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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GREGORY W. MARINO, )
) Court of Appeals No. A-5756
Appellant, ) Trial Court No. 3AN-93-8063 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1519 - March 21, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Mark C. Rowland, Judge.
Appearances: Sharon Barr and Leslie A.
Hiebert, Assistant Public Advocates, and Brant
G. McGee, Public Advocate, Anchorage, for
Appellant. John A. Scukanec, Assistant Attor-
ney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Gregory W. Marino appeals his convictions for first-degree
murder and attempted first-degree murder, as well as the 198-year
composite sentence he received for these crimes. Marino questions
various evidentiary rulings made by the trial court, and he asserts
that his sentence is excessive. We affirm these convictions and
sentence.
Marino also appeals his convictions for third- and fourth-
degree misconduct involving a controlled substance. During the
murder investigation, Marino voluntarily gave blood and urine
specimens to the police after he was assured that these specimens
would be used only in the murder investigation and not to prove that
Marino had committed any drug offense. Despite this assurance, the
State used test results from these specimens to prove that Marino
had possessed cocaine, both for delivery and for personal use. We
agree with Marino that the State should not have been allowed to use
the test results in this manner, and we therefore reverse Marino's
drug convictions.
Facts of the case
The Assault. A little after 11 o'clock on the night of
October 22, 1993, seven-year-old Lien Chau Nguyen was awakened by
screams. Lien Chau's cousin, Donna Jackson, was calling for help.
Lien Chau left her bed and went into the living room to see what was
happening. She saw an intruder attacking her cousin. When the man
saw Lien Chau, he attacked her and began to choke her. With Donna
Jackson's aid, Lien Chau escaped from her attacker and ran into her
mother's bedroom. Finding no one there, Lien Chau went back to her
own room and hid under the bed. (EN1)
From her place of hiding, Lien Chau heard the man come
looking for her. The man first went into her mother's room, and
then he came to Lien Chau's room. He shook the bed, then looked
under it. When he saw Lien Chau, he pulled her out from beneath the
bed.
The man demanded to know where Lien Chau's sister was; he
promised not to hurt Lien Chau if she told him. Lien Chau replied
that she did not know where her sister was. When Lien Chau gave
this answer, the man stabbed her in the throat and, according to
Lien Chau's testimony at trial, "tried to cut off [her] head". Lien
Chau blocked her neck with her hands as the man continued to stab
her. She then pretended she was dead. The man stopped stabbing her
and left the apartment through the bedroom window.
When the attacker was gone, Lien Chau ventured back into
the living room to see what had happened to her cousin. She saw
Donna Jackson lying dead on the floor.
Lien Chau tried to get out of the apartment, but she could
not turn the door knob: her hands were too slippery from her own
blood. She went to the kitchen, washed her hands, and then she
called the 911 emergency operator. The time of this call was 11:20
p.m..
Lien Chau told the 911 operator that a black man had
beaten and killed her cousin Donna, that he had also stabbed Lien
Chau, and that he had fled through Lien Chau's window. A paramedic
who was listening on the line with the 911 operator asked Lien Chau
who had stabbed her. She replied that the man was her sister's
friend, and that he lived near Tommy's (a grocery and convenience
store in Mountain View).
Shortly thereafter, the police and paramedics arrived at
Lien Chau's house. They put a towel around Lien Chau's neck to
staunch the bleeding, and then they took her to the hospital. The
hospital examination revealed that Lien Chau had several knife
wounds to her head and neck. One of these wounds was very serious:
the knife had penetrated the back of her mouth, missing her carotid
artery by only a few millimeters. Lien Chau also had a chest wound
and numerous defensive wounds on her hands (from attempting to grab
the knife blade).
When the police initially entered the apartment, they had
to step over Donna Jackson's body, which lay just inside the door.
The apartment had clearly been the scene of a struggle. Furniture
was overturned throughout the apartment. Blood was spattered on the
walls, and the floor around Jackson's body was soaked with blood.
In Lien Chau's bedroom, there was blood on the curtain, the bed, the
chest of drawers, and the window sill (the exit route used by the
attacker).
In the living room, the police found two knives near
Jackson's body. Both of these knives had blood and hair on them,
and one of them was broken. The police also found an upright vacuum
cleaner near Jackson's body. The vacuum cleaner was covered with
blood, and the handle had been broken off from the base. The base
of the vacuum was literally full of blood; it had to be drained and
dried before the police could test it for fingerprints. There was
a third bloody knife, a large bent one, on the floor of Lien Chau's
bedroom near her window.
Subsequent medical examination revealed that there were
approximately sixty-two knife wounds in Donna Jackson's body.
Jackson had been stabbed in the heart, both lungs, the spleen, and
the liver. Jackson had also sustained a serious head injury caused
by a blunt object þ most likely, the vacuum cleaner.
Background. Lien Chau Nguyen had a 17-year-old sister
named Lien Thuong. Gregory Marino and Lien Thuong Nguyen had been
involved in a romantic relationship for the four or five months
preceding the homicide. Lien Thuong would purchase cocaine for the
two of them. Two weeks before the homicide, Marino had given Lien
Thuong five rings to use as collateral for a cocaine purchase. Lien
Thuong used the rings to buy crack cocaine, which she and Marino
smoked.
