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Haag v. State (07/22/2005) ap-1996
Haag v. State (07/22/2005) ap-1996
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
JEREMIAH JAY HAAG,
)
) Court of
Appeals No. A-8687
Appellant,
)
Trial Court No. 3AN-01-7853 Cr
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 1996 July 22, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Stephanie E.
Joannides, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Jeremiah Jay Haag was convicted of first-degree
robbery, evidence tampering, and fourth-degree controlled
substance misconduct. Haag appeals his robbery conviction, and
he also appeals the sentences he received for all three crimes.
Haags appeal presents three groups of issues.
First, Haag attacks his indictment on two grounds. He
argues that the prosecutor failed to present exculpatory evidence
to the grand jury. For the reasons explained here, we conclude
that the omitted evidence was not exculpatory as that term has
been defined in our case law governing a prosecutors duty to
present evidence to the grand jury. Haag also attacks his
indictment because, during the grand jury proceeding, a police
witness referred to the fact that Haag invoked his right to
silence when he was questioned about the robbery. We conclude
that this error was harmless: the prosecutor immediately
cautioned the grand jury to disregard this reference and, given
the other evidence presented to the grand jury, it is unlikely
that the grand jurys decision was influenced by this reference.
Second, Haag claims that much of the evidence against
him should have been suppressed. He argues that the officers who
responded to the report of the robbery subjected him to an
illegal stop, and he further argues that, following this illegal
stop, the officers displayed him to the victim of the robbery and
another witness in an unconstitutionally suggestive manner. For
the reasons explained here, we conclude that the stop was
justified and that the ensuing encounter between Haag and the
witnesses was not improperly suggestive.
Finally, Haag challenges his sentence. He challenges
his composite sentence as too severe, and he also levels a
constitutional challenge to his robbery sentence. Haags
sentencing for the robbery was governed by Alaskas presumptive
sentencing laws as they existed in the pre-2005 versions of
AS 12.55.125 175. Haag contends that these presumptive
sentencing laws denied him his right to jury trial under the
Sixth Amendment to the United States Constitution as interpreted
in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004).
We do not reach the issue of whether Haags composite
sentence is unlawfully severe because we conclude that Haags
rights under Blakely were abridged when he was sentenced for the
robbery conviction. Accordingly, we vacate Haags robbery
sentence and we remand his case to the superior court for re-
sentencing. After the re-sentencing, Haag may renew his argument
that his composite sentence is unlawfully severe.
Underlying facts
The victim of the robbery, Bert Holland, was
living in his sons apartment in Anchorage. Holland was
partially disabled, having suffered a crushed hip in
1997. Haag, who was known by the name J.J., was
Hollands neighbor.
Shortly after midnight on October 2, 2001,
Holland heard a knock on the back door of the
apartment. Holland was expecting Haag to visit, and
the knock sounded like Haags knock, so Holland opened
the door. When he did so, two masked men entered the
apartment. These men were dressed in dark clothing,
and both were armed with handguns.
The men demanded Hollands prescription
medicine. (Holland took assorted pain medications for
his crushed hip. Haag knew this, and he also knew that
Holland had just had his prescriptions refilled the
previous afternoon.)
The taller of the men took two bottles of
prescription pain-killers from Holland, and then he
left the apartment. The shorter man remained for
several minutes longer. This shorter man located a
bottle of the pain-killer Diazepam, which he took, and
then he grabbed two cordless telephones from the wall.
Finally, the shorter man left the apartment.
Unbeknownst to Holland, there was another
witness to the robbery. Holly Holder, Hollands
daughter-in-law, had heard the knock on the apartment
door and the ensuing commotion when the two robbers
entered. Holder, who was upstairs at the time, crept
down the staircase, peeked around a corner, and
witnessed the robbery. She then went back upstairs and
crawled through a window to reach a neighbors house and
summon help.
