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Allen v. State (7/26/2002) ap-1815
Allen v. State (7/26/2002) ap-1815
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
ALBERT LEE ALLEN, )
) Court of Appeals No.
A-7430
Appellant, )
Trial Court No. 3AN-94-4614 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1815 July 26, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Milton M. Souter,
Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, 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.
In the early morning of June 15, 1994, Albert Lee Allen
was visited by Devron Labat and two female friends. The visit
was not friendly: Allen had been dating Labats long-time
girlfriend, Michelle Aquino, while Labat was in prison. Now that
Labat had been released from prison, he wanted to convince Allen
to stay away from Aquino.
After Labat explained his position to Allen, he left
Allens apartment and walked over to Allens truck. Allen could
see Labat kneeling by the truck, and he thought that Labat was
trying to disable the vehicle. Allen armed himself with a
butcher knife, crawled out of his apartment through a bedroom
window, and approached Labat. When Labat saw Allen coming, he
started to run away, but Allen gave chase. Allen caught up to
Labat, stabbed him in the stomach, then banged his head on the
pavement and kicked him.
Labat died from the stab wound, and Allen was indicted
for first-degree murder. At Allens trial, the jury convicted him
of the lesser offense of second-degree murder. Allen now appeals
his conviction and his resulting sentence. Allen contends that
several errors occurred at his trial, beginning with jury
selection and continuing through jury deliberations. We discuss
each of these claims below. For the reasons explained here, we
conclude that Allens trial was fair and that his conviction and
sentence should be affirmed.
Allens claim that the prosecutor tainted the jury panel
during the jury selection process by suggesting that
Allen would receive a lesser sentence if he were
convicted of second-degree murder
During jury selection, one of the prospective jurors
stated that she had philosophical issues that might not make her
a good juror. When the prosecutor asked her to explain these
issues, the juror replied that she tended to root for the
underdog. She also expressed doubt whether anyone could ever
truly know another persons [state of] mind or know their intent.
This, she said, would make it difficult for her to decide whether
a defendant was guilty.
In response, the prosecutor asked the juror how she
would react in a hypothetical situation: what if the juror
believed that a defendant was truly guilty of first-degree
murder, but she also had sympathy for the defendant and believed
that he would receive a lesser, more appropriate penalty if the
jury convicted him of second-degree murder? In presenting this
hypothetical, the prosecutor remarked that most people [know]
that the sentence for first-degree murder has got to be worse
than the sentence for second-degree murder.
When the prosecutor made this remark about the
disparity between sentences for first- and second-degree murder,
Allens attorney immediately objected. The defense attorney
argued that the prosecutor should not be speaking about
sentencing at all, and he challenged the factual accuracy of the
prosecutors remark that sentences for first-degree murder are
more severe than sentences for second-degree murder. The trial
judge, Superior Court Judge Milton M. Souter, told the
prosecutor: [G]et to your point without [getting] into all this
sentencing stuff.
Despite Judge Souters suggestion, the prosecutor
returned to the issue of sentencing. He again asked the
prospective juror to imagine a situation in which a juror
believed that a defendant was guilty of first-degree murder but
also believed that the defendant would receive a more lenient,
more appropriate sentence if the jury convicted him of second-
degree murder. The prosecutor asked the prospective juror if,
given her philosophical bent, she herself would be inclined to
engage in this kind of decision-making if she was selected as a
juror. When the prospective juror indicated that she was not
sure what the prosecutor was asking, Judge Souter interrupted and
told the juror that the question was, Would you compromise your
verdict with the idea [of] trying to get a lesser sentence for a
defendant that you found to be guilty ... ?
The judge then added, for the benefit of all the
prospective jurors, that it was not ... necessarily true that
first- and second-degree murder [defendants] get different
sentences. He also instructed the jurors:
The Court: Under our system, the judge
decides the sentence[;] the jury decides
guilt or [innocence]. [The defendants
sentence] is left up to the judge, after a
further hearing ... . So the jury is always
instructed [that] you cannot consider the
sentence in deciding the guilt question.
On appeal, Allen contends that the prosecutor, through
his questions to this prospective juror, directly
injected the impermissible subject of penalty or
punishment. He argues that [o]nce this topic was
discussed [in front of] the jury, its influence could
not be erased. He further suggests that the
prosecutors comments about murder sentences influenced
the jurys decision to find Allen guilty of the lesser
offense of second-degree murder.