At about the same time as the ring-pawning incident, Lien
Chau had occasion to spend the evening at Marino's apartment. The
night was October 8th þ Lien Chau's seventh birthday. Michelle
Pungowiai (a cousin of Lien Thuong's) was babysitting Lien Chau
while Lien Thuong spent time with Marino at Marino's apartment.
Apparently, Pungowiai was unable to stay with Lien Chau for the
whole evening, so she took Lien Chau to Marino's apartment and
dropped her off there.
Lien Thuong and Marino gave Lien Chau some food and some
candy, and then they left her to watch television while they went
into the bedroom. Lien Chau watched television until she fell
asleep. After a couple hours, Lien Chau's mother came to Marino's
apartment and picked her up.
About a week later (that is, a week before the murder),
Marino began to press Lien Thuong for the return of his rings.
Marino threatened to hurt Lien Thuong if she did not get the rings
back. He also threatened to hurt "somebody close to [her]".
Two days before the murder, Marino communicated a new
threat to Lien Thuong through Michelle Pungowiai. Marino told
Pungowiai to tell Lien Thuong that if she did not get him the money
she owed him, he would harm Lien Thuong or someone else in her
family.
On the day of the murder, Lien Thuong spoke to Marino on
the telephone. Marino again asked her when she was going to redeem
his rings from the cocaine dealer. During this conversation, Marino
asked Lien Thuong if she knew of anyone who had money or jewelry.
Lien Thuong named a drug dealer she knew. Marino said that he was
going to the drug dealer's house to rob and kill him. Marino then
offered Lien Thuong a description of what it felt like to kill
someone. Marino told her that the act of killing was a "rush" like
taking drugs. He told Lien Thuong that it was entertaining to watch
someone begging for their life, and then he laughed.
On the night of the murder, Marino visited the Nguyens'
apartment at around 8 o'clock. Lien Thuong opened her bedroom
window and told Marino to be quiet: her sister (Lien Chau) and her
cousin (Donna Jackson) were in the living room, and she did not want
them to know that Marino was visiting. She then had Marino enter
the apartment through her window. (The latch on this window had
been broken for some time, and the Nguyens used it as a second
entrance.)
Marino had brought crack cocaine with him; Lien Thuong,
Pungowiai, and Marino smoked the crack. Lien Thuong then made a
phone call to a drug dealer, who delivered some more cocaine to the
apartment. Lien Thuong, Pungowiai, and Marino smoked that cocaine
as well.
Marino left the apartment between 9:30 and 10:00 p.m..
Shortly after he left, Marino telephoned the apartment and spoke
with Lien Thuong about getting more cocaine. Lien Thuong and
Pungowiai left the apartment soon after Marino's telephone call.
When they left, Donna Jackson and Lien Chau were watching
television. Jackson had another hour to live.
The Investigation. When Lien Chau was brought to the
hospital immediately following the assault, she spoke with Officer
Bridges just before she underwent surgery. Lien Chau said that her
attacker had been wearing a dark cloth jacket, rubber boots, and a
black hat with a white "A" on it. Lien Chau also described her
attacker as having curly hair and a mustache. She told the police
that this man lived in a peach-colored apartment building near
Tommy's.
Based on Lien Chau's statements, police detectives located
a peach-colored apartment building near Tommy's Grocery at 3701
Richmond Street. They set up surveillance of this building shortly
before 2:00 a.m.. A few minutes later, the officers saw a black man
walk into the apartment building. The officers spoke to the
building manager and found out that there was only one person living
in the apartment complex who matched Lien Chau's description. That
man lived in apartment number 11.
The officers went to apartment 11 and knocked on the door.
Marino answered. The officers identified themselves and asked
Marino to accompany them to the police station. Marino agreed. One
of the officers followed Marino to the bedroom to retrieve a jacket.
This officer testified that he saw a dark hat with a white letter
on the front of it lying on Marino's bed. The officer also noticed
that Marino had a fresh cut on the little finger of his right hand
and an apparent bloodstain on one of his thumbnails.
The officers transported Marino to the police station,
where they obtained his consent to search his apartment. The
officers also questioned Marino concerning his whereabouts and
activities that night. Marino repeatedly denied any involvement in
the attack.
Marino told the police that he was friends with Lien
Thuong Nguyen, and that he had visited the Nguyens' apartment
earlier that night to take drugs with Lien Thuong. Marino said that
he stayed at the apartment for 30 to 45 minutes, that he left
between 10:00 and 10:30, and that he had not returned. Marino
subsequently consented to have the police take his fingerprints,
take blood and urine specimens, and take fingernail scrapings for
forensic testing.
The police conducted a search of Marino's apartment on the
morning of October 23rd. They found no sharp knives, no rubber
boots, and no black hat with the letter "A" on it. (EN2)
During their investigation of the crime scene, the police
took several blood samples. None of these matched Marino's blood.
The police also obtained several shoe prints from the crime scene.
None of the shoe prints could definitely be attributed to Marino.
The police also obtained seven usable fingerprints from the crime
scene, as well as an adult's hand print in Lien Chau's bedroom and
another hand print on the handle of the vacuum cleaner. None of
these prints matched Marino's.