The neighbor called 911. Relaying
information provided by Holder, the neighbor told the
911 operator that there were two [armed] black males
... in [Hollands and Holders] apartment. Holder then
got on the phone and repeated the information that two
black males, dressed all in black, were in the
apartment. The police dispatcher soon alerted officers
in the field to be on the lookout for two black males,
dressed in black, one of whom was tall and skinny.
Officer Glenn Daily responded within one
minute of the robbery dispatch. He parked his vehicle
a few hundred yards to the east of the apartment
complex, and he soon saw a man running away from the
apartment complex toward a gap in an adjacent fence.
This man was dressed in predominantly black clothing,
and he wore dark gloves. Officer Daily yelled for this
man to stop, but the man continued running. With gun
drawn, Daily pursued and intercepted the running man
who turned out to be Haag.
Daily handcuffed Haag and patted him down for
weapons. Haag had no weapons. Daily then took Haag
back to the apartment complex for a show-up that is,
to display him to Holland and Holder, to see if they
could identify him.
Bert Holland could not identify Haag as one
of the robbers. However, Holly Holder immediately
identified Haag as one of the robbers, based on his
dark attire and his build. (Haag was the shorter of
the two robbers.) Then Holder looked the man in the
face and realized that he was their neighbor, J.J.
Haag.
Based on Holders identification, Officer
Daily placed Haag under arrest and transported him to
the police station for booking. After delivering Haag
to the police station, Daily inspected the back of his
patrol car where Haag had been riding. Behind the seat
cushion, Daily found a prescription bottle for
Diazepam; the prescription was issued to Bert Holland.
Meanwhile, officers were combing the area
where Haag had been running before he was apprehended.
They found a handgun near the opening in the fence
where Daily had seen Haag stop briefly. And along the
path between the fence opening and the apartment
complex, the officers found the two cordless phone
receivers, as well as a sleeve of black sweatshirt
material (which they presumed to have been used as a
mask).
Haags accomplice was never apprehended.
The grand jury issues
Haag is white. When Haags case was presented
to the grand jury, the prosecutor did not present any
testimony concerning the fact that Holly Holder
initially stated (to her neighbor, and then to the 911
operator) that the two robbers were black. Haag
contends that, because of this omission, the prosecutor
violated the Frink rule that is, violated the duty
imposed by Criminal Rule 6(q) to present exculpatory
evidence to the grand jury. See Frink v. State, 597
P.2d 154, 165-66 (Alaska 1979).
But, for purposes of the Frink rule, the term
exculpatory has been defined narrowly; it refers only
to evidence that tends, in and of itself, to negate the
defendants guilt.1 The fact that Holder initially
stated that both robbers were black is certainly
something that a defense attorney might use to attack
Holders later identification of Haag as one of the
robbers. But this is not information that negates
Haags guilt in and of itself. For this reason, we
reject Haags contention that the prosecutor violated
Criminal Rule 6(q) by failing to present this evidence.
Haag next contends that the grand jury
proceedings were fatally flawed because a police
witness adverted to the fact that Haag, while being
interviewed about the robbery, eventually asserted his
right to silence and declined to say anything more.
Anchorage Police Detective Nancy Potter told
the grand jurors that she interviewed Haag after he was
brought to the police station. In response to the
prosecutors question, Did Mr. Haag ... [give] a
statement in this case?, Potter told the grand jurors
that Haag initially claimed that he spent the evening
watching Monday night football, and then he went out
jogging only to be seized by the police. Haag
asserted that several people could confirm that he
normally went jogging at that time of night. However,
Potter told the grand jurors that when she began to
press Haag to explain certain inconsistencies in his
account of the evening, [Haag] decided [that] he didnt
want to talk to me anymore.
As soon as Detective Potter uttered these
words, the prosecutor interjected:
Prosecutor: All right. And you know
what? Im going to ask the [grand] jury to
please disregard any inference that they
might take from ... what the police officer
just [told] us. You should not draw any kind
of inference [concerning] Mr. Haags ... guilt
or innocence based upon the fact that it
appears that ... he did not want to answer
any more questions at that point. And so you
are instructed that that should not have any
kind of effect on your deliberations in this
case, and it needs to be completely
disregarded by you.