We do not share this view of the matter. The
prosecutor was pursuing a valid goal when he made his
comments regarding murder sentences: his questions
were designed to see whether the prospective juror, who
had expressed a philosophical sympathy for the
underdog, would knowingly support a compromise verdict
if she thought that, by doing so, she could obtain a
lesser sentence for a defendant. The implicit point of
the prosecutors remarks was to make the juror
understand that this kind of decision-making would be
improper.
This implicit point was made explicit when Judge Souter
interrupted the voir dire. The judge told the jurors
that sentencing was a decision for the judge, not the
jury, and that jurors could not consider a defendants
potential sentence when deciding the defendants guilt
or innocence. Judge Souters instructions cured any
potential problem.
Finally, we note that even though Allens attorney
objected to the prosecutors remarks, she never asked Judge Souter
to declare a mistrial or to dismiss the existing panel of
prospective jurors and summon a new one. Thus, even if we
thought that the prosecutors remarks potentially called for a
more drastic remedy than Judge Souters clarifying instructions,
the error would be waived. When a defense attorney believes that
an error requires early termination of the trial or other
extraordinary relief (such as summoning a new jury panel), the
defense attorney must ask the trial judge to take action when
action is still possible. The claim of error can not be deferred
until appeal.1
Allens claim that the prosecutor violated a protective
order that prohibited any mention of the fact that
Allen had served time in jail
Allens theory of defense at trial was a combination of
self-defense and accident. Early in the proceedings against
Allen, the trial judge issued a protective order that prohibited
the prosecutor from eliciting evidence that Allen had been jailed
on a prior assault conviction. Allen contends that the
prosecutor violated this protective order during his cross-
examination of two defense witnesses, Benjamin Briggs and William
J. Toney.
Briggs testified that he had spent time in prison with
Labat and that he heard Labat repeatedly threaten to kill Allen.
During cross-examination, Briggs asserted that he had not seen
Allen since 1997. The prosecutor then asked Briggs to describe
the circumstances of his last meeting with Allen. Briggs was
beginning to answer, I was serving ... when the defense attorney
interrupted him and requested a bench conference.
In the bench conference, the defense attorney notified
Judge Souter that the meeting between Briggs and Allen had taken
place while Allen was in jail on this charge. She therefore
asserted that Briggss impending answer was going to violate the
protective order. To avoid this problem, the prosecutor
announced that he would rephrase his question. When the cross-
examination resumed, the prosecutor asked Briggs if his meeting
with Allen was ... a face-to-face meeting. The defense attorney
asked for nothing more.
Briggs finished his testimony without further incident,
and then the defense called William Toney. Like Briggs, Toney
testified that he had spent time in jail with Labat and he heard
Labat repeatedly threaten to kill Allen.
Toward the end of Toneys cross-examination, the
prosecutor asked Toney to specify the last time he had seen
Allen. Toney seemed to have difficulty with this question:
Prosecutor: When was the last time you
saw Albert Allen?
Toney: I told you: a couple of months
before I went to Palmer [Correctional Center]
on a [probation] violation.
Prosecutor: In 94?
Toney: In 94.
Prosecutor: Okay. That was the very
last time youd ever seen Albert Allen
[before] today?
Toney: No, I seen him again,
incarcerated.
Prosecutor: Okay. When was the last
time you saw Mr. Allen?
Toney: When was the last time I saw
him?
Prosecutor: Yeah. Not where or under
what circumstances. When was the last time
you saw him?
Toney: I havent seen him for a while.
Prosecutor: Okay. Can you give us an
idea of what a while is?
Toney: Years.
Prosecutor: Okay. Its been years since
you saw him at the Alaska Club. Thats 94.
Toney: Uh-huh.
Prosecutor: Have you seen him since
that time?
Toney: Have I seen him since that time?
Prosecutor: Yeah.
Toney: Yeah, I seen him incarcerated.
At Toneys second mention of Allens incarceration, the
defense attorney objected. Out of the jurys presence,
she accused the prosecutor of purposely violating the
protective order by posing questions to Toney when he
knew that Toneys answers would include the information
that Allen had spent time in jail. Based on this
alleged misconduct, the defense attorney asked for a
mistrial, but Judge Souter denied this request.
