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Brown v. State (11/9/00) ap-1706
Brown v. State (11/9/00) ap-1706
NOTICE
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opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRUCE BROWN, )
) Court of Appeals No. A-7533
Appellant, ) Trial Court No. 3KN-98-701 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1706 November 9, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.
Appearances: Arthur S. Robinson, Robinson,
Beiswenger & Ehrhardt, Soldotna, for Appellant.
Dwayne W. McConnell, District Attorney, Kenai, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Bruce J. Brown and two co-defendants, Billy Smith and
Dennis Johnson, were indicted on two counts of first-degree murder
for killing a man and woman in Kenai. Brown was also charged with
eight counts of tampering with physical evidence. Ultimately, Brown
reached a plea agreement with the State: he pleaded no contest to
two evidence-tampering charges, and the State dismissed the murder
charges and the remaining evidence-tampering charges.
Superior Court Judge Jonathan H. Link sentenced Brown to
a composite sentence of 10 years' imprisonment with 5 years
suspended 5 years to serve. Brown appeals this sentence on
several bases.
Brown's two main contentions focus on the fact that Judge
Link found that Brown's offense was among the most serious within
the definition of the crime aggravator (c)(10) [Fn. 1] because
Brown was actually guilty of two murders, not just evidence-
tampering. Brown argues that Judge Link should have barred the
State from trying to prove aggravator (c)(10) because the State
missed the normal deadline for filing notice of aggravating factors.
Alternatively, Brown argues that Judge Link violated the rule of
Hamilton v. State [Fn. 2] by allowing the State to rely on hearsay
evidence to establish that Brown was guilty of murder, even though
Brown took the stand and testified that he was innocent.
Additionally, Brown argues that his composite sentence of
5 years to serve is excessive.
For the reasons explained here, we reject Brown's
arguments and affirm his sentence.
The late-filed aggravator
As explained above, Brown pleaded no contest to two counts
of tampering with evidence, a class C felony. [Fn. 3] Brown had
no prior felony convictions. Therefore, presumptive sentencing did
not apply, and Brown faced a sentence of between 0 and 5 years on
each count, subject to the Austin rule. [Fn. 4]
Brown's sentencing hearing was calendared for August 31,
1999. The day before the sentencing hearing, the State filed notice
of one proposed aggravating factor. Specifically, the State
announced that it intended to argue that Brown's conduct was among
the most serious within the definition of the offense, aggravator
(c)(10). [Fn. 5] Proof of this aggravating factor was crucial to
the State's sentencing strategy because, without it, the Austin rule
would limit Brown's sentence on each count to 2 years to serve. [Fn.
6]
Both AS 12.55.155(f) and Criminal Rule 32.1(c)(1)(A)
require notices of aggravating and mitigating factors to be filed
well before the sentencing hearing. Thus, the State's notice was
late. (Apparently, the prosecutor believed that the notice had
already been filed, but discovered at the eleventh hour that it had
not been.)
Brown's attorney objected to the tardiness of the State's
notice and asked Judge Link to bar the State from pursuing the
proposed aggravator. Judge Link agreed that the State's notice was
late, but he refused to strike the State's pleading. Instead, Judge
Link ruled that Brown's remedy was a continuance of the sentencing
hearing (so that Brown could prepare a defense to the proposed
aggravator).
On appeal, Brown acknowledges that this court declared in
Kelly v. State that the normal remedy for a late-filed notice of
aggravating or mitigating factors is a continuance of the sentencing
hearing. [Fn. 7] However, Brown argues that a continuance should
be the preferred remedy only when the offending party has some good
reason for missing the filing deadline. Brown contends that, in his
case, the prosecutor missed the deadline through negligence, and
thus Judge Link abused his discretion when he continued the
sentencing hearing and allowed the State to proceed with the
proposed aggravator.
Brown's position is at odds with the rationale of Kelly.