On appeal, Haag argues that
Detective Potter made an improper adverse
comment on Haags invocation of his right to
silence. But, as just explained, the
prosecutor immediately recognized the problem
and gave a curative instruction to the grand
jury. Moreover, the other evidence presented
to the grand jury amply justified Haags
indictment. For these reasons, we conclude
that Detective Potters comment was harmless.2
The suppression issues
As explained above, Officer Daily subdued
Haag at gunpoint, handcuffed him, and then brought
him back to the apartment complex for the show-up.
Haag asserts that this amounted to an arrest
without probable cause. Haag argues in the
alternative that even if Dailys actions are deemed
an investigative stop rather than an arrest, this
stop was improper because the facts known to Daily
did not support an articulable suspicion that Haag
was involved in the recent robbery.
We turn first to the contention that Dailys
encounter with Haag amounted to an arrest rather
than merely an investigative stop. In Howard v.
State, 664 P.2d 603, 609-610 (Alaska App. 1983),
and again in Pooley v. State, 705 P.2d 1293, 1309
(Alaska App. 1985), we identified several factors
that courts should use in distinguishing between
detentions that will be deemed investigative stops
and detentions that will be deemed arrests.
First, a court should examine the purpose for
the detention and, specifically, the kind of
criminal activity being investigated.
Second, a court should examine whether the
detention was for a limited and specific inquiry.
That is, a court should ask whether the police
were diligently pursuing a means of investigation
that was likely to soon resolve whether a crime
had occurred, or to soon resolve the issue of
whether the suspect had participated in the crime.
Third, a court should examine whether the
detention was of brief duration although, for these
purposes, whether a detention will be deemed brief must
depend, in part, on what the police learn during the
encounter. If the results of the encounter dispel the
questions in the officers mind, the detention can go no
further and any continued detention will constitute an
improper stop or an illegal arrest. If, on the other
hand, the results of the encounter confirm the officers
suspicions or further arouse those suspicions, then the
detention may justifiably be prolonged or its scope
enlarged.
Fourth, a court should examine whether,
during the detention, the police required the suspect
to travel with them to another location. If the
suspect is involuntarily transported a lengthy
distance,3 or if the suspect is detained at another
location for a lengthy period of time,4 the detention
will be deemed an arrest.
And fifth, a court should examine the amount
of force used by the police in effectuating the
detention. The amount of force used in an
investigative stop must be proportional to the risk
reasonably foreseen by the officers at the time they
make the stop.
Applying these criteria to Haags case, we
conclude that Dailys actions did not amount to an
arrest; rather, they constituted an investigative stop.
It is true that Daily subdued Haag at gunpoint, and
then handcuffed him. But Daily was investigating an
armed robbery that had been committed only minutes
before, and he was dealing with a suspect who ran from
him. Under these circumstances, the officer did not
exceed the proper bounds of an investigative stop when
he used substantial force (a drawn weapon and
handcuffs) to detain and restrain Haag. See, for
example, Lowry v. State, 707 P.2d 280, 282-83 (Alaska
App. 1985) (where the officers gun was drawn but the
suspect was not handcuffed), and Howard, 664 P.2d at
611.
It is also true that, after Daily took Haag
into custody, Daily transported Haag back to the
apartment complex a distance of several hundred yards
to see if Holland or Holder could identify Haag as one
of the robbers. However, our cases indicate that
Dailys act of transporting Haag back to the apartment
complex did not turn the investigative stop into an
arrest. Rather, an encounter can remain an
investigative stop (rather than an arrest) even though
the police transport the suspect a short distance for a
show-up or other identification procedure.5 See
LeMense v. State, 754 P.2d 268, 273 (Alaska App. 1988).
See also Vessell v. State, 624 P.2d 275, 278-79 (Alaska
1981).
For these reasons, we reject Haags contention
that his initial encounter with the police was an
arrest. Instead, we conclude that it was an
investigative stop. The next question is whether the
police had justifiable suspicion for this stop.
