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Malloy v. State (5/19/00) ap-1674
Malloy v. State (5/19/00) ap-1674
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MAUREEN ALICE MALLOY, )
) Court of Appeals No. A-6873
Appellant, ) Trial Court No. 3AN-95-9983 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1674 May 19, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Elaine M. Andrews, Judge.
Appearances: Larry Cohn, Anchorage, for
Appellant. Nancy R. Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
During early November 1995, Maureen Alice Malloy
restrained another woman, K.H., in a motel room in Spenard. For
more than a week, Malloy inflicted many brutal physical and sexual
assaults on K.H., all the while keeping her sedated with a
combination of alcohol and muscle relaxants. Finally, during the
early morning of November 9, Malloy drove K.H. to a remote location
on the Campbell Airstrip Road; there, Malloy murdered K.H. by
slashing her throat and stabbing her in the chest. A few days
later, Malloy arranged for a friend to mail the murder weapon and
K.H.'s belongings to another friend of Malloy's in Washington state.
Malloy telephoned this friend and instructed her to burn the
contents of the package when it arrived.
Based on this conduct, Malloy was convicted of kidnapping,
first-degree murder, and tampering with evidence. Superior Court
Judge Elaine M. Andrews sentenced Malloy to a composite term of 159
years' imprisonment, with no eligibility for discretionary parole
during the first 129 years of this sentence.
Malloy now appeals her convictions, alleging that the
superior court committed various procedural and evidentiary errors.
For the reasons explained here, we affirm Malloy's convictions.
Malloy also appeals her sentence. She contends that her
sentence is excessive. She also argues that a portion of AS
12.55.125(a), the sentencing statute for first-degree murder, is
unconstitutional. We reject Malloy's argument that her sentence is
excessive, but we agree that the challenged portion of
AS 12.55.125(a) is unconstitutional. For the reasons explained
below, we direct the superior court to delete the restriction on
Malloy's eligibility for discretionary parole; she will be eligible
for parole after serving 53 years (one-third of her composite term).
Issues Affecting the Validity of Malloy's Conviction
1. The ex parte hearings concerning Malloy's son, J.M.
Malloy had two children, J.M. and D.M., who were expected
to be witnesses against her. J.M. ultimately testified both before
the grand jury and at Malloy's trial. On the day following Malloy's
arrest (December 26, 1995), the court imposed a bail condition that
barred Malloy from having contact with any witness in her case
including her children. Several months later, Malloy asked the
superior court to vacate this bail condition. After hearing
argument on this motion, Judge Andrews reaffirmed the condition.
At about the same time that Malloy was arrested, the
children were taken into emergency custody by the Division of Family
and Youth Services, and the State initiated Child-in-Need-of-Aid
("CINA") proceedings with respect to both children. The superior
court appointed attorney Cynthia Strout to be the children's
guardian ad litem. The children made statements suggesting that
Malloy had subjected them to abuse and neglect. As a result of
these statements, the superior court entered an order in the CINA
case that likewise prohibited Malloy from having contact with J.M.
and D.M..
In mid-June 1996, thirteen-year-old J.M. ran away from
foster care. On June 18th, the prosecuting attorney and J.M.'s
guardian ad litem each filed affidavits requesting a material
witness warrant for J.M.'s arrest. Based on these affidavits, and
without notice to Malloy, Judge Andrews issued the requested warrant
on June 19th.
Two days later, on June 20th, J.M. was apprehended and
placed in custody at the McLaughlin Youth Center. Later that same
day, Judge Andrews held an ex parte hearing attended by the
prosecutor, J.M.'s guardian ad litem, and J.M. himself. J.M.'s
social worker and a youth counselor from McLaughlin were also
present. Judge Andrews stated that she wished to hear from these
parties to see if there were any confidential matters that needed
to be discussed before she notified Malloy and her attorney of the
issuance of the material witness warrant and J.M.'s subsequent
arrest.
Both the prosecutor and the guardian ad litem expressed
concern that Malloy would attempt to influence J.M. if she knew that
he was having emotional difficulties and that his placement was not
secure. Judge Andrews found that there were legitimate reasons for
keeping the proceedings ex parte for a little longer. She stated
that she expected J.M.'s placement at McLaughlin to be temporary,
that J.M. would soon be placed in another foster home, and that,
because Malloy had been ordered to have no contact with J.M., she
believed it was important that Malloy not know how to contact J.M..
Judge Andrews then addressed J.M. personally. She encouraged J.M.
not to run away from his next placement, and she promised that if
J.M. cooperated with his social worker and his guardian ad litem,
she would "do what [she could] to move [J.M.] out of [McLaughlin]
ASAP."
Three weeks later, Judge Andrews issued a written order
informing Malloy of these ex parte proceedings. The judge told
Malloy that the record of the ex parte proceedings (the application
for the warrant on June 18th, and the hearing on June 20th) had been
sealed and would be preserved.
Upon learning of the ex parte proceedings, Malloy filed
a motion to disqualify Judge Andrews. Malloy asserted that the
judge, by holding these proceedings ex parte, had violated Malloy's
constitutional rights to due process and confrontation of witnesses.
Malloy further asserted that the judge's actions either demonstrated
actual bias against Malloy or at least created an appearance of
impropriety.
Recognizing that Malloy was disadvantaged in not knowing
the contents of the ex parte proceedings, Judge Andrews announced
that she intended to apprise Malloy of what had occurred ex parte,
but she wanted to give J.M.'s guardian an opportunity to object to
the disclosure of any confidential information. For that reason,
Judge Andrews announced that she intended to hear from the guardian
ex parte to see what her objections might be.
On July 29th, Judge Andrews heard from J.M.'s guardian ex
parte. The guardian asked Judge Andrews not to reveal a small
portion of the June 20th hearing the portion in which the guardian
discussed the opinions and diagnosis of J.M.'s mental health
therapist. Judge Andrews granted this request, and then ordered
disclosure of all other parts of the ex parte proceedings.
With the contents of the ex parte proceedings no longer
secret, Judge Andrews renewed her consideration of Malloy's motion
to disqualify her. The judge found that, because the circumstances
justified the ex parte proceedings, there was no impropriety, either
actual or apparent. Judge Andrews's ruling was subsequently
affirmed by Superior Court Judge Larry Card.
On appeal, Malloy contends that the three ex parte
proceedings the June 18th application for the material witness
warrant, the June 20th hearing regarding J.M.'s custody at
McLaughlin Youth Center, and the July 29th ex parte objections by
J.M.'s guardian ad litem violated her constitutional right to be
present at all stages of the proceedings against her. Malloy also
contends that Judge Andrews's decision to hold these three
proceedings ex parte created an appearance of impropriety that
required Judge Andrews's disqualification under Alaska Judicial
Conduct Canon 3E(1). [Fn. 1]
(a) Malloy's right to be present
In general, criminal defendants have the right to be
present at every stage of the proceedings following their
indictment. [Fn. 2] This right is rooted in an accused's
constitutional rights to receive due process of law and to confront
the witnesses against them. [Fn. 3] The defendant's right to be
present extends not only to those proceedings in which the defendant
confronts adverse witnesses or evidence but also to "any trial-
related proceeding at which the defendant's presence has a
'reasonably substantial' relation to the defendant's ability to
defend against the criminal charge" that is, to "any stage of the
criminal proceeding that is critical to its outcome if [the
defendant's] presence would contribute to the fairness of the
procedure." [Fn. 4]
As explained above, there were three ex parte proceedings
in this case. The first was the application for the bench warrant
for J.M.'s arrest. The second was the hearing that ensued following
his arrest. The third was the guardian ad litem's presentation of
her objection to disclosing the short portion of the second hearing
that revealed the opinions of J.M.'s therapist. Malloy makes no
attempt to distinguish these three proceedings; she asserts simply
that she was entitled to attend all of them.
We see significant differences among the three
proceedings. In particular, we can readily envision circumstances
in which a court will be required to act promptly to ensure the
attendance of witnesses who threaten to flee or who otherwise
threaten to render themselves unavailable to testify. If we
interpreted the Constitution to require the defendant's presence at
all such proceedings, then a trial court facing such a situation
would be powerless to act until the defendant's presence was secured
or personally waived. [Fn. 5] Such a result appears unreasonable
thus indicating that we should construe the Constitution to grant
trial judges at least some authority to entertain an ex parte
application for a bench warrant to arrest and detain a material
witness. [Fn. 6]
We do not, however, need to resolve this issue in Malloy's
case. Instead, we conclude that any error in holding these
proceedings ex parte was harmless beyond a reasonable doubt. First,
we note that Judge Andrews disclosed the fact of the proceedings and
practically all of their contents within a reasonable period of
time. The one exception was a 45-second portion of the June 20th
hearing where the guardian ad litem discussed the opinions of J.M.'s
therapist. But this portion of the second hearing was arguably
protected from disclosure by Alaska Evidence Rule 504(b). [Fn. 7]
Even if Malloy had been present at the June 20th hearing, J.M.'s
guardian would arguably have been entitled to present the
therapist's opinion outside Malloy's presence. [Fn. 8] Malloy
presents no specific argument that she was entitled to disclosure
of the therapist's opinion.
Malloy asserts that her case is factually similar to
Carman v. State [Fn. 9], where the supreme court held that a
magistrate violated the defendant's right to be present when the
magistrate allowed the State to present evidence ex parte to rebut
the defendant's request for bail reduction. Malloy argues that, just
as in Carman, the request for a material witness warrant was tainted
by allegations in the guardian ad litem's affidavit that Malloy
might try to intimidate J.M. or otherwise urge him not to testify.
