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Tuttle v. State (5/3/2002) ap-1801
Tuttle v. State (5/3/2002) ap-1801
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
TOREY JOHN TUTTLE, )
) Court of Appeals No.
A-8077
Appellant, )
Trial Court No. 3AN-99-10681 Cr.
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1801 May 3, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. James J. Fayette, Assistant
District Attorney, Susan A. Parkes, District
Attorney, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Torey John Tuttle was one of a group of men who
attacked another man for the purpose of stealing his money. One
member of the group fired several shots at the victim, but the
victim escaped unharmed. Based on this incident, seven men
including Tuttle were indicted for first-degree robbery, AS
11.41.500(a)(1). Some of these seven defendants went to trial,
but Tuttle ultimately pleaded no contest to this charge.
First-degree robbery is a class A felony.1 Because
Tuttle was a first felony offender, he faced a presumptive term
of either 5 years or 7 years imprisonment, depending on whether
he personally possessed a firearm during the robbery.2
The evidence was in conflict on this point. According
to a police report filed in this case, the victim of the robbery
initially told the police that another defendant, Sean Beatty,
was the one who fired the gun at him. However, when Beatty was
interviewed (under the authority of a Glass warrant3), he stated
that Tuttle was the shooter. Another participant in the robbery,
Sean Roe, corroborated this version of events. Roe told the
police that he initially had the gun, but then Tuttle yanked the
weapon away from him, commenting that Roe didnt have [the] balls
to use it. Finally, another member of the group, Jerry
Christopher (J.C.) Lee, also stated that Tuttle was the shooter
although his basis for knowing this was uncertain, since he
apparently left the scene before the robbery began. Tuttle, for
his part, told the police that he never possessed the gun.
Superior Court Judge Larry D. Card was the sentencing
judge who was asked to resolve this disputed issue of fact. By
the time of Tuttles sentencing hearing, Judge Card was well
familiar with the case: he had already presided over the trials
of two of Tuttles co-defendants (including Sean Roe), and he had
presided over the sentencings of four of Tuttles co-defendants.
Judge Card resolved this factual dispute against
Tuttle. That is, Judge Card found that Tuttle possessed (and
fired) the gun during the robbery, and that Tuttle therefore
faced a 7-year presumptive term rather than a 5-year presumptive
term. However, when Judge Card made this finding, he expressly
relied on the observations he made while presiding over Roes
trial:
The Court: I sat through the trial of
Mr. Roe[, and] Im satisfied [that] Mr.
Tuttle, if [he did not seize] the gun [from
Roe], was handed the gun by Mr. Roe. ...
[When] Mr. Tuttle [was interviewed,] he
denied ever having the gun or firing the gun.
[But] by the process of elimination [and]
Ive heard the trials I find that [Tuttle]
was telling Detective Vandervalk a lie. He
was the one who took the gun and fired the
gun. ...
I think that Mr. Tuttle fired at [the
victim]. I think [that] Mr. Roe ... was very
believable when I listened to him, when I
observed him [at his trial]. [He] was very
truthful. And I observed his demeanor, and
Im satisfied that Mr. Tuttle did take the gun
from ... Sean Roe [and] did fire the gun.
...
Im satisfied that Mr. Tuttle was the one
who took the gun [from Roe] and fired the
gun. And [this is proved] by a preponderance
[of the evidence], which is the requirement
... in a proceeding such as this.
On appeal, Tuttle argues that Judge
Card violated his right to due process when
he relied on Roes testimony. Tuttle and his
attorney were aware, before sentencing, that
Roe had identified Tuttle as the shooter.
But Tuttle points out that he never had the
opportunity to cross-examine Roe on this
issue and point out the reasons why one might
distrust Roes account of what happened.
The State responds that Tuttle had
no right to confront Roe at the sentencing
hearing. This is correct. Under Evans v.
State, 23 P.3d 650, 652 (Alaska App. 2001),
and Hamilton v. State, 771 P.2d 1358, 1362-63
(Alaska App. 1989), Judge Card could rely on
Roes out-of-court statements unless Tuttle
took the stand and offered a testimonial
denial of the States assertion that he was
the shooter. Tuttle did not do this. Thus,
Judge Card could properly rely on the content
of Roes out-of-court statements.
(We again emphasize that Tuttle
does not allege that he was ignorant of Roes
account of the robbery when he prepared for
his own sentencing. Tuttles attorney
acknowledged that he had received all
discovery concerning Roes statements.)
It is possible, however, that Judge
Card acted improperly when he resolved the
credibility of Roes version of events by
relying on his personal observations of Roe
at trial. When a judge hears the separate
trials or sentencings of two or more co-
defendants, the judge is generally obliged to
set aside any judicially acquired information
that [is] not admissible against [a
particular] defendant, and decide [each
defendants] case ... solely upon the evidence
presented in [that defendants] case.4
A judge can not rely on personal
knowledge of matters outside the judicial
record.5 Although Judge Card was entitled to
rely on the content of Roes testimony
(because Roes statements had been disclosed
to Tuttle), one might plausibly argue that
the judge violated this rule when he
expressly resolved the evidentiary dispute at
Tuttles sentencing hearing by relying on Roes
demeanor while testifying at a separate trial
for Roes demeanor was something that Judge
Card personally observed but which was not
known to Tuttle or his attorney.