While the prosecutor in Kelly may have had a good excuse for missing
the filing deadline for pleading Kelly's prior felony convictions,
this court did not rely on the diligence or good faith of the
prosecutor in deciding that a continuance was the appropriate
remedy. Rather, this court relied on the fact that "[t]he
legislature did not intend the presumptive sentencing provisions of
the revised criminal code to be applied optionally, at the
discretion of the court or the prosecution".
The presumptive sentencing structure is
mandatory, and it must be followed when it applies. ... Failure
to consider prior crimes for presumptive sentencing purposes can be
condoned only in those cases where the state, after exercising due
diligence, is unable to meet the statutory requirements for proof
of a prior conviction.
Kelly, 663 P.2d at 974.
Kelly dealt with the existence of a defendant's prior
felony convictions, not with the existence of aggravating or
mitigating factors. But in Hartley v. State [Fn. 8], this court
applied the same rationale when we held that neither the State nor
the sentencing court has the discretion to ignore aggravating and
mitigating factors:
[T]he legislature has established specific
guidelines governing sentencing. These guidelines are particularly
important in determining presumptive sentences for those previously
convicted of felonies. The [legislature's] decision to circumscribe
sentencing discretion was in large part based upon a legislative
belief that greater uniformity in sentencing should be sought and
unjustified disparity eliminated. AS 12.55.005.
To allow the parties to ignore past
convictions or aggravating and mitigating factors suggested by the
evidence at trial or disclosed in the presentence report ... would
be to encourage unjustified disparity in sentencing. We therefore
hold that the state has no discretion to suppress evidence of past
convictions or aggravating or mitigating factors. ... We [also]
therefore conclude that the trial court has the power sua sponte to
alert the parties to possible aggravating and mitigating factors
present in the record[,] so long as the parties are given an
opportunity to marshal the relevant evidence, pro and con, and make
their arguments accordingly.
Hartley, 653 P.2d at 1056.
For these reasons, we conclude that Judge Link did not
abuse his discretion when he continued the sentencing hearing and
allowed the State to litigate the proposed aggravating factor.
Brown's contention that Judge Link impermissibly relied on
hearsay statements contained in the pre-sentence report as the
evidentiary basis for aggravator (c)(10) after Brown took the stand
at the sentencing hearing and contested these hearsay assertions
The State asserted that Brown's acts of evidence tampering
were among the most serious because Brown was actually guilty of the
two murders. To prove this assertion, the State relied on
information contained in the pre-sentence report and on additional
evidence presented at the sentencing hearing.
(a) The description of the offense contained in the pre-
sentence report
The two murder victims were Harold Enzler and his
girlfriend, Nancy Bellamy. Enzler had formerly been married to
Michelle Holliman, but the couple had divorced. There was one child
from this marriage, a son named Francis. Michelle Holliman
currently had custody of the boy, but the superior court custody
investigator had recently recommended that Enzler be awarded joint
custody.
Holliman was involved in a romantic relationship with
Billy Smith, one of the co-defendants in this case. Smith did not
get along with Enzler. Once, when Enzler came to visit his son,
Smith threatened to kill Enzler. Enzler prepared a petition for a
restraining order against his ex-wife and Smith. There was also
some indication that Enzler was going to present evidence of Smith's
illegal drug use in order to advance his custody request.
In mid-April 1994, Enzler's mother notified the police
that she had not seen her son in two weeks. It turned out that no
one had seen or heard from Enzler or Nancy Bellamy since the end of
March. During the next year, the police received various tips that
Billy Smith and another man named Dennis Johnson had murdered Enzler
and Bellamy, but the police had no hard evidence to support these
accusations.
Then, in August 1997, Billy Smith was arrested after the
police found a pound of cocaine in his possession. The police
questioned Smith about Enzler's and Bellamy's disappearance. Smith
professed great love for Michelle Holliman, but he initially denied
any knowledge of what had happened to Enzler and Bellamy. Under
continued questioning, however, Smith told the police that Enzler's
and Bellamy's bodies would never be found because they had been
thrown into the waters of Cook Inlet.
