|
You can of the Alaska Court of Appeals opinions.
|
|
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
| JONATHAN L. ANDERSON, | ) |
| ) Court of Appeals No. A-8638 | |
| Appellant, | ) Trial Court No. 3AN-01-5676 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2020 November 25, 2005] |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Douglas H. Kossler, 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.
In the early morning of July 19, 2001, Jonathan L.
Anderson and a female companion, Angela Engstrom, broke into the
house of Raymond Ward, where Ward and his girlfriend, N.B., were
spending the night. Once inside the house, Anderson pointed a
handgun at Ward and N.B., forcing them into a bedroom. After
Anderson ordered N.B. to lie on the floor, Anderson placed the
gun against Wards head and demanded money. When Ward did not
immediately comply with this demand, Anderson shot Ward in the
neck. Ward then surrendered all of his available money (some
$140 in cash).
After obtaining this money, Anderson and Engstrom fled
the scene in a brown sedan. As explained in more detail later in
this opinion, the police located this sedan and chased it through
the Fairview area of Anchorage. During this chase, Anderson
tossed various articles out of their car, including the handgun
that was used in the shooting, the magazine for this handgun, and
a box of matching .45 caliber ammunition.
(A firearms expert later tested this handgun and
compared it to the spent bullet that was retrieved from Wards and
N.B.s house. According to the experts testimony, the handgun
tossed from the car was the weapon that fired this bullet, to the
exclusion of all others.)
At length, the police successfully boxed the sedan into
a cul-de-sac, where Anderson and Engstrom were taken into
custody. The police then brought N.B. to the scene of this
traffic stop to see if she could identify Anderson and Engstrom
as the people who broke into her boyfriends house and committed
the robbery. N.B. identified Anderson as the man who broke into
the house and shot and robbed her boyfriend, but she could not
identify Engstrom as the woman who accompanied him.
Based on these events, Anderson was convicted of first-
degree burglary, first-degree robbery, first-degree assault (for
wounding Ward), third-degree assault (for threatening N.B. with
the handgun), third-degree weapons misconduct (felon in
possession of a concealable firearm), and tampering with evidence
(for tossing the handgun out of the car during the chase). The
superior court sentenced Anderson to a composite 33 years to
serve.
Anderson raises three arguments in this appeal.
First, Anderson argues that the superior court should
have suppressed all testimony concerning N.B.s identification of
him at the scene of the traffic stop. Anderson contends that the
circumstances of this identification procedure were improperly
suggestive, thus violating his right to due process of law as
construed by the United States Supreme Court in Neil v. Biggers
and Stovall v. Denno.1
Second, Anderson argues that even though he tossed the
handgun, the magazine, and the ammunition from the sedan during
the chase, this conduct does not constitute the offense of
tampering with evidence. The pertinent portion of the evidence
tampering statute, AS 11.56.610(a)(1), defines this crime as
suppress[ing], conceal[ing], or remov[ing] physical evidence with
intent to impair its verity or availability. Relying on this
Courts decision in Vigue v. State, 987 P.2d 204 (Alaska App.
1999), Anderson argues that he was merely abandoning the gun and
the ammunition, not suppressing or concealing them.
Third, Anderson challenges his sentence. He argues
that his composite sentence of 33 years to serve is excessive.
He also argues that the sentencing judge committed error by
relying on aggravating factors that were premised on the same
conduct for which Anderson was separately convicted and
sentenced.
For the reasons explained here, we conclude that the
superior court properly admitted evidence that N.B. identified
Anderson at the scene of the traffic stop. However, we conclude
that Andersons conduct of tossing the articles from the car did
not constitute the crime of evidence tampering, and thus his
conviction for this crime must be reversed.
We further conclude that Anderson must be re-sentenced,
both because we have reversed his evidence tampering conviction,
and also because the sentencing judge committed error by relying
on aggravating factors that were based on conduct for which
Anderson was separately punished.
The admissibility of evidence concerning N.B.s
identification of Anderson at the scene of the traffic
stop
N.B. identified Anderson in a show-up an
identification procedure in which the police display a
single suspect to a witness, and the witness is asked
whether they can identify this suspect as the person
who committed the crime. (In this case, the police
had two suspects, a man and a woman (Anderson and
Engstrom), and N.B. was asked if she could identify
each of them in turn. However, the principle is the
same.)