Nevertheless, we conclude (for two
reasons) that we should not resolve this
issue of law.
First, Tuttle has failed to
adequately brief it. Tuttles brief focuses
purely on his purported right to confront Roe
a right that he did not have and, moreover,
he cites no case law in support of his
argument. We conclude that even if Tuttle
might validly challenge Judge Cards decision
on the ground we have just described, that
challenge has been inadequately briefed.6
Second, we must in any event vacate
Judge Cards finding. As can be seen from
Judge Cards remarks quoted above, he applied
the preponderance of the evidence standard of
proof when resolving the question of whether
Tuttle possessed a firearm during the
robbery. This was error. Because the
applicable presumptive term hinges on this
factual issue, the State must prove Tuttles
possession of the firearm beyond a reasonable
doubt. We decided this precise question in
Huf v. State, 675 P.2d 268, 273-74 (Alaska
App. 1984).
Tuttle raises one final claim on
appeal. Relying on our decision in Malloy v.
State, 1 P.3d 1266 (Alaska App. 2000), Tuttle
argues that his possession of a firearm
during the robbery was not a sentencing
factor but was actually an element of the
crime, and thus the State was obliged to
prove this fact to a jury rather than proving
it to Judge Card.
But Tuttles argument is rebutted by
the Malloy opinion itself. In Malloy, we
followed the Alaska Supreme Courts decision
in Donlun v. State7 and held that any factor
which increases the maximum punishment for an
offense is an element of the offense that
must be proved to a jury.8 At the same time,
we carefully explained that this rule did not
apply to the factors that trigger the various
presumptive terms specified in AS 12.55.125.9
To summarize our holding:
First, Tuttles possession of a
firearm is not an element of the offense to
be proved to the finder of fact at trial, but
rather a sentencing factor to be proved to
the court at sentencing.
Second, because Tuttle did not
offer a testimonial denial of the States
assertion that he possessed a firearm during
the robbery, Judge Card was entitled to rely
on out-of-court statements made by Tuttles co-
defendants (and other witnesses) concerning
this issue although it is possible that he
was not entitled to rely on his personal
observations of Sean Roes demeanor.
Third, we vacate Judge Cards
finding that Tuttle possessed a firearm
during the robbery because Judge Card applied
the wrong standard of proof. The State was
obliged to prove this fact beyond a
reasonable doubt.
We VACATE Tuttles sentence, and we
remand this case to the superior court.
Judge Card should re-determine the question
of whether Tuttle possessed a firearm during
the robbery. If the judge again concludes
that the State has proved the applicability
of the 7-year presumptive term, he may
reimpose the same sentence. However, if
Judge Card concludes that the State has not
proved Tuttles possession of a firearm beyond
a reasonable doubt, he should re-sentence
Tuttle using a 5-year presumptive term as the
starting point.
We do not retain jurisdiction of
this case.
_______________________________
1 See AS 11.41.500(b).
2 See AS 12.55.125(c)(1)-(2)(A).
3 See State v. Glass, 583 P.2d 872 (Alaska 1978) (generally
requiring the police to obtain a warrant before secretly
monitoring or taping a conversation).
4 Boyd v. State, 581 A.2d 1, 6-7 (Md. 1990). Boyd holds
that a judges exposure to information from a co-
defendants separate trial does not require the judges
disqualification, see id. at 3-6, 9, but it also
confirms a judges duty to decide each defendants case
on its own merits, see id. at 3-7.
5 See Ex parte Rains, 555 S.W.2d 478, 480-81 (Tex. Crim.
App. 1977); State v. Jamison, 253 N.E.2d 316, 318 (Ohio
App. 1969); State v. Denoon, 220 N.E.2d 730, 730-31
(Ohio App. 1966).
6 See Legge v. Greig, 880 P.2d 606, 609 (Alaska 1994):
Appellate briefs should be crafted to serve their
primary purpose[,] which is to bring together the
relevant facts and law in a clear and concise
manner so that the court is fully informed.
Kiester v. Humana Hosp. of Alaska, Inc., 843 P.2d
1219, 1227 n.8 (Alaska 1992) (quoting Dickerson v.
Geiermann, 368 P.2d 217, 218 (Alaska 1962)). An
issue given only cursory treatment in a brief will
be treated as abandoned. Petersen v. Mutual Life
Ins. Co., 803 P.2d 406, 410 (Alaska 1990). [The
appellants] cursory briefing of a significant and
potentially difficult ... issue leaves this court
virtually no informed basis for meaningful
appellate review.
7 527 P.2d 472 (Alaska 1974).
8 See Malloy, 1 P.3d at 1282-84, 1288-89; Donlun, 527 P.2d
at 474.
9 See Malloy, 1 P.3d at 1282-83, citing and discussing Huf
v. State, 675 P.2d 268, 271-73 (Alaska App. 1984).