During two subsequent interviews, Smith confessed that he
killed Enzler and Bellamy. Smith explained that he had done this
because Enzler and Bellamy were threatening to take Enzler's son,
Francis, and move out of state. Smith told the police that he had
contacted Bruce Brown, a friend of Enzler's, and convinced Brown to
help him murder Enzler and Bellamy. Brown agreed to lure Enzler and
Bellamy to a remote location on Escape Road, where Smith would
intercept them and commit the murder. Brown later telephoned Smith
and told him that everything was arranged. But Smith distrusted
Brown; he feared that Brown might actually be planning to help
Enzler and Bellamy kill him. So Smith enlisted a third conspirator,
Dennis Johnson, to "back him up on this".
Smith and Johnson drove out to Escape Road, then parked
the car and raised the hood to make it appear as though the car had
broken down. A few minutes later, Brown arrived with Enzler and
Bellamy; Brown was driving Enzler's truck. When Brown stopped the
vehicle, Smith approached with a pistol in his hand. Brown tried
to grab the gun not to prevent the murder, but because he wanted
to perform the murder himself. Smith refused to relinquish the
weapon, and he proceeded to kill Enzler and Bellamy.
Following the murders, Smith and Brown moved the bodies
to a spot on an abandoned road. They hid Enzler's truck in the
garage of the residence where Brown was living. A few days later,
Smith and Johnson drove out to where they had hidden the victims'
bodies. Smith chopped up the bodies with an axe, and he and Johnson
then placed the pieces in plastic bags. Smith and Johnson took a
boat onto Cook Inlet, where they dumped the body parts into the
ocean. Brown assisted in the cover-up by dismantling Enzler's truck
and disposing of the parts.
Shortly after the police obtained this narrative from
Billy Smith, they interviewed Bruce Brown. Brown initially denied
any involvement in the homicides; he told the police that Smith was
lying. However, toward the end of the interview, Brown told the
investigators that much of what Smith had said was true. Brown then
said that he thought he would be able to locate some of the vehicle
parts from Enzler's truck.
On May 1, 1998, a grand jury indicted Smith, Brown, and
Johnson. Approximately two weeks later, the police spoke with Danny
Moore. Moore had been incarcerated with Brown the previous month.
While they were in jail together, Brown told Moore that he needed
Moore to help him after Moore was released.
Brown said that he wanted Moore to get rid of some truck
parts that were connected to the Enzler homicide. Brown gave Moore
detailed instructions on where to find the hidden parts, and Moore
passed this information on to the police. Based on Moore's
information, the state troopers searched a section of the Kenai Spur
Highway, where they discovered various vehicle parts that had been
painted with brown primer.
In Brown's interview with the pre-sentence investigator,
he declared that his prior statement to the police was true: he
knew about the homicides, and he helped to destroy Enzler's vehicle,
but he did not participate in the murder. According to Brown, he
drove Enzler and Bellamy out to Escape Road because Smith was going
to meet him there and buy some cocaine; Enzler came along because
he was going to "front" Smith the money for the purchase. But when
they arrived, Smith came out and shot Enzler and Bellamy. Brown
explained to the pre-sentence investigator that, after the shooting,
he smoked a cigarette and then he got back into Enzler's blood-
covered truck and drove it back to town. Later, he painted the
truck.
(b) Brown's testimonial denial of his involvement in the
murders, and the other evidence presented at the sentencing hearing
At the sentencing hearing, Brown took the stand and, under
oath, repeated the gist of his statement to the pre-sentence
investigator. He said that he drove Enzler and Bellamy out to
Escape Road because he thought that Enzler was going to purchase
some cocaine. He declared that he did not participate in the
planning or the perpetration of the murder, and he did not know that
Enzler and Bellamy would come to harm.
Brown testified that, after the shooting, Smith pointed
the gun at him and ordered him to help get rid of the evidence.
Brown resisted Smith's threats until Smith began threatening to kill
Brown's nieces and nephews. At this point, Brown agreed to help
Smith dispose of the truck, although he still refused to handle the
bodies.