None of the items the police seized from Marino's
apartment (various items of clothing, as well as a washcloth and a
shoe-cleaning kit) had blood on them, with the exception of one
jacket. DNA testing eliminated Donna Jackson and Lien Chau Nguyen
as possible sources of the blood on the jacket.
There was no other forensic connection between Marino and
the crime scene. There was no match between Marino's hair and hair
samples found at the crime scene, nor were any hairs from Donna
Jackson or Lien Chau Nguyen found at Marino's apartment or on any
of his clothing. The police also tested for carpet fibers, but
again there was nothing linking Marino to the crime scene.
On October 25th, the police interviewed Lien Chau again
at the hospital. From a photograph of Marino's apartment building,
Lien Chau identified the door to Marino's apartment as the place
where her attacker lived. The police then showed Lien Chau a six-
person photographic lineup. She picked Marino's photograph.
Based on Lien Chau's identification, and notwithstanding
the lack of physical evidence to tie Marino to the homicide, a grand
jury indicted Marino for first-degree murder for the killing of
Donna Jackson. The grand jury also indicted Marino on alternative
charges of attempted first-degree murder and first-degree assault
for the attack on Lien Chau Nguyen. In addition, the grand jury
indicted Marino on two drug charges: third-degree misconduct
involving controlled substances (possession of cocaine with intent
to deliver), and fourth-degree misconduct involving controlled
substances (simple possession of cocaine).
Following a jury trial in the Anchorage superior court,
Marino was found guilty of all five charges. The State stipulated
that, for sentencing purposes, the first-degree assault conviction
was subsumed in the attempted murder conviction.
Superior Court Judge Mark C. Rowland sentenced Marino to
99 years' imprisonment for the murder of Donna Jackson, to a
consecutive 99 years' imprisonment for the attempted murder of Lien
Chau Nguyen, and to a consecutive 6 years for the drug convictions.
Judge Rowland also declared that Marino was not eligible for parole.
Marino's motion for disclosure of the juvenile records of
certain witnesses
Before trial, Marino sought disclosure of all Division of
Family and Youth Services records relating to Lien Thuong, Lien
Chau, Karen Nguyen (their mother), and Michelle Pungowiai, as well
as the records from any Child-in-Need-of-Aid proceedings involving
the three juveniles (Lien Thuong, Lien Chau, and Michelle). Judge
Rowland said that he would defer ruling on the merits of Marino's
request until he had a chance to examine the documents in camera.
The judge ordered the State to turn the records over to him for
private inspection so that he could determine which documents (if
any) should be disclosed to the defense. See Alaska Criminal Rule
16(d).
Within the week, the State turned over all of the records
to the court. However, Judge Rowland never issued a subsequent
order. That is, the judge never affirmatively granted or denied
Marino's request for disclosure, nor did he issue any other order
partially granting the request (by designating particular documents
to be disclosed). The documents remained with the court and never
were disclosed to the defense. Marino's attorney conducted the
trial (and cross-examined the juveniles) without seeking a further
ruling from the court.
On appeal, Marino argues that the trial judge should have
disclosed these documents to the defense. However, Marino chose to
proceed without seeking a ruling on the merits of his discovery
motion. He therefore can not raise this issue on appeal. See
Erickson v. State, 824 P.2d 725, 733 (Alaska App. 1991) ("[I]n order
to properly preserve this issue for appeal, it was [the defendant's]
duty to insist that the trial court rule on his motion[.]"); Jonas
v. State, 773 P.2d 960, 963 (Alaska App. 1989) (by failing to seek
a ruling on his motion for a psychiatric evaluation of the
complaining witness, the defendant forfeited his right to argue on
appeal that the trial court should have granted the motion).
Marino's motion for suppression of Lien Chau's identification
of him from the photographic lineup, and for suppression of her
subsequent in-court identification
As described above, Lien Chau called the 911 emergency
operator minutes after the murderer left her residence. Lien Chau
told the operator that her sister's friend, a black man who lived
near Tommy's Grocery, had killed her cousin and had stabbed her.
Approximately two and a half days later, on the afternoon
of October 25, 1993, Anchorage Police Detective Bill Reeder
interviewed Lien Chau at the hospital. (Until this time, Lien Chau
had been heavily sedated and thus unavailable to be interviewed.)
Lien Chau's nurse and Lien Chau's mother were also in the hospital
room during the interview.
Reeder spoke to Lien Chau about her previous statement to
the 911 operator (that her assailant lived near Tommy's). He asked
Lien Chau if she knew what color her assailant's apartment building
was; she again identified it as peach-colored.
Reeder then showed Lien Chau a photograph of Marino's
apartment building; Lien Chau told the officer that she recognized
the building. Reeder asked Lien Chau to point out the apartment of
the person who had attacked her. (This apartment building is
constructed like a motel; the entrances to the individual apartments
are on the outer walls of the building.) Lien Chau pointed to the
entrance to Marino's apartment.
