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Gustafson v. State (6/18/93) ap-1298
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
DOUGLAS P. GUSTAFSON, )
) Court of Appeals No. A-4162
Appellant, ) Trial Court No. 3AN-90-6981
) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 1298 - June 18, 1993]
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Karl S. Johnstone,
Appearances: James H. McComas, Schleuss &
McComas, Anchorage, for Appellant. John A.
Scukanec, 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
Douglas P. Gustafson was convicted of second-degree
murder, AS 11.41.110(a)(2), and tampering with physical evidence,
AS 11.56.610(a)(1), following a jury trial in the Anchorage
superior court. Superior Court Judge Karl S. Johnstone sentenced
Gustafson to 65 years' imprisonment for the murder and a
concurrent 2 years for tampering with evidence. Gustafson
appeals his murder conviction and his murder sentence. We affirm
Gustafson's conviction and sentence, but we remand to the
superior court to correct a defect in the written judgement.
On the evening of October 19, 1990, Gustafson and two
friends, George Kerr and Raymond Cheely, were driving from Eagle
River to Anchorage along the Glenn Highway. Gustafson had pur
chased an HK-91 rifle earlier that day, and the three young men
had been target practicing at the Eklutna gravel pit. Cheely was
driving Gustafson's car; Gustafson sat in the passenger's seat
beside him, holding the rifle, while Kerr sat in the back seat.
As they were driving, Cheely thought that the driver of
a red Toyota had tried to rub up against their car. Cheely and
Gustafson decided to shoot at the Toyota. Cheely maneuvered
Gustafson's car to allow Gustafson a clear shot, while Gustafson
rolled down his window and rested the HK-91 on the ledge.
The Toyota had two occupants: the driver, Robert
Chamberlain, and a passenger, Jeffery Cain. Unaware of what was
about to happen, Chamberlain prepared to leave the highway at the
Muldoon Avenue exit. As Chamberlain slowed down to negotiate the
exit ramp, Gustafson fired his rifle at the car. The bullet went
through the Toyota's rear window and penetrated Jeffery Cain's
skull, killing him instantly.
The next morning, Cheely and Gustafson learned from
news reports that the passenger of the Toyota had been killed.
They contacted Kerr and advised him to keep quiet, telling him
that they had already disposed of the HK-91 rifle. Nevertheless,
Kerr told his employer that he had witnessed the shooting. The
employer obtained an attorney for Kerr, and, acting on this
attorney's advice, Kerr went to the police on the afternoon of
October 20 and told them what he knew about the shooting.
Gustafson's Motion to Suppress the Glass Warrant
In addition to providing the police with a statement,
Kerr agreed to wear electronic monitoring equipment and engage
Cheely and Gustafson in conversation about the shooting.
Pursuant to State v. Glass, 583 P.2d 872 (Alaska 1978), the
district attorney's office applied for warrants to authorize this
At the warrant application hearing, a police officer
testified about Kerr's statements as well as other information
the police had gathered during their investigation. The officer
also informed the magistrate that Kerr had no criminal record
aside from one speeding ticket and a dismissed 1990 disorderly
conduct charge. The magistrate then asked if Kerr had either
sought or been offered any concession (e.g., a promise of
immunity or leniency) in exchange for the information he had
given the police; the prosecuting attorney told the court that
Kerr had not sought or received any concession. The magistrate
then asked what had motivated Kerr to aid the police; the
prosecutor stated that Kerr had agreed to help the police both
because he thought it was the right thing to do and because he
had concerns about his personal safety. The magistrate issued
the requested Glass warrants. At the prompting of the
prosecutor, the magistrate specifically found that Kerr was a
"citizen informant" for Aguilar/Spinelli purposes.1
While the government was securing the Glass warrants,
Kerr called his father to explain that he was helping the police
in their investigation of the shooting. Over the telephone, Kerr
told his father that he intended to engage Gustafson in a
conversation that would be recorded by the police. Unknown to
Kerr, Cheely was in Kerr's father's home during this
conversation. Kerr's father later told the police that, when the
telephone conversation ended, Cheely had asked him about the
conversation. Suspecting that Cheely might also be involved,
Kerr's father falsely told Cheely that Kerr was in Anchorage with
his girlfriend. However, after Cheely left, Kerr's father called
back to tell the police that he thought Cheely knew or at least
suspected that Kerr was helping the authorities.
The police first made several attempts to locate
Cheely, but they were unsuccessful. The police then turned their
attention to Gustafson, who worked at the Anchorage International
A police investigator and an assistant district
attorney drove Kerr to the airport so that they could execute the
Glass warrant on Gustafson. As they approached their
destination, Kerr asked what would happen if his conversation
with Gustafson revealed that they had stolen some property. Kerr
then disclosed that, the week before, he and Gustafson and Cheely
had burglarized a meat market in Eagle River, stealing about
$19,000 in cash. Kerr said that he was informing the authorities
of this crime because he realized that it might come up during
his conversation with Gustafson.
At this point, the police car was about to arrive at
the airport. The assistant district attorney decided that, given
the possibility that Cheely might be aware of Kerr's decision to
aid the police and might be attempting to contact Gustafson, it
was in the government's interest to grant Kerr immunity for the
burglary and theft rather than delay or abandon the attempt to
execute the Glass warrant. The prosecutor told Kerr that, if
this was indeed all that Kerr had failed to reveal, the
government would not prosecute him for the burglary/theft.
Kerr then got out of the car and walked into the
airport to find Gustafson. During the ensuing monitored
conversation, Gustafson told Kerr that the HK-91 rifle was hidden
in the shipyard and railroad area below downtown Anchorage, and
that Gustafson intended either to substantially modify or destroy
the weapon to frustrate any potential prosecution for the
shooting. Following this conversation, Kerr left the airport and
the police picked him up to re-interview him. About three hours
later, Kerr engaged Gustafson in another monitored conversation;
this second conversation occurred in the airport parking lot as
Gustafson was walking to his car after work.
