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Grossman v. State (09/23/2005) ap-2010
Grossman v. State (09/23/2005) ap-2010
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
WILLIAM D. GROSSMAN,
)
) Court of
Appeals No. A-8689
Appellant,
)
Trial Court No. 3AN-01-6552 CR
)
v.
) O
P I N I O N
)
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2010 - September 23, 2005]
)
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Larry D. Card, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Michael Sean McLaughlin, 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.
COATS, Chief Judge.
COATS, Chief Judge, concurring.
William D. Grossman appeals his conviction and sentence
for murder in the second degree. He first contends that Superior
Court Judge Larry D. Card erred in instructing the jury on
Grossmans liability as an accomplice. We conclude that the
instruction was proper. Second, Grossman argues that his 99-year
sentence is illegal because Judge Card imposed a sentence beyond
the benchmark range, which we first set out in Page v. State, of
20 to 30 years for second-degree murder. Grossman argues that,
under the United States Supreme Courts decision in Blakely v.
Washington, Judge Card could not impose a sentence in excess of
the Page benchmark range without giving Grossman a jury trial on
the reasons justifying the greater sentence. We conclude that
even if Blakely applied to sentencing for second-degree murder,
Grossmans more than twenty prior convictions produced ample
justification for his sentence.
Factual background
On the day of the offense, August 14, 2001,
codefendants William D. Grossman and Erick David, two homeless
men, were drinking vodka in an empty lot in Anchorage with three
other homeless people Larry Brown, Kevin Vanderway, and Kathy
Tugatuk. Subsequent testing on all, besides Grossman (who was
not located until days later), indicated that they were highly
intoxicated.1 Tugatuk and Vanderway testified that, due to their
intoxication, they had little memory of the events of that day.
Vanderway claimed that while drinking with Grossman a
few weeks before the incident, he had stolen a bottle of liquor
from Grossman. When Grossman demanded that Vanderway replace
it, he promised to do so. But, on August 14, Grossman, impatient
with Vanderways promises, hit Vanderway. Brown attempted to
protect Vanderway from Grossman, and Grossman then attacked
Brown.
From an apartment building overlooking the empty lot,
several residents witnessed the assaults. One witness, Ryan
Sjostrom, saw two men, one matching Grossmans description
(tattooed arms, blue vest, and dark hair), attacking a man on the
ground, later identified as Brown. According to Sjostrom,
Grossman was the primary aggressor. He said that Grossman beat
the victim badly, stomping him and kicking him with the toes of
his boots. Sjostrom testified that he called 911 but that it
took nearly thirty minutes for the police to respond.
Sjostroms girlfriend, Nana Lewis, also described seeing
the assault from the same vantage point. She positively
identified Grossman as the assailant. She testified that she had
seen Grossman one week earlier, wearing the same clothing, in the
same alley, arguing with a woman. She described Grossman as
straddling Brown, punching him several times. She stated that
Grossman would then get up, kick Brown, and then go back to
punching him. When the ambulance arrived, Lewis saw Brown taken
away by the paramedics. She testified that she was positive that
the victim loaded into the ambulance was the person she had seen
Grossman assaulting.
Like Sjostrom, Lewis also described a second assailant
who attacked Brown as well as a second victim, later identified
as Vanderway. She identified the second assailant, later
identified as Grossmans co-defendant David, as taller than
Grossman and apparently a Native. She testified that David
appeared to kick Brown in the body but not the head. She stated
that Grossman kicked Brown like he hated him but that David did
not kick him as hard.
A third witness, Cassia Northbird, lived in a nearby
apartment. She testified that she saw two men assaulting a third
man in the lot. Northbirds description of the shorter assailant
matched Sjostroms and Lewiss description of Grossman. Northbird
testified she saw the shorter assailant straddling the victim and
choking him. She also saw a Native man kicking the victim while
he was on the ground. She testified that both the shorter
assailant and the Native man kicked, punched, and stomped the
victim simultaneously. But unlike Sjostrom and Lewis, Northbird
testified that the man taken away by the ambulance was not the
same man she saw being beaten. However, she also testified that
Vanderway was not the victim either.