While Carman is facially similar to Malloy's case in some
respects, it is distinguishable from Malloy's case in one crucial
respect: the allegations contained in the guardian's affidavit were
not material to the issue being considered by Judge Andrews. The
judge was being asked to decide whether to issue a bench warrant for
J.M.'s arrest as a material witness. This decision hinged on J.M.'s
status as a material witness and whether court process was necessary
to ensure his appearance at Malloy's trial. J.M.'s status as a
material witness has never been disputed, and the fact that he ran
away from his foster care placement (and that his whereabouts
remained unknown) was a clear indication that court process might
be needed to ensure his appearance at trial.
Because the guardian's allegations of potential witness
tampering by Malloy (and/or her associates) were immaterial to the
question posed to Judge Andrews, we conclude beyond a reasonable
doubt that these allegations had no effect on Judge Andrews's
decision to issue the material witness warrant. Because the
allegations against Malloy did not affect the judge's decision to
issue the warrant, and because those allegations were fully revealed
to Malloy a short time later, Malloy was not prejudiced by the fact
that the guardian's affidavit was initially presented ex parte.
Malloy also argues that her case is similar to Brown v.
State [Fn. 10], where the supreme court held that a defendant was
prejudiced when he was excluded from a hearing to determine whether
his wife would waive her spousal immunity and testify at his trial.
Brown was charged with assault and illegal possession of a
concealable weapon. [Fn. 11] Brown's wife, Stella, was purportedly
a witness to the alleged crimes, and Brown's attorney was trying
to persuade Stella to testify on Brown's behalf. [Fn. 12] At trial,
the defense attorney asked the court to hold Stella as a material
witness or make her post bail to guarantee her appearance. The
trial judge perceived, however, that Stella had a spousal privilege
not to testify at her husband's trial, and it would therefore be
improper to hold Stella as a material witness unless she was willing
to relinquish that spousal privilege. The judge therefore held a
hearing to determine whether Stella was willing to testify. Both
attorneys attended this hearing, but Brown did not. [Fn. 13] At
the hearing, Stella stated that she would claim her spousal
privilege and would not testify. Consequently, Brown withdrew his
motion to hold Stella as a material witness. [Fn. 14]
On appeal, Brown claimed that holding this hearing in his
absence violated his rights under Criminal Rule 38. [Fn. 15] Brown
asserted that he was prejudiced because, if he had been present at
the hearing, he would have had a calming influence on his wife and
she might have consented to testify on his behalf. [Fn.
16] The supreme court agreed that Brown's presence at the hearing
could have altered his wife's decision. The court concluded:
We believe that under the circumstances of
this case, [Brown's] presence was required by [R]ule 38 and that his
right to be present was as vital to his defense as his specific
constitutional right to be confronted with the witnesses against
him.
Id. at 789.
But, again, the Brown decision is distinguishable from
Malloy's case. In Brown, the question was not whether Brown's wife
would honor her trial subpoena or whether the court should take
steps to insure that the subpoena would be honored. Rather, the
question was whether Stella Brown could be ordered to testify at
all. Mrs. Brown held a privilege to refuse to testify at her
husband's trial, and the question was whether she would waive that
privilege and consent to testify on Brown's behalf. The supreme
court reversed Brown's conviction because the court was convinced
that Brown's presence could have made a difference in his wife's
decision to waive or assert the privilege.
In Malloy's case, on the other hand, the only issue
considered by Judge Andrews at the ex parte hearing was whether the
court should use its coercive powers to ensure that J.M. appeared
at trial. J.M. was not questioned regarding the substance of his
intended testimony, nor did anyone suggest that he had a privilege
not to testify.
Moreover, a crucial aspect of Brown is that, following the
challenged hearing, Brown's wife refused to testify and thus became
unavailable as a defense witness. In Malloy's case, however, the
ex parte proceedings were undertaken to ensure that J.M. remained
available as a witness. This goal was achieved.
For these reasons, we conclude that even if Judge Andrews
violated Malloy's right to be present when she conducted the ex
parte proceedings in this case, any error was harmless beyond a
reasonable doubt.
(b) Malloy's challenge to Judge Andrews
For related reasons, we reject Malloy's argument that
Judge Andrews should have been disqualified from this case for
conducting the three ex parte proceedings. Under the circumstances
of this case, there was at least colorable reason to conduct the
challenged proceedings in Malloy's absence. (See the cases
discussed in footnote 6, supra.) Reasonable persons, apprised of
all the facts, would not suspect Judge Andrews of harboring bias
against Malloy.
2. The admissibility of Malloy's three interviews with the
police
Malloy was interviewed three times by the police: on
November 15th, on December 12th, and again on December 27th
(following her arrest). She asked the trial court to suppress these
statements, contending that the police had violated the Miranda rule
during all three interviews and that the statements she made during
the November 15th interview were involuntary. [Fn. 17] Judge
Andrews agreed with Malloy that the police had violated Miranda
during the November 15th interview when they failed to heed Malloy's
request for counsel. Accordingly, Judge Andrews suppressed all of
the November 15th interview that followed the Miranda violation.
However, Judge Andrews rejected Malloy's other attacks on the
November 15th interview, and she further ruled that the December
12th and December 27th interviews were admissible. On appeal,
Malloy renews her attacks on the admissibility of her statements.
(a) The November 15th interview Miranda
Malloy argues that her entire November 15th interview
should have been suppressed because she was in custody and the
police failed to advise her of her rights under Miranda.
Malloy concedes that the November 15th interview was held
at her behest: she contacted the police and told them that she
wanted to talk to them about her suspicions that her ex-husband was
sexually abusing their children. Because Malloy had no vehicle, the
police drove her and her children to the police station. Malloy was
taken to an interview room where she was interviewed by two
detectives first by Grimes and then by Baker for a total of
three and a half hours.
At the beginning of the interview Detective Grimes told
Malloy that the police were investigating the death of K.H.,
explaining that they were "trying to put together her last
movements". Malloy told Grimes, "I can help you there." Malloy began
willingly (and verbosely) to answer the officer's questions. Grimes
asked Malloy if she had any hesitation about speaking to the police,
and she replied, "Not one bit."
The interview continued for over 50 pages of transcript
in a fairly friendly, non-accusatory manner. Malloy described how
she met K.H. in Juneau, and she told the police that, in the weeks
preceding her death, K.H. appeared to be using drugs and to be in
trouble. Malloy also declared that she suspected that K.H. was
running around with the Hell's Angels, and she hinted that this
group might have an interest in Malloy's investigation of her own
ex-husband's abuse of their children. Several times during this
portion of the interview, Malloy expressed fear that she would
suffer retaliation if she cooperated with the police. Malloy told
the detectives, "I don't want to be the next person laying there with
my neck slit open" and "I don't want to die."
During the second part of the interview, Malloy told
Detective Baker that she had seen K.H. on the night of her death.
Malloy stated that she had been driving K.H. to a friend's house
when K.H. jumped out of the car at the corner of Tudor and Arctic
and ran away. When Malloy said this, Baker accused Malloy of
knowing more about the homicide than she was saying, but he did not
accuse her of killing K.H.. Instead, the detective suggested that
Malloy had taken K.H. to the house of a man known as "Beaver", and
that Malloy knew how K.H. had died. Eventually, Malloy admitted
that K.H. had not jumped out of the car at Tudor and Arctic that
Malloy had in fact dropped K.H. off near Beaver's house.
At this point, Malloy and Detective Baker engaged in the
following colloquy:
Detective Baker: I verified that [K.H.]
came back to your place about 6 o'clock in the afternoon.
Malloy: Was it that late? I don't have
a clock in there.
Baker: Yeah, it was that late. And I
also know that she was dead within twelve hours. And I verified the
other car, the car with the bad rear end damage, and we're getting
all the phone records from the Spenard Hotel. And we're going to
search your room.
Malloy: Fine.
Baker: And I don't think we're going to
find anything. But I'm telling you unless you help us, you're in
deep trouble and your kids are in deep trouble. So let's start
thinking about somebody beside yourself.
Malloy: I'm not just thinking about
myself.
Baker: Let's start thinking about your
kids.
Malloy: That's all I'm thinking about, is
my children.
Baker: Let's start thinking about your
kids.
Malloy: They only have me.
Baker: Well, let's start thinking about
them and doing what's right for them. Now you tell me what
happened.
Malloy: That's what happened.
* * *
Baker: You talked to Beaver on the phone.
Malloy: I didn't say any names; I just
said she's out front.
Baker: And what did he say?
Malloy: I hung up the phone.
Baker: There was no conversation?
Malloy: He said "thank you".
Baker: The next day . . .
Malloy: I'm gonna be done now.
Baker: No, you're not.
Malloy: That's bullshit. [Fn. 18]
Baker: No, you're not. I need a tape.
I need a tape. The next day . . .
Malloy: I saw the [report of K.H.'s death
on the] news.
Both in the trial court and on appeal, Malloy relies
heavily on this exchange to prove that she was effectively in
custody, and that the police were not going to allow her to stop the
interview until she told them everything she knew. In particular,
Malloy characterizes her statement, "I'm gonna be done now," as an
invocation of her right to silence and a request to end the
interview. She characterizes the detective's response "No, you're
not. I need a tape." as a refusal to honor this request and an
order for her to continue.