Following his indictment, Gustafson asked the superior
court to suppress all evidence obtained under the Glass warrant.
Gustafson contended that, after Kerr's confession to the burglary
and theft, the authorities knew or should have known that Kerr
was no longer a citizen informant. Gustafson argued that the
police and prosecutor, once they received this information, were
obligated to desist from attempting to execute the Glass warrant
and were instead obligated to return immediately to the
magistrate who issued the warrant and inform him of this new
information, so that the magistrate could re-evaluate his
decision to issue the warrant.
The prosecutor responded that, even if Kerr had lost
his status as a citizen informant, his account of the shooting
was still sufficiently corroborated to establish probable cause
to issue the warrant. Moreover, the prosecutor argued that
exigent circumstances - the fast-breaking nature of the investiga
tion, and the imminent danger that Cheely would contact Gustafson
and tell him about Kerr's decision to aid the police - had
justified the authorities' decision to proceed with the first
Judge Johnstone ruled that Kerr's admission of the
burglary and theft did not invalidate the already-issued Glass
warrant. He found that the officer who applied for the warrant
had testified in good faith at the hearing. Judge Johnstone
further ruled that, despite Kerr's later confession to the
burglary/theft and the prosecutor's grant of immunity for those
two crimes, Kerr remained a citizen informant:
Mr. Kerr had not asked for [any]thing before
giving his statement. There is no reason to
believe that Kerr was anything but a citizen
informant when he made it. [Even if] he did
[tell the police] that he was involved in a
burglary and then asked if he could be prose
cuted, [that] is not the same thing as
holding out for something.
Judge Johnstone also ruled, alternatively, that exigent circum
stances had justified the first monitored conversation even if
the police had been obliged to return to the magistrate to inform
him of Kerr's confession to the burglary/theft.
On appeal, Gustafson renews his claim that the
prosecutor and the police violated a duty of candor to the
magistrate who issued the Glass warrant. Gustafson does not
claim that the police misrepresented their knowledge of Kerr's
background when they applied for the warrant. Rather, Gustafson
argues that the authorities, having prompted the magistrate to
declare Kerr a "citizen informant" and then learning that Kerr
had committed two felonies, were obligated to cease their efforts
to execute the warrant and return to the magistrate to inform him
of this new information.
Prosecutors and police officers applying for a warrant
owe a duty of candor to the court; they may neither attempt to
mislead the magistrate nor recklessly misrepresent facts material
to the magistrate's decision to issue the warrant. Malkin v.
State, 722 P.2d 943, 946 (Alaska 1986). Moreover, case law
supports Gustafson's assertion that, even though the authorities
have obtained a valid warrant in good faith, the government
remains under a continuing duty to apprise the issuing magistrate
of new information that destroys or substantially undermines the
magistrates' prior finding of probable cause. See United States
v. Marin-Buitrago, 734 F.2d 889, 893 (2nd Cir. 1984).
However, even assuming that the authorities were under
a duty to return to the magistrate if new information undermined
the prior finding of probable cause, we conclude that the prosecu
tor and police did not violate this duty in Gustafson's case.
Kerr's confession to the burglary/theft, and the prosecutor's
decision to grant him immunity for these crimes, did not alter
Kerr's status as a citizen informant at the crucial time when the
police applied for the warrant and the magistrate made his
finding of probable cause.
The distinction between a citizen informant and a
criminal informant does not turn on the bare facts of the infor
mant's past. Rather, as our supreme court indicated in Erickson
v. State, 507 P.2d 508 (Alaska 1973), the informant's status
turns on the nature of the informant's involvement with the
incident being investigated and his or her motivation for coming
to the authorities:
A different rationale exists for estab
lishing the reliability of named "citizen-
informers" as opposed to the traditional idea
of unnamed police contacts or informers who
usually themselves are criminals.
Information supplied to officers by the
traditional police informer is not given in
the spirit of a concerned citizen, but often
is given in exchange for some concession,
payment, or simply out of revenge against the
subject. The nature of these persons and the
information which they supply convey a
certain impression of unreliability, and it
is proper to demand that some evidence of
their credibility and reliability be shown.
Erickson, 507 P.2d at 517, quoting State v. Paszek, 184 N.W.2d
836, 842 (Wis. 1971). The Paszek opinion continues:
However, an ordinary citizen who reports
a crime which has been committed in his pres
ence ... stands on much different ground than
a police informer. He is a witness to crimi
nal activity who acts with an intent to aid
the police in law enforcement because of his
concern for society or for his own safety.
He does not expect any gain or concession in
exchange for his information.
Paszek, 184 N.W.2d at 843. Thus, the law examines the person's
connection to the event and his or her probable motive for
bringing the information to the police. When a person's primary
motive is to obtain an official concession or reap some other
personal benefit, the law requires greater corroboration of the
person's information. If, however, the individual comes forward
without concern for personal benefit, the law requires less
Under this analysis, an individual's criminal back
ground or lack of criminal background does not automatically
determine his or her status for Aguilar/Spinelli purposes.
Similarly, the fact that a person has previously been viewed as a
criminal informant does not mean that his or her status cannot
change in future cases:
The fact that one has once been a police
informant does not for all time so categorize
the person or relegate the person to that
status if in a particular case he is more
than a mere "tipster," but rather is one who
is known to be so situated as to acquire and
relay reliable information.
Wayne R. LaFave, Search and Seizure (2nd ed. 1987), 3.4(a),
1993 pocket part to Vol. 1, p. 120 (supplementing the text on p.