During the show-up, Anderson was standing
outside a patrol vehicle in handcuffs, flanked by two
uniformed police officers. Moreover, Anderson is a
black man, and N.B. had already told the police that
the man who broke into the house was black. As the
superior court recognized, these features of the
identification procedure tended to suggest Andersons
guilt.
Anderson also contends that, even though N.B.
observed the robber face to face, she did not indicate
how well, and for how long, she was able to observe the
suspect during the crime. Anderson points out that
N.B. was told to lie down on the floor, and she later
apparently hid in the corner of the bedroom until the
assailant left the house. These circumstances,
Anderson argues, tend to make it unlikely that N.B.
could make a reliable identification of the robber.
Anderson also points out that, prior to the show-up,
N.B. had not provided the police with a detailed
description of the male robber (although she did
provide some details concerning his female accomplice).
Finally, Anderson relies on the fact that
N.B. was not able to get a good view of his facial
features during the show-up. When Anderson was told to
get out of the patrol car for the show-up, he would not
stand up straight; rather, he insisted on bending over
from the waist, so that his face was pointed toward the
ground. (Despite Andersons posture, N.B. told the
officers that she could positively identify Anderson as
the male robber because of his shaved head and because
of his clothing.)
Based on all this, Anderson contends that,
under the totality of the circumstances approach
adopted by the United States Supreme Court in Manson v.
Brathwaite,2 this identification procedure was
unlawfully suggestive of Andersons guilt, and therefore
the superior court should have suppressed all evidence
of N.B.s identification of Anderson at the show-up.
The State responds that Andersons argument
rests on a misunderstanding of the law in this area.
According to the State, there is a two-part test for
assessing the admissibility of a show-up
identification. First, a court must determine whether
a show-up (with its inherent suggestiveness) was
necessary under the circumstances. Second, if the show-
up was not necessary, the court must then determine
whether the resulting identification was nonetheless
reliable, given the totality of the circumstances as
described in Brathwaite.
In other words, the State takes the position
that the first part of the test requires proof, not
just that the identification process was suggestive,
but that the process was unnecessarily suggestive. The
State also argues that the second part of the test
announced in Brathwaite i.e. that the witnesss
identification of the suspect was reliable under the
totality of the circumstances comes into play only if
the court first decides that, given the facts of the
case, it was unnecessary for the police to resort to a
show-up as opposed to a less suggestive identification
procedure (for example, a multi-person lineup).
Anderson, for his part, contends that the
States understanding of the law is incorrect that a
court must always examine the reliability of a show-up
under the Brathwaite totality of the circumstances
test, regardless of whether there was good reason for
the police to resort to a show-up.
The States position is supported by this
Courts decision in White v. State, 773 P.2d 211 (Alaska
App. 1989). In White, we described the test as having
two distinct parts:
In evaluating whether a pretrial
identification procedure violates a
defendants due process rights, we follow a
two-step analysis. We first ask if the
identification procedure is unnecessarily
suggestive. If the procedure is
unnecessarily suggestive, we then ask if the
identification is nevertheless reliable based
on the totality of the circumstances.
White, 773 P.2d at 214.3
The States position is also
endorsed by a leading treatise on criminal
procedure: Wayne R. LaFave, Jerold H.
Israel, and Nancy J. King, Criminal Procedure
(2nd ed. 1999). This treatise likewise
describes the test as having two parts:
Under the ... due process test [first
announced in Stovall v. Denno, 388 U.S. 293,
87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)], the
required inquiry is two-pronged[.] ... [T]he
first question to be asked is whether the
initial identification procedure was
unnecessarily or impermissibly suggestive.
(The burden is on the defendant to prove by a
preponderance of the evidence that the
identification was unnecessarily suggestive.)
This first inquiry can[,] in turn[,] be
broken down into two constituent parts: [the
first part] concerning the suggestiveness of
the identification, and [the second part]
concerning whether there was some good reason
for the [authorities] failure to resort to
less suggestive procedures. ...
Assuming suggestive circumstances, the
question then is whether they were
impermissible or unnecessary. The [Supreme]
Court gave a negative answer [to this
question] in Stovall, [agreeing with] the
lower courts ... conclusion that an immediate
... confrontation [between witness and
suspect] was imperative[.]
LaFave, 7.4(b), Vol. 2, pp. 667-68 (internal citations omitted).