On cross-examination, Brown conceded that he, Billy Smith,
and Dennis Johnson were all incarcerated in the Wildwood
Correctional Center. While they were there, Brown received the
following note from Smith:
There's no evidence [of] a crime because
the crime did not take place. They [i.e., Enzler and Bellamy] are
in Mexico, alive and at large. Nothing else. There was no crime.
No death [occurred]. There is no evidence of a crime. No proof.
We were never there because it did not exist, did not happen. No
DNA, no eyewitnesses, no body, no ballistics, no fingerprints, no
photos of a crime, no autopsy, no trauma report. We cut up a truck
... , that's all. We do not know whose truck it was, or where it
came from, and [we] did not ask. Cutting up a truck is not a crime.
Stop talking about it to your roommate.
Don't talk on the phone. They are listening. Stop talking to
inmates. They are talking to the prosecutors to make a deal for
themselves. We can beat this. It might take eight or nine more
months[, but that's] better than many years. Stop telling your
cellmate.
You were not there, because it never
happened. Do not testify or take the stand. If you do admit it,
your knowledge is conspiracy. Your statement will put yourself away
[for] 99 [years]. Make no deals. There is no proof of a crime
occurr[ing] beyond a [reasonable] doubt. No evidence at all. Only
words. ... Second-hand info is not enough. If you remain
silent[,] we all walk. If you talk, you do time alive and at large
on me. [sic] If you take the stand, we cut up a truck and nothing
more.
Despite Smith's references to cutting up the truck, and
despite Smith's admonition to "stop talking about it to your
roommate", Brown claimed that this note was not meant for him. Brown
asserted that Smith wrote the note to Dennis Johnson, and that his
only role was to deliver the message. Nevertheless, before Brown
forwarded this note to Johnson, he added his own addendum to the
back of the note:
Hey, this is me. Don't talk to anybody
about [this] shit at all. There's people in here that are trying
to get information about our case so that they can make a deal for
themselves. Don't f[uck] it up, please. Just got to be quiet. My
lawyer said [that] if we don't take the witness stand and [we] shut
up the talk, we'll be out of this mess in a few weeks. Maybe four
or six months, whatever. But we've got to keep our talk down. So,
f[uck], man, don't say shit to anyone at all, ever. ... I'm the
only one who has said shit to anyone. Just do that, please.
P.S. No phone talk, please.
After Brown testified, the State called Daniel Moore in
rebuttal. Moore confirmed that Brown had asked him to get rid of
some truck parts. According to Moore, Brown said that the truck
parts "had something to do with Harold Enzler". Brown gave Moore
directions for finding the vehicle parts and, using those
directions, Moore led the state troopers to the parts.
(c) Judge Link's finding that Brown participated in the
murders
After considering this testimony, Judge Link declared:
"[From] all the evidence in front of me, ... I don't think it
matters whether the burden of proof is ... 'clear and convincing
evidence' or 'beyond a reasonable doubt'[.] Mr. Brown knew about
this murder before he went out there, and [he] participated to the
extent of luring Nancy Bellamy and Harold Enzler out there."
Judge Link stated that he based this conclusion on the
"totality of [the] evidence", but he placed primary emphasis on the
two notes the original note written by Smith, and the addendum
written by Brown himself:
The Court: [Brown] piggy-backed on
Smith's note and told Johnson not to talk, and [he] asked Moore to
help destroy evidence. I think actions speak louder than words.
[Smith's note states:] "There is no
evidence of a crime because a crime did not take place." Mr. Brown
knew ... that was false. "They are in Mexico, alive and at large."
Mr. Brown knew that was false. ... "There was no crime. A death
did not occur. There is no evidence of a crime. No proof." Mr.
Brown knew all those things were untrue. ... "We cut up a truck
in a shop, that's all. We do not know whose truck it was or where
it came from." Also untrue. ... "Stop talking about it to your
roommate. ... We can beat this. ... Stop telling your cellmate.
You were not there because it never happened."
And to that note, and in that context, Mr.
Brown then wrote [his own note] to Mr. Johnson. [In his note, Mr.