728 of the main volume), quoting State v. Friday, 434 N.W.2d 85
In Gustafson's case, Kerr gave the police a detailed
account of the shooting. He admitted that he had been in Gustaf
son's car and had personally witnessed the shooting, but he
denied being criminally involved in the assault. Moreover, Kerr
volunteered to wear a monitoring device and engage Gustafson and
Cheely in conversations about the shooting. Kerr's willingness
to aid the investigation in this manner bolsters the conclusion
that he was truthfully reporting Gustafson's and Cheely's
involvement in the shooting, since Kerr knew that the authorities
would record everything he, Gustafson, and Cheely said. Compare
State v. Bianchi, 761 P.2d 127, 131 (Alaska App. 1988), where
this court noted that a magistrate can reasonably conclude that a
suspect would be hesitant to give the police false information
when the police are in a position to verify the information.
We also note that, before Kerr went to the police, he
voluntarily told another person - his employer - about having
witnessed the shooting, thus potentially incriminating himself if
he indeed had participated in the crime. Finally, Kerr provided
his information and volunteered to aid the investigation without
seeking any concession from the government, either with regard to
the highway shooting or with regard to the burglary/theft.
These facts support the conclusion that Kerr was a
citizen informant who went to the police, not to seek personal
advantage, but because he thought it was the right thing to do.
Rather than seeking lenient treatment for the burglary/theft,
Kerr apparently thought that he could help the police in their
murder investigation without revealing his participation in these
two crimes. Kerr revealed the crimes to the police only when he
belatedly realized that Gustafson might mention the burglary and
theft during their taped conversation.
It could be argued that Kerr purposefully waited to
confess to the burglary and theft until the authorities would
feel compelled to bargain. However, when Kerr confessed to the
burglary and theft, he had already surrendered his strongest
bargaining chip - his detailed information concerning the murder.
This information, combined with the other facts known to the
police at the time, was enough to secure an indictment against
Gustafson and Cheely. Kerr could no longer be assured of lenient
treatment. Further, the police investigator who drove Kerr to
the airport testified that Kerr simply asked whether he would be
prosecuted for the burglary/theft; he did not demand that the
prosecutor give him immunity in exchange for his continued
We therefore conclude that, despite Kerr's confession
to a burglary/theft and the prosecutor's grant of immunity for
these two crimes, Kerr remained a citizen informant for purposes
of evaluating his credibility and the existence of probable cause
We additionally conclude that, even if Kerr were to be
viewed as a criminal informant, the Glass warrant would still be
supported by probable cause. Police investigation corroborated
Kerr's account of the shooting - both the location of the assault
and the fact that the assailant had fired a single shot from a
.308 caliber rifle. The victims' car was hit by one bullet, and
the police discovered an expended .308 caliber cartridge near the
Muldoon Avenue exit. This corroboration was sufficient to
sustain the magistrate's finding of probable cause even if Kerr's
later revelation of the burglary and theft made him a criminal
informant. Even assuming that Kerr may have been motivated to
provide information about the shooting in the hope that his
assistance would lead the authorities to treat him leniently with
regard to his yet-undisclosed participation in the burglary and
theft, we conclude that the magistrate's awareness of this
potential motivation would not have caused him to deny the
warrant. See Doisher v. State, 632 P.2d 242, 247-48 & n.5
(Alaska App. 1981).
Thus, regardless of whether Kerr is viewed as a citizen
informant or a criminal informant, the Glass warrant remained
supported by probable cause. For this reason, the prosecutor and
the police did not violate their duty of candor to the court when
they failed to interrupt their execution of the Glass warrant and
return to the magistrate to apprise him of Kerr's confession and
the prosecutor's grant of immunity.2
Validity of the Indictment
An Anchorage grand jury indicted Gustafson for first-
degree murder. (At Gustafson's trial, the jury acquitted him of
this crime but convicted him of the lesser included offense of
second-degree murder.) On appeal, Gustafson challenges his
indictment on several grounds.
a. Sufficiency of the Evidence
Gustafson first asserts that the first-degree murder
charge was not supported by sufficient evidence of an intent to
kill.3 We conclude that the evidence presented to the grand jury
supports Gustafson's indictment for first-degree murder. As
Judge Johnstone noted when he denied Gustafson's motion to
dismiss the indictment, Cheely and Gustafson were incensed by the
fact that the Toyota had come so close to their car; their anger
provided a motive for shooting at the driver. Cheely (who was
driving Gustafson's car) maneuvered the car so as to afford
Gustafson a clear shot at the Toyota. Gustafson's shot entered
the rear window of the car and struck Cain in the head; from
this, the grand jury could reasonably infer that Gustafson had
taken aim at the people in the Toyota rather than merely aiming
at the Toyota's wheels or some other part of the vehicle.
Moreover, the grand jury heard testimony that, when the Toyota
failed to stop or veer off following Gustafson's rifle shot,
Gustafson declared, "I missed." Viewed in the light most
favorable to upholding the indictment, Gustafson's statement
indicated that he had failed to accomplish his purpose of
shooting the driver of the car.
Gustafson points to various aspects of the grand jury
evidence tending to prove that Gustafson lacked an intent to
kill. However, this court must construe the evidence in the
light most favorable to upholding the indictment. Panther v.
State, 780 P.2d 386, 389 (Alaska App. 1989); York v. State, 757
P.2d 68, 72 (Alaska App. 1988). We affirm Judge Johnstone's
ruling that Gustafson's first-degree murder indictment was
supported by sufficient evidence of intent to kill.
b. Highlighted Transcripts of the Monitored Kerr-Gustafson
The prosecutor who presented Gustafson's case to the
grand jury provided the grand jurors with transcripts of the
monitored conversations between Kerr and Gustafson (the initial
telephone call to set up the meeting at the airport, and the two
ensuing face-to-face conversations at the airport). The
prosecutor had highlighted certain portions of these transcripts
to call the jurors' attention to the portions of the
conversations that the prosecutor believed were most relevant to
proving the elements of first-degree murder. Gustafson argues
that the prosecutor's action constituted an improper attempt to
influence the grand jury's consideration of the monitored
conversations and, ultimately, their decision whether to indict
Gustafson for first-degree murder.