On appeal, Allen renews his contention that the
prosecutor knowingly violated the protective order and
that Judge Souter should have declared a mistrial. But
the record does not support Allens assertion of knowing
misconduct.
Toney twice mentioned the fact that he had spoken with
Allen in jail. As shown by the excerpt quoted above,
Toneys first mention of this fact was not a responsive
answer to the prosecutors question (That was the very
last time youd ever seen Albert Allen [before] today?).
Rather, Toney volunteered this information.
Even though Allens attorney did not object to Toneys
first mention of Allens incarceration, the prosecutor took steps
to make sure that Toney did not repeat this answer. He explained
to Toney that he was not seeking information about where or under
what circumstances the meeting occurred. Rather, the prosecutor
told Toney, he was only asking Toney to describe when the meeting
took place. In response, Toney again volunteered that he and
Allen saw each other when they were incarcerated.
Given this record, Judge Souter could properly reject
the defense attorneys assertion that the prosecutor had engaged
in misconduct. The judge could reasonably conclude that the
problem was caused by a defense witness who ignored the wording
of the prosecutors questions and volunteered non-responsive
information on his own. Under these circumstances, the issue
confronting Judge Souter was whether to grant a mistrial because
of Toneys non-responsive answers.
Allens attorney told Judge Souter that, to make the
best of a bad situation, she might later ask the judge to
instruct the jurors not to hold Allens incarceration against him.
But the defense attorney contended that no cautionary instruction
would be sufficient to cure the prejudice to Allens case that a
mistrial [was] the only appropriate remedy. Allen takes the same
position on appeal.
Generally, an appellate court will defer to a trial
judges decision as to whether a particular reference to
inadmissible evidence can be cured with a clarifying or
cautionary instruction or whether, instead, a mistrial is needed.
We defer to the trial judge because the judge has the opportunity
to hear the tainted evidence as it is presented and to observe
the impact it has on the jury.2
In several prior cases, both this court and the Alaska
Supreme Court have upheld trial judges when they declined to
order a mistrial under similar circumstances. For example, see
Hines v. State3, in which a prosecution witness referred to the
defendants prior offenses, and Preston v. State4, in which a
prosecution witness referred to the fact that the defendant was
on probation.5
Here, the challenged testimony did not refer to
specific criminal activity by Allen, but rather to the fact that
Allen had been incarcerated some years before, for an unexplained
reason. Judge Souter could reasonably conclude that a cautionary
instruction if such an instruction was requested would suffice
to cure any potential prejudice. In other words, Judge Souter
could reasonably reject Allens argument that a mistrial was the
only proper course of action. We therefore hold that Judge
Souter did not abuse his discretion when he denied Allens request
for a mistrial.6
Allens claim that the trial judge refused to grant him
a continuance to prepare to answer newly-disclosed
evidence
Allen took the stand at trial and testified that he
acted in self-defense. One of the subjects that Allen addressed
in his testimony was the fact that he called the 911 emergency
operator just after Labat left his apartment. In this phone
call, Allen explained to the 911 operator that a man had just
come to his apartment and threatened him. But when the operator
told Allen that he would send the police to Allens apartment,
Allen replied that he would handle the situation himself.
To explain why he armed himself and approached Labat
rather than waiting for the police to arrive, Allen told the jury
that, based on past experience, he believed that he could not
afford to wait for the police. Allen described how, in 1993, he
had called 911 when someone shot out the window of his car, and
the police did not arrive until almost two hours later. He also
described another incident in which someone broke the window of
his vehicle and, although the police responded more quickly, they
still took a long time to arrive.
Allen gave this testimony toward the end of the trial
day. Shortly after the trial recessed, the prosecutor disclosed
new information to Allens attorney: copies of three police
reports that were prepared after the police responded to reports
of vandalism from Allen in 1992, 1993, and 1994. (Two of these
reports described the window-breakage incidents described in the
previous paragraph; the third dealt with an incident in which
Allen reported that his tires had been slashed.)
When court reconvened the next morning, Allens attorney
did not object to the fact that this material had just been
disclosed. However, she did object that the material was not
complete. The defense attorney pointed out that the police
report from 1992 was accompanied by a copy of the 911 dispatch
(the computer-generated memo or log describing the call for
assistance), but the police reports from 1993 and 1994 did not
have this supporting paperwork. The defense attorney asked Judge
Souter to order the prosecutor to produce the 911 dispatches from
1993 and 1994.