Brown says:] "Hey, this is me. Please don't talk to anybody about
shit at all. ... Don't fuck up, please. Just got to be quiet.
... [W]e've got to keep our talk down or we're fucked. Man, don't
say shit to anyone, [not] to anyone at all. ... I'm the only one
who has said shit to [any] one. Just do that, please."
In that context, that note shows to me,
and confirms, ... knowledge of the crime ... of murder on Mr.
Brown's part, and his participation in it.
Based on his conclusion that Brown was an accomplice to
the homicides, Judge Link found that the State had proved aggravator
(c)(10) that Brown's conduct was among the most serious within
the definition of the offense of tampering with evidence.
(d) Applying the Hamilton rule to Brown's case
Because Brown pleaded no contest to tampering with
evidence, he could not deny his guilt of this offense for sentencing
purposes. [Fn. 9] However, to prove the aggravator (c)(10), the
State sought to prove that Brown was also an accomplice to the
murders. Brown was free to dispute this allegation, and he did so
by taking the stand at the sentencing hearing.
When a defendant denies the State's allegations of other
crimes under oath and submits to cross-examination, the State can
no longer rely on normal hearsay sources (such as a pre-sentence
report) to prove its sentencing allegations. Rather, under the rule
announced in Hamilton v. State [Fn. 10], the State must either
(1) present its witnesses in court or (2) prove that its witnesses
are unavailable and that the circumstances tend to confirm the
veracity of the witnesses' hearsay accounts [Fn. 11] .
Brown argues that because he took the stand and denied his
complicity in the murders, Judge Link was legally bound to ignore
the version of the homicides described in the pre-sentence report.
Brown further contends that, if the pre-sentence report is ignored,
the State presented insufficient evidence to establish aggravator
(c)(10) by clear and convincing evidence. [Fn. 12]
To evaluate Brown's argument, we must assess exactly what
the State alleged and what Brown denied when he took the stand.
The State alleged that Brown was guilty of murder because,
knowing that Smith intended to kill Enzler and Bellamy, Brown agreed
to lure the two victims to an agreed-upon remote location where
Smith could accomplish the murders, and Brown then did as he agreed.
Brown did not deny that Billy Smith murdered Enzler and
Bellamy. Nor did Brown deny that he (Brown) brought Enzler and
Bellamy to their fatal meeting with Smith. Instead, Brown denied
that he acted with the two culpable mental states required to make
him an accomplice to the murders. That is, Brown denied knowing
that Smith intended to kill Enzler and Bellamy, and he denied that
he acted with the intent of promoting or facilitating the murders.
[Fn. 13]
There were six main sources of evidence bearing on the
question of Brown's mental state at the time of the homicides:
(1) Billy Smith's statement to the police that he
recruited Brown as a co-conspirator and that Brown agreed to lure
Enzler and Bellamy to the spot where Smith would kill them;
(2) The events of the murder itself the fact that Brown
drove Enzler and Bellamy to the remote location, and the fact that
Smith, after killing Enzler and Bellamy, did nothing to hurt Brown
even though Brown was a witness to the double homicide;
(3) Brown's actions following the murder the fact that
Brown drove Enzler's truck away from the murder scene and hid it,
and that he later cut the truck into parts, painted the parts, and
scattered them;
(4) Smith's actions after he, Brown, and Johnson were
accused and jailed the fact that Smith treated Brown as a trusted
accomplice, sending him the note that counseled silence and asking
him to forward the note to Dennis Johnson;
(5) Brown's actions with respect to this note the fact
that Brown acted like a trusted accomplice when he received Smith's
note: he added his own addendum to the note, re-emphasizing Smith's
message, and then he forwarded the note to Johnson; and
(6) Brown's attempt to have Danny Moore destroy
incriminating evidence the fact that Brown solicited Danny Moore
to retrieve the truck parts and destroy them.
When Brown took the stand at his sentencing hearing, he
disputed the first and last of these sources of evidence. First,
Brown disputed Smith's statement to the police. Brown testified
that he never agreed to help Smith commit the murders and that he
did not know that Smith planned to kill Enzler and Bellamy. Brown
declared that Smith was lying when he told the police otherwise.