However, a prosecutor presenting a case to a grand jury
may comment on the evidence - may characterize the evidence and
argue his or her view of how the law should apply to it - so long
as the prosecutor's comments do not exceed the type of comment or
summation allowed at trial to a petit jury. Castillo v. State,
614 P.2d 756, 761-63 (Alaska 1980); Coleman v. State, 553 P.2d
40, 47-52 (Alaska 1976); Anthony v. State, 521 P.2d 486, 496-97
n.37 (Alaska 1974).
In Castillo, Coleman, and Anthony, the supreme court
cited ABA Prosecution Function Standard 3.5:
3.5 Relations with Grand Jury
(a) Where the prosecutor is authorized
to act as legal advisor to the grand jury he
may appropriately explain the law and express
his opinion on the legal significance of the
evidence but he should give due deference to
its status as an independent legal body.
(b) The prosecutor should not make state
ments or arguments in an effort to influence
grand jury action in a manner which would be
impermissible at trial before a petit jury.
(c) The prosecutor's communications and
presentations to the grand jury should be on
In Coleman, the supreme court noted that the commentary
to ABA Standard 3.5 explained why a prosecutor should be able
to argue a case to the grand jury:
[W]here the prosecutor must prosecute an
indictment returned by the grand jury, it is
especially important that he be free to ex
press his opinion. A prosecutor who has
conducted an adequate investigation and ana
lyzed the evidence is in a position to
furnish guidance to the grand jury on the law
and the weight of the evidence and should be
free to do so whether this leads to a
determination to indict or not to indict.
Coleman, 553 P.2d at 48, n.29.
The ABA commentary continues:
A prosecutor should not, however, take
advantage of his role as the ex parte repre
sentative of the state before the grand jury
to unduly or unfairly influence it in voting
upon charges brought before it. In general,
he should be guided by the standards govern
ing and defining the proper presentation of
the state's case in an adversary trial before
a petit jury.
Commentary to ABA Prosecution Function Standard 3.5 (p. 88).
The prosecutor who presented Gustafson's case did not
violate these standards. On the first day of the grand jury
proceedings, the prosecutor spoke to the grand jurors about the
Certain portions of those transcripts have
been highlighted by me with a yellow felt
pencil to call to your attention certain
parts of the transcript that deal with the
elements of this particular offense. And,
in viewing those transcripts, you need to
understand that you are to view the entire
transcript, not necessarily giving any undue
weight to the portions which I have selected
as being particularly relevant to your delib
erations. All I'm saying is: look at my
underlining, but view the document in its
entirety. ... They're multi-page documents,
and I've gone through them and selected por
tions which I feel are important. [But] you
may disagree, so look at the entire document.
Given this explanation and caution to the grand jury, the prosecu
tor did not exceed the scope of his authority by highlighting
portions of the transcripts. Moreover, later in the proceedings,
when one of the grand jurors asked whether they could listen to
the tape recordings themselves, the prosecutor told the grand
jury that the tapes were available to them if they wished.4
Gustafson asserts that the prosecutor failed to
highlight portions of the transcripts that tended to show
Gustafson's lack of intent to kill. However, the prosecutor need
not argue the defense case at grand jury. Further, as the above-
quoted remarks demonstrate, the prosecutor clearly informed the
grand jurors that they would be well-advised to read the
transcripts in their entirety, since the grand jurors might
disagree with the prosecutor about which portions were important.
We find no error.
c. Sufficiency of the Manslaughter Instruction
When the prosecutor asked the grand jury to begin
deliberations on first-degree murder, one of the grand jurors
expressed a desire to know about the other degrees of criminal
homicide. In response, the prosecutor gave the grand jury
instructions on first-degree murder, second-degree murder,
manslaughter, and criminally negligent homicide.5
On appeal, Gustafson concedes that the prosecutor's
instructions on first- and second-degree murder were "thorough",
but he challenges the manslaughter instruction as cursory and
incomplete. In particular, Gustafson claims that the prosecutor
should have given the grand jury a fuller explanation of how the
recklessness required to make a homicide manslaughter under
AS 11.41.120(a)(1) differs from the "extreme indifference to the
value of human life" required to make a homicide second-degree
murder under AS 11.41.110(a)(2). See Neitzel v. State, 655 P.2d
325 (Alaska App. 1982). We reject Gustafson's claim for two
First, this court has already held that "[t]he meaning
of _recklessly is well within the comprehension of the average
juror and the [criminal] code definition appears to be a common
sense definition of the term." Walker v. State, 674 P.2d 825,
829-830 (Alaska App. 1983), quoting Williams v. State, 648 P.2d
603, 608 (Alaska App. 1982). Thus, in the absence of a
suggestion that the facts of Gustafson's case raised a subtle
question concerning the scope of "recklessness" under the
criminal code, we assume that the grand jury had a basic but
adequate understanding of what a reckless killing was. Gustafson
concedes that the instructions concerning second-degree ("extreme
indifference") murder were thorough. We therefore conclude that
the grand jurors, hearing that a killing done with "extreme
indifference to the value of human life" constituted a more
serious crime than a "reckless" killing, grasped that there was a
significant difference between the two culpable mental states and
understood the basic distinction.
Moreover, Gustafson has failed to show that he was
prejudiced by the alleged inadequacy of the manslaughter instruc
tion. The grand jury indicted Gustafson for first-degree murder,
finding that he had acted with intent to kill. The grand jury
therefore did not need to reach the question of unintended
killings - in particular, how extreme indifference to the value
of human life differs from normal recklessness. Any inadequacy
in the manslaughter instruction was harmless.
d. Failure to Present Exculpatory Evidence
Gustafson asserts that the prosecutor improperly failed
to apprise the grand jury of certain portions of Kerr's initial
statement to the police that tended to show that Gustafson had
not intended to kill anyone when he fired his rifle. Gustafson
points to three portions of Kerr's initial statement which, he
claims, either are inconsistent with Kerr's grand jury testimony
or substantially strengthen the portions of Kerr's grand jury
testimony that tend to show that Gustafson did not shoot with
intent to kill.