When Lien Chau pointed out Marino's apartment, her mother
and her nurse clapped. Reeder himself commented that Lien Chau had
"pointed ... right to the defendant's door". Reeder then showed
Lien Chau an array of six photographs. He told her only that these
were "photographs of ... some black men", and he cautioned her that
the inclusion of particular people in the array "[didn't] mean
[that] these people are bad people". Reeder added, "I don't know
if this man['s] picture is there or not, and I need you to tell me
whether you ... can recognize a picture, okay?" Lien Chau told
Reeder that the man depicted in photograph number 3 "looks like it
might be him ... 'cause he had hair like this one. ... I think
that's him, 'cause he had [a] lot [of] curly hair here."
Marino's photograph was in position number 3. Lien Chau's
reference to "curly hair" is puzzling, since Marino's photograph
clearly shows him to be nearly bald. However, whatever Lien Chau
meant by her reference to curly hair, there is no doubt that she
selected photograph number 3, and this was Marino's photograph.
Marino asked Judge Rowland to suppress Lien Chau's
identification of his photograph from the array. Marino argued that
the identification procedure had been unduly suggestive. Marino
also asked the judge to prohibit Lien Chau from identifying him in
court, arguing that any in-court identification would be the product
of the tainted photographic identification.
Judge Rowland denied these motions. The judge stated that
he thought certain aspects of the identification procedure were
improperly suggestive (the applause when Lien Chau identified
Marino's apartment, and Reeder's simultaneous statement that Lien
Chau had pointed to "the defendant's" door). Nevertheless, Judge
Rowland concluded that the procedure as a whole was unlikely to
yield an unreliable identification. He noted that Lien Chau had had
a good opportunity to observe her assailant, she had previously
given a description of her assailant to the 911 operator, and she
had expressed a high level of certainty when she identified Marino's
photograph.
On appeal, Marino renews his contention that the
photographic identification was impermissibly suggestive, and that
Lien Chau's subsequent in-court identification of Marino should have
been suppressed as the tainted fruit of the photographic
identification.
Marino first argues that, although each of the six
photographs depicts a black man, the skin tone of the other five men
is significantly lighter than Marino's skin tone. Judge Rowland
found this assertion to be baseless. We have examined the
photographic array, and we agree with Judge Rowland.
Marino then points out that the man depicted in photograph
number 5 is looking up and to his left, as if directing his gaze at
Marino in photograph number 3. (The photographs are arranged in two
rows of three, numbered left to right.) Marino asserts that this
man's eyes inexorably draw a person's attention to photograph 3,
thus implicitly suggesting that the man in photograph 3 should be
identified as the culprit. Judge Rowland found this assertion to
be "frivolous", and again we agree.
This brings us to the question raised about the reactions
displayed by Reeder and the bystanders when Lien Chau identified
Marino's apartment (the applause and Reeder's statement that Lien
Chau had identified "the defendant's" apartment). Marino asserts
that these reactions tainted Lien Chau's later selection of Marino's
photo from the six-person photographic lineup. While such reactions
might potentially be problematic in other circumstances, we are
convinced that they are essentially irrelevant in Marino's case.
Marino was not a stranger to Lien Chau; she knew who he
was. On October 8, 1993 (two weeks before the attack), Lien Chau
spent the evening at Marino's apartment. Marino gave Lien Chau food
and candy.
When Lien Chau spoke to the 911 operator just minutes
after her assailant fled, she obviously had a particular person in
mind. She identified her attacker as a person she knew: the black
man who was her sister's friend and who lived near Tommy's. After
Lien Chau identified Marino's apartment as the place where her
attacker lived, it was clear that Lien Chau believed Marino was the
person who had attacked her and Donna Jackson. Marino was the
identifiable suspect even if the police had never shown the photo-
graphic lineup to Lien Chau.
When Lien Chau subsequently picked Marino's photograph
from the six-person array, she merely confirmed her previous
identification. Had Lien Chau picked someone else, this might have
been significant; but she in fact picked out Marino, the person who
lived in the apartment that she had already identified.
Under these circumstances, even if there was potential
suggestiveness in the way the photographic lineup was presented to
Lien Chau, this potential suggestiveness had very little
significance. From the outset, Lien Chau had identified her
assailant as her sister's friend. By the time she was shown the
photographic lineup, Lien Chau had identified the building and the
apartment where that friend lived. In light of this, the photo-
graphic lineup simply tested Lien Chien's ability to identify a
photo of that friend.
One could argue (and Marino did argue at trial) that Lien
Chau was mistaken when she identified her sister's friend as her
attacker. But if Lien Chau indeed mistook someone else for Marino,
she made this mistake at the time of the crime, not when the police
showed her the photographic lineup at the hospital.
For these reasons, we uphold Judge Rowland's denial of
Marino's motion to suppress the photographic identification, and we
also uphold Judge Rowland's denial of Marino's motion to prohibit
Lien Chau from identifying him in court.
Marino's motion for mistrial based on Lien Thuong's testimony
that Marino had said he got a "rush" from killing people
At trial, Lien Thuong testified that Marino had telephoned
her on the day of the murder and had suggested that he was going to
murder a drug dealer to obtain money and jewelry. The prosecutor
then asked Lien Thuong, "Did Gregory Marino tell you how it ...
might feel to kill someone?" Lien Thuong answered:
He told me [that] the feeling, the rush of
killing somebody, there's no other rush like
it, as when you're doing drugs or whatever.