Thus, according to LaFave, the Stovall decision stands
for the proposition that a defendant seeking
suppression of an out-of-court identification must show
both that the identification procedure was suggestive
and that, under the circumstances, it was not necessary
for the police to use such a suggestive procedure.
The text of the Stovall decision confirms this
description of the rule. In Stovall, the police
conducted a show-up by bringing the suspect to the
wounded witnesss hospital room. The question,
according to the Supreme Court, was whether [this
identification procedure] was so unnecessarily
suggestive and conducive to irreparable mistaken
identification [as to deny Stovall] due process of
law.4
The Supreme Court acknowledged that [t]he practice of
showing suspects singly to [witnesses] for the purpose
of identification ... has been widely condemned.5
Nevertheless, the Court stated, the
assessment as to whether a particular show-up violated
the suspects right to due process of law depends on the
totality of the circumstances surrounding it.6
It is important to note that, in this last-quoted
passage, the Supreme Court was not using the phrase totality of
the circumstances as a reference to the five-factor test that the
Court later adopted in Manson v. Brathwaite. The Brathwaite
decision was still ten years in the future. Rather, when the
Stovall Court referred to the totality of the circumstances, the
Court was speaking of the circumstances that necessitated (or did
not necessitate) a show-up rather than a traditional lineup.
This is demonstrated by the fact that, immediately after stating
that a court must inquire into the totality of the circumstances
surrounding [the show-up], the Supreme Court declared that this
inquiry was satisfied in Stovalls case because the record ...
reveals that the showing of Stovall to [the surviving witness] in
an immediate hospital confrontation was imperative.7
Here was the only person in the world
who could possibly exonerate Stovall. Her
words, and only her words, He is not the man
could have resulted in freedom for Stovall.
The hospital was not far distant from the
courthouse and the jail. No one knew how
long Mrs. Behrendt might live. Faced with
the responsibility of identifying the
attacker, and the need for immediate
action[,] and with the knowledge that Mrs.
Behrendt could not visit the jail, the police
followed the only feasible procedure and took
Stovall to the hospital room.
Stovall, 388 U.S. at 302, 87 S.Ct. at 1972.8
Based on this circumstance alone, and without examining
any of the five factors later delineated in Brathwaite, the
Supreme Court affirmed the legality of the show-up in Stovall.9
As LaFave explains, the Supreme Courts later decision
in Manson v. Brathwaite was intended to further temper the
Stovall rule of exclusion. In Brathwaite, the lower court found
(and the State of Connecticut conceded) that the identification
procedure used by the police a photographic show-up which
contained photographs of only one person was both suggestive and
unnecessary.10 The question in Brathwaite was whether, in such
circumstances, courts should apply a rule of automatic (per se)
suppression or whether, instead, the government should be allowed
an opportunity to show that, despite the unnecessary
suggestiveness of the identification procedure, the totality of
the circumstances demonstrated that the witnesss identification
was sufficiently reliable to meet due process concerns.
The Brathwaite Court ultimately rejected a rule of per
se suppression in favor of the totality of circumstances
approach.11 But in Brathwaite, the Court used this phrase
totality of circumstances with a different meaning from the
meaning given to this phrase in Stovall. Instead of using this
phrase to refer to the circumstances that did or did not make a
show-up necessary, the Court now used this phrase to refer to the
factors that might negate or mitigate the presumed suggestiveness
of an unnecessary show-up: the witnesss opportunity to view the
perpetrator during the crime, the witnesss degree of attention,
the accuracy of any prior description given by the witness, the
witnesss level of certainty when making the identification at the
show-up, and the length of time between the crime and the show-
up.12
One noteworthy portion of the Brathwaite decision is
the Supreme Courts description of the per se suppression rule
that the Court was rejecting. The Court noted that the
proponents of the per se rule [took] the position that evidence
of, or derived from, a showup identification should be
inadmissible unless the prosecutor can justify [the governments]
failure to use a more reliable identification procedure.13
(emphasis added)
This passage from Brathwaite again confirms LaFaves
analysis of the law on this point: an identification procedure
is unnecessarily suggestive for purposes of Stovall and
Brathwaite if it is both suggestive and unnecessary under the
circumstances. And the question of whether an identification is
reliable under the totality of the circumstances as this phrase
is used in the Brathwaite decision arises only if the defendant
first successfully demonstrates that it was unnecessary for the
government to resort to a show-up as opposed to a less suggestive
identification procedure.