Because the State presents cases to grand juries ex
parte, prosecutors are under a duty to apprise grand juries of
exculpatory evidence. Frink v. State, 597 P.2d 154, 164-66
(Alaska 1979). However, this duty extends only to evidence that
"in and of itself tends to negate guilt." York v. State, 757
P.2d 68, 73 (Alaska App. 1988). A prosecutor need not present
evidence that reveals only inconsistencies or potential avenues
of defense. See Konrad v. State, 763 P.2d 1369, 1377 (Alaska
App. 1988); Tookak v. State, 648 P.2d 1018, 1021 (Alaska App.
The fact that a witness's prior statements may be
arguably inconsistent with, may qualify, or may elaborate on the
witness's grand jury testimony does not convert these prior
statements into "exculpatory evidence" for purposes of the Frink
rule. See Frink, 597 P.2d at 166; Wilkie v. State, 715 P.2d
1199, 1201-02 (Alaska App. 1986); Abruska v. State, 705 P.2d
1261, 1273 (Alaska App. 1985). Gustafson has shown no more than
this. The prosecutor did not breach his duty to present
e. Evidence that Gustafson was Entertained by Prostitutes
The prosecutor presented evidence to the grand jury
that, following the highway shooting, Gustafson, Cheely, and Kerr
had rented a motel room and were visited there by two
prostitutes. This incident had essentially no relevance to the
charge against Gustafson, and the superior court, pursuant to
Evidence Rule 404(b), excluded this evidence from Gustafson's
trial. Gustafson argues that this evidence should have been
excluded from the grand jury proceedings as well, and the State's
appellate brief implicitly concedes that Gustafson is right. See
Frink, 597 P.2d at 171, holding that the superior court abused
its discretion when it admitted similar testimony at a murder
However, even though it was error to present this
evidence to the grand jury, Gustafson's indictment is to be
overturned only if this evidence appreciably affected the grand
jury's decision. Oxereok v. State, 611 P.2d 913, 916 (Alaska
1980); Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992).
Given the seriousness of the charge against Gustafson, the
considerable evidence tending to show his guilt of a criminal
homicide, and the scant attention given to the incident with the
prostitutes, we conclude that this improper evidence did not
appreciably affect the grand jury's decision to indict Gustafson
f. Dismissal of a Grand Juror Before Deliberations
As the prosecutor reached the close of the State's
evidence, one of the grand jurors indicated that she had a child-
care problem because the session had run so late in the
afternoon. Recognizing that he did not have the authority to
excuse the grand juror, the prosecutor attempted to reach the
clerk of court and the presiding judge. When these efforts were
unsuccessful, the prosecutor tried to contact two other superior
court judges, again without success.
Finally, the prosecutor reached Superior Court Judge
John Reese. After the prosecutor explained the problem, Judge
Reese asked how many grand jurors would remain if the one juror
were excused. The prosecutor reported that 17 jurors would be
left, a sufficient number under Criminal Rule 6(d). Judge Reese
then excused the juror with child-care problems.
Gustafson challenges Judge Reese's action, asserting
that it violated Criminal Rule 6(s). Under Rule 6(s), the
presiding judge of the superior court has the power to excuse a
Discharge and Excuse. ... At any time
for cause shown the presiding judge may
excuse a juror either temporarily or perma
nently ... .
Criminal Rule 6(t) allows the presiding judge to delegate this
power to another superior court judge when the grand jury is
sitting in a location different from the presiding judge's, or
when the presiding judge is otherwise unavailable. However, Rule
6(t) appears to contemplate an affirmative act of delegation.
Gustafson argues that his indictment must be dismissed
because a judge other than the presiding judge excused the grand
juror. We do not agree. First, we do not accept Gustafson's
underlying claim that, if the presiding judge could not be
reached, all other superior court judges were powerless to deal
with the situation. When grand jury proceedings extend past the
close of business, so that the presiding judge is unavailable to
hear and determine a grand juror's request to be excused, we
believe that another superior court judge would be justified in
invoking Criminal Rule 53 to deal with the situation:
Relaxation of Rules. These rules are
designed to facilitate business and advance
justice. They may be relaxed or dispensed
with by the court in any case where it shall
be manifest to the court that a strict adher
ence to them will work injustice.
While we recognize the value of having one judicial officer hear
and decide all grand juror requests, it seems manifestly unjust
(both to the affected grand juror and to any potential defendant
facing indictment) to force a grand juror to continue
deliberating until the presiding judge can be found. Such a
construction of the criminal rules both senselessly
inconveniences the grand juror and poses a significant danger
that the grand jury will rush its decision in order to alleviate
the affected juror's distress.
Additionally, even if we assume that Judge Reese had no
power to excuse the grand juror, Gustafson has not shown that
Judge Reese's action prejudiced him. Under Criminal Rule
6(n)(1), an indictment requires a majority vote of the total
number of people "comprising the grand jury when the grand jury
[was] sworn and charged with instructions". Under this rule, the
departure of one or more grand jurors does not reduce the
majority needed for indictment. The record discloses that there
were 18 grand jurors before the challenged departure; 10 votes
were needed to return an indictment. The grand juror's departure
did not alter the required majority but simply made it harder to
For all these reasons, the superior court properly
rejected Gustafson's attacks on his indictment.
As noted above, Gustafson was sentenced to 65 years'
imprisonment for second-degree murder. On appeal, Gustafson
makes two sentencing arguments: first, that the written judgement
Judge Johnstone signed misstates the sentence Gustafson received;
and second, that the 65-year sentence is excessive.
At sentencing, the State asked Judge Johnstone to
restrict Gustafson's eligibility for parole during the 65-year
term of imprisonment. See AS 12.55.115. Judge Johnstone
declined. Nevertheless, the superior court's written judgement
states that Gustafson's term of imprisonment "is all or partially
presumptive", and that Gustafson "is ineligible for parole,
except as provided in AS 33.16.090(b) and (c)."