Haag argues that the police lost any
justification for holding him once they realized that
Haag was white, rather than black, and once they
realized that, although Haag was wearing predominantly
black clothing, his clothing was not entirely black (as
Holly Holder had told the 911 operator). Haag argues
that the basis for his continued detention was further
undercut when the police patted Haag down and found no
weapons.
But Officer Daily saw Haag just a few
hundreds yards from the scene of an armed robbery that
had occurred only minutes before. It was shortly after
midnight, and no one else was about. Haag was running
away from the crime scene, he was dressed in
predominately black clothing, and he failed to stop
when directed to do so. It is true that Holder
described the robbers as being black men, but she also
stated that they were wearing ski masks. Moreover,
when Haag was apprehended, he was wearing dark gloves.
These circumstances raised the possibility that Holder
was mistaken about the robbers skin color.
Given these facts, we conclude that the
police were justified in temporarily detaining Haag so
that he could be presented to the witnesses and either
identified or excluded as one of the robbers. See
Coleman v. State, 553 P.2d 40, 42-43, 46 (Alaska 1976),
Maze v. State, 425 P.2d 235, 238 (Alaska 1967), and
Goss v. State, 390 P.2d 220, 224 (Alaska 1964)
(upholding investigative stops under similar facts).
Finally, Haag argues that even if the police
were justified in conducting the investigative stop,
Holders ensuing identification of Haag as one of the
robbers should be suppressed. Haag contends that the
show-up that is, the displaying of Haag to the two
witnesses, Bert Holland and Holly Holder was
improperly suggestive.
Haag points out that he was standing next to
a patrol car, in handcuffs, when he was presented to
these two witnesses. He also points out that Holland,
who was face to face with the robbers for several
minutes, could not identify Haag as one of the robbers,
while Holder (the witness who identified Haag as one of
the robbers) was peek[ing] around the corner at the
robbers and therefore, assumedly, did not get as good a
view of them as Holland. Haag argues that Holder
identified him out of reflex after seeing him [under]
incriminating [circumstances].
These factors may tend to diminish the
reliability of Holders identification of Haag, but they
do not mean that the show-up was unconstitutionally
suggestive. The supreme court addressed the legality
of an analogous show-up in Vessell v. State, 624 P.2d
275 (Alaska 1981).
The defendant in Vessell was stopped on
suspicion of having robbed a convenience store. Within
minutes, the police transported him back to the store.
The store clerk and a customer who had witnessed the
robbery were asked to take a look at Vessell while
Vessell was sitting handcuffed in the back seat of a
patrol car. Both witnesses identified Vessell as the
robber not based on his facial features (the robber
had worn a mask), but rather based on his clothing.6
On appeal, Vessell contended that this show-
up identification procedure was unconstitutionally
suggestive, but the supreme court upheld the show-up:
[W]e believe that the criteria for
admissibility were satisfied. The victims of
the robbery ... had ample opportunity to view
the man who robbed them. The description
that they gave to the police immediately
after the robbery was detailed and accurate,
although they differed slightly on the exact
type of boots that the robber wore. In
addition, the show-up took place within
minutes after the robbery had occurred.
Finally, both [witnesses] were positive in
their statements that Vessell wore the same
clothing as the man that robbed them,
although neither claimed that he could
recognize Vessells facial features.
Vessell, 624 P.2d at 279.
In Haags case, the show-up took
place within minutes of the crime. Although
Holly Holder was peeking at the robbers, she
was only about five feet from them, and they
assumedly had her full attention. Moreover,
Holder stood by her identification of Haag as
one of the robbers even after she realized, a
few moments later, that she had just
incriminated someone whom she knew
personally. Based on these facts, and based
on the supreme courts handling of a similar
identification procedure in Vessell, we
uphold the show-up in Haags case.