Anderson argues that the Alaska Supreme Court has
adopted a contrary rule. Anderson points in particular to the
decision in Viveros v. State, 606 P.2d 790 (Alaska 1980).
The issue in Viveros was whether the defendant was
entitled to suppression of an identification made by a witness
from a photographic lineup. Viveros argued that the photo lineup
was totally unnecessary and unduly suggestive.14 Viveros further
argued that the Alaska Supreme Court should adopt the per se rule
of exclusion that the United States Supreme Court had rejected
three years earlier in Brathwaite v. Manson i.e., the rule that
evidence of an identification should be automatically excluded
once the defendant proved that the identification procedure was
unnecessarily suggestive, regardless of any other factors
indicating that the identification was reliable.15
The supreme court concluded that the challenged photo
lineup was not suggestive.16 This, by itself, was sufficient
reason to affirm the admissibility of the identification
evidence. However, in a footnote, the supreme court went on to
reject the rule of per se exclusion because it results in the
unnecessary exclusion of much reliable evidence.17 Instead, the
supreme court declared that it would follow the rule announced in
Brathwaite.18
It is true that, over the years, both this Court and
the supreme court have issued decisions in which the two separate
aspects of the test unnecessary suggestiveness of the
identification procedure, and circumstances indicating the
reliability of the identification notwithstanding the unnecessary
suggestiveness of the procedure are spoken in the same judicial
breath, as if they were one composite test.
For example, in Holden v. State, 602 P.2d 452 (Alaska
1979), the supreme court expressed its disapproval of single-
suspect photo lineups, but then the court added that the question
of whether such [identification procedures] violate due process
depends on the totality of the surrounding circumstances.
Stovall v. Denno ... .19
The key to understanding this passage from Holden is to
note that our supreme court declared that Stovall v. Denno was
the source of the totality of circumstances test. As we
explained earlier in this opinion, the Stovall opinion did not
use the phrase totality of the circumstances as a reference to
the five-factor test for reliability that the United States
Supreme Court adopted ten years later in Manson v. Brathwaite.
Rather, when the Stovall Court spoke of the totality of the
circumstances, the Court was talking about the circumstances that
necessitated, or did not necessitate, an inherently suggestive
identification procedure (e.g., a show-up as opposed to a
traditional lineup).
Despite the arguably ambiguous wording of cases like
Holden, our supreme court has never expressly rejected federal
law on this subject (the law declared in Stovall and Brathwaite)
in favor of a different rule adopted under our state
constitution. Rather, the test in Alaska is the same one
announced by the United States Supreme Court: when (and only
when) the totality of the circumstances (in the Stovall sense)
demonstrates that an identification procedure was unnecessarily
suggestive, a court must then examine whether the totality of the
circumstances (in the Brathwaite sense) demonstrates that the
identification was in fact reliable, notwithstanding the
suggestiveness of the procedure.
For these reasons, we conclude that the position
espoused by the State in this appeal is the correct one. When a
defendant challenges the admissibility of an identification made
during a show-up, the court must first determine whether, under
the circumstances, it was necessary for the police to resort to
this type of suggestive identification procedure. If the court
determines that a show-up was necessary under the circumstances,
the inquiry ends. If, on the other hand, the court determines
that the show-up was unnecessary, or that it was done in an
unnecessarily suggestive way, then the court must assess the
reliability of the witnesss identification under the five-factor
totality of the circumstances test announced in Brathwaite.
In Andersons case, a violent crime had been committed
some thirty minutes before, and the suspect was at large. By
bringing N.B. to the scene of the traffic stop, the police could
either (1) positively identify Anderson as the man they were
looking for, or (2) eliminate Anderson as a suspect, so that the
officers could resume their investigative efforts and their
search of the city for a similar brown sedan.
Superior Court Judge Larry D. Card found that, under
these facts, a show-up was necessary. In his ruling, Judge Card
declared that the need for quick police outwork outweigh[ed] the
inherent suggest[iveness] of ... the one-person lineup. Anderson
does not contend that a show-up was unnecessary, and, in any
event, Judge Cards finding is amply supported by the record.
As courts have frequently noted, show-ups are
inherently suggestive. This was true in Andersons case. When
Anderson was displayed to N.B., he was clearly in custody: he
was standing near patrol cars, he was in handcuffs, and he was
flanked by two uniformed police officers. Moreover, N.B. knew
that she had been brought to the scene to see if she could
identify Anderson as the man who broke into the house and
assaulted her and her boyfriend.