Gustafson points out, correctly, that he did not and
could not receive a presumptive sentence. Although second-degree
murder carries a mandatory 5-year minimum term, sentences for
second-degree murder are not presumptive terms. AS 12.55.125(b);
Weitz v. State, 794 P.2d 952, 957 n.3 (Alaska App. 1990). Thus,
Gustafson's eligibility for parole is governed by
AS 33.16.100(d), not AS 33.16.090(b)-(c). The superior court
should amend the written judgement to reflect Gustafson's true
sentencing and parole status.
We turn now to Gustafson's main sentencing argument:
that his 65-year term of imprisonment is excessive. This court
has established a benchmark sentencing range of 20 to 30 years'
imprisonment for second-degree murder. Page v. State, 657 P.2d
850, 855 (Alaska App. 1983). Gustafson's 65-year sentence is
considerably more severe than this benchmark range. The court
could impose such a sentence only if there are articulable
reasons either to view Gustafson as an atypically dangerous
offender or to view his offense as atypically serious. Williams
v. State, 809 P.2d 931, 933-35 (Alaska App. 1991) (on rehearing).
Gustafson was 19 years old at the time of sentencing.
The facts of the murder have been described above. In addition,
the presentence report contained information that, the week
before the shooting, Gustafson (along with Cheely and Kerr) had
burglarized a store in Eagle River and had stolen about $19,000.
(Gustafson was indicted for this burglary and theft, but after he
was convicted of murder the State chose not to pursue these
additional charges.) When Gustafson discovered that two of
Cheely's friends knew that they had committed the burglary and
theft, Gustafson spoke of "blowing [them] away", commenting that
he and Cheely "did not need any more witnesses".
The sentencing record contains other instances of
Gustafson's violent tendencies. Two months before the shooting,
Gustafson had gotten drunk at a party and, for no apparent
reason, had threatened several people with a kitchen knife; he
slashed one woman in the stomach before he was wrestled to the
ground, disarmed, and subdued.
At the sentencing hearing the State supplemented the
pre-sentence report with testimony from several witnesses. Two
of these witnesses saw Gustafson assault a schoolmate with a
switchblade knife when he was in eighth grade. One of the
witnesses also testified that Gustafson was fond of throwing
rocks and shooting arrows at neighborhood pets; the witness said
that Gustafson had once killed a dog with an arrow. Another
witness testified that Gustafson had admitted stealing dynamite
from the Alaska Railroad, and that Gustafson had assembled a pipe
bomb which he brought to high school to display to his friends.
On his own behalf, Gustafson submitted an evaluation
performed by Dr. Ronald Ohlson, a clinical psychologist who
interviewed Gustafson just before sentencing and who administered
two personality assessments to him - the Minnesota Multiphasic
Personality Inventory II (MMPI) and the Millon Clinical
Multiaxial Inventory (MCMI). Apparently at the instruction of
Gustafson's attorney, Dr. Ohlson agreed to interview and evaluate
Gustafson without asking Gustafson about his offense. At the
sentencing hearing, Dr. Ohlson conceded that he had not reviewed
the police reports, grand jury evidence, or trial evidence. Dr.
Ohlson also apparently was unaware of the contents of the pre-
sentence report, since his evaluation states that he had "no data
which indicates that [Gustafson] has engaged in violent behavior
in the past."
Gustafson told Ohlson that he was not a violent person,
that "he had always been a good kid", and that he had been in
only two minor difficulties with the law, both when he was a
young teenager. Gustafson's MMPI results were within normal
ranges, although the test did indicate that Gustafson was prone
to "pleasure-seeking, impulsivity, ... rule infractions, and high-
risk behavior". According to Dr. Ohlson, Gustafson's MCMI
results suggested a "deeply ingrained and pervasive pattern of
maladaptive functioning", as well as "prominent narcissistic
features" and "obsessive compulsiveness". However, Dr. Ohlson
discounted these results because he was unaware of any evidence
that these traits had interfered with Gustafson's "vocational or
Dr. Ohlson concluded that Gustafson's psychological
profile was not characteristic of criminals but rather was "a
normal profile with some acting-out and rule-breaking tendencies,
as well as a basic narcissistic and rebellious posturing."7 In
reaching his conclusion, Dr. Ohlson relied on the purported fact
that Gustafson's past was "free of criminal behavior": "[Gustaf
son's] major strengths ... appear to be his lack of criminal
record and what appears to be a preference for endurance and hard
work in socially acceptable vocational endeavors." Dr. Ohlson
concluded that Gustafson was "not likely to ... act out anger and
aggression in [an] antisocial [manner]".
Judge Johnstone found that Gustafson's offense was
among the most serious within the definition of second-degree
murder because Gustafson, incensed over a perceived minor slight,
deliberately aimed at a small car and, from short range, fired a
shot from a high caliber rifle toward its occupants. The judge
found that Gustafson demonstrated no remorse.
Judge Johnstone rejected Dr. Ohlson's sanguine view of
Gustafson's rehabilitative potential because he found that Ohlson
had been given little accurate information about Gustafson's
background and offense. Instead, Judge Johnstone found that
Gustafson's prospects for rehabilitation were "guarded to poor".
Judge Johnstone noted that Gustafson had repeatedly demonstrated
inexplicably violent behavior, that he had developed into a
dangerous person, and that nothing in his background provided
insight into his tendency toward violence. Based on these
factors, Judge Johnstone concluded that Gustafson presented "a
continuing threat of violence to the public" and that Gustafson
currently was probably not amenable to treatment. Moreover,
Judge Johnstone concluded that a lengthy prison term was required
to deter other people from similar acts of violence.
Judge Johnstone also believed that Gustafson should
receive a severe sentence to express the community condemnation
of his conduct. The judge pointed out that Gustafson's crime had
engendered widespread community condemnation because the crime
threatened the entire community's sense of safety; Gustafson's
senseless and unpredictable act of violence had forced all
citizens to grapple with "the thought that it could have been
For these reasons, Judge Johnstone found that a
sentence within Page's 20- to 30-year benchmark range would not
adequately address the sentencing goals enunciated in State v.