Underlying facts pertaining to Haags sentencing, and
the issues he raises on appeal
Haag was convicted of three felonies: first-
degree robbery, tampering with evidence, and fourth-
degree controlled substance misconduct (for possessing
Hollands bottle of prescription medicine).
As a first felony offender, Haag was subject
to presumptive sentencing under AS 12.55.125(c) for the
robbery conviction, because first-degree robbery is a
class A felony.7 Haag faced a presumptive term of 7
years imprisonment for this crime.8
Haag was not subject to presumptive
sentencing for his other two crimes, because these
crimes are class C felonies,9 and because there is no
presumptive term for first felony offenders convicted
of class C felonies.10 However, Haags sentencing for
these two other crimes was governed by AS
12.55.125(k)(2), which declares that, in the absence of
aggravating factors or extraordinary circumstances,
when a first felony offender is not subject to
presumptive sentencing, their sentence should not
entail more time to serve than the presumptive term
established for second felony offenders convicted of
the same crime.
At Haags sentencing, the State did not
propose any aggravating factors with respect to Haags
convictions for evidence tampering or controlled
substance misconduct. However, the State proposed one
aggravating factor with respect to Haags conviction for
robbery. This aggravating factor was
AS 12.55.155(c)(5) that Haag knew or reasonably should
have known that the victim of the robbery was
particularly vulnerable or incapable of resistance due
to disability or ill health.
Haag disputed this aggravating factor, but
the sentencing judge ultimately concluded that the
State had proved the aggravating factor by clear and
convincing evidence. Based on this aggravator, the
judge increased Haags sentence for the robbery by
adding 3 years of suspended imprisonment to the 7-year
presumptive term. (That is, Haags sentence for the
robbery was 10 years with 3 years suspended.)
For evidence tampering, Haag received 2 years
with 1 year suspended (i.e., 1 year to serve). And for
controlled substance misconduct, Haag received 18
months with 12 months suspended (i.e., 6 months to
serve). The sentencing judge ordered that this
additional time to serve 18 months would be
consecutive to Haags robbery sentence, but that the
additional suspended time 2 years would be concurrent
to Haags suspended time for the robbery.
Thus, all told, Haag received a composite
sentence of 8 years to serve, with an additional 3
years suspended.
Haag argues that this composite sentence is
mistakenly severe. He also argues that, when the
superior court increased his robbery sentence based on
the disputed aggravating factor, the superior court
violated the Sixth Amendment to the United States
Constitution as interpreted in Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
The Blakely issues
In Blakely v. Washington, the Supreme Court
held that the Sixth Amendment to the United States
Constitution guarantees criminal defendants a right to
jury trial on all factual issues that are necessary to
establish a sentencing judges authority to impose the
type of sentence that the defendant received. Thus,
when a sentencing judge has no authority to exceed a
specified sentencing ceiling unless particular
aggravating factors are proved, the defendant has a
right to demand a jury trial on those aggravating
factors (with the exception of prior criminal
convictions). Blakely, 124 S.Ct. at 2537-38. If the
defendant is denied this right, then the sentencing
judge can not exceed the prescribed statutory ceiling.
Id. at 2538.
(We recently discussed this aspect of the
Blakely decision in State v. Gibbs, 105 P.3d 145, 147-
48 (Alaska App. 2005).)
Alaskas pre-2005 presumptive sentencing laws
are directly affected by the Blakely decision because,
under those laws, if a felony defendant was subject to
a presumptive term of imprisonment, the superior court
had no authority to increase that term of imprisonment
(even by the addition of suspended imprisonment) unless
the State proved one or more of the aggravating factors
listed in AS 12.55.155(c), or unless the State proved
extraordinary circumstances as defined in AS 12.55.165.
The pre-2005 versions of AS 12.55.125(c), (d), (e), and
(i) all declared: a defendant convicted of [the
specified felony] shall be sentenced to the following
presumptive terms, subject to adjustment as provided in
AS 12.55.155 175 that is, subject to adjustment for
the aggravating and mitigating factors listed in AS
12.55.155(c)-(d), or for extraordinary circumstances as
defined in AS 12.55.165.