Second, Brown disputed Danny Moore's statement that Brown had asked
him to retrieve the truck parts and destroy them. Brown conceded
that he had spoken to Moore about the truck parts and had given
Moore directions about where to find them. But Brown contended that
he never asked Moore to destroy this evidence; instead, Brown
asserted that he wanted Moore to locate the truck parts so that this
evidence could be turned over to the authorities.
Brown's testimony triggered the Hamilton rule: the State
and Judge Link could no longer rely on the pre-sentence report's
description of Smith's statement to the police, or the pre-sentence
report's description of Moore's statement to the police, unless (a)
the State produced Smith and Moore as witnesses at the sentencing
hearing, or (b) the State showed (1) that Smith and Moore were not
available as witnesses, and (2) that circumstances demonstrated the
trustworthiness of their statements.
As described above, after Brown finished his testimony,
the State produced Danny Moore as a witness at the sentencing
hearing. Moore testified that Brown had in fact solicited him to
retrieve and destroy the truck parts. Thus, with respect to Moore's
testimony, the Hamilton rule was satisfied.
But Billy Smith was not called as a witness. If the State
wished to rely on Smith's statement to the police, the State had to
show that Smith was not available as a witness and that the
circumstances demonstrated the truth of his out-of-court statement.
Judge Link made no explicit findings on these two issues.
However, from the record, it appears that both Hamilton requirements
were met. Smith was not available as a witness: he stood charged
with murder, he was awaiting trial, and he would undoubtedly assert
his privilege not to testify. And the record leaves no doubt that
Judge Link believed that the other circumstances of the case that
is, the five other sources of evidence bearing on Brown's mental
state convincingly demonstrated the veracity of Smith's statement
to the police.
In other words, even though Judge Link made no explicit
Hamilton findings, the record demonstrates that the two prongs of
the Hamilton test were met. We therefore conclude that Judge Link
could properly rely on the pre-sentence report's account of Smith's
statement to the police.
Moreover, even assuming that Judge Link committed error
under Hamilton, that error was harmless. Even if the judge could
not rely on Smith's statement to the police as a ground for
establishing Brown's complicity in the murder, the other five
sources of evidence remained available to Judge Link. This
remaining evidence strongly supported the inference that Brown was
an accomplice to the murders of Enzler and Bellamy.
True, Judge Link never explicitly disavowed reliance on
Smith's statement to the police. But the judge never mentioned
Smith's statement when he explained why he concluded that Brown was
an accomplice to the murders. Rather, Judge Link concentrated on
the other evidence in particular, the fact that Brown's actions
following the murder, and his actions in jail, strongly belied his
claims of innocence and duress.
The judge specifically noted that, if Brown had been
acting under duress or coercion as he claimed, Brown could have
turned himself in at any time but he did not do so. Even after
Brown was indicted for murder, he did not go to the authorities and
tell them that he only participated in covering up the homicides
because of Smith's threats to himself and his family members.
Instead, Brown tried to get Danny Moore to destroy evidence of the
crime, and Brown also willingly aided Smith's efforts to convince
Dennis Johnson to say nothing to the authorities by forwarding
Smith's note to Johnson, and by adding a note of his own. Judge
Link emphasized that he viewed this note as crucial evidence of
Brown's guilt: "In [this] context, that note shows to me, and
confirms, [Brown's] knowledge of the ... murder ... and his
participation in it."
Even without Smith's statement to the police, the evidence
strongly supports Judge Link's conclusion that Brown was guilty of
murder and that, therefore, the State had proved aggravator (c)(10).
[Fn. 14] For this reason, we alternatively conclude that any
potential Hamilton error was harmless.
Brown's claim that his sentence is excessive
Brown pleaded no contest to two acts of tampering with
evidence transporting the truck engine to a hiding place, and then
later disposing of the engine in another place. Because these
crimes are class C felonies, and because aggravator (c)(10) was
proved, Brown potentially faced a sentence of up to 5 years'
imprisonment on each of the two counts.
