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Waters v. State (2/14/2003) ap-1853
Waters v. State (2/14/2003) ap-1853
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
JOHNNY L. WATERS, )
) Court of Appeals No.
A-7600
Appellant, )
Trial Court No. 2KB-99-213 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1853 February 14, 2003]
)
Appeal from the Superior Court, Second Judi
cial District, Kotzebue, Richard H. Erlich,
Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. W. H.
Hawley, Jr., 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.
Johnny L. Waters was arrested for burglarizing the
community store in Shungnak and stealing approximately $16,000
from the stores safe. After spending a night in custody, Waters
confessed to these crimes. He was subsequently convicted of
second-degree burglary, second-degree theft, and second-degree
criminal mischief.1
Waters now appeals his convictions and his resulting
sentence. He first contends that his confession was involuntary.
He next contends that the trial judge improperly restricted his
cross-examination of an accomplice who testified as a government
witness. Finally, Waters argues that his sentence (a composite
of 10 years to serve) is excessive. For the reasons explained
here, we reject these contentions and affirm the superior courts
judgement.
Underlying facts
Sometime during the night of April 10-11,
1999, the community store in Shungnak was burglarized.
The burglars removed the safe from the store and, using
a four-wheeler, transported it to a remote location.
There, they chopped the safe open with an axe and
removed its contents approximately $16,000.
The next night, the Alaska State Troopers
went to the residence of Johnny L. Waters and Jeffrey
Sun to investigate their possible involvement in the
burglary / theft. Troopers Richard Terry and Eric
Olsen knocked on the door of the residence and were
told to come in. Sun was on the couch in the front
room. When the troopers asked who else was in the
residence, Sun told them to find out for themselves.
With guns drawn, the troopers proceeded to a bedroom
where they discovered Waters resting with his
girlfriend and daughter. Both Waters and Sun agreed to
accompany the troopers to the village public safety
building for questioning. This interview lasted
approximately 30 minutes, and then both men returned
home.
A few hours later, at approximately midnight
that same night, the troopers arrested Waters and Sun
and brought them back to the public safety building.
After informing Waters of his Miranda rights2, the
troopers questioned Waters about the burglary. Waters
told the troopers that they were wasting their time
because he did not plan to say anything. Despite
Waterss apparent invocation of his right to remain
silent, the troopers continued to question him for
approximately 30 minutes. Waters did not make any
incriminating statements during this time.
Following this interview, the troopers seized
Waterss pants and coat as evidence, and then they
placed him in a cell for the night. During the next
half-hour, while the troopers interrogated Jeffrey Sun
in the other holding cell, Waters repeatedly shouted to
Sun, urging him not to tell the troopers anything.
The next day, however, Waters confessed his
involvement in the burglary and showed the troopers
where the safe was. Waters now claims that this
confession was involuntary. This claim hinges on
Waterss assertions that he had to endure torturous
physical conditions in his cell and that, the next
morning, the troopers promised him relief from his
physical suffering and a visit with his family if he
confessed.
Waterss claim that his confession on the morning of
April 12th was involuntary
In his suppression motion, Waters asserted
that his cell was freezing cold and that the troopers
left him there dressed only in his underwear. Waters
claimed that he was unable to sleep because he was so
cold. Waters also claimed that the troopers did not
provide him with restroom facilities but rather made
him relieve himself into a coffee can. Waters asserted
that this physical discomfort and deprivation, combined
with his extreme intoxication, reduced his normal
powers of resistance. Waters also claimed that the
troopers finally induced him to incriminate himself by
promising him that he would be allowed to see his
family if he confessed.
The superior court held a hearing to
investigate these allegations. At this evidentiary
hearing, the State introduced evidence to rebut Waterss
claims. According to this testimony, the village
public safety building had three heating vents, one of
which was near the two holding cells. The officer in
charge of the facility (the village public safety
officer) covered the other two vents with duct tape,
leaving most of the heat channeled into the holding
cells. A trooper and the village public safety officer
both described the building as warm.
Waterss cell contained blankets. The two
officers who guarded Waters that night testified that
he initially paced his cell but then slept. Waters
awoke in the middle of the night and asked for extra
blankets and some aspirin. The village public safety
officer honored both of these requests. Waters then
slept for several more hours.
The evidence also showed that there was no
plumbing in the village public safety building; thus,
there were no restroom facilities for any occupant of
the building officers or prisoners. Both officers and
prisoners used a coffee can for urination and a toilet
in a nearby building for defecation.
The following morning, Waterss clothing was
returned to him in preparation for his transportation
to Kotzebue. At this time, Waters asked to call his
girlfriend, and this request was granted. After
speaking to his girlfriend, Waters asked to step out
onto the porch to smoke a cigarette. Again, this
request was granted; a state trooper (Eric Olsen)
accompanied Waters.