Brown died of the injuries which he received in the
beating. The State charged Grossman and David with murder in the
second degree2 for beating Brown to death. Additionally, the
State charged Grossman with one count of assault in the fourth
degree3 for assaulting Vanderway. The two men were tried jointly
in a trial conducted by Judge Card. At trial, Grossman denied
ever assaulting Brown. He contended that the witnesses had seen
him assault Vanderway, not Brown.
The jury convicted Grossman and David for the second-
degree murder of Brown. They also convicted Grossman for the
fourth-degree assault on Vanderway. Judge Card sentenced
Grossman to a maximum term of 99 years of imprisonment for murder
in the second degree and to a 1-year concurrent term for the
assault. Grossman appeals his conviction and sentence.
The accomplice liability instruction
A person is guilty as an accomplice if he aids another
person in committing the offense with intent to promote or
facilitate the commission of the offense.4 In Riley v. State,5
we held that when a person is charged as an accomplice for a
crime that requires proof of a particular result, the government
must prove that the person acted with the same culpable mental
state that applies to the principal. This means that to convict
Grossman as an accomplice in this case, the State had to show
that Grossman acted with the intent to promote or facilitate the
assault on Brown, and that Grossman acted with the culpable
mental state set out in the second-degree murder statute: with
the intent to cause serious physical injury to Brown or with
manifest extreme indifference to the value of human life.6
In Riley, we stated that [w]hen AS 11.16.110(2) speaks
of a persons intent to promote or facilitate the commission of
the offense, this phrase means the accomplice must act with the
intent to promote or facilitate the conduct that constitutes the
actus reus of the offense.7 As we have stated, this means that
the State had to prove that Grossman acted with the intent to
promote or facilitate the assault on Brown. In the trial court,
Grossman objected to the States accomplice liability instruction
because it read that to be liable the accomplice must act with
intent to promote or facilitate the act or conduct of the
principal.8 Grossman argued that the instruction was erroneous
because it substituted act or conduct for the single word conduct
which we used in Riley. Grossman argues on appeal that the
instruction would allow the jury to convict Grossman as an
accomplice even if he abetted David in landing only a single
blow. He argues that since Brown was killed from a prolonged
beating, the instruction allowed the jury to convict him on an
insufficient factual showing.
Grossmans argument is not valid. A person can be
convicted as an accomplice for engaging in a single act. To
convict Grossman as an accomplice, the State had to show that
Grossman acted with the intent to promote or facilitate the
beating of Brown. The State then had to prove that Grossman
acted with the intent to cause serious physical injury to Brown
or knowingly engaged in conduct manifesting an extreme
indifference to the value of human life. The State did not have
to prove that Grossman engaged in more than one act. Judge Card
properly instructed the jury.
Judge Cards imposition of a 99-year term of
imprisonment did not violate Grossmans Sixth
Amendment right to a jury as interpreted in
Blakely v. Washington
In Page v. State,9 this court conducted a historical
review of sentences for second-degree murder and, based on this
review, we concluded that a defendant convicted of this crime
should typically receive a sentence of 20 to 30 years to serve.
This has become known as the Page benchmark range.10 Relying on
Page, Grossman argues that Judge Card lacked the authority to
sentence him to more than 30 years to serve unless the judge
found aggravating factors. And, relying on the United States
Supreme Courts decision in Blakely v. Washington,11 Grossman
argues that he had a right to trial by jury, and a right to
demand proof beyond a reasonable doubt, regarding any and all
factors that Judge Card might rely on as a justification for
departing from the Page benchmark range.
The answer to Grossmans argument is that, even if
Blakely applied to the factors that justify an upward departure
from the Page benchmark range, Grossmans numerous prior criminal
convictions provide ample justification for a sentence above the
30-year mark.
As we recently explained in Edmonds v. State,12 a
defendants prior convictions constitute an exception to the
Blakely rule. That is, a judge can consider and rely on a
defendants prior convictions without submitting the issue to a
jury.
Grossman has more than twenty prior convictions,
including two felonies and eleven prior convictions for assault.