However, these factors typify a show-up. And in cases
where a show-up is necessary, these factors do not, by
themselves, make that show-up a violation of the suspects rights
under the due process clause. See People v. Armstrong, 783
N.Y.S.2d 134, 136 (N.Y. App. 2004); State v. Norrid, 611 N.W.2d
866, 871-72 (N.D. 2000); State v. Sparks, 664 A.2d 1185, 1188-89
(Conn. App. 1995); People v. Hughes, 632 N.E.2d 251, 254-55 (Ill.
App. 1994).
The show-up in Andersons case was no more suggestive
than a typical show-up. We further note that, even though
Anderson and Engstrom were displayed to N.B. in virtually
identical ways, N.B. positively identified Anderson but told the
police that she could not identify Engstrom. This fact supports
the judicial consensus that a typical show-up is not so
suggestive as to violate the guarantee of due process of law not
so suggestive that we should conclude, as a matter of law, that a
resulting identification is the product of suggestion rather than
memory.
For these reasons, we uphold Judge Cards ruling that
evidence of N.B.s identification of Anderson at the show-up was
admissible at Andersons trial.
Did Andersons act of tossing the handgun and the
ammunition from the car constitute the crime of
tampering with evidence?
As we explained earlier in this opinion,
while the police were chasing the car in which Anderson
was riding, Anderson tossed various articles from the
car: a handgun, the magazine for this handgun, and
matching .45 caliber ammunition. Ballistics testing
revealed that this handgun was the weapon used in the
shooting. Based on these facts, the State charged
Anderson with the offense of tampering with evidence,
AS 11.56.610(a)(1).
The pertinent portion of the evidence
tampering statute declares that it is unlawful to
alter, suppress, conceal, or remove physical evidence
with intent to impair its verity or availability.
Anderson argues that the facts of his case, even when
viewed in the light most favorable to the State, are
legally insufficient to prove that he committed the
actus reus of this crime.
Anderson relies on our decision in Vigue v.
State, 987 P.2d 204 (Alaska App. 1999), where we held
that a defendants act of tossing several rocks of
cocaine to the ground as a police officer approached
him did not constitute an act of suppression or
concealment, but rather an act of abandonment. Id. at
210. Anderson asserts that his act of tossing the
handgun, the magazine, and the ammunition from the car
should likewise be categorized as an abandonment of
this evidence, and not an act of evidence tampering.
The State offers various rationales for
concluding that Andersons conduct constituted the
offense of evidence tampering. The States primary
argument is that Andersons actions constituted a
removal of the evidence under the definition that we
gave to that term in Vigue: the act of moving an
object from the scene of the crime, or from any
location where its evidentiary value can be deduced, to
some other place where its evidentiary significance may
not be detected. Vigue, 987 P.2d at 210.
In the alternative, the State argues that
Andersons conduct constituted a suppression or a
concealment of the evidence. Finally, the State
contends that Anderson, by removing the magazine from
the handgun, altered the handgun.
As we noted in Vigue, courts from around the
country have struggled with evidence tampering statutes
like ours. One particular problem is that, if we give
a broad interpretation to the words suppress, conceal,
remove, and alter, the statute lead[s] to results that
are inexplicably harsh and probably not within the
legislatures intent.20
For instance, if we were to give a broad
interpretation to the words remove, conceal, and alter,
then a person who shoplifted a candy bar would commit
three separate acts of evidence tampering three
separate felonies when they (1) walked away from the
store with the candy, (2) unwrapped the candy and
deposited the wrapper in a trash receptacle, and then
(3) ate the candy. It seems implausible that the
legislature intended the statute to be applied in this
manner.
Accordingly, we conclude that we must refine
the definition of remove that we offered in Vigue. We
acknowledge that the States argument in this appeal is
based on a plausible application of what we said in
Vigue, but the facts of Andersons case demonstrate that
we must define remove even more narrowly. Under the
States interpretation of remove, the crime of evidence
tampering would occur whenever a person committed a
theft and then left the scene of the crime with the
stolen property, or whenever a person committed an
assault with a weapon and then left the scene with the
weapon still in their possession.
We believe that this expansive application of
the evidence tampering statute is inconsistent with the
legislatures intent. We therefore reject the States
argument that Anderson committed a removal of evidence
when he drove away from the scene of his crimes with
the handgun and ammunition still in his possession.
