in evidence if the
defendant testified; finally, the precise nature of the
impeachment evidence was known, and its likely impact on the
defendant's credibility was thus readily predictable. All of
these circumstances added considerable certainty to the situation
in Wickham. The supreme court nevertheless found appellate
review undesirable.
In the present case, by contrast, Sam failed to provide
the trial court with a detailed offer concerning his proposed
defense of diminished capacity. Sam also failed to offer proof,
or to request that the state make an offer, as to the specific
testimony Criswell was likely to give in support of his
conclusion that Sam was capable of forming specific intent.
Furthermore, at no point did the prosecution unequivocally commit
itself to calling Criswell as a rebuttal witness.
Any attempt to divine the likely effect of the alleged
error in these circumstances would amount to pure speculation.
For this reason, we hold that Sam's abandonment of his diminished
capacity defense precludes review of the trial court's decision
to allow Criswell to testify.
Sam's Proposed Instructions
Sam next claims that the trial court erred in refusing
two proposed instructions on attempt. The first read as follows:
In order for a defendant to be convicted
of attempted murder in the first degree, the
district attorney must prove beyond a
reasonable doubt that [the defendant was]
really trying to kill the person when he shot
him.
Even if you believe that the defendant
shot him, we cannot automatically say that he
was trying to kill him too. Perhaps there
are other reasons the shooting happened. The
district attorney must prove beyond a
reasonable doubt that the defendant was
trying to kill the person if and when he shot
him.
Sam's second proposed instruction read as follows:
To convict a person of attempted murder in
the first degree, the district attorney must
prove beyond a reasonable doubt that the
person made a plan to kill someone. Then,
they must also prove that after making the
plan, he tried to carry it out and tried to
kill someone. They must show that he did
this on purpose, to make his plan come true.
On appeal, Sam has simply argued that his proposed
instructions embodied correct statements of the law. He has not
demonstrated any error or incompleteness in the instructions that
the jury actually received, nor has he shown how his proposed
instructions were better or more accurate, or how they would have
been of substantial assistance to the jury. As the trial court
correctly found, the instructions on attempt and culpable mental
state that were actually given to Sam's jury fully and accurately
stated the applicable law, thereby addressing the concerns dealt
with in Sam's proposed instructions. Under the circumstances,
even assuming Sam's proposed instructions were unobjectionable,
the trial court did not abuse its discretion in rejecting them.
See Stoneking v. State, 800 P.2d 949 (Alaska App. 1990).
Prosecutor's Final Argument
Sam further claims that the trial court erred in
allowing the prosecutor to argue facts not in evidence. During
Sam's trial, Trooper Tanner testified that the distance from the
matted area where Sam stood at the time of the shooting to the
closest point on a nearby walkway was twenty-one feet, six
inches, and that, at a right angle from this point, the distance
up the walkway to the point at which J.E. was apparently shot
measured fourteen feet, six inches. When the prosecutor asked
Tanner to calculate the direct distance between Sam and J.E. from
these measurements, however, Tanner evidently could not. The
jury heard no testimony concerning the direct distance.
Nevertheless, during final argument, the prosecutor,
who had calculated the distance by use of the Pythagorean
theorem,2 informed the jury that, based on Tanner's measurements,
Sam stood apparently twenty-six feet from J.E. when he fired the
shot. Over Sam's objection, the trial court allowed the
prosecutor to state this distance. The court cautioned the jury,
however, that the prosecutor's statement was argument, not
evidence, and that the jury should disregard it unless it was
capable of confirming the distance by its own calculations.
Sam maintains, as he did below, that the disputed
measurement is a fact as to which no evidence was presented and
which the prosecutor should consequently have been barred from
mentioning in argument. In presenting closing arguments to the
jury, however, counsel are free to discuss not only the facts
actually in evidence, but also any facts "within the range of
reasonable inference which could be drawn from the evidence."
Dorman v. State, 622 P.2d 448, 461 (Alaska 1981). The issue in
this case is thus whether the disputed distance amounts to the
type of factual inference that could properly be drawn from the
facts in evidence, specifically, the two subsidiary measurements
as to which Tanner testified. In our view, it is.