We have repeatedly recognized that a defendants prior convictions
especially felony convictions constitute a sufficient reason to
impose a sentence of more than 30 years to serve for second-
degree murder. For instance, in Phillips v. State,13 we held
that the defendants sentence could properly exceed the Page
benchmark range. We noted that Phillips was a third- felony
offender, and that the Page benchmark range was intended to
demarcate the range of actual imprisonment (time to serve) that a
sentencing judge should impose on a typical first felony offender
convicted of a typical second-degree murder.14 Similarly, in Sam
v. State,15 we held that the sentencing judge could properly
impose a sentence that exceeded 30 years to serve because the
Page benchmark is meant to reflect the appropriate starting point
for sentencing in second-degree murder cases involving first
felony offenders, and because Sam had already committed another
felony assault, for which he was awaiting sentencing ... [making
him] a first felony offender only in the most technical sense.16
Under Alaska sentencing law, Grossmans numerous prior
convictions provided ample justification for a sentence exceeding
the Page benchmark range of 20 to 30 years to serve. Therefore,
even if Blakely applied to second-degree murder sentencings,
Grossmans sentence would be lawful.
Conclusion
The judgment of the superior court is AFFIRMED.
COATS, Chief Judge, concurring.
Judge Cards imposition of the 99-year term of
imprisonment did not violate the United
States Supreme Courts decision in Blakely v.
Washington
In Page v. State,1 we conducted a historical review of
sentences for murder in the second degree. Based on this
historical review, we concluded that a person convicted of second-
degree murder should typically receive a sentence of 20 to 30
years of imprisonment.2 Relying on the Page guidelines,
Grossman argues that 30 years of imprisonment was the maximum
sentence that Judge Card could impose under the Supreme Courts
recent decision in Blakely v. Washington without having a jury
determine that aggravating factors authorized a greater sentence.
In State v. Gibbs,3 we summarized the Blakely decision as
follows:
In Apprendi v. New Jersey,[4] the United
States Supreme Court held that, with the
exception of a defendants prior convictions,
any [disputed] fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a
jury, and proved beyond a reasonable
doubt.[5] In Blakely, the Supreme Court
clarified that, for purposes of Apprendi, the
statutory maximum is the maximum term of
imprisonment that a judge may lawfully impose
solely on the basis of the facts reflected in
a jury verdict or admitted by the
defendant.[6]
Grossman argues that, under Blakely, the jury verdict
only authorized Judge Card to impose a sentence of up to 30 years
of imprisonment. He contends that Judge Card could not impose a
sentence beyond the 30-year Page guideline unless he relied on
aggravating circumstances that had been proven to the jury beyond
a reasonable doubt.
The short answer to Grossmans argument is that Judge
Card was authorized by Blakely to consider Grossmans prior record
in deciding to impose a sentence over the guidelines. Grossman
has an extensive prior criminal record. He has well over twenty
prior convictions. Eleven of these prior convictions are for
assault; two of the prior convictions are felonies. Blakely does
not preclude a sentencing court from considering a defendants
prior convictions.7 So even if we accepted Grossmans argument,
Grossmans prior convictions alone would have authorized Judge
Card to exceed the Page guidelines and impose the maximum
sentence without violating Blakely.
The majority of the court, having resolved the issue,
would stop at this point. I would go further. The Blakely
decision has created a great deal of uncertainty about sentencing
in criminal cases. I think we should resolve the issues created
by Blakely in an attempt to reduce this confusion when the answer
is clear.
The Page guidelines are merely a tool to aid sentencing
judges in imposing sentences and to facilitate appellate court
review of these sentences. If a sentencing judge follows these
guidelines, the defendant, the public, and a reviewing court
should have a better understanding of why the judge imposed a
particular sentence. These are important sentencing goals.
The Alaska Statutes provide that a defendant convicted
of murder in the second degree shall be sentenced to a definite
term of imprisonment of at least 10 years but not more than 99
years.8 That is the sentencing range that the jurys verdict
authorized.