While they were on the porch, Trooper Olsen
remarked to Waters that he had finished his
investigation of the burglary, that he knew who was
involved, and that he felt sorry for Waterss daughter.
In response, Waters expressed willingness to cooperate
with the troopers, but only if he could see his family
first.
The troopers took Waters home to visit with
his family. Following this visit, Waters led the
troopers to the safe and to where some of the missing
coins were buried.
Based on the evidence presented at this
hearing, Superior Court Judge Richard H. Erlich found
(1) that Waterss cell was sufficiently heated; (2) that
Waters was given an additional blanket at his request;
(3) that Waters was moderately intoxicated but not
extremely so; (4) that Waters did sleep; and (5) that
Waters was the one who suggested that he would
cooperate in exchange for a visit with his family.
Having made these findings of fact, Judge Erlich
concluded that Waterss confession was voluntary.
All of Judge Erlichs findings are supported
by the evidence and are not clearly erroneous.
In this appeal, Waters supports his
involuntariness claim with evidence that was developed
at his trial. He is not entitled to do this. Although
we have indicated that evidence developed at trial can
be used to support the lower courts ruling on a pre-
trial motion3, such evidence can not be used to attack
a pre-trial ruling unless the proponent of the motion
affirmatively asks the trial judge to re-examine the
pre-trial ruling in light of the newly-developed
evidence. The lower court is the finder of fact the
one who decides issues of historical fact by assessing
the credibility of witnesses and the weight of the
evidence. An appellate court can not undertake these
tasks in the first instance. Therefore, if a party
believes that later-developed evidence has shown that
the trial courts pre-trial findings are erroneous, it
is that partys duty to apprise the trial court of the
situation and affirmatively seek a re-determination of
the pre-trial issue.
Waters argues that it is unfair to deny an
appellant the right to attack a pre-trial ruling with
evidence developed at trial. We disagree. The normal
rule is that, absent plain error, a party challenging a
trial courts ruling may not rely on an argument or on
evidence that was not brought to the trial courts
attention at the time the trial court made its ruling.4
Based on Judge Erlichs findings of fact, and
based on our independent evaluation of the record
concerning the inferences to be drawn regarding Waterss
state of mind and the overall issue of voluntariness5,
we uphold Judge Erlichs ruling that Waterss confession
was voluntary.
Waterss claim that the trial judge improperly prevented
Waterss attorney from cross-examining Jeffrey Sun about
a prior criminal conviction
Jeffrey Sun testified for the government at
Waterss trial. In particular, Sun testified that he
and Waters had been drinking together, that Waters had
come up with the idea of burglarizing the store; and
that he and Waters and two minors had perpetrated the
burglary.
During the defense attorneys cross-
examination of Sun, the following colloquy occurred:
Defense Attorney: What youre saying is
that, after this [trial] is done, [two of the
three charges pending against you] are going
to be dismissed?
Sun: Yes.
Defense Attorney: Those [charges] are
going to be dismissed as part of an agreement
that youve reached [with the State]?
Sun: Yes.
Defense Attorney: ... So youre not
going to face three felony charges? ...
Youre going to face one?
Sun: Yes.
Defense Attorney: Okay, now. So you
have a deal with the State?
Sun: Yes.
Defense Attorney: Now, youre familiar
with the court system.
Sun: No.
Defense Attorney: Not at all?
Sun: Not really.
At this point, Waterss attorney
requested a bench conference. The defense
attorney told Judge Erlich that he wished to
introduce evidence that Sun had been
convicted of an unspecified crime in 1989.6
The prosecutor replied that a conviction from
1989 was 10 years old and was therefore not
admissible under Alaska Evidence Rule 609(b).
Judge Erlich thereupon ruled that Waterss
attorney would not be permitted to question
Sun about the 1989 conviction.
Under Evidence Rule 609(b), a
witness may be impeached with a criminal
conviction if the conviction (1) is for a
crime of dishonesty and (2) is no more than 5
years old although the trial judge has the
authority to relax this 5-year time limit if
evidence of the conviction is necessary for a
fair determination of the case. The record
in Waterss case does not reveal what crime
Sun was convicted of in 1989. Without proof
that the conviction was for a crime of
dishonesty, Waters has failed to show that
Suns conviction was admissible at all.
Moreover, even assuming that Suns conviction
was for a crime of dishonesty, the
conviction was 10 years old and Waterss
attorney did not show that admission of this
evidence was necessary for a fair trial.