There's nothing else like that rush. ... He
said [that] the thought of a person begging for
their life [was] funny, and he started to
laugh.
Lien Thuong later testified that she was unsure exactly when Marino
had said this to her; she conceded that it might have been a few
days before the murder.
Marino sought a mistrial because of the above-quoted
testimony. Marino's attorney argued that it was unclear from Lien
Thuong's testimony exactly when these remarks were made, and thus
the remarks did not necessarily reveal Marino's state of mind at the
time of the murder. Moreover, the defense attorney argued that the
jurors might infer from these comments that Marino had committed
other unspecified murders, thus prejudicing their consideration of
the charges before them.
Judge Rowland denied Marino's motion for mistrial. He
concluded that Lien Thuong's evidence was relevant to Marino's state
of mind at the time of the murder. While Judge Rowland acknowledged
that there was conflicting evidence as to the date on which Marino
made these remarks, the judge concluded that "the trier of fact
could certainly find that [Marino made these] remarks ... on the day
of the homicide", and thus the remarks were probative of Marino's
state of mind and intent.
Judge Rowland also concluded that Marino's remarks were
relevant because they "form[ed] part of the fabric of threats and
intimidation" that Marino had engaged in prior to the homicide, as
he attempted to induce Lien Thuong to retrieve the rings that had
been pledged to drug dealers. Marino's threats, Judge Rowland
found, were probative of his "continuing obsession with the return
of these rings, which he deemed to be his property".
Responding to Marino's suggestion that the remarks might
be interpreted as indicating that Marino had killed people before,
Judge Rowland offered to give a clarifying or limiting instruction.
Marino's attorney told the judge that she would submit one, but she
never did.
On appeal, Marino renews his claim that Lien Thuong's
testimony required a mistrial. However, we agree with Judge Rowland
that the testimony concerning Marino's remarks was admissible.
Because Marino's statements tended to prove that he was
in a murderous state of mind, these statements were admissible if
they were made near the time of the homicide. See Lerchenstein v.
State, 697 P.2d 312, 314-19 (Alaska App. 1985), affirmed, 726 P.2d
546 (Alaska 1986). Judge Rowland found that, even though the
evidence was conflicting, a reasonable fact-finder could conclude
that Marino made these statements on the day of the homicide. He
therefore did not abuse his discretion in admitting the evidence.
See Alaska Evidence Rule 104(b), dealing with situations in which
the relevance of certain evidence depends on a foundational finding
of fact.
Moreover, the record supports Judge Rowland's alternative
finding þ that Marino's statements reveal that he was fixated on
obtaining the return of the rings that had been pledged to the drug
dealers, and that Marino was trying to "encourage" Lien Thuong to
retrieve the rings by using threats and intimidation, hoping that
veiled threats of murder would frighten her into action.
It is noteworthy that, although the first ground of
relevance (state of mind) rests on a finding that Marino was
truthfully stating his current emotions and intentions, this second
ground of relevance (the use of threats as a way to scare Lien
Thuong into action) did not require a finding that Marino was
telling the truth when he declared that he got a thrill from
killing. If the remarks are viewed as threats, they are relevant
not because of how Marino might have felt about killing, but because
they showed that Marino wanted Lien Thuong to believe that he got
a thrill from killing.
It is also important to note that, under either of these
two theories of relevance, Marino's remarks are probative regardless
of whether he had ever killed another person. That is, the
relevance of the remarks does not lie in what they might reveal
about Marino's past activities. Rather, their relevance lies in
what they reveal about Marino's intentions and motivations at the
time he uttered those remarks. This distinction might have been
emphasized to the jury in a limiting instruction, but the
distinction is reasonably apparent simply from the evidentiary
context in which Marino's remarks were admitted. Moreover, as noted
above, Marino declined Judge Rowland's explicit invitation to submit
a limiting instruction.
For these reasons, we uphold Judge Rowland's denial of
Marino's motion for a mistrial.
Marino's motion for judgement of acquittal
Marino asserts that there is insufficient evidence to
support his conviction for murder and attempted murder. However,
Marino's argument is based on his assertion that Lien Chau should
not have been permitted to identify him as the man who assaulted her
and killed Donna Jackson. We have just upheld the admissibility of
this evidence. Lien Chau's identification of Marino provides
sufficient evidentiary support for his murder and attempted murder
convictions. (EN3)
Marino's declarations of innocence to the police
As indicated above, the police interviewed Marino for
approximately two hours on the morning following the homicide.
During this interview, Marino repeatedly declared that he was
innocent. He readily consented to police requests to search his
apartment and his belongings, as well as to provide body specimens
for forensic testing.
This interview was videotaped. At trial, the defense
attorney asked Judge Rowland for permission to play the entire
videotaped interview to the jury þ or, in the alternative, for
permission to play an abridged version of the interview that still
contained several of Marino's assertions of innocence.
A defendant's out-of-court assertions of innocence are
hearsay if they are offered by the defendant to prove the truth of
the matter asserted (the defendant's innocence). See State v.