Chaney, 477 P.2d 441, 443-44 (Alaska 1970), and now codified in
AS 12.55.005. At the same time, Judge Johnstone concluded that
Gustafson's conduct and background did not make him a worst
offender, so he rejected both the maximum sentence (99 years) and
the State's suggestion that he restrict Gustafson's eligibility
for parole. Instead, Judge Johnstone sentenced Gustafson to
65 years' imprisonment, a term midway between the benchmark range
and the maximum sentence.
In challenging this sentence, Gustafson cites State v.
Krieger, 731 P.2d 592 (Alaska App. 1987), in which this court
discussed sentencing guidelines for second-degree murder:
[W]here a homicide is unintentional, Alaska's
appellate courts indicate that the
defendant's potential for rehabilitation is
of significance and a sentence of ten years
or less is sufficient to satisfy the Chaney
Id. at 595, citing Pears v. State, 698 P.2d 1198, 1205 n.15
(Alaska 1985); Sumabat v. State, 580 P.2d 323, 325 (Alaska 1978);
Husted v. State, 629 P.2d 985, 987 n.7 (Alaska App. 1981).
Gustafson asserts that, because he had no intent to kill his
victim, under Krieger he should have received a sentence lower
than the 20- to 30-year Page benchmark. However, Krieger cannot
be read in the manner Gustafson suggests.
Krieger was an appeal brought by the State of Alaska,
challenging a sentence as too lenient. The passage quoted above
speaks of a range of sentences "sufficient to satisfy the Chaney
criteria" for a particular type of homicide. In context, this
language means only that such sentences generally are not clearly
too lenient. This court did not purport to set an upper
sentencing limit. See Odom v. State, 798 P.2d 353, 356 (Alaska
App. 1990), in which this court upheld a second-degree murder
sentence of 12 years to serve against the argument that Pears and
Krieger established a 10-year ceiling.
Moreover, under Alaska's current criminal code, all
second-degree murders are "unintentional". By definition, a
second-degree murder is a homicide committed by a defendant who
did not intend to kill.8 If we interpreted the passage in
Krieger as setting or advocating an upper boundary of 10 years'
imprisonment for all unintentional homicides, Krieger would be at
odds with the Page benchmark.
Examination of the three sentencing decisions cited in
the passage from Krieger shows that the term "unintentional
homicides" was meant to refer to criminal homicides that do not
result from intentional assaults. Pears involved a vehicular
homicide prosecuted as second-degree murder under AS 11.41.110(a)
(2); the defendant in Pears did not intentionally assault his
victims. Pears, 698 P.2d at 1199-1200. Sumabat and Husted
involved manslaughter convictions under Alaska's prior criminal
code, and both defendants committed involuntary manslaughters;
that is, neither defendant acted with intent to kill. Sumabat,
580 P.2d at 324-25; Husted, 629 P.2d at 985-86 & n.2. Indeed,
the facts recited in the Sumabat and Husted indicate that, as in
Pears, neither defendant intentionally assaulted his victim; both
victims died when firearms accidentally discharged during
Thus, even if we interpreted Krieger to require lenient
treatment of some second-degree murders, this rule of leniency
would apply only to second-degree murders that are not the result
of intentional assaults. Gustafson intentionally fired his rifle
at the car containing Chamberlain and Cain. Thus, he cannot
claim the benefit of a sentencing guideline that applies to
murders resulting from non-assaultive conduct.
Gustafson also argues that the legislative commentary
to AS 11.41.110(a)(2) indicates that his conduct is typical of
the kind of conduct the legislature thought would be encompassed
by this section of the second-degree murder statute. However,
the example of "extreme indifference" murder cited in the
commentary is less culpable than Gustafson's conduct:
Subsection (a)(2) describes conduct that
is very similar to the "substantially
certain" clause in subsection (a)(1). Under
this provision, however, the defendant need
not necessarily know that his conduct is
substantially certain to cause death or
serious physical injury. An example of
conduct covered by this provision would be
shooting through a tent under circumstances
where the defendant did not know a person was
inside or persuading a person to play
"russian roulette". The defendant is only
required to intend to perform the act; there
is no requirement that he intend to cause
death or that he know that his conduct is
substantially certain to cause death.
1978 Senate Journal, Supplement No. 47 (June 12), p. 10. In
contrast to the commentary's examples, Gustafson did not fire his
rifle in ignorance of whether the car was occupied or in
ignorance of whether the weapon would fire a bullet at someone
who knew the risk; Gustafson knew that he was firing toward unpro
tected and unsuspecting people.
Finally, Gustafson claims that the superior court based
his sentence on unsupported "armchair psychological analysis".
Gustafson challenges Judge Johnstone's sentencing remark that
Gustafson "may have a significant personality disorder of some
sort". Asserting that the evidence establishes no basis for this
remark, Gustafson points to Dr. Ohlson's conclusion that Gustaf
son's psychological profile was within normal limits and did not
reveal a criminal personality.
First, as mentioned in footnote 7 above, Dr. Ohlson
conceded at sentencing that Gustafson suffered from a
narcissistic personality disorder. Second, even without Dr.
Ohlson's testimony, the sentencing record as a whole supports
Judge Johnstone's conclusion that Gustafson poses a significant
danger to others, even though the origin of his dangerous
propensities might not be clearly identifiable, and also supports
Judge Johnstone's conclusion that Gustafson's prospects for
rehabilitation are guarded.
Our review of the record convinces us that Judge
Johnstone's sentencing decision is not clearly mistaken. McClain
v. State, 519 P.2d 811, 813-14 (Alaska 1974).
As discussed above, the superior court must alter its
written judgement to reflect Gustafson's normal eligibility for
parole. In all other respects, Gustafson's conviction and
sentence for second-degree murder are AFFIRMED.