We admit that the transcript of the interview appears to
support Malloy's characterization. But Judge Andrews reviewed the
videotape of this interview and concluded that, when Malloy stated
"I'm gonna be done now," she was reiterating her fear that she would
suffer retaliation for talking to the police. Judge Andrews
concluded that when the detective replied, "No, you're not," he was
attempting to reassure her. Judge Andrews also found that the
detective's additional comment, "I need a tape," was not a
continuation of "No, you're not." Rather, the detective uttered
these words because, coincidentally, the tape recorder sitting on
the table in the interview room had run out of tape.
Because Judge Andrews relied on the videotape in making
her ruling, we too have reviewed the videotape. Malloy's tone of
voice and demeanor when she uttered these words, and her
unhesitating resumption of the conversation, all support Judge
Andrews's interpretation of this episode. Moreover, the detective
can be seen manipulating an object on the table in front him while
he says, "I need a tape. I need a tape." Finally, as we noted
before, Malloy repeatedly expressed her fear of retaliation before
she and the detective engaged in the colloquy at issue here. All
of these factors lead us to affirm Judge Andrews's finding that both
Malloy and the detective were referring to Malloy's fear of
retaliation rather than Malloy's desire to end the interview.
Malloy also points to a later portion of the conversation
as an instance in which the police refused to honor her request to
end the interview. The detective continued to press Malloy to
disclose her knowledge of how K.H. had died. Malloy responded,
Malloy: You're trying to get me killed.
. . .
Baker: Well, tell me, have you been
threatened since you've been up here? By Beaver or anybody? Since
this happened?
Malloy: I guess I'm not gonna say any
more.
Baker: So, in fact, Beaver did tell what
he did . . .
Malloy: He did never . . .
Malloy points to her statement, "I guess I'm not gonna say
any more," as a clear indication of her desire to end the interview.
But, again, the videotape clarifies the meaning of this exchange.
Following Baker's question concerning whether Malloy had been
threatened, Malloy paused for several seconds and then finally
announced that she would not say any more. But she immediately
resumed answering Baker's questions. Again, Malloy's tone of voice
and her demeanor support a finding that Malloy was refusing to say
anything more concerning the threats that she may have received
not refusing to continue her conversation with Detective Baker.
It is true that the interview became increasingly
confrontational as it progressed. Further, Malloy points to other
incidents during the interview which arguably could support a
finding of custody. But reviewing the interview as a whole and
considering all the surrounding circumstances, we agree with Judge
Andrews that a reasonable person in Malloy's position would have
believed that they were free to go if they wished. [Fn.
19] Accordingly, we uphold Judge Andrews's ruling that Malloy was
not in custody during the November 15th interview and that the
police thus had no obligation to advise her of her Miranda rights.
(b) The November 15th interview voluntariness
Malloy also argues that, even if she was not in custody
for Miranda purposes, her statements during the November 15th
interview were nevertheless involuntary. The record does not
support this claim. Statements are involuntary if the police,
through promises or threats, undermine a suspect's will to resist
and elicit a confession that is not freely given. [Fn. 20] The main
impediment to Malloy's contention that her statements on November
15th were involuntary is the fact that Malloy, "despite police
pressure to talk, said nothing to directly inculpate [her]self in
... [the murder]. [She] engaged in a calculated effort to assuage
police suspicions and to make it appear that [she] was reluctantly
but honestly cooperating with their investigative efforts." [Fn. 21]
We thus conclude that Malloy's statements on November 15th were
voluntary.
(c) The December 12th interview
Malloy consented to be re-interviewed on December 12th.
She contends that this second interview should be suppressed because
it was the fruit of the purported Miranda violation on November
15th. Because have just rejected Malloy's contention that there was
a Miranda violation on November 15th, we also reject Malloy's
argument that the December 12th interview was the fruit of a Miranda
violation.
Additionally, Malloy contends that the December 12th
interview should be suppressed because, during the November 15th
interview, the police refused to honor Malloy's request for counsel.
In the trial court, Judge Andrews agreed with Malloy that she had
requested counsel during the November 15th interview, that the
police had not honored this request, and that all of Malloy's
ensuing statements during that interview had to be suppressed.
Relying on Edwards v. Arizona [Fn. 22], Malloy argues that her next
two interviews the interviews of December 12th and December 27th
should also be suppressed as the fruit of that violation.
But Edwards applies only to suspects in custody. [Fn. 23]
We have upheld Judge Andrews's ruling that Malloy was not in custody
during the November 15th interview. Moreover, even if Malloy had
been in custody on November 15th, Edwards would not require
suppression of the two later interviews because Malloy went home
following the November 15th interview; that is, she did not remain
in custody, and she had ample opportunity to consult an attorney
before she returned to be re-interviewed on December 12th. Thus,
any purported Edwards violation would not taint Malloy's subsequent
interviews. [Fn. 24]
(d) The December 27th interview
With respect to this interview, Malloy renews her
arguments concerning the purported Miranda and Edwards violations
on November 15th. We have rejected those arguments, and we
therefore conclude that the December 27th interview was not tainted
on these grounds.
Malloy makes one other argument for suppression of the
December 27th interview. This third interview took place following
Malloy's arrest, and thus the police could not interrogate Malloy
until she waived her right to counsel. Malloy contends that,
although she was advised of her right to counsel, she never waived
this right.
At the beginning of the December 27th interview, the
following exchange took place between Detective Baker and Malloy:
Detective Baker: Before you can tell me
a thing, I've got to read you these Miranda
rights, and I want you to understand them. One of the rights that
aren't on that card, though, is that you have the right to tell me
your side of the story if you want to. Now I want you to understand
that, because this is the last chance you're going to have to talk
to me about this. You have the right to remain silent. Anything
you say can and will be held against you in a court of law. You
have the right to talk to a lawyer and have him present with you
while you're being questioned. If you cannot afford to hire a
lawyer, one will be appointed to represent you before any
questioning if you wish. You can decide at any time to exercise
these rights and not answer any questions or make any statements.
You understand each one of those?
Malloy: Uh-huh.
Baker: You want to ... put a different
slant on this situation? Do you want to talk to me? Because right
now it just don't look good.
Malloy: No, it doesn't.
Baker: And I think you could help
yourself a lot.
Malloy: No, these aren't facts in here,
so . . .
Baker: Well, help me. Do you want to
talk to me? Do you want to change these [facts]?
Malloy: Do I want to change them?
Baker: Do you want to tell me what the
facts are? Do you want to talk to me?
Malloy: I'll talk to you all you want.
I need to talk to a lawyer, though, obviously.
Baker: So you don't want to talk to me
before you talk to a lawyer?
Malloy: Well, let me finish reading this,
okay? Karri never saw me with that knife. When we got all the
stuff she helped me get all this stuff from Dee he has tons of
knives, he has tons.
Baker: This is just one element that we
need to talk about.
Malloy: Okay.
. . .
Baker: [W]hat I am sure is [that] I
cannot ask you a single question, I cannot accept a single answer,
unless you waive your Miranda rights and agree to talk to me.
That's the bottom line. Now, do you want to talk to me?
Malloy: I don't know what all that means,
and that's why I want to . . .
Baker: What it means is this: You have
the right to remain silent. Do know what that means?
Malloy: Yeah.
Baker: You don't have to talk to me; I've
told you that many times.
Malloy: Uh-huh.
Baker: Anything you say can be used
against you in a court of law. That's pretty obvious, you know?
Malloy: Uh-huh.
Baker: You have the right to talk to a
lawyer and have him present with you.
Malloy: I understand my rights.
Baker: That's what I mean.
Malloy: [But] I don't understand what you
mean by "waiving" my rights.
Baker: All I want to know is, do you
understand these [rights]?
Malloy: Yes, I do.
Baker: Okay. And understanding these
rights, do you want to talk to me?
Malloy: I told you I'd talk to you.
Based on this record, we agree with Judge Andrews that
Malloy knowingly waived her right to counsel and consented to be
interviewed on December 27th.
For all these reasons, we uphold the admissibility of
Malloy's three interviews with the police.
3. Evidence that Karri Rundle had previously assaulted her
son and her family dog with knives
Prior to trial, the State asked Judge Andrews to issue a
protective order that would preclude Malloy from introducing
evidence that someone else might have killed K.H.. In response,
Malloy filed an ex parte application outlining the evidence she
expected to present that would implicate Karri Rundle as the
murderer. Based on Malloy's offer of proof, Judge Andrews ruled
that Malloy was entitled to present her evidence and to argue that
Rundle was the killer.
At trial, Malloy presented evidence that Rundle was
present in the hotel room during the days leading up to the murder,
and that Rundle had participated in the various assaults on K.H..
A defense witness testified that Rundle had shown "extreme anger"
toward K.H. in the days immediately preceding the murder and that,
during an argument, Rundle had "lunged" at K.H. in a threatening
manner. This same witness testified that it was Malloy who would
try to calm Rundle down when she started to threaten K.H..
Malloy's son, J.M., likewise testified that Rundle
repeatedly assaulted K.H. and that Malloy often tried to intervene
to prevent these assaults. J.M. stated that, on one occasion when
Rundle broke K.H.'s nose, Malloy stopped the fight and helped K.H.
get cleaned up. During cross-examination of J.M., Malloy's attorney
elicited the fact that J.M. had previously stated that he heard
Rundle tell K.H. that she would kill her. Finally, J.M. testified
that Rundle possessed a knife similar in appearance to the one that
the police suspected was used in the stabbing.