Thus, under Alaskas pre-2005 presumptive
sentencing law, proof of aggravating factors (or proof
of extraordinary circumstances favoring the government)
expanded the range of sentences available to the
superior court to the defendants detriment. Blakely
holds that, under such a sentencing scheme, a defendant
has the right to a jury trial on these factors (with
the exception of prior convictions). But under Alaskas
pre-2005 presumptive sentencing laws, all rulings on
aggravating and mitigating factors, and all rulings on
extraordinary circumstances (whether favoring the
government or the defendant), were made by the
sentencing judge. Thus, Alaskas pre-2005 presumptive
sentencing laws provided for sentencing procedures that
violated the Sixth Amendment as interpreted in Blakely.
Moreover, Blakely declares that when the
defendants sentencing range hinges on contested
aggravating factors, the government is obliged to prove
these triggering aggravating factors beyond a
reasonable doubt. Blakely, 124 S.Ct. at 2536, 2542.
The Supreme Court recently reiterated this rule in
United States v. Booker, __ U.S. __, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005): Any fact (other than a prior
conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond
a reasonable doubt. Booker, 125 S.Ct. at 756.
On this point as well, Alaskas pre-2005
presumptive sentencing laws provided for sentencing
procedures that violated the Sixth Amendment as
interpreted in Blakely because, under AS 12.55.155(f)
and AS 12.55.165(a), aggravating and mitigating
factors, and extraordinary circumstances (whether
favoring the government or the defendant), did not have
to be proved beyond a reasonable doubt, but rather only
by clear and convincing evidence.
As explained above, Haag faced a 7-year
presumptive term for first-degree robbery. If no
aggravating factors had been proved, this 7-year
presumptive term would have been the ceiling on the
amount of imprisonment that Haag could receive. But
based on the States proof of aggravator (c)(5)
(particularly vulnerable victim), the superior court
ultimately increased Haags sentence to 10 years with 3
years suspended that is, the court added 3 years of
suspended imprisonment to Haags 7-year presumptive
term.
Haag was sentenced in July 2003,
approximately eleven months before the Supreme Court
decided Blakely. Thus, in accordance with Alaskas
sentencing laws at that time, Haags sentencing judge
(not a jury) resolved the disputed aggravator, and the
judge applied a clear and convincing evidence standard
of proof rather than requiring the government to prove
the disputed aggravator beyond a reasonable doubt. In
both of these two respects, Haags sentencing violated
the Sixth Amendment as construed in Blakely.
It may come as no surprise that Haag failed
to object to these aspects of his sentencing in July
2003, since the Blakely decision was still eleven
months in the future. However, under federal law, a
new rule for the conduct of criminal prosecutions
[applies] retroactively to all cases, state or federal,
pending on direct review or not yet final. Griffith v.
Kentucky, 479 U.S. 314, 328; 107 S.Ct. 708, 716; 93
L.Ed.2d 649 (1987).
The scope of the retroactivity of
constitutional decisions of the United States Supreme
Court is governed by federal law. See American
Trucking Associations, Inc. v. Smith, 496 U.S. 167,
177; 110 S.Ct. 2323, 2330; 110 L.Ed.2d 148 (1990).
Thus, we are bound by the rule of retroactivity stated
in Griffith v. Kentucky.
Haags direct appeal was pending at the time
that Blakely was decided. Accordingly, Haag may seek
relief based on the fact that the sentencing procedures
employed in his case did not comport with Blakely.
However, because Haag did not object to these
sentencing procedures at the time, he must now show
plain error.11
The State advances two arguments why the
sentencing procedures in Haags case do not constitute
plain error (even though these procedures violated the
Sixth Amendment).