One might still argue that Andersons act of
tossing these articles out of the car constituted a
removal of these articles from a place where their
evidentiary value could be deduced (i.e., inside the
car) to a place where their evidentiary value might be
missed (i.e., on the street). We do not say that
tossing evidence from a car could never constitute the
offense of evidence tampering. But for purposes of
evidence tampering charged under a removal theory, the
crucial inquiry is whether the defendants action
disguised the evidentiary value of the article. Under
the facts presented here, Andersons act of tossing the
handgun, magazine, and ammunition out of the car in the
sight of the police did nothing to disguise the
evidentiary value of these items. We therefore reject
the States contention that Andersons conduct
constituted the offense of evidence tampering by
removal.
For essentially the same reason, we reject
the States contention that Andersons removal of the
magazine from the handgun constituted an act of
alteration for purposes of the evidence tampering
statute. To constitute an alteration, the defendants
conduct must disguise or alter the evidentiary value of
the article. That did not happen here.
This leaves the States argument that Anderson
committed acts of suppression or concealment when he
tossed the gun, the magazine, and the ammunition from
the car while the police pursued him through Fairview.
As we noted in Vigue, courts from other
jurisdictions with evidence tampering statutes like
ours generally rule that a defendant does not commit
the crime of evidence tampering merely by tossing away
drugs or other contraband while being approached or
chased by the police. See the cases discussed in
Vigue, 987 P.2d at 206-209. See also these more recent
decisions: In re Juvenile 2003-187, 846 A.2d 1207,
1209-1211 (N.H. 2004); State v. Mendez, 814 A.2d 1043,
1048-1051 (N.J. 2002); In re M.F., 734 N.E.2d 171,175-
79 (Ill. App. 2000).
There are some contrary decisions. See State
v. Harley, 982 P.2d 1145, 1146, 1147-48 (Utah 1999),
where the court held that the defendants act of tossing
a weapon from a car while being chased by the police
constituted the offense of evidence tampering; and
State v. Foreshaw, 572 A.2d 1006, 1012 (Conn. 1990),
where the court held that the evidence was sufficient
to support a conviction for evidence tampering where
the defendant tossed a weapon from her car as she drove
away from the scene of the homicide, even before the
police knew of the crime. However, neither the Utah
court nor the Connecticut court gave any explanation
for their decision; it is unclear whether these courts
considered any of the issues that we discussed in Vigue
and that we are discussing here.
This is not to say that the act of tossing
away evidence can never constitute evidence tampering.
The test appears to be whether the defendant disposed
of the evidence in a manner that destroyed it or that
made its recovery substantially more difficult or
impossible. Thus, in State v. Mendez (cited two
paragraphs above), the New Jersey Supreme Court ruled
that the defendant was properly convicted of evidence
tampering when the defendant held a bag of powder
cocaine outside the window of his car and allowed the
wind to disperse the powder. Even though the defendant
performed this action in the sight of the pursuing
police, the defendants conduct essentially precluded
all efforts to recover the evidence and, for this
reason, the court held that the defendants conduct was
materially different from the typical act of tossing
aside evidence during a police chase. Mendez, 814 A.2d
at 1044-45, 1050-51.
See also People v. Brake, 783 N.E.2d1084,1086-
87 (Ill. App. 2003), where the court held that a
defendants act of swallowing contraband to prevent its
seizure by the police constituted the offense of
evidence tampering.
The State acknowledges the line of authority
holding that an evidence tampering conviction is not
proper when the government proves only that the
defendant tossed away evidence while being approached
or chased by the police. But the State urges us to
confine this reasoning to ongoing possessory offenses
such as illegal possession of drugs, alcohol, or
tobacco, and to apply a different rule in situations
involving completed crimes like the burglary and
assaults at issue in Andersons case.
It is true that most of the court decisions
addressing the problems caused by an over-broad
definition of evidence tampering arise from
prosecutions for possessory offenses. But as we
pointed out in our example involving the shoplifting of
a candy bar, these problems are not confined to
possessory offenses. We do not believe that the
legislature intended to impose felony penalties on a
shoplifter who takes a candy bar (a class B
misdemeanor)21 and then throws the candy away when
police officers or store employees approach or give
chase.