But Judge Souter was not inclined to interrupt the
trial until the two 911 dispatches were produced. He pointed out
that the trial was nearing its end, and he declared that the
defense attorney should have foreseen that this material might be
relevant and should have requested it earlier. Given these
circumstances, Judge Souter said, The question is whether, on the
last day of trial, ... were going to have a continuance for you
to get ... this information. I dont think so.
In reply, the defense attorney clarified that she was
only seeking the two 911 dispatches from 1993 and 1994 documents
that were, in all likelihood, readily available to the State
(since the State had already produced the 911 dispatch from the
earliest incident, 1992). When Judge Souter heard the defense
attorneys explanation, he indicated that he now understood the
limited nature of her request:
The Court: Okay. So your point ... is
that you believe the 911 computer information
from these two later calls would probably be
available ...
Defense Attorney: Right.
The Court: ... because you have
[already] received [the] computer information
relating to an older 911 call.
Defense Attorney: Yes, Your Honor.
Judge Souter then addressed Detective Leo Brandlen, the lead
investigator in the case:
The Court: Can you make a call and get
those [two 911 dispatches] for us very
quickly so we can have them today, do you
think?
Det. Brandlen: Yes, sir.
The Court: [By] later this morning?
Det. Brandlen: Hopefully, Id be able to
access the computer at [the Anchorage Police
Department] warrants [office in] the old
building [i.e., the Boney courthouse], and
[so the documents] may be available earlier
than that, Your Honor.
The Court: Will you, right now, do what
you can?
Det. Brandlen: Yes, sir.
At this point, Judge Souter asked the attorneys, Is
there anything else we need to take up? The defense
attorneys only request was for a minute to talk to
Mr. Allen, to explain to him what the courts rulings
are. Judge Souter announced that the court would stand
in recess for two or three minutes.
When the court reconvened, the prosecutor continued his
cross-examination of Allen. Allens attorney never made
another request regarding the 911 dispatches from 1993
and 1994. Presumably, she received them.
On appeal, Allen characterizes this incident in a very
different way. He asserts that the State failed to
make timely disclosure of police reports under Alaska
Criminal Rule 16(b) and then, when the discovery
violation came to light, Judge Souter summarily
rejected the defense attorneys request for a
continuance of the trial so that she could prepare to
meet this tardily disclosed evidence.
This is simply not true. As just explained, Allens
trial attorney never asserted that the State violated
Criminal Rule 16 with regard to the police reports or
the 911 dispatches, nor did the defense attorney seek a
continuance of the trial (other than the short recess
that was granted by Judge Souter). This short recess
was apparently all that was needed for the State to
produce copies of the two documents that the defense
attorney wanted: the 911 dispatches from 1993 and
1994. In other words, the record of Allens trial fails
to support his claim of error.
Judge Souters ex parte contact with the jurors during
their deliberations
Allens case went to the jury on March 8, 1999. On the
afternoon of March 10th, the jury announced that they had reached
a decision, and the parties assembled in court to hear the
verdict. But before the jury was brought into the courtroom,
Judge Souter informed the parties of an incident that had
occurred earlier that afternoon:
The Court: During deliberations this
afternoon, the bailiff informed me that the
jurors could not get the video machine to
work. I said, ... Why dont we just have one
of the jurors come out of the jury room and
Ill show them how to work the video machine.
... So the juror came out and said, Oh, no;
the machine is working. We just cant find
the spot on the videotape [that we are
looking for]. I said, Well, Ill find it for
you. ...
[It] was the videotape of the defendants
interview at the police station, and [the
jurors] had the videotape [positioned] in the
middle of the [tape]. Thats where they were
looking for [the interview:] in the middle of
the videotape. Apparently, thats where [the
tape] was when they got it, so they thought
[that that was] where the interview was in
the middle of the tape.
Defense Attorney: Was there any ...
The Court: Well, I searched around and
looked. I couldnt find it anywhere in the
middle of the tape, so I went and did the
usual thing[: I] went back to the beginning
of the tape, and thats where it was. ... So
then I sent the [video machine] back into
them, and they took it from there. So ...