First, the State argues that Haags Blakely
challenge is not yet ripe. The State points out that
Haag received no additional time to serve because of
the aggravating factor only 3 years of suspended
imprisonment. The State further points out that Haag
was convicted of two other crimes besides the robbery,
and that Haag received a concurrent 1 year of suspended
jail time from these other two convictions. Thus,
Haags robbery sentence really only added 2 years of
suspended imprisonment to his total sentence. Finally,
the State points out that, presently, there is no way
to know whether Haag will ever violate his probation
and be required to serve any portion of this additional
2 years of suspended jail time.
The States argument overlooks the fact that,
absent the disputed aggravating factor, the superior
court would have had no authority to impose any
suspended jail time for the robbery conviction, nor any
authority to place Haag on probation for this offense
after he completed his 7 years to serve. (There were
no mitigating factors in Haags case. Haag proposed two
mitigating factors, but the superior court found that
neither of them was proved.) Thus, Haags Blakely claim
involves a live controversy.
The State next argues that the Blakely
violations do not constitute plain error because, under
the facts of Haags case, these violations could not
have possibly affected the outcome that is, they could
not have possibly affected the decision on the States
proposed aggravating factor.
To recapitulate, the two Blakely violations
in this case were that the disputed aggravator was
resolved by the sentencing judge, and that the
sentencing judge applied the clear and convincing
evidence standard of proof instead of requiring proof
beyond a reasonable doubt. The State contends that
Haag never disputed or, at least, never seriously
disputed the factual basis of the proposed aggravator
(particularly vulnerable victim). The State concludes
that, because there was no real dispute concerning the
facts that made Bert Holland a particularly vulnerable
victim, any trier of fact (judge or jury) would
inevitably have ruled against Haag on this issue, even
if the State was required to present proof beyond a
reasonable doubt.
There is case law to support this type of
harmless error argument. In Johnson v. United States,
520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997),
the defendant was prosecuted for perjury. Under the
federal perjury statute, the government must prove that
the defendant made a knowingly false statement under
oath, and that this statement was material.12 At the
time of Johnsons trial, the settled law among federal
courts was that the trial judge, and not the jury,
should decide whether the defendants false statement
was material.13 In accordance with this law, Johnsons
trial judge considered this issue, decided that
Johnsons statement was material, and then instructed
the jury that the question of materiality had been
decided against Johnson.14
While Johnsons case was on appeal, the
Supreme Court decided United States v. Gaudin, 515 U.S.
506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Gaudin
held that defendants charged with perjury under the
federal statute were entitled to have the jury decide
whether the false statement was material just as the
jury decided every other element of the crime.15 The
question, then, was whether Johnson could claim the
benefit of this ruling.
Even though Johnsons trial judge had followed
settled law when he took the issue of materiality from
the jury and decided it himself, it was clear in
retrospect that this procedure violated Johnsons right
to trial by jury. The Supreme Court held that, in
these circumstances, the trial judges action
constituted plain error in the sense that the error was
clear by the time Johnsons appeal came up for
decision.16
However, the Supreme Court also held that,
under the facts of Johnsons case, there was no basis
for concluding that the error seriously affect[ed] the
fairness, integrity, or public reputation of [the]
judicial proceedings.17 The Court pointed out that the
evidence supporting [a finding of] materiality was
overwhelming; in fact, [m]ateriality was essentially
uncontroverted at [Johnsons] trial and ... remained so
on appeal.18 In other words, even though the trial
judge committed constitutional error by taking the
issue of materiality from the jury and deciding it
himself, there was no miscarriage of justice.19 For
this reason, the Supreme Court affirmed Johnsons
conviction.
The State argues that Haags case is similar
that even though Haags aggravator was decided by the
sentencing judge rather than a jury, and even though
the judge applied a lesser standard of proof than the
constitutionally mandated standard of proof beyond a
reasonable doubt, there was no miscarriage of justice
because there is essentially no chance that a jury,
applying the correct standard of proof, would have
reached a different decision.
We find the States argument unconvincing. In
contrast to Johnson, where the question of the false
statements materiality was straightforward and the
answer was self-evident, the issue presented in Haags
case whether Haag knew or reasonably should have known
that [Holland] was particularly vulnerable or incapable
of resistance required the finder of fact first to
assess the extent of Hollands physical incapacity and
then to assess Hollands physical ability to resist in
comparison to the physical ability of a typical robbery
victim.