The formula for calculating the hypotenuse of a right
triangle, commonly known as the Pythagorean theorem, is hardly an
exotic equation that requires advanced training or experience to
know and use. It is a basic mathematical formula involving
skills that are at most one step removed from common
multiplication and division; it is widely known and readily
applied by those who know it. Routinely taught (and occasionally
learned) in high school geometry courses across the country, the
formula falls well within the realm of knowledge and experience
that is common to many ordinary people. In complexity, its use
may be likened to calculating the area of a rectangle or the
circumference of a circle.
Certainly, the formula is not known by all of those who
serve as jurors. But it would hardly be surprising to find one
or more jurors in any given case who had the knowledge and
ability to apply it. Nor could it plausibly be argued that
jurors familiar with the formula would act improperly in relying
on their knowledge during deliberations.
Sam does not dispute the accuracy of the measurement
that was communicated to the jury. Moreover, the court
instructed the jury to disregard the prosecutor's statement of
the measurement if the jury was not itself familiar with the
principles of geometry upon which the statement was based. While
the line dividing common knowledge from scientific expertise may
be difficult to discern and fairly debatable in many cases, it
was not transgressed here.
Restriction of Sam's Final Argument
Sam additionally contends that the trial court
improperly restricted his final argument. During the morning of
the shooting, Sam made various statements to troopers and village
police officers in Akiachak. The only recorded statement,
however, was the formal interview conducted by Trooper Tanner,
during which Sam evidently made a number of exculpatory
statements. The state did not offer the recording to the jury.
On cross-examination of Trooper Tanner, Sam's counsel
established that Tanner had recorded his interview with Sam and
that this was the only interview recorded by the troopers. After
having Tanner identify for the jury the tape on which the
interview was recorded, Sam's counsel requested that the entire
recording be played. Counsel made this request in the presence
of the jury, openly stating that he thought the jury should hear
it: ". . . I'd like right now to publish [the recorded
interview] and play it for the jury. Move that it be admitted
into evidence. I think the jury has a right to hear it." The
prosecution objected.
In the ensuing anteroom conference, the trial judge
pointed out that the recordings of Sam's exculpatory statements
were inadmissible hearsay. See State v. Agoney, 608 P.2d 762,
764 (Alaska 1980); Stumpf v. State, 749 P.2d 880, 899 (Alaska
App. 1988). The judge admonished Sam's counsel for raising the
issue before the jury, noting that the court had previously made
it clear that the tape would likely be inadmissible. The judge
then explained to the jury that the tape would not be admitted,
that the court had twice ruled it inadmissible, that the jury
should not speculate about the contents of the tape, and that it
should not think that evidence of value was being hidden.
At a later point in the cross-examination of Tanner,
the court again admonished Sam's counsel for pursuing a line of
questioning that appeared calculated to suggest that Sam had made
(and that Tanner had recorded) exculpatory statements.
During closing argument to the jury, Sam's counsel was
permitted to comment at length on the state's failure to gather
available evidence and on its failure to present available wit
nesses. Counsel then called the jury's attention to a portion of
Tanner's cross-examination in which Tanner was questioned as to
whether he had ever specifically asked Sam if Sam had shot J.E.
with the shotgun; Tanner answered that he had not asked Sam that
specific question, but had come "pretty close."
After describing this portion of Tanner's testimony,
Sam's counsel commented as follows to the jury: "How close was
it? It was audio taped. You should hear how close it was."
Upon objection by the state, the trial judge stated that the
argument was improper and that it violated the court's order
regarding admissibility of the tape. The court instructed the
jury to disregard the comment.
Defense counsel resumed his argument. After telling
the jury the court would instruct it that a reasonable doubt
could arise from a lack of evidence, counsel said, "I am going to
be talking about what was not given to you by the state, the lack
of evidence." A short time later, in the midst of covering
evidence that the state had not presented, counsel began what the
court and the prosecution construed to be another reference to
the state's failure to produce the recorded statements that Sam
had given to Tanner. Sam's counsel told the jury that it had
heard: "No other statements from Mr. Sam. Trooper Tanner . . .