1 See Spinelli v. United States, 393 U.S. 410, 89 S.Ct.
584, 21 L.Ed.2d 639 (1969); Aguilar v. Texas, 378 U.S. 108, 84
S.Ct. 1509, 12 L.Ed.2d 723 (1964).
2 Judge Johnstone also found that exigent circumstances
justified the authorities' decision to execute the warrant and
obtain the first conversation with Gustafson before returning to
the magistrate with the information about Kerr's crimes and the
prosecutor's promise of immunity. This finding requires some
The "exigent circumstances" exception to the warrant require
ment normally covers instances in which the police have probable
cause to conduct a search but have insufficient time to obtain
judicial authorization for the search. This court has also
applied the exigent circumstances doctrine to uphold police
decisions to execute a Glass warrant even though the person they
are recording is not the person named in the warrant. Pruitt v.
State, 829 P.2d 1197, 1198-99 (Alaska App. 1992); Fox v. State,
825 P.2d 938, 939 (Alaska App. 1992).
Gustafson asserts that, before the police executed the
warrant, they received new information that destroyed the magis
trate's basis for issuing the warrant. This distinguishes
Gustafson's case from Pruitt and Fox. It is one thing to
recognize that exigency may justify a search if the police have
probable cause but no time to procure a warrant; it is another
matter to declare that, because of the press of circumstances,
the police may serve a warrant even when they realize they no
longer have probable cause to conduct the search.
Because Judge Johnstone ruled that the warrant was still
supported by probable cause, even after Kerr had admitted the
burglary and theft and had been granted immunity for these
crimes, we do not interpret the judge's "exigent circumstances"
ruling as a declaration that the police could proceed to tape
Gustafson's conversations with Kerr without probable cause.
Rather, we interpret Judge Johnstone's ruling as a finding that
the police and prosecutor acted in good faith when they executed
the Glass warrant and taped Kerr's first conversation with
Gustafson instead of immediately returning to the magistrate.
Judge Johnstone found that Cheely had been alerted to Kerr's
role in the investigation and that there was a significant danger
that Cheely would soon communicate his knowledge to Gustafson.
Additionally, Kerr had already spoken to Gustafson over the
telephone and had told him that he would arrive at the airport
within the hour. Under these circumstances, Judge Johnstone
could reasonably conclude that the authorities acted in the good
faith belief that interruption of the investigation would have
jeopardized its success. This is tantamount to a finding that
the authorities' failure to return immediately to the magistrate
was not "intentional" for purposes of Malkin, 722 P.2d at 946 n.6
- that is, the authorities did not engage in a "deliberate
attempt to mislead a judicial officer".
3 We note that, because Gustafson was convicted of second-
degree murder at his trial and because Gustafson concedes that
the grand jury heard sufficient evidence to justify indicting him
for second-degree murder, Gustafson's insufficiency of the
evidence claim might be moot. Given our finding that the grand
jury evidence supported the indictment for first-degree murder,
we do not reach the mootness issue.
4 Gustafson makes two additional arguments concerning the
Gustafson first claims that Evidence Rule 1002 required the
prosecutor to introduce the tapes themselves, not transcripts.
This claim was not raised in the trial court, so it is therefore
not preserved for appeal. Gaona v. State, 630 P.2d 534, 537
(Alaska App. 1981). Moreover, Gustafson does not assert that the
transcripts were inaccurate.
Gustafson next claims that the prosecutor improperly discour
aged the grand jurors from listening to the tapes. He points out
that the prosecutor told the grand jurors that the tapes were
"fairly long". The prosecutor also made remarks that could be
construed as representations that he believed the grand jury
would have sufficient evidence without listening to the tapes
themselves, and that they should not delay the proceedings
without good reason, since the ten days for holding Gustafson
without either a preliminary hearing or an indictment expired
that same day.
However, the supreme court rejected a similar challenge to
the indictment in Coleman. In Coleman, the grand jury asked to
have a physician called to explain the results of a physical
examination of the victim. The prosecutor discouraged the grand
jury, telling them, "I don't think calling a doctor is needed. I
think you've heard enough to have this person tried, ... [a]nd we
can't go calling in experts on every case." 614 P.2d at 49. The
supreme court held that the prosecutor's comments did not
invalidate the ensuing indictment because, despite the
prosecutor's attempt to dissuade the grand jurors from calling
the expert witness, the prosecutor had also clearly informed the
grand jury of their right to hear any witness they wished and of
the correct standard to apply in deciding whether the evidence
they had heard justified indictment. Id. at 50.
Using similar reasoning, we conclude that the prosecutor's
comments to Gustafson's grand jury about the advisability of
listening to the tapes themselves did not invalidate the ensuing
5 In general, a prosecutor has no duty to instruct a grand
jury on potential lesser offenses. Castillo, 614 P.2d at 763;
Konrad v. State, 763 P.2d 1369, 1378 (Alaska App. 1988). Here,
however, the prosecutor responded to the grand jury inquiry by
providing instruction on the various degrees of homicide. Having
voluntarily undertaken this duty, the prosecutor was obliged to
instruct the grand jury correctly. For purposes of the present
case, we assume that the prosecutor's decision likewise obliged
him to instruct the jury adequately.
6 Compare Criminal Rule 6(g), which governs situations in
which one or more members of the grand jury panel lacked the
legal qualifications to sit as grand jurors. Rule 6(g) provides
that indictments returned by that panel are nevertheless valid if
a majority of the qualified grand jurors concurred in the
7 At the sentencing hearing, Dr. Ohlson modified this
conclusion somewhat, asserting that he now believed Gustafson
suffered from a "narcissistic personality disorder".
8 Any criminal homicide committed with intent to kill is
first-degree murder under AS 11.41.100(a)(1) unless the killing
is mitigated by heat of passion under AS 11.41.115(a); if so, the
crime is manslaughter. AS 11.41.120(a)(1) and AS 11.41.115(a),