Agoney, 608 P.2d 762, 764 (Alaska 1980); Stumpf v. State, 749 P.2d
880, 899 (Alaska App. 1988). The defense attorney argued, however,
that Marino's statements to the police fell within the hearsay
exception for "excited utterances", Alaska Evidence Rule 803(2).
The exciting event that triggered Marino's statements, according to
the defense attorney, was the police officers' accusation that
Marino was guilty of murder.
To obtain admission of a hearsay statement under the
"excited utterance" exception, the proponent of the evidence must
show that the statement was uttered under the stress or excitement
of a startling event or condition that "temporarily still[ed] the
[speaker's] capacity [for] reflection and ... conscious fabrica-
tion". See Commentary to Evidence Rules 803(1)-(2), third
paragraph. Judge Rowland found that, under the facts of this case,
Marino's statements were not "excited utterances".
Marino challenges this finding on appeal. He argues that
being falsely accused of murder is an exciting circumstance likely
to exert a lengthy influence on a person's emotions. However, the
question is not whether Marino was under stress during the police
interview; instead, the question is whether Marino proved that his
statements were not the product of conscious reflection:
The fact that [a person] may have been
under stress is not sufficient, by itself, to
establish the admissibility of [their] hearsay
statements under Evidence Rule 803(2). The
question is whether [the person's] out-of-court
statements were the product of [their]
conscious reflection about what [they] should
say.
Ryan v. State, 899 P.2d 1371, 1378 n.4 (Alaska App. 1995).
Based on the facts of this case, Judge Rowland could
reasonably conclude that, guilty or innocent, Marino understood that
the police suspected him of murder, and he had both the time and the
presence of mind to prepare his replies to their questions. Judge
Rowland's finding is not clearly erroneous, and therefore we uphold
his ruling that Marino's statements were not "excited utterances".
Marino argues alternatively that his statements to the
police should have been admitted because they demonstrate his state
of mind þ more specifically, because "they demonstrate an innocent
state of mind". Evidence Rule 803(3) creates a hearsay exception
for statements describing the speaker's then-existing state of mind
or emotion. However, Rule 803(3) explicitly declares that this
hearsay exception does not authorize introduction of "statement[s]
of memory or belief to prove the fact remembered or believed". The
second paragraph of the commentary to Rule 803(3) explains:
The exclusion of "statements of memory or
belief to prove [the] fact remembered or
believed" is necessary to avoid the virtual
destruction of the hearsay rule which would
otherwise result from allowing [proof of a
person's] state of mind ... to serve as the
basis for [inferring] the happening of the
event which produced the state of mind.
In other words, Rule 803(3) does not allow hearsay testimony about
a person's belief when that testimony is being offered to prove that
the belief was accurate or true. More specifically, Rule 803(3)
would not authorize Marino to introduce hearsay testimony that he
asserted his innocence if the only relevance of this testimony was
to suggest (1) that Marino was being honest when he asserted that
he believed himself innocent of the crimes, and (2) that Marino
would not believe himself to be innocent unless he was in fact
innocent.
Some cases from other jurisdictions suggest that, just as
evidence of a defendant's conduct can be introduced to prove
consciousness of guilt, so too evidence of the defendant's conduct
(for instance, cooperation with the police) might be admissible to
prove "consciousness of innocence". See the discussion of this
point in Lewis v. State, 469 P.2d 689, 691 (Alaska 1970). This
proposition is premised on the recognition that non-assertive
conduct is not a "statement" under Evidence Rule 801(c); that is,
evidence of a person's conduct is not barred by the hearsay rule so
long as the conduct was not intended as an assertion.
When Marino argued for admission of his videotaped
interview with the police, his goal was to get his words þ his
assertions of innocence þ in front of the jury. This is not the
non-assertive conduct evidence that Lewis discusses. Marino was not
entitled to introduce his assertions of innocence by labeling them
verbal conduct.
Judge Rowland understood this distinction between
assertions (both verbal and non-verbal) and non-assertive conduct,
because he allowed Marino to play limited portions of the videotape:
those portions in which Marino expressed his desire to cooperate
with the police and in which Marino consented to be fingerprinted,
to have the police search his residence, and to have the police take
samples of his blood and urine. Judge Rowland explained his ruling
this way:
We have a murder scene ... that, by all
accounts, [was] horrendous[,] bloody, [and]
brutal. ... [W]hoever [was] present [there],
... it would have been a horrendous experience.
Because of that, [the defendant's] interview
[with the police] has evidentiary value above
and beyond the questions asked and answered.
It is a visual [record] of this defendant
within hours after this incident. His demeanor
within hours after an incident of this kind
seems to me to have evidentiary significance in
and of itself. How he behaved [at that time
is] something that reasonably could be
considered by the trier of fact, independent of
the questions asked and answered.
The State argues that it was error for Judge Rowland to
admit even these limited portions of the videotape, but we need not
decide that issue. The record shows that Marino obtained the most
favorable ruling he could reasonably hope for under existing
evidence law. We find no error.
Having decided all of Marino's challenges to his murder
and attempted murder convictions, we affirm his convictions for
these crimes. We now turn to Marino's attack on his convictions for
third- and fourth-degree misconduct involving a controlled
substance.