In this appeal, Waters argues that
Suns 1989 conviction should have been
admitted to establish Suns bias in favor of
the State. Specifically, Waters argues that,
because Sun had a criminal record, Sun had
particular need to strike a deal with the
State. Waters also argues that, because Sun
had prior dealings with the criminal justice
system, he knew that testifying against
Waters would help him at his own sentencing.
But the record does not reveal that either of
these theories of admissibility was presented
to Judge Erlich.
Moreover, even if Waterss attorney
had argued these theories of admissibility,
the record does not suggest that evidence of
Suns 1989 conviction was necessary for a fair
trial. As can be seen from the portion of
Suns cross-examination quoted above, Sun
openly conceded that he was getting favorable
treatment (a substantial reduction of the
charges) in exchange for his testimony. The
jury also heard that this reduction of
charges had not occurred yet that it would
occur after Waterss trial, and that it was
contingent on Suns testimony. Thus, the jury
understood Suns potential motivation to frame
his testimony with an eye toward securing
Waterss conviction. Finally, Judge Erlich
expressly instructed the jurors that they
should view the testimony of an accomplice
with mistrust. Waters fails to convincingly
explain how evidence of Suns 1989 conviction
for an unspecified crime would have
substantially altered the jurys understanding
of Suns motives for testifying as a
government witness.
Waterss sentencing claims
Waters was convicted of three offenses:
second-degree burglary, second-degree theft, and
second-degree criminal mischief what would now be
third-degree criminal mischief after the 2002
amendment to the criminal mischief statutes.78
Each of these offenses is a C felony, carrying
a penalty of up to 5 years imprisonment.9
Waters has an extensive criminal history. He
was convicted of first-degree burglary in 1987 and
1988. In 1989, he was charged with second-degree
weapon misconduct for shooting a .22-caliber rifle from
his window while he was intoxicated, but this charge
was dismissed after he admitted that this conduct
violated his probation from the earlier offenses. In
1990, Waters was convicted of third-degree assault for
firing a rifle through someones front window during an
altercation. He was also twice convicted of
burglarizing the Shungnak post office (where his mother
worked) in 1990 and in 1992. Waterss history included
a number of minor offenses as well convictions for
such things as underage drinking, providing alcohol to
a minor, and fourth-degree theft (for stealing a bottle
of liquor from someones vehicle).
Because Waters had more than two prior felony
convictions, he was a third felony offender for
presumptive sentencing purposes10 and he therefore
faced a 3-year presumptive term for each crime.11
Judge Erlich found that the State had proved three
aggravating factors under AS 12.55.155(c): (c)(3)
that Waters was the leader of a group of three or more
persons who perpetrated the offense; (c)(21) that
Waters had a history of similar criminal offenses; and
(c)(27)(B) that Waters was an adult (i.e., someone
older than 18) who was aided or abetted by a juvenile
who was at least three years younger than him. Because
of these aggravating factors, Judge Erlich was
authorized to consider sentences of up to the maximum
term of imprisonment.12
At the close of the sentencing hearing, Judge
Erlich sentenced Waters to a composite term of 10 years
imprisonment. (Waters received 5 years to serve for
the burglary, a consecutive 3 years to serve for the
theft, and a consecutive 2 years to serve for the
criminal mischief.) Waters claims that this composite
sentence is excessive.
Waters first points out that, in Judge
Erlichs sentencing remarks, the judge concluded that
Waters was a dangerous offender within the meaning of
Standard 18-4.4(c) of the American Bar Associations
Standards for Criminal Justice.13 Waters claims that
he does not fall within the ABAs definition of
dangerous offender, but this question is ultimately
beside the point.
Under older Alaska sentencing cases, a judge
normally could not impose a sentence of 10 years or
more unless the defendant fit the ABAs definition of
dangerous offender. But the Alaska Supreme Court
disapproved this line of cases in State v. Wentz, 805
P.2d 962, 966 (Alaska 1991). Thus, Judge Erlich could
sentence Waters to serve 10 years in prison without
finding that Waters was a dangerous offender within the
technical meaning assigned to this phrase in ABA
Standard 18-4.4(c). Given the supreme courts decision
in Wentz, the question is not whether Judge Erlich
properly classified Waters as a dangerous offender
under the ABAs definition. That question is moot.
Instead, the question is whether Waterss history and
the facts of his current offenses justify his sentence.
Nevertheless, Waterss case is still governed
by the so-called Mutschler rule (even though the rule
is more clearly stated in Neal v. State) the rule
that, before a judge imposes a composite sentence that
exceeds the maximum term of imprisonment for the
defendants most serious single offense, the judge must
expressly find that such a sentence is required to
protect the public.14 Judge Erlich did not make an
express finding that a 10-year composite sentence was
required to protect the public. Waters argues that,
without an express finding, his sentence is improper.