But despite Judge Link's finding that Brown's crimes were
motivated by his complicity in the underlying murders, Judge Link
did not sentence Brown to the maximum terms. Rather, the judge
sentenced Brown to consecutive sentences of 5 years with 2« years
suspended on each count. That is, Brown's composite sentence is
10 years' imprisonment with 5 years suspended 5 years to serve.
Brown attacks this sentence on two bases:
First, Brown contends that his sentence violates the
Austin rule because Judge Link violated the Hamilton rule when he
found aggravator (c)(10). We have just held that Judge Link did not
violate the Hamilton rule and that the judge properly found
aggravator (c)(10). We therefore reject Brown's argument that his
sentence violates the Austin rule.
Next, Brown contends that he should not have received
consecutive sentences because, even though he pleaded no contest to
two separate counts, his crimes amounted to a single continuing
criminal episode a continuing attempt to get rid of the
incriminating evidence.
Judge Link found that these two acts of tampering with
evidence occurred at different times. Moreover, although the judge
recognized that both offenses involved the same societal interest,
he concluded that the totality of the circumstances the
seriousness of Brown's total criminal activity justified
consecutive sentences.
When this court reviews a composite sentence imposed for
two or more criminal convictions, we assess whether the combined
sentence is clearly mistaken, given the whole of the defendant's
conduct and history. [Fn. 15] Moreover, because our decision is
based on the defendant's conduct as a whole, we do not require that
each specific sentence imposed for a particular count or offense be
individually justifiable as if that one crime were considered in
isolation. [Fn. 16] Given Judge Link's finding that Brown is
actually guilty of two murders, his decision to impose a composite
5 years to serve is not clearly mistaken.
We note that Judge Link expressly considered whether to
impose a sentence exceeding 5 years' imprisonment. The judge
concluded that, given Brown's prior good record and Brown's recent
steps toward rehabilitation, he could not make a Mutschler finding
a finding that the public safety required a sentence of greater
than 5 years' incarceration.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 12.55.155(c)(10).
Footnote 2:
771 P.2d 1358 (Alaska App. 1989).
Footnote 3:
AS 11.56.610(b).
Footnote 4:
AS 12.55.125(e), (k); Austin v. State, 627 P.2d 657, 657-58
(Alaska App. 1981).
Footnote 5:
AS 12.55.155(c)(10).
Footnote 6:
See Austin, 627 P.2d at 657-58; AS 12.55.125(k).
Footnote 7:
663 P.2d 967, 974 (Alaska App. 1983).
Footnote 8:
653 P.2d 1052 (Alaska App. 1982).
Footnote 9:
See Ashenfelter v. State, 988 P.2d 120, 123 (Alaska App. 1999);
Scott v. State, 928 P.2d 1234, 1237-38 (Alaska App. 1996).
Footnote 10:
771 P.2d 1358 (Alaska App. 1989).
Footnote 11:
See Ashenfelter, 988 P.2d at 125-26; Hamilton, 771 P.2d at
1362-63.
Footnote 12:
At sentencing and in its brief to this court, the State has
repeatedly asserted that it was obliged to prove Brown's complicity
in the murder by a "preponderance of the evidence". This is
mistaken. The State was trying to prove aggravator (c)(10).
Aggravators and mitigators must be proved by "clear and convincing
evidence". AS 12.55.155(f). The same burden applies when an
aggravator is being offered to justify a first felony offender's
sentence under the Austin rule. See AS 12.55.125(k)(2).
Footnote 13:
See AS 11.16.110(2).
Footnote 14:
See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991)
(a sentencing judge's findings concerning the existence of
aggravating and mitigating factors are reviewed under the "clearly
erroneous" standard).
Footnote 15:
See Neal v. State, 628 P.2d 19, 21 n.8, 22 (Alaska 1981);
Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
Footnote 16:
See Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Jones v.
State, 765 P.2d 107, 109 (Alaska App. 1988); Comegys, 747 P.2d at
558-59.
