|
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
| TY S. DOUGLAS, | ) |
| ) Court of Appeals No. A-8799 | |
| Appellant, | ) Trial Court No. 1KE-02-990 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2078 December 22, 2006 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Larry R. Weeks,
Judge.
Appearances: Paul Malin, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. John
A. Scukanec, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Ty S. Douglas was convicted of two counts of first-
degree sexual assault and two counts of fourth-degree assault.1
Douglas argues that several of the courts trial rulings require
reversing his convictions. But Douglas has not convinced us that
any of the rulings he attacks constitute reversible error.
Douglas next argues that the prosecutors final argument
created plain error. But we are not convinced that the potential
error was obvious to a competent lawyer or judge without
objection or that, if error, it was so substantially prejudicial
that failing to correct it would perpetuate a miscarriage of
justice.
Douglas argues that his composite 45-year term with 15
years suspended was imposed by the superior court in violation of
Blakely v. Washington.2 We agree. Accordingly, we must remand
the case to the superior court for reconsideration of the
aggravating factors in compliance with Blakely.
Background facts and proceedings
Douglas had a stormy and on-again/off-again
boyfriend/girlfriend relationship with K.I. K.I. had an alcohol
problem that led to a felony assault conviction for driving while
intoxicated and causing an accident that injured another person.
(K.I. was on probation for this offense at the time of trial.)
Douglas and K.I. first met in Seattle in 2001. K.I. returned to
Ketchikan in December 2001, and Douglas followed soon thereafter.
In early 2002, K.I. obtained a domestic violence
restraining order against Douglas.
In March 2002, Douglas reported to the Ketchikan police
that K.I. was involved in a sexual relationship with a Ketchikan
police officer. Douglas claimed that K.I. and the officer had
called Douglas and made him listen while they had sex, and that
the officer had made threatening phone calls to Douglas. An
investigation revealed no evidence to support these allegations,
and Douglas was ultimately convicted of making a false report.
About two weeks later, Douglas went to K.I.s apartment
and assaulted her. He hit and choked her, dragged her into the
bedroom, and demanded to have sex with her. She managed to
escape to a neighbors apartment and call the police. As a
result, Douglas was convicted of fourth-degree assault.
On June 26, 2002, K.I. went to visit a neighbor, Walter
Hinman, to show him her new cell phone. While she was there, the
cell phone rang, but K.I. did not know how to answer it so she
left it on the table and continued to talk with Hinman. K.I. did
not know that it was Douglas who was calling, and K.I.
unknowingly answered the phone so that Douglas could overhear the
conversation she was having with Hinman. When she returned to
her apartment a few minutes later, Douglas was there waiting for
her. Douglas accused her of having sex with Hinman.
Douglas threw K.I. down on her couch and ripped her
pants off. K.I. testified that Douglas then ferociously
penetrated her vagina with his hands and fingers. She told him
to stop, and that he was hurting her, but he told her she just
fucked everybody in town and asked How does that [feel]? How do
you like this? Is this better ... ? He also hit her in the face,
causing blood to splatter onto the couch and wall. Douglas left
the apartment, but K.I. did not immediately report the assault to
the police.
The next day, June 27, K.I. was in her apartment
visiting with another neighbor, Zeneida Galeon. Douglas arrived,
and watched as K.I. allowed Galeon to use K.I.s car to drive to a
local store. When Galeon left, Douglas argued with K.I. about
loaning the car to neighbors and then assaulted her again. He
struck her in the head and face with his fists, threw her on the
floor, and penetrated her vagina with his penis. She tried to
fight back. He attempted to penetrate her anus with his fingers
and penis. He then again violently penetrated her vagina, all
the while calling her a slut and a whore, and telling her that
you fuck everyone in town. He grabbed her by the hair and
pounded her head into the floor, pulling large clumps of her hair
out. K.I. pretended to be unconscious, but he continued to punch
and kick her.
While Douglas was still there, Galeon returned from the
store and knocked on the door. K.I. opened the door, and Galeon
testified that K.I. was bloody, naked, [and covered with]
bruises, with clumps of hair on her shoulders. Galeon called the
police. Florence Galeon, Zeneidas daughter, heard yelling and
came upstairs to K.I.s apartment and saw Douglas running down the
stairs.