Rundle herself testified that she and K.H. had fought and
that they were not on good terms. Rundle's animosity toward K.H.
apparently stemmed from Rundle's belief that K.H. had reported her
to DFYS in the early 1990's, and from her belief that K.H. had slept
with her ex-husband when Rundle's children were present. Rundle
admitted that, during the several days preceding K.H.'s death, she
had hit K.H. and had cut K.H.'s hair to humiliate her.
Rundle also admitted that, on the night of the murder, she
perceived that K.H. was seriously hurt and that she should probably
go to the hospital, but she did nothing to assist K.H.. Rundle
further conceded that she disposed of K.H.'s boots in a dumpster
after K.H. was killed. And Rundle admitted that, after the murder,
she mailed K.H.'s backpack and other belongings to Washington.
Finally, Malloy's jury was informed that Karri Rundle had
entered into a plea bargain with the State: Rundle would plead
guilty to kidnapping and receive 5 years in prison in exchange for
her testimony against Malloy.
But Judge Andrews prevented Malloy from introducing one
type of evidence against Rundle: evidence that Rundle had
previously assaulted her child and the family dog with a knife. [Fn.
25] The judge found that the only relevance of this evidence would
be to establish Rundle's criminal propensity, and that therefore
this evidence was barred by Alaska Evidence Rule 404(b). Judge
Andrews told Malloy's attorney:
The Court: If you can offer me something
more maybe there's some theory that makes [this evidence]
relevant. But [it appears] to me [that] it's being offered merely
for the propensity that [Rundle] is willing to use knives against
those she knows ... . I agree [that] the knife makes it somewhat
unique. And I am willing to listen to that argument ... . [But]
it's remote in time. [And] I have no information about the
circumstances under which the wound [to Rundle's son] was inflicted.
The victims ... are not closely aligned or similar ... .
A judge's ruling concerning the admissibility of evidence
under Rule 404(b) is to be upheld unless it constitutes an abuse of
discretion. [Fn. 26] Here, we find no abuse. The challenged
evidence had no apparent relevance other then to establish Rundle's
criminal propensity. As Judge Andrews noted, there was no obvious
pattern to Rundle's knife assaults that would make them relevant to
the murder of K.H.; the only apparent relevance of this evidence was
to show that Rundle was an assaultive and cruel person who liked to
inflict wounds with knives. Thus, the evidence was barred by Rule
404(b). Although this was sufficient reason to exclude the
evidence, we further note that Judge Andrews allowed Malloy ample
opportunity to present evidence and argument supporting her
contention that Rundle was the murderer.
4. Evidence of J.M.'s out-of-court statement that Malloy
had admitted murdering K.H.
Malloy's son, J.M., testified at her trial. The greater
portion of his testimony was devoted to a description of the
dynamics between K.H., Karri Rundle, and Malloy while they were
living at the Spenard Hotel. J.M. testified that Rundle and Malloy
had assaulted K.H. on various occasions. Toward the end of his
direct examination, J.M. described how, one time when Malloy was
drunk, she admitted to J.M. that she had killed K.H.. According to
J.M., his mother told him, "I killed [K.H.], you bastard."
At the beginning of the State's rebuttal case, the
prosecutor announced that he intended to call John Sikkema, a clerk
at the Spenard Hotel, as a witness. Sikkema stated J.M. would
sometimes stop by and visit him, and that during one of their
conversations sometime in November or December, 1996 J.M.
informed Sikkema that Malloy had confessed to murdering K.H.. The
prosecutor told the court that Sikkema's testimony was admissible
because it represented J.M.'s prior consistent statement.
Under Alaska Evidence Rule 801(d)(1)(B), a statement that
would otherwise be barred by the hearsay rule is admissible if it
is "consistent with the declarant's testimony and is offered to rebut
an express or implied charge ... of recent fabrication or improper
influence or motive". Judge Andrews concluded that Sikkema's
testimony concerning J.M.'s out-of-court statement was admissible
under this rule because Malloy had asserted that J.M.'s testimony
had been influenced by agents of the prosecution. The judge
therefore allowed the State to present this testimony.
On appeal, Malloy asserts that this ruling was mistaken.
She contends that the defense never asserted that J.M.'s testimony
was the product of improper influence, and thus Sikkema's testimony
was inadmissible hearsay.
Our review of the record convinces us that Malloy is
correct; the defense did not attack J.M.'s testimony as being the
product of improper influence. Judge Andrews's finding to the
contrary is clearly erroneous, and therefore the State should not
have been allowed to present Sikkema's testimony. But we are also
convinced that this error does not require reversal of Malloy's
conviction.
Malloy's trial lasted one month. The transcript of this
trial spans almost 5000 pages. Sikkema's testimony on this point
(both direct and cross-examination) occupies only 6 of these 5000
pages. When this case was argued to the jury, the prosecutor
concentrated on the physical evidence. The prosecutor also focused
on the testimony of two men. One of them, Eugene Emmons, was the
night clerk who saw Malloy carry a barely-conscious K.H. away from
the hotel and drive off in a car, then return to the hotel one hour
later without K.H.. The other, George Dewberry, was the man who
helped Malloy carry K.H. to the car. He testified that there was
no blood on K.H. when she was carried to the car. Finally, the
prosecutor asked the jury to consider the fact that Malloy
repeatedly lied to the police about her actions and her knowledge
of K.H.'s death, as well as the fact that Malloy boxed up the murder
weapon and mailed it to Washington, instructing a friend to destroy
the contents of the box.
The prosecutor's summation takes up over 50 pages of
transcript. His discussion of J.M.'s testimony that Malloy had
confessed to the murder one night when she was drunk occupies less
than one page of this transcript. And the prosecutor mentioned
Sikkema's rebuttal testimony in a single sentence: "And [J.M.] was
so bothered by [his mother's admission], he told it to Jon Sikkema:
'my mother said she did this murder'."
We note that, although J.M. was a minor, he was an
articulate teenager who testified at length and who was capable of
conveying his account of events. Sikkema's challenged testimony did
not add any details to J.M.'s description of his mother's
confession; in fact, Sikkema told the jury that he could not
remember J.M.'s exact words only that J.M. had said that his
mother admitted the murder.
For all of these reasons, we conclude that the error in
admitting Sikkema's hearsay testimony did not appreciably affect the
jury's verdict, and thus it does not require reversal of Malloy's
conviction. [Fn. 27]
Conclusion
We have rejected all of Malloy's claims of error except
one, and we have found that one error to be harmless. Accordingly,
we affirm Malloy's convictions for the crimes of first-degree
murder, kidnapping, and tampering with evidence.
Issues Affecting the Validity of Malloy's Sentence
1. The constitutionality of the portion of AS 12.55.125(a)
that mandates a 99-year sentence for first-degree murder under
certain circumstances
Malloy was convicted of first-degree murder. Since
1980, when Alaska's current criminal code went into effect, AS
12.55.125(a) has specified the penalty for this crime. For many
years, AS 12.55.125(a) provided simply that first-degree murder
carried a mandatory minimum term of 20 years' imprisonment and a
maximum term of 99 years' imprisonment. But in 1992 the legislature
amended AS 12.55.125(a), establishing a mandatory 99-year sentence
for first-degree murder under specified circumstances. [Fn. 28]
The statute now reads:
A defendant convicted of murder in the
first degree shall be sentenced to a definite term of imprisonment
of at least 20 years but not more than 99 years[, except that a]
defendant convicted of murder in the first degree shall be sentenced
to a mandatory term of imprisonment of 99 years when
(1) the defendant is convicted of the
murder of a uniformed or otherwise clearly identified peace officer,
fire fighter, or correctional employee who was engaged in the
performance of official duties at the time of murder;
(2) the defendant has been previously
convicted of
(A) murder in the first degree under
[Alaska law];
(B) murder in the second degree under
[Alaska law]; or
(C) homicide under the laws of
another jurisdiction when the offense of which the defendant was
convicted contained elements similar to first degree [sic] murder
under AS 11.41.100 or second degree [sic] murder under AS 11.41.110;
or
(3) the court finds by clear and
convincing evidence that the defendant
subjected the murder victim to substantial
physical torture.
As the parties prepared for Malloy's sentencing, the State
gave notice that it intended to seek a mandatory 99-year sentence
under subsection (3) of this statute by proving that Malloy
subjected K.H. to substantial physical torture before killing her.
Malloy objected that the amended statute was unconstitutional to the
extent that it allowed the aggravating circumstances listed in
subparagraphs (1)-(3) to be determined by the sentencing judge
rather than the trial jury. Malloy argued that if the State wished
to seek the mandatory 99-year sentence for first-degree murder, the
State was constitutionally required to specially indict the
defendant, pleading one or more of the aggravating circumstances,
and to then prove the aggravating circumstance(s) beyond a
reasonable doubt at the defendant's trial.
Judge Andrews rejected Malloy's attack on the statute.
She concluded that the aggravating circumstances listed in the
statute were penalty-enhancing factors that did not need to be
alleged and proved at trial; rather, these factors were to be
decided by the judge at sentencing. Although Judge Andrews
expressed some reservations about the constitutionality of the
statute, she ultimately concluded that it was constitutional. She
then found, by clear and convincing evidence, that Malloy had
inflicted substantial physical torture on K.H. and that Malloy
should therefore be sentenced to the 99-year term mandated by the
statute. Judge Andrews added, however, that even if the legislature
had not mandated a 99-year sentence, she nevertheless would have
sentenced Malloy to a 99-year term for the murder.
Malloy was also convicted of kidnapping. For this crime,
Judge Andrews sentenced Malloy to 99 years' imprisonment with 60
years to serve, consecutive to the murder sentence. Thus, Malloy's
composite sentence is 159 years to serve a sentence that Judge
Andrews declared was designed to make sure that Malloy spent the
rest of her life in prison without possibility of parole.