In Apprendi, the Supreme Court specifically stated that
nothing in its opinion was meant to change the general rule
allowing judges to exercise discretion taking into consideration
various factors relating both to offense and offender in
imposing a judgment within the range prescribed by statute. We
have often noted that judges in this country have long exercised
discretion of this nature in imposing sentence within statutory
limits in the individual case.9 The sentence imposed by Judge
Card was within this range. Furthermore, as this court has
previously explained, the Page benchmark did not create fixed
sentencing boundaries ... [rather] ... it [was] designed to
provide assistance and guidance... by furnishing a numerical
starting point ... for individualized [sentencing] analysis in
each case.10
As we have pointed out, we developed the Page
guidelines by conducting a historical review of previous
sentences for second-degree murder.11 From this review we
concluded that the typical sentence for second-degree murder fell
within a range from 20 to 30 years.12 The Page guidelines
therefore provide a starting point for a sentencing court in a
second-degree murder case. The purpose of establishing this
starting point was in part to comply with the legislatures
directive to sentencing courts to consider the seriousness of the
defendants present offense in relation to other offenses.13
But we have emphasized that benchmarks are meant only
to provide a framework for individualized analysis in each given
case, based upon [traditional] sentencing criteria ... .14 And
we emphasized that any sound reason may be relied on to
differentiate one case from another.15
In Allen v. State,16 we pointed out that parties often
framed their arguments in terms of statutory aggravating and
mitigating factors.17 While we found this practice useful, we
specifically noted that, in a sentencing for second-degree
murder, a judge could rely on any sound reason to justify a
sentence.18 We generally do not review whether the sentencing
court properly found aggravating or mitigating factors in
imposing a sentence for murder in the second degree. This is
because the aggravating factors and mitigating factors are not
controlling in sentences for second-degree murder as they are
when presumptive sentencing applies. A sentence for second-
degree murder is governed by traditional sentencing criteria.19
We have therefore interpreted the Page guidelines as
merely an aid to a sentencing judge to exercise typical
sentencing discretion rather than as a limit on the sentencing
judges authority. I would therefore state what I think is the
obvious conclusion. The Blakely decision does not restrict
the discretion of the sentencing judge to impose a sentence in
excess of the Page guidelines.
_______________________________
1 Davids blood-alcohol content was .167 percent, Vanderways
.284 percent, Tugatuks .325 percent, and Browns .394 percent.
2 AS 11.41.110(a)(1) & (2).
3 AS 11.41.230(a)(1).
4 AS 11.16.110(2).
5 60 P.3d 204 (Alaska App. 2002).
6 AS 11.41.110(a)(1) & (2).
7 Riley, 60 P.3d at 221 (emphasis in original).
8 Emphasis added.
9 657 P.2d 850 (Alaska App. 1983).
10 Id. at 855.
11 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
12 _____ P.3d _____, Alaska App. Opinion No. 8998 (July
29, 2005), 2005 WL 1792948.
13 70 P.3d 1128 (Alaska App. 2003).
14 Id. at 1143.
15 842 P.2d 596 (Alaska App. 1992).
16 Id. at 603; see also Brown v. State, 4 P.3d 961, 962-64
(Alaska App. 2000).
1 657 P.2d 850 (Alaska App. 1983).
2 Id. at 855.
3 105 P.3d 145, 147 (Alaska App. 2005).
4 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
5 Id. at 490, 120 S.Ct. at 2362-63.
6 Blakely, 124 S.Ct. at 2537 (emphasis in original)
(citations omitted).
7 Edmonds v. State, _____ P.3d _____, Alaska App. Opinion
No. 8998 (July 29, 2005), 2005 WL 1792948.
8 AS 12.55.125(b).
9 530 U.S. at 481, 120 S.Ct. at 2358.
10 Brown v. State, 973 P.2d 1158, 1162 (Alaska App. 1999).
11 Page, 657 P.2d at 855.
12 Id.
13 AS 12.55.005; Williams v. State, 809 P.2d 931, 935
(Alaska App. 1991).
14 Williams, 809 P.2d at 933 (referring to sentencing
criteria set out in State v. Chaney, 477 P.2d 441, 443-44 (Alaska
1970) and AS 12.55.005).
15 Id. at 934.
16 51 P.3d 949 (Alaska App. 2002).
17 Id. at 960.
18 For an extensive discussion of the purpose of benchmark
sentences, see Williams, 809 P.2d 931. For a discussion of the
application of the Page guideline, see Brown, 973 P.2d 1158.
19 Id.