In Andersons case, as was true in Vigue, the
defendant may have intended to make it harder for the
police to detect or recover the articles of physical
evidence. But, as in Vigue, no suppression or
concealment occurred: [the police] observed [the
defendants] action and [were] alerted to the
possibility that something might be on the ground along
the sedans route of travel.22
For these reasons, we conclude that Andersons
conviction for evidence tampering must be reversed.
Andersons sentence appeal
Anderson was convicted of first-degree
robbery (a class A felony), first-degree assault
(another class A felony), first-degree burglary (a
class B felony), and third-degree assault (a class C
felony), as well as evidence tampering (a class C
felony conviction that we have just reversed) and third-
degree weapons misconduct (felon in possession of a
concealable firearm, a class C felony).23
Anderson was a third felony offender (i.e.,
he had two prior felony convictions). Because of this,
he faced a presumptive term of 15 years imprisonment
for his two class A felonies (the robbery and the first-
degree assault), a presumptive term of 6 years
imprisonment for his class B felony (the burglary), and
a presumptive term of 3 years imprisonment for his two
class C felonies (the third-degree assault and the
weapons misconduct).24
The information contained in the pre-sentence
report shows that Anderson has been engaged in criminal
activity more or less continuously since 1992 (shortly
after he turned eighteen). In the nine years between
1992 and his current offenses, there has scarcely been
a six-month period (except for times when Anderson was
in custody) when Anderson did not violate the law or
the terms of his release or probation.
Based on Andersons lengthy criminal history
and the facts of his present offenses, Judge Card found
that Anderson was a particularly dangerous offender who
was both undeterrable and incapable of rehabilitation.
Echoing the Alaska Supreme Courts language in State v.
Hodari (a case we discuss below), Judge Card declared
that Andersons criminal behavior was compulsive or
ingrained. Based on these findings, Judge Card
concluded that, in order to adequately protect the
public, he would have to impose a composite sentence
that was greater than the 20-year maximum sentence for
any single one of Andersons offenses.25
For Andersons robbery and the first-degree
assault convictions, Judge Card increased the 15-year
presumptive term by adding an additional 5 suspended
years of imprisonment; that is, Judge Card imposed a
sentence of 20 years with 5 suspended on each of these
two counts. The judge imposed these two sentences
consecutively. That is, Andersons composite sentence
for these two offenses was 30 years to serve.
For the third-degree assault, Judge Card
imposed a sentence of 5 years with 2 years suspended
i.e., 3 years to serve. Judge Card imposed these 3
years consecutively to Andersons sentences for the
robbery and the first-degree assault thus increasing
Andersons composite sentence to 33 years to serve.
Anderson received concurrent sentences for
the burglary conviction, the weapons misconduct
conviction, and the now-reversed evidence tampering
conviction. Because of this, and because evidence
tampering was one of Andersons class C felony
convictions (i.e., the least serious crimes for which
he was being sentenced), we conclude that the reversal
of this conviction does not affect our consideration
and resolution of Andersons claim that his composite
sentence is excessive.
In this appeal, Anderson claims that his
composite sentence of 33 years to serve is excessive as
a matter of law under this Courts decision in DeGross
v. State, 816 P.2d 212 (Alaska App. 1991). In DeGross,
we stated that defendants who commit violent crimes
even a series of violent crimes during one criminal
episode should normally receive no more than 20 years
to serve.26 Even in the uncommonly aggravated
circumstances of DeGrosss case two armed robberies,
culminating in a gun battle with the police in which
DeGrosss accomplice was killed we approved a composite
sentence of only 30 years.27
But as the State notes, the defendant in
DeGross was a first felony offender.28 Anderson, in
contrast, is a third felony offender who faced a
presumptive 15 years imprisonment on each of his two
class A felonies in essence, a 15-year minimum
sentence, since Anderson failed to prove any mitigating
factors.
Moreover, we now acknowledge that what we
said in DeGross about the limitations on sentences for
violent crimes can no longer be taken as authoritative,
given the Alaska Supreme Courts decisions in State v.
Wentz, 805 P.2d 962, 965 (Alaska 1991), and State v.
Hodari, 996 P.2d 1230, 1235-37 (Alaska 2000). In
Hodari, the supreme court reversed this Court and
reinstated a 55-year composite sentence imposed on an
ingrained and compulsive [second felony] offender who
committed a series of violent offenses during a single
criminal episode.29
We therefore reject Andersons argument that
his sentence exceeds the range of sentences permitted
by DeGross.