Because Malloy received this lengthy composite sentence,
and because Judge Andrews declared that she would have sentenced
Malloy to 99 years for the murder in any case, the State argues that
Malloy's challenge to the sentencing statute is moot. But the
State's argument overlooks the effect of AS 33.16.090(b), which
declares that "[a] prisoner sentenced to a mandatory 99-year term
under AS 12.55.125(a) ... is not eligible for discretionary parole
during the entire term." Because of this statute, Malloy stands in
a substantially worse position than if she had received a normal 99-
year sentence for first-degree murder. Even when Malloy's
consecutive 60-year kidnapping sentence is taken into account,
Malloy's eligibility for parole is still delayed for several years
because of the mandatory 99-year term imposed under AS
12.55.125(a)(3). [Fn. 29] We therefore conclude that we must
resolve Malloy's attack on the statute.
(a) The question presented, and the societal policies at
issue
The question presented here, in its most basic form, is
whether AS 11.41.100(a) (the statute defining first-degree murder)
and AS 12.55.125(a) (the statute prescribing the penalty for this
crime) should be deemed to jointly create two separate offenses
two "degrees" of first-degree murder or whether these two statutes
should be interpreted in the usual way, with AS 11.41.100(a)
defining the crime and AS 12.55.125(a) prescribing the penalty.
Malloy argues that, under the due process clause of the
Alaska Constitution [Fn. 30], the two statutes must be deemed to
define two separate crimes one, the normal offense of first-degree
murder, committed whenever a person intentionally takes the life of
another human being; and the other, an aggravated version of first-
degree murder that requires proof of one or more of the
circumstances listed in subsections (1)-(3) of AS 12.55.125(a).
Although Malloy has framed her argument in terms of the
due process clause of Article I, Section 7, her claim also involves
the right to jury trial guaranteed by Article I, Section 11. And
because Malloy's crime is a felony, her claim additionally involves
the right to grand jury indictment guaranteed by Article I, Section
8. For if Malloy is correct if the aggravating circumstances
listed in AS 12.55.125(a)(1)-(3) define a separate, aggravated form
of first-degree murder then these elements would have to be
pleaded in the indictment, established at grand jury, and ultimately
proved beyond a reasonable doubt to a trial jury. [Fn. 31]
In our government of divided powers, the legislature
defines crimes and establishes punishments. [Fn. 32] The Alaska
supreme court has explicitly recognized this principle:
Save only as limited by constitutional
safeguards, the legislature may choose any reasonable means to
protect the people from the violation of criminal laws. In general,
the comparative gravity of offenses and their classification and
resultant punishment is for legislative determination.
Alex v. State, 484 P.2d 677, 685 (Alaska 1971) (citation omitted).
Thus, it is the legislature's function to define the crime
of first-degree murder. It is likewise the legislature's function
to decide whether a single penalty range should apply to all
instances of first-degree murder, or whether first-degree murder
should be punished more or less severely depending on the
circumstances.
True, Alex speaks of "constitutional safeguards" that
potentially limit the legislature's power. But the United States
Supreme Court has indicated that the due process clause of the
Fourteenth Amendment places very few restrictions on a state
legislature's authority to define crimes. In particular, the Court
has declared that the due process clause does not require states to
define crimes in such a way that every circumstance affecting
liability or punishment is an element of the crime. [Fn. 33]
Alaska's presumptive sentencing statutes illustrate this
point. Under AS 12.55.125(c), (d), (e), and (i), various
presumptive terms govern the sentencing of all persons convicted of
sexual assault in the first degree, sexual abuse of a minor in the
first degree, and any class A felony, as well as repeat felony
offenders convicted of a class B or class C felony. The
applicability and length of these presumptive terms hinges on proof
of factual matters the offender's prior felony record, as well
as various circumstances surrounding the offense that make the
defendant's conduct more or less serious. And under Alaska law, it
is the sentencing judge not the jury who decides whether these
facts have been proved. [Fn. 34]
In Huf v. State [Fn. 35], we upheld this presumptive
sentencing scheme against an attack very similar to Malloy's. We
concluded that the legislature's decision to have the sentencing
judge decide these underlying questions of fact did not violate a
defendant's right to substantive due process or to trial by jury.
We noted that the statutory provisions governing the various
presumptive terms did not create new crimes or add new elements to
the underlying felonies. Rather, the factors that triggered the
various presumptive terms were "true sentencing provision[s]", and
thus the legislature could constitutionally choose to have
sentencing judges decide these matters. [Fn. 36]
But our decision in Huf is not necessarily dispositive of
Malloy's case. One of our main rationales for upholding the
presumptive sentencing statutes in Huf was the fact that the
presumptive terms do not create new penalty ranges for a defendant's
crime; rather, they merely restrict a sentencing judge's authority
within the established sentencing range. [Fn. 37]
In contrast, the Alaska Supreme Court held in Donlun v.
State [Fn. 38] that when a statute lists particular circumstances
that increase the maximum sentence for a crime, the statute must be
construed as creating separate crimes. The aggravating
circumstances listed in the statute must be deemed elements of the
higher degree of the crime. Thus, a defendant is entitled to
indictment and jury trial on those elements.
The statute at issue in Donlun was former AS 11.20.080,
which defined burglary under Alaska's former criminal code. This
statute declared that a person who committed burglary of a dwelling
house was punishable by a sentence of up to 10 years' imprisonment;
but if the burglary was committed at nighttime, the maximum
punishment rose to 15 years, and if the dwelling was occupied, the
maximum punishment rose to 20 years. The supreme court concluded
that this statute actually codified three different offenses that
is, three different degrees of burglary.
[W]here a criminal statute provides for graded
or enhanced ranges of punishments for aggravated instances of the
proscribed offense, an indictment charging the offense must specify
the aggravating facts before the defendant can be exposed to an
increased range of punishment.
Donlun, 527 P.2d at 473. [Fn. 39]
A surprising and puzzling aspect of Donlun is the fact
that the supreme court did not specify the legal basis of its
decision; that is, the court did not explicitly state whether its
ruling was based on statutory interpretation or on the provisions
of the constitution and, if so, which constitution. But the
wording of the decision suggests that the court was relying on
constitutional grounds rather than statutory construction. The
supreme court did not discuss the legislative history of the
burglary statute or the policies underlying that statute. Rather,
the court stated its holding in the broadest of terms, declaring
that its ruling applied to "[any] criminal statute provid[ing] for
graded or enhanced ranges of punishments for aggravated instances
of the proscribed offense". [Fn. 40] This indicates that the court
was stating a rule of constitutional law. [Fn. 41]
An additional reason to interpret Donlun as resting on
constitutional grounds is the historical importance of the right to
trial by jury. The development of the common law in England was
marked by a tension between the jury, as an expression of the
popular will, and the judiciary, as the representative of
established authority. Parliament engaged in the practice of
barring the right to jury trial when it defined new, statutory
offenses such as the Stamp Act and other statutes regulating trade
within the British Empire. This practice was condemned by
Blackstone, and it occasioned the protest in the American
Declaration of Independence against the deprivation of the right to
jury trial. [Fn. 42]
Moreover, the Americans who drafted our federal
constitution understood that the right to jury trial "could be lost
not only by gross denial, but by erosion". [Fn. 43]
One contributor to the ratification debates ...
, commenting on the jury trial guarantee in Art. III, sec. 2, echoed
Blackstone in warning of the need "to guard with the most jealous
circumspection against the introduction of new, and arbitrary
methods of trial, which, under a variety of plausible pretenses, may
in time, imperceptibly undermine this best preservative of LIBERTY.
Jones v. United States, 526 U.S. at 248, 119 S.Ct. at 1226. [Fn.
44] Thus, in Jones, the United States Supreme Court cautioned that
serious Sixth Amendment issues would be raised by any statute that
"diminish[ed] the jury's significance by removing [its] control over
facts determining a statutory sentencing range". [Fn. 45]
For these reasons, we interpret Donlun as stating a rule
of constitutional law: when the maximum penalty for an offense
hinges on the presence of aggravating factors, the offense is deemed
to be divided into different degrees, and the specified aggravating
factors are deemed elements of the greater crime(s). These elements
must be alleged in the indictment, established at grand jury, and
proved at trial.
Therefore, to resolve Malloy's challenge to AS
12.55.125(a), we must decide whether the challenged portions of AS
12.55.125(a) should be characterized as sentencing provisions, like
the presumptive sentencing statutes challenged in Huf, or should be
deemed to create separate offenses, like the statute challenged in
Donlun.
(b) Analysis of AS 12.55.125(a) under Donlun
The State argues that the burglary statute construed in
Donlun is distinguishable from the statute at issue in Malloy's
case, AS 12.55.125(a), because the statute in Donlun not only
specified the penalties for burglary but also defined that crime as
well. In contrast, AS 12.55.125(a) deals purely with the penalties
for first-degree murder; the crime itself is separately defined in
AS 11.41.100(a). Based on this distinction, the State argues that
AS 12.55.125(a) must be characterized as purely a penalty provision,
and thus governed by this court's ruling in Huf.