."
At this point the prosecutor cut Sam's counsel off with
another objection. Another anteroom conference ensued, in the
course of which the trial judge expressed frustration over coun
sel's deliberate disregard for the court's prior rulings. Sam's
counsel did not deny that he had meant to refer to the state's
failure to play Sam's recorded statement; to the contrary,
counsel insisted that he should be allowed to argue the state's
failure to play the recording as an indication that the state had
failed to meet its burden of proof. Although emphasizing that
counsel was free to argue the state's failure to produce
available evidence that would have been admissible, the trial
judge reiterated that counsel was forbidden from commenting on
evidence that the court had found inadmissible. The judge went
on to threaten a mistrial and sanctions if counsel "even
approach[ed] it" again.
The trial judge further found that, by that point,
there had been three occasions on which Sam's counsel had
intentionally called the jury's attention to the fact that it had
not heard the tape recorded statement. In the court's view, the
potential prejudice stemming from these references warranted a
cautionary instruction.3 Accordingly, when proceedings before
the jury resumed, the judge gave the following instruction:
Defendant's counsel may not lead you to
believe that explanations were given by Mr.
Sam that were consistent with his innocence
but have not been presented to you or [are]
being hidden from you by the State. Mr. Sam
has no duty whatever to present any evidence
and the fact that he has not done so may not
be considered by you for any purpose. There
are, however, ways for such evidence, if it
exists, to be presented to you by the defense
if it wished that these explanations be put
before you.
Sam now claims that the trial court unduly restricted
his ability to argue his case to the jury. Sam does not
challenge the court's ruling that his tape-recorded interview
with Tanner was inadmissible hearsay. Instead, he renews his
claim that he should have been allowed to argue that the state's
refusal to consent to the admission of this evidence amounted to
a failure of proof on its part.
We find this argument frivolous. Carried to its
logical conclusion the position Sam advocates would penalize the
state for relying on the rules of evidence in virtually any
situation involving exclusion of defense evidence, and it would
subvert virtually any effort by the trial court to enforce the
rules of evidence in such instances.
Sam also maintains that the curative instruction given
by the court amounted to an impermissible comment on his right to
silence. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 319
(1976); Gunnerud v. State, 611 P.2d 69, 75 (Alaska 1980).
However, Sam did not raise this objection below.
Given the circumstances described above, the trial
court could reasonably conclude that significant prejudice had
resulted from the repeated and apparently deliberate efforts by
Sam's counsel to insinuate that the state was concealing
potentially exculpatory statements that Sam had made to the
troopers. The court could also reasonably conclude that the only
effective way to cure this prejudice and eliminate unwarranted
speculation would be to make clear to the jury not only that
Sam's recorded statements had been ruled inadmissible and were
not being concealed by the state, but also that Sam had the
ability to present this evidence himself, if he so desired. The
possibility that the challenged instruction might be read as
suggesting that Sam had a duty to testify or present evidence
seems minimal, at worst.
In summary, the challenged instruction was an
appropriate response to the unusual problem created by defense
counsel's insistent pursuit of a line of argument that the court
had expressly precluded. Cf. Hilburn v. State, 765 P.2d 1382,
1390 (Alaska App. 1988) (it was proper to allow prosecutor to
rebut inference that Hilburn could not have given more accurate
explanation if he had taken the stand). We find no error.
Excessiveness of Sentence
Sam lastly challenges his sentence as excessive.
Attempted first-degree murder is an unclassified felony,
punishable by a minimum term of five years and by a maximum term
of ninety-nine years. AS 12.55.125(b). Sam received a sentence
of forty-five years with fifteen years suspended. At the time of
sentencing, Sam was twenty-seven years old. Sam had a
significant record of prior convictions, which included a
misdemeanor assault. More notably, shortly before committing his
current offense, Sam had been released from custody to await
sentencing for assault in the third degree, a class C felony.
The third-degree assault involved an unprovoked and unexplained
attack in which Sam swung an ax at another person's head.