When the police arrived at K.I.s apartment, K.I.
reported that she had been raped. She was taken to the hospital
and treated by Dr. Ernest Meloche. His examination and that of
the nurse revealed tears and lacerations around K.I.s anus,
swelling and bruising around her anal and vaginal areas, burns on
the backs of her legs and buttocks, and blood on her scalp where
clumps of hair had been torn out. Dr. Meloche testified that
K.I. had the most traumatized perineum [he] had seen in 25 years.
The doctor also concluded, based on blood and fecal matter found
on K.I.s labia and thighs, that something had first penetrated
her anus and then reentered her vagina. Tests later conducted by
the state crime lab found DNA samples from K.I.s vaginal swabs
that matched Douglass DNA profile, and also found blood on
Douglass clothing that was consistent with blood samples from
both Douglas and K.I.
The police found Douglas a short time after the assault
at a local motel. When a police officer knocked on his door,
Douglas jumped from his second-floor window, but another police
officer caught Douglas and arrested him. A police officer
testified that Douglas appeared to have been drinking and that he
had scratches and bruises on his neck, shoulders, back, and upper
arms, and an injury to his right thumb.
At trial, Douglas was convicted of two counts of first-
degree sexual assault and two counts of fourth-degree assault.
Superior Court Judge Larry Weeks imposed the composite 30-year
term to serve. Douglas appeals.
Discussion
Douglass attack on the superior courts evidentiary
rulings
Douglas argues that Judge Weeks violated his
constitutional rights to due process, to compulsory process, and
to present his defense in the fullest possible manner when Judge
Weeks prohibited Douglas from presenting evidence of noise
complaints from K.I.s neighbors, telephone calls wherein K.I.
allegedly pretended to have sex with another man, and K.I.s
alleged false accusation that a Ketchikan police officer sexually
assaulted her.
Before opening statements, Judge Weeks ruled that
Douglas could not inquire about K.I.s prior sexual conduct
without prior application to the court. Judge Weeks also advised
the parties that they could not refer to allegations of prior
false reports of sexual assault by the victim without complying
with the applicable case law.
Before cross-examining K.I., Douglas requested
permission to ask K.I. about phone calls and conversations she
had with Douglas in which she purportedly pretended to have sex
with another man and falsely claimed that she had been raped by a
Ketchikan police officer. Douglas maintained that this game
playing [that was] going on back and forth between the parties
... helped [lead] up to the assault and false report charges. He
argued that the material was relevant to the credibility and
veracity of the witness and that it show[ed] the entire
relationship between these two parties, going back and forth and
back and forth, with false allegations and fighting with each
other. He argued that the rape accusation was an attempt to get
sympathy, to keep him from leaving. He also argued that the
evidence helped rebut the prosecutions portrayal of Douglas as a
stalker, and showed that K.I. invited many of the contacts
herself.
The prosecutor responded that K.I. denied making these
statements, that the information was not relevant, and that this
evidence did not meet the standards established for the
admissibility of false reports of sexual assault.3
Judge Weeks ruled that Douglas could cross-examine K.I.
generally about the phone calls and conversations to illustrate
the dynamics of the relationship, but prohibited him from asking
her specifically about pretending to have sex with another man or
the alleged false report of sexual assault.
Douglas also sought permission to admit evidence that
K.I.s neighbors submitted noise complaints about her between
August and October, 2002 (after the sexual assaults charged in
the indictment took place). Douglas asserted that this evidence
was relevant in several ways: (1) it was relevant to K.I.s
testimony that she had received more noise complaints than she
described in her testimony; (2) it rebutted the inference that
everything that had happened was [because of] Ty Douglas, and
that the only reason she had problems was Ty Douglas; (3) it
rebutted the prosecutions suggestion that the case was about good
neighbor[s], and tended to show K.I. was a bad neighbor; (4) it
was relevant to K.I.s credibility and veracity; and (5) it was
[p]roof of these constant problems and her state of mind during
that whole period of time, that it didnt change before or after,
it was all the same thing.
Judge Weeks also ruled that evidence of the noise
complaints from K.I.s neighbors was irrelevant, and to the extent
that youre talking about contradicting things that [K.I.] said,
that its collateral. And to the extent that theres a balancing
test involved, I believe that the prejudice outweighs ... the
probative [value].