But the State's argument begs the question. Donlun holds
that when a "criminal statute provides for graded or enhanced ranges
of punishments for aggravated instances of the proscribed offense",
the statute must be construed as creating separate offenses. The
Donlun rule is designed to protect a defendant's constitutional
rights to have the State's case screened by a grand jury and, if a
trial is held, to have a jury of the defendant's peers decide
whether the defendant is guilty. If we are to enforce the Donlun
rule and the constitutional rights that it safeguards, we can not
allow the legislature's drafting style to govern our inquiry. If
Malloy is correct if the legislature has effectively created a
separate, aggravated form of first-degree murder then the fact
that the elements of this crime are defined in a statute ostensibly
devoted to sentencing will not defeat Malloy's right to grand jury
indictment and jury trial on those elements. [Fn. 46]
The State next argues that AS 12.55.125(a) does not fall
within the Donlun rule because, even when the State proves the
aggravating factors specified in subsections (1)-(3), the defendant
faces the same maximum sentence for first-degree murder. The State
points out that the 99-year sentence mandated by AS 12.55.125(a)(1)-
(3) is still within the normal sentencing range for first-degree
murder (20 to 99 years). Because of this, the State argues that the
99-year sentence mandated by subsections (1)-(3) is just like the
presumptive terms mandated by AS 12.55.125(c), (d), (e), and (i).
That is, the mandatory 99-year sentence merely restricts a
sentencing judge's discretion within the authorized range of
penalties for the offense. Thus, the State concludes, Huf controls
Malloy's case and the circumstances listed in subsections (1)-(3)
must be deemed penalty enhancement provisions rather than elements
of a separate crime.
We reject the State's characterization of the statute.
AS 12.55.125(a) does not "restrict" the sentencing range for
offenders who fall within subsections (1)-(3); rather, the statute
abolishes the range of sentences in favor of a fixed 99-year
sentence. Moreover, though this fixed 99-year sentence may appear
to be at the upper boundary of the previously defined penalty range,
it in fact represents a new, harsher penalty. Not only must the
defendant receive 99 years to serve, but AS 33.16.090(b) declares
that this 99 years must be served without possibility of
discretionary parole.
True, sentencing judges have the authority under AS
12.55.115 to restrict a defendant's normal eligibility for parole
or deny it altogether. But we have previously held that a
defendant receives a "maximum sentence" if he or she is sentenced
to the maximum term of imprisonment, whether or not the sentencing
judge restricts or denies parole eligibility. [Fn. 47] That is,
the mandatory sentencing provision in the first-degree muder statute
not only requires sentencing judges to impose the maximum term of
imprisonment that might have been imposed under prior law, but it
also effectively requires sentencing judges to exercise their utmost
power under AS 12.55.115 to restrict the defendant's parole.
For these reasons, we conclude that AS 12.55.125(a)
establishes a separate maximum penalty for certain offenders
convicted of first-degree murder, a penalty that is harsher than the
maximum penalty specified for other offenders convicted of this
crime. Thus, the Donlun rule presumptively controls our
interpretation of AS 12.55.125(a), requiring us to construe this
statute as creating two separate offenses normal first-degree
murder and aggravated first-degree murder and requiring us to
construe the circumstances listed in AS 12.55.125(a)(1)-(3) as
additional elements necessary to prove aggravated first-degree
murder.
(c) The State's argument that Donlun does not
accurately reflect federal constitutional law on this question
The Alaska Supreme Court decided Donlun in 1974. The
State argues that recent decisions by the United States Supreme
Court show that Donlun is premised on a misunderstanding of a
legislature's constitutional authority to define crimes and
prescribe punishments.
The State relies especially on Almendarez-Torres v. United
States [Fn. 48]. In Almendarez-Torres, the Supreme Court construed
a federal criminal statute that provided a greater maximum penalty
if the defendant had a prior felony conviction. [Fn.
49] Almendarez-Torres argued that, because his prior felony
conviction triggered an enhanced maximum penalty, his felony
conviction should be deemed an element of the offense a fact to
be proved to the jury at trial. But the Supreme Court ruled that
this clause of the statute was merely a penalty-enhancing provision,
not an element of the crime. [Fn. 50] To reach this conclusion,
the Court relied heavily on the assertion that recidivism "is a
traditional, if not the most traditional, basis for a sentencing
court's increasing an offender's sentence". [Fn. 51] The Court also
noted that an increase in the maximum sentence for a crime does not
necessarily disadvantage a defendant in the same way that an
increase in the mandatory minimum sentence would for a sentencing
judge is not obliged to impose the maximum sentence. [Fn. 52]
If we were sure that Donlun was based on the Alaska
Constitution, we might simply declare that Almendarez-Torres had no
relevance to our inquiry. But, as noted before, the Alaska Supreme
Court did not specify the legal foundation for its decision.
Assuming for purposes of argument that Donlun relied on the federal
constitution (so that we need to address the merits of the
Almendarez-Torres decision), we nevertheless reject the State's
contention that Almendarez-Torres is the answer to Malloy's case.
As noted above, the Almendarez-Torres decision relied
heavily on the concept that recidivism is a "traditional" sentencing
consideration. But this rationale is ultimately unconvincing.
True, sentencing judges often and properly consider the fact
that a defendant has committed previous crimes. But the same could
be said of almost any other aggravating circumstance that the
legislature might be expected to codify.
The United States Supreme Court implicitly recognized this
problem in Jones v. United States. [Fn. 53] In Jones, the Supreme
Court construed the federal car-jacking statute, 18 U.S.C. sec.
2119,
which provides a maximum penalty of 15 years' imprisonment unless
the car-jacking results in serious bodily injury (in which case the
maximum penalty is 25 years' imprisonment) or unless the crime
results in death (in which case the maximum penalty is life
imprisonment). [Fn. 54] Even though the wording of this statute
strongly indicated a congressional intent to create three different
penalty provisions for a single crime, the Supreme Court construed
the statute as creating three separate offenses three degrees of
crime.
The Court declared that it was adopting this
interpretation of the statute in order to avoid confronting a "grave
and doubtful constitutional question[]". [Fn. 55] This question,
said the Court, was whether, "under the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of the
Sixth Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be charged in an
indictment, submitted to a jury, and proven beyond a reasonable
doubt." [Fn. 56]
In other words, the Supreme Court wanted Almendarez-Torres
confined to its facts. The Court specifically held that Almendarez-
Torres did not answer the broader question of whether the Sixth
Amendment's right to jury trial prohibits Congress from enacting
"penalty-enhancing" provisions that give sentencing judges the
authority to increase the maximum penalty for an offense based on
factors other than a defendant's recidivism. Thus, Almendarez-
Torres does not answer the question of federal constitutional law
presented in Malloy's case: whether the right to jury trial
incorporated in the due process clause of the Fourteenth Amendment
prohibits a state legislature from enacting a statute like AS
12.55.125(a)(3) a statute that raises the maximum sentence for
an offense based on a sentencing judge's finding that the defendant
subjected the victim to "substantial physical torture".
(d) We adopt Donlun as a rule of law under the Alaska
Constitution
As explained in the previous section, federal
constitutional law does not currently provide an answer to the issue
raised in Malloy's case. Moreover, we can not adopt the strategy
used by the United States Supreme Court in Jones i.e., employ
rules of statutory construction to construe AS 12.55.125(a) as
creating two separate varieties of first-degree murder, thus
avoiding the constitutional issue. Such an interpretation of the
statute would be clearly inconsistent with the legislature's intent.
AS 12.55.125(a)(3) specifies that the mandatory 99-year
sentence is to be imposed when "the court finds by clear and
convincing evidence that the defendant subjected the murder victim
to substantial physical torture". Because the legislature has
specified that the sentencing judge should be the finder of fact,
and because the legislature has specified that the aggravating
circumstance need be proved only by "clear and convincing evidence"
(not "beyond a reasonable doubt"), it is obvious that the legislature
did not view "subtantial physical torture" as an element of the
crime. We therefore can not escape the constitutional issue.
Conceivably, we might try to decide Malloy's case on
federal constitutional grounds, attempting to predict how the United
States Supreme Court will resolve this constitutional question in
the future. But, as explained above, the Supreme Court's decisions
in this area provide little guidance. Read together, Almendarez-
Torres and Jones indicate that the Supreme Court finds this question
troublesome and believes that the answer is uncertain.
Moreover, Malloy has expressly attacked AS 12.55.125(a)
on state constitutional grounds. We therefore conclude that we must
decide whether AS 12.55.125(a) comports with the guarantees of due
process, grand jury indictment, and jury trial contained in the
Alaska Constitution.
The Alaska Supreme Court has held that the right to jury
trial guaranteed by Article I, Section 11 of the Alaska Constitution
is broader than the corresponding right to jury trial guaranteed by
the federal Constitution. See R.L.R. v. State [Fn. 57] and Baker
v. Fairbanks [Fn. 58]. In large measure, these decisions are based
on our supreme court's recognition that the trial jury's role as
finder of fact is one of the fundamental aspects of American
jurisprudence. [Fn. 59] By requiring that a jury decide every
question of fact required to establish a defendant's guilt, our law
protects accused persons from the possibly unjust exercise of
prosecutorial and judicial power. [Fn. 60]
Similarly, both the supreme court and this court have
recognized the importance of the grand jury review of felony charges
guaranteed by Article I, Section 8 of the Alaska Constitution. [Fn.
61] "[T]he purpose served by [the requirement of] grand jury
indictment is to give one accused of a serious offense the benefit
of having private citizens judge whether there is probable cause to
hold the accused for trial. The grand jury protects the innocent
from unjust prosecution ... ." [Fn. 62]
Thus, the Alaska Constitution guarantees a broader right
of jury trial than the federal Constitution, and it guarantees a
right of grand jury indictment that is not guaranteed by the federal
Constitution. Because of this, we conclude that the question raised
by Malloy though it may be "grave and uncertain" under federal law
does have an answer under the Alaska Constitution.