Defense Attorney: Was there anything
else on the video but ... what weve seen?
The Court: No, thats the admitted
exhibit.
Defense Attorney: Okay.
. . .
The Court: So thats what occurred. And
I presume [there are] no objections to that.
Thats a ministerial thing getting the
exhibit [positioned] so they could find it.
Defense Attorney: No objection, Your
Honor.
Judge Souter then summoned the jury to the courtroom to announce
their verdict. The jury announced that they had
acquitted Allen of first-degree murder but had
convicted him of second-degree murder.
On appeal, Allen argues that Judge Souter violated his
rights under the federal and state constitutions by
having contact with the jury or, more precisely, with
one juror without Allen and his attorney being
present. In his brief, Allen asserts that Judge Souter
met with an individual juror privately outside the jury
room[,] spoke to this juror about the evidence on the
videotape[,] ... and permitted the playback of
testimony to the jury in [Allens] absence.
The first portion of this assertion is supported by the
record: Judge Souter told the parties that he had
spoken to an individual juror outside the jury room.
But the record does not support the other two portions
of Allens assertion. There is nothing in the record to
support Allens claim that Judge Souter spoke to the
juror about the evidence on the videotape except in
the limited sense of ascertaining what portion of the
tape the jury wished to review. Further, there is no
factual basis for Allens claim that Judge Souter
permitted a playback of testimony in the absence of
Allen and his attorney. The incident under discussion
involved the jurys effort to play a videotape that had
been admitted into evidence as an exhibit. It is
proper for a jury to play an audio or video exhibit
during their deliberations.
Indeed, during her summation to the jury, Allens
attorney told the jurors that Allens interviews with the police
were important evidence supporting his claim of self-defense, and
she encouraged the jurors to play those tapes whenever [and]
however often you want. Thus, the record does not support Allens
claim that Judge Souter engaged in improper conduct.
Equally important, Judge Souter disclosed his contact
with the juror to Allen and his attorney before the trial ended.
Allens attorney had a chance to question the judge about the
incident; she also had a chance to object to the judges action or
to ask for voir dire of the juror involved. Instead, the defense
attorney announced that she had no objection to the judges
action.
When Allens attorney declared that she had no objection
to what had occurred, she knew that the jury was about to
announce its verdict. In other words, rather than investigating
the matter further or requesting a mistrial, the defense attorney
chose to go forward and allow the jury to return its verdict. By
doing so, she waived any appellate objection to Judge Souters
actions.7
Allens claim that the jury instruction on self-defense precluded
him from asserting that his fear of imminent danger arose from
the actions of more than one person
As explained above, Allen defended the murder charge by
asserting that he acted in self-defense. The jury was instructed
that Allen was authorized to use force upon another person to the
extent that Allen reasonably believed he was about to be
subjected to the use of unlawful force by the other. The jury
was also told that [t]he law of self-defense is designed to
[protect] one who is beset by an aggressor and confronted by a
necessity not of his own making.
Allens trial attorney did not object to these
instructions. However, on appeal, Allen claims that these
instructions constituted plain error. Allen argues that these
instructions misled the jury because they refer to a defendants
right to protect himself from another person i.e., a single
aggressor. Allen claims that these instructions precluded him
from arguing that he faced potential danger from two aggressors
i.e., from Labat and one of his female companions, Julie Yourell.
Because the defense attorney did not object to these
jury instructions, Allen must show that these instructions
constituted plain error i.e., that these instructions were so
obviously wrong that any competent judge or attorney would have
recognized the problem, and that the error in the instructions
manifestly prejudiced the jurys deliberations.8
Allen relies on a decision of the Colorado Court of
Appeals, People v. Cuevas, 740 P.2d 25 (Colo. App. 1987), for the
proposition that when a defendant faces potential menace from a
group of attackers, the jury instructions on self-defense should
direct the jurors to consider the total danger to the defendant
from all potential assailants and not just the danger posed by
the victim (i.e., the particular person whom the defendant
ultimately hurts or kills) when gauging the reasonableness of
the defendants response.9
However, the Colorado court specifically stated that
even though the typical Colorado instruction on self-defense
refers only to the victim, that instruction does not constitute
plain error.10
Allen also relies on State v. Irons, 4 P.3d 174 (Wash.