Marino's motion for limited suppression of his blood and urine
test results
During Marino's interview with the police, the officers
asked Marino for permission to take blood and urine specimens from
him, and Marino agreed. However, after Marino was indicted for
possession of cocaine based on the laboratory analysis of these
specimens, Marino asked the superior court to prohibit the State
from using these test results as evidence of drug offenses. He
argued that the police had tricked him into consenting to give the
body specimens by assuring him that the specimens would not be used
as evidence of drug offenses. Judge Rowland denied Marino's motion.
Based on our review of the record, we conclude that Marino's
suppression motion should have been granted.
When Detective Baker asked Marino to give the police blood
and urine specimens, he told Marino:
Believe me, ... neither this lieutenant nor I
give a fuck whether you [are] high or not at
the moment, you know what I mean? That's not
why we're here, okay? We're here for serious
stuff[.]
Later, Baker told Marino:
Once again, [we are asking for these specimens]
to help remove you from the picture [as a
murder suspect]. ... I want you to understand
that we are not interested in any kind of drug
offenses here[.] But we're going to take blood
samples from [the murder scene, and then]
compare [those samples] to yours, and make sure
that yours doesn't match any of those.
At this point, Marino told Baker, "Let's do it."
The record shows that Marino gave his consent after the
police promised him that his blood and urine specimens would be used
for a particular purpose (tested against the samples found at the
scene of the homicide) and would not be used for another particular
purpose (tested to see if Marino was using illegal drugs). When the
State later used the test results to establish that Marino was
guilty of drug offenses, the State exceeded the scope of Marino's
consent. The superior court should have barred the State from
introducing the test results for this purpose.
The State argues that a ruling in Marino's favor on this
issue amounts to a declaration that a criminal defendant may rely
on a police officer's informal promise of immunity. The State
points out that police officers, acting on their own, have no
authority to grant immunity or make binding promises of non-
prosecution. Green v. State, 857 P.2d 1197, 1201 (Alaska App.
1993). However, the State's argument misses the point. The police
asked Marino to waive his Fourth Amendment rights and voluntarily
give them body samples. He was free to refuse and demand that the
police obtain a warrant, but the police convinced him to consent by
promising that the samples would not be used to establish his guilt
of drug offenses. This was not a promise of immunity; rather, it
was a statement that the police were seeking only a limited waiver
of Marino's Fourth Amendment rights. See State v. Binner, 886 P.2d
1056 (Or. App. 1994) (holding that, under the Oregon constitution,
when a person consents to have their blood drawn and tested for
specified substances, the scope of that consent limits the scope of
the State's power to test the blood without a warrant).
The State further points out that, having given verbal
assent to the blood and urine sampling, Marino then signed a written
consent form which did not include any limitation on the use of the
samples. In fact, the form specifically stated that the samples
could be tested for evidence of "drug abuse". However, given
Detective Baker's assurances, it would be unconscionable to hold
Marino to the "fine print" on the consent form.
Finally, the State argues that any error in admitting the
test results was harmless, because both Michelle Pungowiai and Lien
Thuong Nguyen testified that Marino brought them cocaine and smoked
it with them. However, the State presented no independent
laboratory analysis of the substance that Marino delivered to
Pungowiai and Lien Thuong Nguyen. The State's identification of
that substance as cocaine was based on the fact that, several hours
later, laboratory tests of the challenged blood and urine specimens
revealed that Marino had cocaine in his system. Thus, the
laboratory analysis of Marino's blood and urine was central to the
State's case on thibited the State from introducing the blood and
urine test results as evidence of drug offenses, and we further
conclude that the error in admitting these test results was not
harmless. Marino is entitled to reversal of his convictions for
third- and fourth-degree misconduct involving a controlled substance.
(EN4)
Marino's sentence appeal
Both first-degree murder and attempted first-degree murder
are unclassified felonies. AS 11.41.100(b); AS 11.31.100(d)(1).
The sentencing range for first-degree murder is 20 to 99 years,
while the range for attempted murder is 5 to 99 years.
AS 12.55.125(a) and (b).
Judge Rowland sentenced Marino to the maximum sentence
(99 years) for each of these crimes, and he ordered the two
sentences to run consecutively, for a total of 198 years'
imprisonment. Further, Judge Rowland ordered that Marino not be
eligible for parole during this sentence. See AS 12.55.115. On
appeal, Marino challenges Judge Rowland's decision to run the two
sentences consecutively, and his further decision to eliminate
Marino's eligibility for parole.
Before a judge imposes a composite sentence that exceeds
the maximum sentence for the defendant's most serious offense,
Alaska law requires the judge to affirmatively find that such a
sentence is necessary to protect the public. Mutschler v. State,
560 P.2d 377, 381 (Alaska 1977); George v. State, 836 P.2d 960, 963-
64 (Alaska App. 1992). Similarly, "[w]hen a sentencing judge
restricts parole eligibility, the judge must specifically address
the issue of parole restriction, setting forth with particularity
his or her reasons for concluding that the parole eligibility
prescribed by AS 33.16.090 and AS 33.16.100(c)-(d) is insufficient
to protect the public and insure the defendant's reformation."
Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992). Judge Rowland
made such findings in this case.