The State argues, on the other hand, that such a
finding is implicit in the sentencing record.
Waters was thirty-one years old at the time
of sentencing. He had battled an alcohol problem
throughout his adult life. Judge Erlich found that
Waters was the mastermind of the burglary and theft in
the present case, and he noted that Waters had a
lengthy history of felony and misdemeanor offenses.
The judge also noted that Waters failed to take
advantage of numerous opportunities to reform his
behavior. The judge declared that the people of
Shungnak had been subjected to [Waterss] terror for the
last ten years.
It is true that Judge Erlich did not
expressly address the Neal - Mutschler rule when he
imposed the 10-year prison term. However, an express
finding is not always required. In Neal, the supreme
court declared that no express finding was needed under
the following circumstances:
The record contains ample evidence that
[the defendant] presents a risk of continued
criminal conduct which would seriously
threaten the public safety. [The defendant]
was twenty-nine years of age at the time of
sentencing. He has been a heroin addict for
ten years and has compiled a lengthy criminal
record, including numerous felony and
misdemeanor drug offenses and several
property offenses. Extensive drug
rehabilitation efforts have been a failure.
With complete foresight [the defendant]
helped to plan, organize, and carry out a
highly dangerous and extremely serious crime
[armed robbery of a bank]. It is clear that
[the defendant] presents a threat of criminal
conduct which would seriously threaten the
public safety. Given his repeated
rehabilitative failures and his conduct on
this occasion, the threat is substantial.
Neal, 628 P.2d at 21.
These circumstances are quite
similar to the facts of Waterss case.
Waters, too, was a mature adult with a
lengthy history of serious offenses and a
seemingly intractable substance abuse
problem. He was the prime mover behind a
burglary that netted a large amount of money.
Although Waterss present offenses (burglary,
theft, and criminal mischief) are less
serious than the armed robbery in Neal, his
composite sentence of 10 years to serve is
also less severe than the 18-year composite
sentence involved in Neal.15
As was true in Neal, the sentencing
record in Waterss case shows that he presents
a [substantial] risk of continued criminal
conduct which would seriously threaten the
public safety.16 We therefore uphold Waterss
composite sentence even though Judge Erlich
failed to make an explicit finding under the
Neal - Mutschler rule.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.46.310(a), AS 11.46.130(a)(1), and former AS
11.46.482(a)(1) (pre-2002 version), respectively.
2 See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
3 See Hubert v. State, 638 P.2d 677, 680 n.2 (Alaska App.
1981).
4 See Willis v. State, 57 P.3d 688, 691-92 (Alaska App.
2002) (explaining that [u]nder Alaska Criminal Rule 46, an
attorney does not preserve a claim of error unless, at the
time of the ruling or order of the court is made or sought,
[the attorney] makes known to the court the action which the
party desires the court to take or the [attorneys] objection
to the action and the grounds therefor.) (emphasis in
original).
5 See John v. State, 35 P.3d 53, 62 (Alaska App. 2001);
Beagel v. State, 813 P.2d 699, 704 (Alaska App. 1991) (As to
matters involving the accuseds state of mind and the issue
of voluntariness, this court will examine the entire record
and make an independent determination.).
6 Although Waters argues in his opening brief that Suns
1989 conviction was for burglary, the record does not
reveal the nature of the 1989 conviction. Waters
concedes this point in his reply brief.
7 In 2002, the legislature created a new crime of first-
degree criminal mischief and redesignated the three pre-
existing degrees of criminal mischief accordingly. See
SLA 2002, chapter 92, 5-13.
8 Respectively, AS 11.46.310(b), AS 11.46.130(c), and
former AS 11.46.482(b) (now re-lettered as 486(d)).
9 AS 12.55.125(e).
10 See AS 12.55.185(14).
11 See AS 12.55.125(e)(2).
12 See AS 12.55.155(a)(1).
13 According to this ABA standard, a dangerous offender is
a person who has committed at least two prior felonies on
different occasions within five years of the persons current
offense, and who has previously served a sentence exceeding
one year. See Williams v. State, 800 P.2d 955, 959 n.5
(Alaska App. 1990).
14 See Neal v. State, 628 P.2d 19, 21 (Alaska 1981): Our
past decisions imply that where consecutive sentences for
two or more counts exceed the maximum sentence for any
single count, the sentencing judge should make a formal
finding that confinement for the combined term is necessary
to protect the public. (Citing Mills v. State, 592 P.2d
1247, 1248 (Alaska 1979), and Mutschler v. State, 560 P.2d
377, 381 (Alaska 1977)).
15See Neal, 628 P.2d at 22.
16Neal, 628 P.2d at 22.