App. 2000), in which the Washington Court of Appeals reversed a
criminal conviction because of this same flaw a self-defense
instruction that directed the jury to consider only the danger
posed to the defendant by the victim, as opposed to the total
danger posed by all potential assailants.11 But the defendant in
Irons preserved the issue for appeal by asking the trial judge to
clarify this point of law for the jurors.12
The point of law that Allen raises is unexceptionable.
When a defendant claims that a charged assault or homicide was in
fact an act of self-defense prompted by the danger posed by a
group of attackers, the defendant is entitled to have the jury
assess the defendants actions in light of the total danger posed
(or apparently posed) by the group, and not just the danger posed
by the victim named in the indictment.
But Alaskas pattern self-defense instructions do not
refer to the victim. Rather, as demonstrated by the instructions
in Allens case, Alaska jury instructions on self-defense speak
about a defendants right to use force upon another person to the
extent that the defendant reasonably believed that they were
about to be subjected to the use of unlawful force by the other.
Because Alaskas instructions do not focus on the victim, they do
not create as blatant a danger of misinterpretation as the jury
instructions that were criticized in the decisions from our
sibling states.
It is perhaps theoretically possible that Alaskas self-
defense instructions might be misinterpreted in the way Allen
suggests. But Allen did not object to these instructions, so he
must show plain error. That is, for Allen to prevail on appeal,
he must show more than a theoretical possibility of
misinterpretation. Allen must show that the challenged jury
instructions obviously and manifestly prejudiced the fairness of
his trial. Here, they did not.
Allens attorney did in fact argue to the jury that
Allen faced danger from more than one aggressor. She told the
jurors that [Julie] Yourell and [Devron] Labat ... were the first
aggressors[, and] Albert Allen feared for his life ... when he
[was] confronted by Devron Labat and Julie Yourell. A few
minutes later, the defense attorney reiterated this theme,
telling the jurors: [You must] decide who was the initial
aggressor. ... [W]e say [that it was] Devron Labat and, with
him, Julie Yourell.
In his rebuttal, the prosecutor did not argue that self-
defense only applied to aggression from the victim or from any
single person. Rather, the prosecutor argued that Allen had not
acted in self-defense at all that any danger to Allen was over
when Allen decided to chase Labat and kill him.
The potential flaw in the jury instructions was a
subtle one. Given the final arguments of the parties, we
conclude that there is no reasonable possibility that the jury
was misled concerning Allens right to argue that his actions were
justified by the danger he faced from Labat and Yourell in
combination. We therefore conclude that Allen has failed to show
plain error.
Allens argument that factors employed to aggravate or
mitigate a second-degree murder sentence must be proved
by clear and convincing evidence rather than by a
preponderance of the evidence
Normally, factual issues at sentencing are
decided under the preponderance of the evidence
standard of proof. That is, the sentencing judge
decides whether the disputed factual assertion is more
likely true than not. See AS 12.55.025(i) and Brakes
v. State, 796 P.2d 1368, 1372 n.5 (Alaska App. 1990).
However, the legislature has declared that a higher
standard of proof governs certain sentencing issues.
When the government asserts that a defendants
prior felony conviction triggers a presumptive term (or
triggers a greater presumptive term), the legislature
has mandated that the government prove the conviction
beyond a reasonable doubt. See AS 12.55.145(d). In
Huf v. State, 675 P.2d 268, 273-74 (Alaska App. 1984),
we concluded that, by analogy to AS 12.55.145(d), the
legislature intended to have this same burden of proof
apply to the governments proof of the other factual
assertions that trigger a greater presumptive term
under AS 12.55.125(c) for example, possession of a
firearm.
The legislature has also specified a higher
standard of proof proof by clear and convincing
evidence when the government or the defendant asserts
under AS 12.55.165 that there are extraordinary
circumstances that would justify the three-judge
statewide sentencing panel in imposing a sentence
outside the normal rules governing presumptive
sentencing. This same clear and convincing evidence
standard of proof applies to the aggravating and
mitigating factors listed in AS 12.55.155(c)-(d) that
authorize a sentencing judge to depart from the
presumptive term established by the legislature for the
defendants crime. See AS 12.55.155(f). In Buoy v.