In sentencing Marino, Judge Rowland gave the following
description of Marino's crimes:
Apparently angry at the failure of a
seventeen-year-old girl (with whom he shared
cocaine and sex) to recover certain property of
his which had been pawned for the purpose of
securing drugs, [the defendant] threatened to
hurt this girl or someone close to her if she
did not meet his demands. ... Carrying out
this threat, [the defendant] proceeded to the
girl's home, but she was not there. The seven-
year-old victim [Lien Chau Nguyen] was there,
and her cousin [Donna Jackson], the decedent.
The defendant attacked [Jackson] with a knife,
perhaps more than one [knife], ultimately
stabbing her over sixty times[.] [Then],
without any apparent pity, [he] stalked and
hunted down a seven-year-old girl, dragging her
from her ... refuge under the bed, stabbing and
cutting her until she had the presence of mind,
even in the midst of such carnage þ [and]
carnage is certainly the word which describes
it þ to play dead.
Judge Rowland then explained his analysis of why a lengthy sentence
was required:
The facts and circumstances of the
[defendant's] crimes ... are so wicked and
savage, and [they] say so much about the
defendant, that they overshadow all other
information about the defendant which is
available to the court. ... [A] sentencing
judge ... always tries, insofar as [is]
possible, to understand ... the human
motivation that was involved [in a defendant's
crime]. I cannot in this case. The one word
which kept returning to my mind [to] best
describe the [defendant's] conduct is
"savagery"[.] ... As I thought about the
defendant's state of mind, I recalled a phrase
[from the law of] the 18th and 19th century ...
describing murderous intent, and that phrase
was "a wanton and malignant heart". [W]hen I
was a law student, I thought that it was an
obscure and archaic phrase[,] ... [but] the
facts of this case, and the defendant's
conduct, underscore its vitality[.] The
deliberate cruelty with which the defendant
attacked these relatively defenseless victims,
[the fact] that he could sustain the level of
violence and cruelty that he did throughout,
and the pedestrian and trivial purposes which
apparently incited [his actions], demonstrate
the defendant's capacity for evil. There are
people who believe that there is a
personification of evil, a beast that walks the
earth. If there is, Mr. Marino, [then] that
beast was in that house that day, and you were
its agent.
Because Marino was a mature adult (43 years old at the
time of sentencing), Judge Rowland concluded that Marino's patterns
of behavior were "well-established" and the possibility of his
rehabilitation was "nil". Based on Marino's conduct, Judge Rowland
found that Marino was "certainly amongst the worst class of offender
[and] amongst the most dangerous of men". The judge concluded:
In my judgement, by his acts the defendant
has lost the right to walk free in this or any
other society again. ... Society should not
be required to take any risk at all for the
benefit of this defendant['s] liberty. ...
[It is] my purpose ... in formulating [the
defendant's] sentence [to ensure] that society
does not have to take such a risk. [This] is,
indeed, my sole purpose in fashioning a
sentence in this case. ... Only isolation
will serve as a deterrent [to this defendant].
... I think it highly likely that, if the
defendant were to be released, he would re-
offend, and I think that he would not be
deterred ... by any sentence to be imposed.
Judge Rowland then sentenced Marino to consecutive 99-year
sentences, without eligibility for parole.
As can be seen from the above-quoted sentencing remarks,
Judge Rowland explicitly concluded that Marino was an extremely
dangerous man who would pose a serious threat to society if he were
ever released from prison; the declared purpose of the sentence was
to ensure that Marino never would be released. The record supports
Judge Rowland's characterization of the offense and of the
defendant. Because Lien Thuong Nguyen had not redeemed his rings
from the drug dealers, Marino viciously attacked two people who were
close to her (her cousin and her younger sister). Marino barely
knew these victims; they had done nothing to him. They were simply
instruments through which Marino could express his anger over a
trivial matter. Showing utter contempt for his victims' lives, he
killed one and left the other for dead.
Having independently reviewed the record, we conclude that
Marino's sentence is not clearly mistaken. McClain v. State, 519
P.2d 811, 813-14 (Alaska 1974).
Conclusion
We AFFIRM Marino's convictions for murder and attempted
murder, and the composite sentence he received for these crimes.
We REVERSE Marino's convictions for delivering and possessing
cocaine.
ENDNOTES:
1. Lien Chau's mother, Karen Nguyen, had gone out.
2. Even though the police did not find the rubber boots or the
black cap with the letter "A" that Lien Chau had described,
testimony at trial linked these items to Marino. Lien Thuong
Nguyen testified that she had seen a cap in Marino's apartment like
the one described by her sister. Lien Thuong also testified that
Marino normally kept a pair of rubber boots in his apartment behind
the door.
3. We note that, even if the photographic lineup and in-court
identification evidence should have been suppressed, Marino would
still not be entitled to a judgement of acquittal. See Houston-
Hult v. State, 843 P.2d 1262, 1265 n.2 (Alaska App. 1992) (a
defendant who contends on appeal that the trial judge should have
excluded a portion of the State's evidence can not then argue that
the State's remaining evidence was insufficient to withstand a
motion for judgement of acquittal).
4. Marino argues only that his drug convictions should be
reversed on this ground.