Anderson also argues that Judge Card
committed error by finding aggravating factors based on
the same conduct for which Anderson had been separately
convicted and for which Anderson was being separately
punished. Anderson is correct.
In Juneby v. State, 641 P.2d 823, 842 (Alaska
App. 1982), we held that a sentencing court should not
find an aggravating factor based on conduct for which
the defendant is being separately sentenced. The
record shows that this rule was violated repeatedly at
Andersons sentencing.
It is true that Judge Card found other
aggravating factors that Anderson does not challenge.
Thus, even without the disputed aggravating factors,
Judge Card was legally authorized to impose sentences
above the applicable presumptive terms.
However, we do not know whether Judge Card
would have exercised his sentencing discretion in the
same way if he had realized that the Juneby rule
prohibited him from relying on the disputed
aggravators. For this reason, we direct Judge Card to
reconsider Andersons sentence.
Conclusion
Andersons conviction for tampering with
evidence is REVERSED. His other convictions are
AFFIRMED. However, the superior court is directed to
reconsider Andersons sentence, as explained in the
preceding section of this opinion.
The superior court shall re-sentence Anderson
within the next 60 days. Within 30 days after that,
Anderson shall notify this Court whether he still
wishes to contest his composite sentence either by
filing a memorandum that addresses the sentencing
issues, or by filing a notice that he does not intend
to pursue his appeal further.
If Anderson declares that he will not pursue
this appeal further, we will close this file. If, on
the other hand, Anderson files a sentencing memorandum,
the State shall have 30 days to file a responsive
memorandum. After we have received the parties
memoranda, we will decide Andersons sentence appeal.
_______________________________
1Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401
(1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d
1199 (1967).
2432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
3Citing Manson v. Brathwaite, 432 U.S. 98, 108-09; 97 S.Ct.
2243, 2250 (1977), and Viveros v. State, 606 P.2d 790, 792 &
n. 1 (Alaska 1980).
4Stovall v. Denno, 388 U.S. 293, 301-02; 87 S.Ct. 1967, 1972
(1967).
5Id., 388 U.S. at 302, 87 S.Ct. at 1972.
6Id.
7Id.
8Quoting the Circuit Court of Appeals decision, United
States ex rel. Stovall v. Denno, 355 F.2d 731, 735 (2nd Cir.
1966) (en banc).
9Stovall, 388 U.S. at 302, 87 S.Ct. at 1972-73.
10[The government] at the outset acknowledges that the
procedure in the instant case was suggestive because only one
photograph was used[,] and unnecessary because there was no
emergency or exigent circumstance. Manson v. Brathwaite, 432
U.S. at 109, 97 S.Ct. at 2250 (internal quotations and original
bracketing omitted).
11Id., 432 U.S. at 112-14, 97 S.Ct. at 2252-53.
12Id., 432 U.S. at 114, 97 S.Ct. 2253 (citing Neal v.
Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382).
13Id., 432 U.S. at 111, 97 S.Ct. at 2251.
14Viveros, 606 P.2d at 791-92.
15Id.
16Id. at 792.
17Id. at 792 n. 1.
18Id.
19Holden, 602 P.2d at 456.
20Vigue, 987 P.2d at 211.
21See AS 11.46.150 (fourth-degree theft) and AS 11.46.220(a)
and (c)(3) (concealment of merchandise valued at less than
$50).
22Vigue, 987 P.2d at 210.
23See AS 11.41.500 (first-degree robbery), AS 11.41.200
(first-degree assault), AS 11.46.300 (first-degree
burglary), AS 11.41.220 (third-degree assault), and AS
11.61.200 (third-degree weapons misconduct).
24See AS 12.55.125(c)(4), AS 12.55.125(d)(2), and AS
12.55.125(e)(2), respectively. (All references are to the
versions of these statutes as they existed prior to March
2005, when the legislature amended the presumptive
sentencing laws.)
25Under the Alaska Supreme Courts sentencing decisions, a
judge must not impose a composite sentence that exceeds the
maximum sentence for the defendants single most serious
offense unless the judge finds that such a sentence is
required to protect the public. See Neal v. State, 628 P.2d
19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381
(Alaska 1977).
26DeGross, 816 P.2d at 219-220.
27Id. at 220.
28Id. at 215.
29Hodari, 996 P.2d at 1237.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