State, 818 P.2d 1165, 1167-68 (Alaska App. 1991), this
court concluded that, by analogy to AS 12.55.155(f),
the government must meet the clear and convincing
evidence standard when it alleges aggravating factors
that will authorize a sentencing judge to exceed the
Austin ceiling i.e., authorize the judge to sentence a
first felony offender to a term of imprisonment
exceeding the presumptive term for a second felony
offender convicted of the same offense.13
The Alaska Legislature has now codified the
Buoy decision in AS 12.55.025(i) and AS
12.55.125(k)(2).
Finally, the legislature has mandated the
clear and convincing evidence standard of proof when
the government asks a sentencing court to impose a
mandatory 99-year sentence on a first-degree murder
defendant under AS 12.55.125(a)(3) by asserting that
the defendant subjected the victim to substantial
physical torture.
In this appeal, Allen argues that the clear
and convincing evidence standard of proof should also
apply to second-degree murder cases when the government
relies on aggravating factors (or the defendant relies
on mitigating factors) to argue that the sentencing
judge should impose a sentence outside the 20- to 30-
year benchmark range established in Page v. State.14
Allens argument appears to be inconsistent
with AS 12.55.025(i), which declares that (with certain
specified exceptions) the preponderance of the evidence
standard of proof applies to sentencing proceedings.
Moreover, Allens argument ignores the fact that
aggravating and mitigating factors do not play their
normal legal role in a second-degree murder sentencing.
The normal role of aggravators and mitigators
is to expand the sentencing judges legal authority in
cases governed by presumptive sentencing. Proof of
aggravators authorizes the judge to impose a sentence
above the presumptive term, while proof of mitigators
authorizes the judge to impose a sentence below the
presumptive term.15
But second-degree murder is not governed by
presumptive sentencing.16 This means that, even
without proof of aggravators or mitigators, a
sentencing judge is authorized to impose any sentence
within the 10- to 99-year range established by the
legislature for this offense. See AS 12.55.125(b).
True, our decision in Page restricted sentencing judges
discretion by establishing a 20- to 30-year benchmark
range. Nevertheless, a sentencing judge may impose a
sentence outside this range for any good reason not
only upon proof of the aggravators and mitigators
listed in AS 12.55.155(c)-(d).
It is true that in second-degree (and first-
degree) murder sentencings, the parties often frame
their arguments in terms of these statutory aggravating
and mitigating factors. We have recognized and
approved the practice of [using] these factors as
points of reference ... when [evaluating] how [a
specific] offense should be viewed in comparison to a
typical ... murder.17 Never
theless, a sentencing judge is not limited to the
statutory aggravating and mitigating factors when
deciding whether the circumstances of the defendants
case call for a sentence outside the Page benchmark
range. As we noted in Brown v. State,
There are few legal restrictions on the types
of factors that a sentencing court can
consider when assessing whether a particular
sentence should fall outside the benchmark
range [for second-degree murder]. As we
stressed in Williams [v. State, 809 P.2d 931,
934 (Alaska App. 1991)], any sound reason may
be relied on to differentiate one case from
another.
973 P.2d 1158, 1162 (Alaska App. 1999).
Because aggravators and mitigators
do not have the same legal significance at a
murder sentencing, and because the
legislature has recently codified its
preference for the preponderance of the
evidence standard of proof at sentencing, we
reject Allens contention that aggravators and
mitigators must not be considered by a judge
at a murder sentencing unless these factors
are proved by clear and convincing evidence.
We note that the preponderance of
the evidence standard appears to favor
neither the government nor the defendant.
Rather, this standard of proof only expands
the information (both favorable and
unfavorable) that a sentencing judge can rely
on. That is, the preponderance of the
evidence standard allows a sentencing judge
to take account of aggravating and mitigating
circumstances even though the proponent of
these circumstances may not be able to prove
their point by clear and convincing evidence.
Allens claim that his sentence is excessive
Judge Souter sentenced Allen to serve 66
years in prison for the murder of Labat. On
appeal, Allen argues that this sentence is too
severe, given the fact that Labat repeatedly
threatened to kill Allen and that Labat was the
initial aggressor in the incident that led to the
homicide.
At the sentencing hearing, Judge Souter noted
that, at the time of the homicide, Allen had three
prior convictions for assault two felonies and
one misdemeanor. He further noted that while
Allen was incarcerated in connection with this
murder charge, Allen assaulted a corrections
officer and was convicted of misdemeanor assault.