Citing Atkinson v. State, 699 P.2d 881, 885 n.4 (Alaska
App. 1985), Sam argues that he should have received a relatively
lenient sentence because his conduct in the present case did not
cause particularly severe injuries to his victim. In response,
the state takes issue with Sam's effort to minimize the severity
of J.E.'s injuries. The record supports the state's claim that
J.E. suffered significant and apparently lasting harm as a result
of Sam's crime. Moreover, even though greater harm might occur
in some cases of attempted murder, this factor is only one of
many that should properly be considered in determining an
appropriate sentence.
Sam also analogizes attempted murder to the crime of
second-degree murder, for which an identical sentencing range is
prescribed. Compare AS 11.41.100, 11.31.100 with AS 11.41.110.
Sam points out that this court has established a benchmark
sentencing range of twenty to thirty years for second-degree
murder cases. See Page v. State, 657 P.2d 850, 855 (Alaska App.
1983). Sam argues that his sentence should be held excessive
because it violates the Page benchmark.
This argument is simply incorrect. The unsuspended
portion of Sam's sentence -- thirty years -- falls within the
Page benchmark range. Furthermore, the Page benchmark is meant
to reflect the appropriate starting point for sentencing in
second-degree murder cases involving first felony offenders.
When he committed the current offense, Sam had already committed
another felony assault, for which he was awaiting sentencing.
Although the prior assault would not have formally qualified as a
prior felony conviction for presumptive sentencing purposes
because Sam had not yet been sentenced for it, Sam was a first
felony offender only in the most technical sense.
Finally, Sam's argument that he deserved a lenient
sentence disregards the unprovoked and seemingly inexplicable
nature of his life-threatening conduct. We have previously
recognized that incidents of unexplained and unprovoked violence
may indicate that an offender is seriously disturbed and
unusually dangerous. For this reason such conduct may justify
the imposition of an exceptionally severe sentence, even for a
first offender. See, e.g., Bolhouse v. State, 687 P.2d 1166,
1176, 1179 (Alaska App. 1984) (Bryner, C.J., concurring);
Faulkenberry v. State, 649 P.2d 951, 955-57 (Alaska App. 1982).
Given Sam's commission of two seemingly incomprehensible, life-
threatening assaults within a short span of time, the sentencing
court could properly find him to be an unusually dangerous
offender.
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The conviction and sentence are AFFIRMED.
_______________________________
1. We note that federal courts have not hesitated to apply
the rationale of Luce v. United States outside the context of
cases involving impeachment by prior conviction. See, e.g.,
United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986)
(tactical reason found for not calling character witness at trial
after judge ruled that certain rebuttal evidence would be
allowed); United States v. Donlon, 909 F.2d 650, 656 (1st Cir.
1990) (trial court refused to limit cross-examination in advance
of witness taking stand; reviewing court found defendant who did
not take stand could not appeal ruling); United States v. Nivica,
887 F.2d 1110, 1115-17 (1st Cir. 1989) (defendant could not
appeal ruling in favor of government impeaching witnesses without
having actually called witness and objected to specific questions
during testimony).
2. The Pythagorean theorem holds that the square of the
length of the hypotenuse of a right triangle equals the sum of
the squares of the lengths of the other two sides. Webster's New
Collegiate Dictionary, 961 (9th ed. 1983). The theorem is
commonly expressed by the formula: aý + bý = cý.
3. The judge summed up his view of the problem as follows:
[Defense counsel], you're placing the court
into a position where it has to comment upon
[Sam's] silence. How else can the court
explain to the jury that there's a reason
those things can't be said and the only way
they can be said is by [Sam] saying them and
he chooses not to?
. . . .
They chose their evidence . . . what you're
saying, [defense counsel], is that because
they introduce admissions against interest,
clearly admissible, you can comment that they
didn't include what is not excluded as hear
say, in other words, exculpatory, and that
just rips asunder the foundations of evidence
in a criminal trial, that you can't hide
behind that shield. You can't say he said
good things and they're not telling you.