A defendant convicted of first-degree murder under the
normal penalty provision faces a minimum sentence of 20 years'
imprisonment and a maximum of 99 years' imprisonment. A defendant
convicted of first-degree murder under the aggravating circumstances
specified in subsections (1)-(3) faces a mandatory sentence of 99
years without possibility of parole. Given this great disparity,
it is fundamentally unfair to require a defendant to make decisions
about plea-bargaining and trial strategy without knowing whether the
State will ask for the 99-year mandatory sentence. Indeed, the way
AS 12.55.125(a) is written, the State need not decide whether to
seek the 99-year mandatory sentence until the defendant's trial is
over. Thus, a defendant who chooses to go to trial rather than
plead guilty or no contest runs the risk that, during the trial
process, evidence will come to light that will enable the State to
argue that the defendant should be sentenced under AS
12.55.125(a)(1)-(3). Even if the trial does not reveal new
evidence, the defendant still takes the risk that heated emotions
engendered during the trial might prompt the prosecutor to re-
evaluate the State's sentencing strategy and perhaps seek the
mandatory 99-year sentence when the prosecutor otherwise would not
have done so.
Donlun holds that, in circumstances like this when a
statute provides a different maximum penalty for an offense based
on the presence of aggravating factors the statute must be deemed
to create separate offenses, and the specified aggravating factors
must be treated as elements of the aggravated form of the offense.
As explained above, the Alaska Supreme Court did not specify the
legal basis for its decision in Donlun. But we note that the supreme
courts of Oregon and Hawai'i have adopted the same rule based on
their state constitutions' guarantees of trial by jury. [Fn. 63]
Based on our analysis of Donlun, we hold that when a
statute provides a greater maximum penalty for a crime based on
specified aggravating factors, Alaska's guarantees of due process
(Article I, Section 7) and of trial by jury (Article I, Section 11)
require us to treat the statute as creating separate offenses, and
to treat the aggravating factors as elements of the aggravated form
of the offense. The defendant will not be subject to the greater
maximum penalty unless the charging document specifies the pertinent
aggravating factors and the State proves these aggravating factors
beyond a reasonable doubt at the defendant's trial. If (as in
Malloy's case) the alleged crime is a felony, then Alaska's
guarantee of grand jury indictment (Article I, Section 8) also
requires the State to establish the pertinent aggravating factors
at grand jury.
We do not question the legislature's authority to require
a 99-year sentence without possibility of parole for the most
egregious forms of first-degree murder. But if such a sentence
a sentence that exceeds the normal maximum penalty for the crime
awaits the defendant upon conviction, then procedural fairness
requires that the defendant receive notice of this possibility in
the charging document. Moreover, to prevent erosion of the
constitutionally guaranteed right to trial by jury, the government
must be required to prove the aggravating factors to a jury of the
defendant's peers, and to prove these factors beyond a reasonable
doubt.
We thus construe AS 11.41.100(a) and AS 12.55.125(a) as
jointly creating two offenses: first-degree murder and aggravated
first-degree murder. The factors specified in AS 12.55.125(a)(1)-
(3) are elements of aggravated first-degree murder. Before Malloy
could be sentenced to the mandatory 99-year sentence for aggravated
first-degree murder, the State had to allege these elements in the
charging document and prove these elements beyond a reasonable doubt
to Malloy's jury. This was not done. Because it was not done,
Malloy could not be sentenced to the mandatory 99-year term.
2. With the deletion of the restriction on discretionary
parole, we affirm Malloy's composite sentence of 159 years to serve.
We have just held that Malloy should not have been
sentenced under the portion of AS 12.55.125(a) that mandates a 99-
year sentence without possibility of discretionary parole. But, as
explained above, Judge Andrews declared that she would have
sentenced Malloy to 99 years' imprisonment even if the statute did
not require it. Judge Andrews further declared, in imposing a
consecutive 60-year sentence for kidnapping, that she believed that
Malloy should receive a sentence of life imprisonment without
parole. It is therefore clear that Judge Andrews would have imposed
the same composite sentence even if she had predicted our ruling
concerning the constitutionality of AS 12.55.125(a). The remaining
question, then, is whether Malloy's 159-year composite sentence is
excessive.
Judge Andrews found that Malloy had committed two separate
offenses: a kidnapping that lasted for more than one week, followed
by a murder. During the time that Malloy held K.H. in restraint,
she subjected K.H. to repeated physical cruelty and abuse, as well
as sexual assault. Judge Andrews declared that Malloy:
victimized [K.H.] in a way that is among the
worst that the court has seen in terms of its sheer cruelty and
humiliation and human debasement. [This victimization] was followed
by a very cold and calculated murder ... a multiple [and]
disfiguring stabbing. And then, [K.H.'s] body was left on a
roadside next to a garbage can ... . [I]t's hard for the court to
characterize this as other than ... a worst offense within the
description of kidnapping and murder. And on that basis, the court
would find that Ms. Malloy is a worst offender.
The record fully supports Judge Andrews's findings.
Judge Andrews also specifically found that a composite
sentence exceeding 99 years to serve was necessary to protect the
public. [Fn. 64] She declared that Malloy was "one of the most
manipulative, brightest criminal defendants I've seen in my
courtroom", and she found that Malloy was a "cold-blooded ... killer"
with "virtually no rehabilitative potential". The judge found that
consecutive sentences for the kidnapping and murder were necessary
"not only to protect the public, but [also] to give teeth to the
notion that there really were two [separate], very serious
unclassified ... felonies committed in this case."
This court has upheld similarly lengthy sentences in cases
of aggravated first-degree murder. For example, in Harmon v. State
[Fn. 65], this court affirmed consecutive sentences totaling 129
years, with no parole eligibility for 99 years, in a case involving
murder and sexual assault. We noted that the defendant had engaged
in deliberate cruelty and that the sentencing judge found that he
had no prospects for rehabilitation. [Fn. 66] And in Alexander v.
State [Fn. 67], this court affirmed a composite 198-year term with
restricted parole for the kidnapping and first-degree murder of a
high school student. [Fn. 68]
The evidence in this case reveals that Malloy engaged in
prolonged and horrific abuse of another human being, and that she
then committed cold-blooded murder while her victim was helpless and
incapacitated. In short, the record fully supports Judge Andrews's
findings and sentencing conclusions. Based on those findings and
conclusions, we hold that Malloy's 159-year composite sentence is
not clearly mistaken. [Fn. 69]
Conclusion
We affirm Malloy's convictions for first-degree murder,
kidnapping, and tampering with evidence. We further affirm Malloy's
composite sentence of 159 years to serve. However, because Malloy
could not be sentenced under the portion of AS 12.55.125(a) that
mandates a sentence of 99 years without possibility of parole, we
hold that Malloy's judgement must be amended by deleting the words
"without parole" from Malloy's sentence on Count I (first-degree
murder). Malloy will be eligible for discretionary parole at the
normal time after she has served one-third of her composite
sentence.
With this modification, the judgement of the superior
court is AFFIRMED.
FOOTNOTES
Footnote 1:
Canon 3E(1) provides that "a judge shall disqualify himself or
herself in a proceeding in which the judge's impartiality might
reasonably be questioned".
Footnote 2:
See, e.g., Faretta v. California, 422 U.S. 806, 819 n.15; 95
S.Ct. 2523, 2533 n.15; 45 L.Ed.2d 562 (1975) (A defendant has a
constitutional "right to be present at all stages of the trial where
his absence might frustrate the fairness of the proceedings.").
Footnote 3:
See Henry v. State, 861 P.2d 582, 592 (Alaska App. 1993)
(quoting Wamser v. State, 652 P.2d 98, 101 n.10 (Alaska 1982)).
Footnote 4:
Henry, 861 P.2d at 593 (quoting Kentucky v. Stincer, 482 U.S.
730, 745; 107 S.Ct. 2658, 2667; 96 L.Ed.2d 631 (1987)).
Footnote 5:
See State v. Hannagan, 559 P.2d 1059, 1063-65 (Alaska 1977).
Footnote 6:
See, for instance, State v. Hamons, 805 P.2d 6 (Kan. 1991) (an
ex parte hearing to consider the State's request to require a
subpoenaed witness to post bond did not violate the defendant's
Sixth Amendment and statutory rights of confrontation where "no
evidence of testimony regarding any aspect of the crime was
discussed"); State v. Douglas, 675 P.2d 358, 361 (Kan. 1984) (a
hearing to decide whether a witness should be held in contempt could
lawfully be held outside the presence of the defendant when the only
issue litigated was the witness's own defense to the contempt
accusation). In Hamons, the state asked the trial court to require
a subpoenaed witness to post bond to secure her presence at trial.
Id. at 14. The trial court conducted an ex parte hearing to
consider the state's request; neither Hamons nor his counsel were
present. (After the witness assured the trial judge that she would
attend the trial and testify truthfully, the judge decided that no
bond was required.) Id.
On appeal, Hamons argued that this ex parte hearing
violated his Sixth Amendment and statutory rights of confrontation.
However, the Kansas court rejected Hamons's claims. The court noted
that the only issues litigated at the ex parte hearing were whether
the witness would honor the subpoena and whether she would be
required to post bond. Id. The court stressed that "no evidence
or testimony regarding any aspect of the crime was discussed," and
that the district attorney was not allowed to examine the witness
concerning the substance of her intended testimony. Id.