Both of these assessments turn on matters of
degree. Thus, the ultimate conclusions as to whether
Holland was particularly vulnerable or incapable of
resistance to armed robbery, and whether Haag knew or
reasonably should have known this, could easily be
affected by the identity of the fact finder (judge
versus jury) and could easily be affected by the States
burden of proof (clear and convincing evidence versus
beyond a reasonable doubt).
We therefore conclude that, under the facts
of Haags case, the sentencing judges resolution of
aggravator (c)(4), using the clear and convincing
evidence standard of proof, constituted plain error.
Accordingly, Haag must be re-sentenced for first-degree
robbery.
We do not resolve the issue of whether, at
this time, it would be permissible for the superior
court to hold a jury trial on the disputed aggravator.
If the State wishes to ask for such a trial, that issue
can be litigated in the superior court. Alternatively,
the State may ask the superior court to re-sentence
Haag without reliance on the disputed aggravator
meaning that Haag would receive the prescribed 7-year
presumptive term for his robbery conviction. See
Allain v. State, 810 P.2d 1019, 1021-22 (Alaska App.
1991).
We retain jurisdiction of Haags case. The
superior court shall re-sentence Haag within the next
90 days, and the superior court shall notify us of its
action.
Within 30 days of this re-sentencing, Haag
shall notify us whether (1) he no longer wishes to
challenge his composite sentence as unlawfully severe,
or (2) he wishes to again assert that his composite
sentence is unlawfully severe.
If Haag no longer wishes to challenge his
composite sentence, we will close this case.
On the other hand, if Haag decides to renew
his challenge to his composite sentence, his notice
should include a request for transcription of the
appropriate portions of the superior court proceedings.
After the preparation of that transcript, Haag will
have 30 days to file a sentencing memorandum, and the
State will have 30 days to file a responsive
memorandum. We will then decide Haags sentence appeal.
Haags three convictions are AFFIRMED. Haags
sentence for first-degree robbery is VACATED, and his
case is remanded to the superior court for re-
sentencing.
_______________________________
1Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002),
quoting State v. McDonald, 872 P.2d 627, 639 (Alaska App.
1994).
2See Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992)
(explaining the test for whether an indictment should
be invalidated if the grand jury heard inadmissible
evidence).
3See Lowry v. State, 707 P.2d 280, 283 (Alaska App. 1985):
There can be little doubt that the [investigative] stop
would have ripened into a full-blown arrest if Lowry had
still been in detention when [he was] transported [from
Eagle River] to Anchorage for questioning; probable cause
... would then have been required.
4See Lindsay v. State, 698 P.2d 659, 662 (Alaska App. 1985)
(suspect was transported to the police station and
interrogated for nearly an hour).
5This point is discussed at some length in Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment (4th
ed. 2004), 9.2(g), Vol. 4, pp. 347-354.
6Vessell, 624 P.2d at 277.
7AS 11.41.500(b).
8AS 12.55.125(c)(2)(A).
9AS 11.56.610(b) (evidence tampering); AS 11.71.040(d)
(fourth-degree controlled substance misconduct).
10See AS 12.55.125(e).
11Johnson v. United States, 520 U.S. 461, 466-68; 117 S.Ct.
1544, 1548-49; 137 L.Ed.2d 718 (1997).
1218 U.S.C. 1623 (1994).
13See, e.g., United States v. Molinares, 700 F.2d 647, 653
(11th Cir. 1983).
14Johnson, 520 U.S. at 464, 117 S.Ct. at 1547.
15Gaudin, 515 U.S. at 522-23, 115 S.Ct. at 2320.
16Johnson, 520 U.S. at 467-68, 117 S.Ct. at 1549.
17Id., 520 U.S. at 470, 117 S.Ct. at 1550 (internal
quotations omitted).
18Id. (internal quotations omitted).
19Id.