Judge Souter agreed that Allen had been
provoked by Labat. The judge noted that Labat had come
to Allens residence and had made dire threats to Allen
threats of what Labat would do to Allen if Allen
continued his relationship with Labats girlfriend. But
Judge Souter concluded that although violence was
threatened, no violence was offered. The judge found
that Labat was not armed when he came to Allens house,
and he further found that Allen knew that Labat was
unarmed. Judge Souter acknowledged that Allen had
testified at trial that he believed Labat was armed
with a handgun, but the judge declared that Allens
testimony on this point had been just perjury. This
man never believed that the victim had a gun, or he
never would have chased him with a knife.
Judge Souter found that Allen chased Labat
[while Labat] was running away ... in ... totally
frightened retreat complete retreat, running headlong
down the street, ... trying to avoid this defendant.
He found that Allen pursued [Labat] over 200 feet down
the street, and once or twice around a pickup truck, in
order to stab him. Judge Souter further found that,
after Allen stabbed Labat, he violently smashed [Labats
head] to the pavement ... [and] started stomping on the
victims head. And then, after he did that, [Allen]
kicked the victims body so violently that he lifted him
up off the pavement.
In sum, Judge Souter concluded that even
though Labat offered Allen some provocation, Allens
response was completely out of proportion. Allen
totally flew off the handle and became irrational and
acted entirely outside the law when he armed himself
with a knife and chased Labat down the street. The
judge found that Allens offense was among the most
serious within the definition of second-degree murder
because Allen intended to kill Labat. That is, the
judge found that Allen was factually guilty of first-
degree murder.
Given these findings concerning Allens
offense and his history of assaultive conduct, Judge
Souter was not clearly mistaken when he sentenced Allen
to 66 years in prison.18
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 See Owens v. State, 613 P.2d 259, 261 (Alaska 1980) (a
defendant should not be allowed to take a gamblers risk and
complain only if the cards [fall] the wrong way); see also Turpin
v. State, 890 P.2d 1128, 1130 (Alaska App. 1995).
2 Brown v. State, 693 P.2d 324, 327 (Alaska App. 1984).
3 703 P.2d 1175, 1178-79 (Alaska App. 1985).
4 615 P.2d 594, 603-04 (Alaska 1980).
5 See also Mustafoski v. State, 954 P.2d 1042, 1045-46
(Alaska App. 1998) (testimony that the defendant was a drug
dealer; no mistrial required); McPherson v. State, 800 P.2d 928,
929-930 (Alaska App. 1990) (testimony that the defendant had sold
marijuana to minors; no mistrial required); Srala v. Anchorage,
765 P.2d 103, 105-06 (Alaska App. 1988) (testimony that the
defendant asked the police to give him a break since they had
never given him a break before; no mistrial required).
6 See Noah v. State, 887 P.2d 981, 983 (Alaska App. 1995) (a
trial judges decision to grant or deny a request for a mistrial
is reviewed using the abuse of discretion standard).
7 See Owens v. State, 613 P.2d 259, 261 (Alaska 1980);
Turpin v. State, 890 P.2d 1128, 1130 (Alaska App. 1995) (a
defendant should not be allowed to take a gamblers risk and
complain only if the cards [fall] the wrong way).
8 See Aviation Associates, Ltd. v. Temsco Helicopters, Inc.,
881 P.2d 1127, 1131 n.7 (Alaska 1994) (Plain error exists when a
jury instruction obviously creates a high likelihood that the
jury [followed] an erroneous theory resulting in a miscarriage of
justice.) (quoting Ollice v. Alyeska Pipeline Service Co., 659
P.2d 1182, 1185 (Alaska 1983)).
9 Cuevas, 740 P.2d at 27.
10 Id.
11 Irons, 4 P.3d at 182-83.
12 Id. at 177.
13 See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981).
14 657 P.2d 850, 855 (Alaska App. 1983).
15 See AS 12.55.155(a).
16 See AS 12.55.125(b); Gustafson v. State, 854 P.2d 751,
763 (Alaska App. 1993); Weitz v. State, 794 P.2d 952, 957
n.3 (Alaska App. 1990).
17 Sakeagak v. State, 952 P.2d 278, 284 (Alaska App.
1998).
18 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).