Footnote 7:
See Evidence Rule 504(b) ("A patient has a privilege to refuse
to disclose ... confidential communications made for the purpose of
diagnosis or treatment of the patient's ... mental or emotional
conditions").
Footnote 8:
See Evidence Rule 504(c), which authorizes a guardian ad litem
to assert the psychotherapist-patient privilege on behalf of their
ward.
Footnote 9:
564 P.2d 361 (Alaska 1977).
Footnote 10:
372 P.2d 785 (Alaska 1962).
Footnote 11:
Id. at 786.
Footnote 12:
Id.
Footnote 13:
Id. at 786-87.
Footnote 14:
Id. at 787.
Footnote 15:
See Criminal Rule 38, which generally requires a defendant's
presence at all post-indictment proceedings.
Footnote 16:
Id. at 788.
Footnote 17:
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
Footnote 18:
The transcript has Malloy saying "Yeah, well" at this point,
but her actual words are clear on the videotape.
Footnote 19:
See Hunter v. State, 590 P.2d 888, 895 (Alaska 1979); see also
Edwards v. State, 842 P.2d 1281, 1284 (Alaska App. 1992) (custody,
for Miranda purposes, is determined by examining all of the
objective circumstances of the interview and asking whether a
reasonable, innocent person in the suspect's position would have
felt free to break off questioning and, depending on the location
of the interview, either leave or ask the police to leave).
Footnote 20:
See Edwards, 842 P.2d at 1285.
Footnote 21:
Id.
Footnote 22:
451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Footnote 23:
See id., 451 U.S. at 484-85, 101 S.Ct. at 1884-85.
Footnote 24:
See Kochutin v. State, 875 P.2d 778, 779 (Alaska App. 1994).
Footnote 25:
Specifically, Malloy offered to prove that Rundle had cut her
son on the head while disciplining him, inflicting a wound that
required twelve stitches to close. Malloy also offered to prove
that Rundle had stabbed her son in the hand and arms while "playing
a game with him", and that Rundle had stabbed the family puppy.
Footnote 26:
See Garner v. State, 711 P.2d 1191, 1194 (Alaska App. 1986).
Footnote 27:
See Love v. State, 457 P.2d 622, 629-631 (Alaska 1969) (non-
constitutional error does not require reversal of a criminal verdict
unless the error appreciably affected the verdict).
Footnote 28:
See SLA 1992, ch. 79, sec. 23.
Footnote 29:
Under AS 33.16.100(d), "[a] prisoner who is sentenced ... under
AS 12.55.125(a), (b), (c), or (i) may not be released on
discretionary parole until the prisoner has served ... at least one-
third of the period of confinement imposed ... ." Malloy was
sentenced under AS 12.55.125(a) for first-degree murder and under
AS 12.55.125(b) for kidnapping. Had she received a normal 99-year
sentence for first-degree murder and a consecutive 60-year sentence
for kidnapping, she would be eligible for discretionary parole after
serving 53 years (one-third of 159 years).
Footnote 30:
Article I, Section 7.
Footnote 31:
See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
(1970) (holding that, under the due process clause of the Fourteenth
Amendment, a state government is obliged to prove every element of
a criminal offense beyond a reasonable doubt).
Footnote 32:
See 21 Am.Jur.2d, Criminal Law, sec.sec. 10-11, pp. 123-24.
Footnote 33:
See Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d
267 (1987); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53
L.Ed.2d 281 (1977).
Footnote 34:
See AS 12.55.145(d).
Footnote 35:
675 P.2d 268 (Alaska App. 1984).
Footnote 36:
See id. at 271-73.
Footnote 37:
See id. at 273.
Footnote 38:
527 P.2d 472 (Alaska 1974).
Footnote 39:
See also Tallent v. State, 951 P.2d 857 (Alaska App. 1997)
(requiring the State to prove a defendant's prior theft convictions
as an element of the offense when the defendant is prosecuted for
second-degree theft under AS 11.46.130(a)(6)); Ross v. State, 950
P.2d 587, 589-590 (Alaska App. 1997) (requiring the State to prove
a defendant's prior DWI convictions as an element of the offense
when the defendant is prosecuted for felony DWI under AS
28.35.030(n)); Morgan v. State, 661 P.2d 1102 (Alaska App. 1983)
(requiring the State to prove a defendant's prior bootlegging
conviction as an element of the offense when the defendant is
prosecuted for felony bootlegging under AS 4.16.200(b)).
Footnote 40:
Id. at 473.
Footnote 41:
Recently, two members of the supreme court expressed the view
that Donlun is premised on a defendant's right to due process. See
the dissenting opinion of Justices Bryner and Fabe in D.M. v.
Division of Family and Youth Services, 995 P.2d 205, 217-18 (Alaska
2000).
Footnote 42:
See Jones v. United States, 526 U.S. 227, 245-46; 119 S.Ct.
1215, 1225; 143 L.Ed.2d 311 (1999).
Footnote 43:
526 U.S. at 247-48, 119 S.Ct. at 1226.
Footnote 44:
Quoting The Complete Bill of Rights (N. Cogan, editor; 1997),
p. 477.
Footnote 45:
Id., 526 U.S. at 248, 119 S.Ct. at 1226.
Footnote 46:
See State v. Wedge, 652 P.2d 773, 778 (Or. 1982) (examining a
similar issue under the Oregon constitution's guarantee of jury
trial, and holding that the defendant's right to jury trial can not
be defeated by the fact that the legislature has divided the
elements of the crime and placed some of them in different
statutes); State v. Apprendi, 731 A.2d 485, 492 (N.J. 1999) (holding
that the aggravating circumstances listed in a sentencing statute
were not elements of the crime, but declaring that the legislature
would not be allowed to circumvent a defendant's due process rights
by placing elements of the crime in a separate sentencing statute).
Footnote 47:
See Capwell v. State, 823 P.2d 1250, 1256 (Alaska App. 1991).
Footnote 48:
523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
Footnote 49:
The statute at issue in Almendarez-Torres was 8 U.S.C. sec.
1326.
This statute prescribes the penalties for returning to the United
States after having been deported. This offense carries a maximum
sentence of 2 years' imprisonment unless the defendant had been
deported based on the commission of a crime. In that case, the
maximum sentence is either 10 years' or 20 years' imprisonment
(depending on the seriousness of the prior crime). See Almendarez-
Torres, 523 U.S. at 228-29, 118 S.Ct. at 1223-24.
Footnote 50:
See id.
Footnote 51:
Id. at 1230.
Footnote 52:
See id. at 1231.
Footnote 53:
526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).
Footnote 54:
See id., 526 U.S. at 238, 119 S.Ct. at 1218.
Footnote 55:
Id., 526 U.S. at 239, 119 S.Ct. at 1222.
Footnote 56:
Id., 526 U.S. at 243 n.6, 119 S.Ct. at 1224 n.6.
Footnote 57:
487 P.2d 27, 32-33 (Alaska 1971) (extending the right of jury
trial to minors in delinquency adjudications). Compare McKeiver v.
Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971)
(holding that the federal Constitution does not guarantee juveniles
the right to jury trial).
Footnote 58:
471 P.2d 386 (Alaska 1970) (extending the right to jury trial
to all criminal cases where the defendant faces any period of
incarceration or the loss of a valuable license). Compare Blanton
v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103
L.Ed.2d 550 (1989) (holding that the Sixth Amendment guarantee of
jury trial does not apply to "petty offenses", defined as any offense
punishable by 6 months' incarceration or less); United States v.
Nachtigal, 507 U.S. 1, 113 S.Ct. 1072, 122 L.Ed.2d 374 (1993) (a
defendant accused of driving under the influence of alcohol in a
national park a violation of an Interior Department regulation
is not constitutionally entitled to a jury trial).
Footnote 59:
See State v. Browder, 486 P.2d 925, 937 & n.38 (Alaska 1971).
Footnote 60:
See Green v. State, 462 P.2d 994, 997 (Alaska 1969).
Footnote 61:
See Adams v. State, 598 P.2d 503, 510 n.11 (Alaska 1979);
Morgan v. State, 661 P.2d 1102, 1103-04 (Alaska App. 1983).
Footnote 62:
Adams, 598 P.2d at 510 n.11 (citations omitted).
Footnote 63:
See State v. Wedge, 652 P.2d 773, 777-78 (Or. 1982), and State
v. Tafoya, 982 P.2d 890, 902 (Haw. 1999). See also Wadlow v. State,
642 A.2d 213 (Md. 1994) (adopting this same rule as a rule of
statutory construction).
But see State v. Thorne, 921 P.2d 514 (Wash. 1996), and People
v. Wiley, 889 P.2d 541, 38 Cal.Rptr.2d 347 (Cal. 1995) (rejecting
the argument that a defendant's prior convictions must be deemed
elements of the offense when proof of these prior convictions
increases the maximum sentence). See also State v. Krantz, 788 P.2d
298, 303-05 (Mont. 1990) (aggravating circumstances that increase
the maximum sentence can be determined by the sentencing judge, but
due process requires that these aggravating circumstances be alleged
in the charging document).
Footnote 64:
See Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977)
(consecutive sentences exceeding the maximum sentence for a
defendant's most serious crime should not be imposed unless
necessary to protect the public).
Footnote 65:
908 P.2d 434 (Alaska App. 1995).
Footnote 66:
See id. at 444-45.
Footnote 67:
838 P.2d 269 (Alaska App. 1992).
Footnote 68:
See id. at 275-76.
Footnote 69:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to affirm a sentencing decision unless the
decision is clearly mistaken).