Douglas asserts that his constitutional rights to due
process and compulsory process were violated by Judge Weekss
rulings. He notes that the right to present evidence is a right
guaranteed by the Fifth and Fourteenth Amendments of the United
States Constitution and article I, section 7 of the Alaska
Constitution.4
Douglas maintains that K.I.s veracity and credibility
was the critical issue at trial. Thus the evidence that Douglas
proposed about K.I.s conduct before, during, and after the
offense was critically important to his defense. He argues that
K.I.s credibility was central to the prosecutions case and that
without the excluded evidence he was unable to fully present his
own theory in defense. For example, he presented evidence that
there was no sperm on K.I.s oral or rectal swabs, that the sperm
found on K.I.s vaginal swab could easily [be] in excess of 10
days old and thus could have resulted from consensual sex, and
that Douglass penile swab did not contain any DNA foreign to Mr.
Douglas. He theorized that K.I. could have had consensual sex
and then been physically assaulted afterwards. Whether there was
in fact a sexual assault, Douglas argues, depends on K.I.s
credibility, and the excluded evidence was necessary to
thoroughly investigate the matter.
Even if Douglass assertions are true, it is unclear
how Judge Weeks abused his discretion in determining what
evidence was relevant, collateral, or overly prejudicial. This
court has recognized that the admission of all evidence, even
evidence introduced to show a witnesss bias or motivation, is
subject to the balancing test enumerated in Alaska Evidence Rule
403.5 The rule allows the exclusion of evidence, regardless of
its relevance, when its probative value is outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury.6 Here, it is reasonable to conclude, as
Judge Weeks did, that the evidence Douglas sought to present
would have unnecessarily shifted the focus of the trial from the
events surrounding the charged offenses toward incidents that
have limited probative value.
Judge Weeks allowed Douglas to question K.I. about the
phone calls generally, providing Douglas the opportunity to
explore the dynamics of their relationship. It is true that in a
sexual assault case information about the relationship between
the victim and the accused is often material, but the purposes
that Douglas asserts for introducing the specifics of these phone
calls, including a demonstration of the game playing and back and
forth nature of the relationship, were served by other admissible
and less prejudicial evidence. The additional probative value of
this particular evidence, then, was considerably outweighed by
its prejudicial effect. It was therefore reasonable, and not an
abuse of discretion, for Judge Weeks to exclude evidence of the
alleged phone call where K.I. purported to have sex with another
man.
Douglass argument regarding the alleged false rape
report is particularly unpersuasive. Douglas presented no
evidence, except for his own allegation, that K.I. had ever
claimed to have been raped by a Ketchikan police officer.
Furthermore, Douglass attorney informed Judge Weeks that she was
not going to present any evidence (besides Douglass claim) on
that issue. Shortly thereafter, when the prosecutor was
reviewing the various rulings from the court, Judge Weeks
reminded the prosecutor that Douglass attorney said she was not
going to inquire into K.I.s sexual conduct. Douglass attorney
did not contradict Judge Weeks. And almost immediately
thereafter, Judge Weeks asked Douglass attorney if there were any
other issues on cross examination and the attorney responded:
No, not at this point. We conclude that Douglas did not preserve
the issue regarding K.I.s purported claim that she had been
sexually assaulted by a member of the Ketchikan police.
We also reject Douglass argument that the exclusion of
the noise complaints significantly hindered his defense. While
the complaints might help depict K.I. as a hard-drinking, noisy
neighbor who manipulated Douglas as much as he manipulated her,
other admissible evidence already established those points. For
example, K.I. admitted that she had received noise complaints,
that she had a drinking problem, that she and Douglas frequently
had consensual sex, and that she had paid for Douglas to fly back
to Ketchikan from New Orleans after the first assault conviction.
We conclude that Judge Weeks did not abuse his
discretion by excluding the evidence regarding noise complaints.
Douglass attack on the prosecutors final argument
Douglas argues that the prosecutors final argument
violated his constitutional rights because it improperly
described the presumption of innocence and commented on his right
to remain silent.
The prosecutor started the rebuttal portion of his
closing argument as follows:
It is true that Mr. Douglas formerly enjoyed
Im sorry, may it please the court, Ms.
Swanson, ladies and gentlemen of the jury.
It is true that Mr. Douglas formerly enjoyed
the presumption of innocence, which is to say
hes innocent until proven guilty, until
proven guilty. Proven guilty by the sworn
statements of witnesses and by the other
evidence that youve seen.
Douglas did not object. Because he did not object to the
prosecutors statements at trial, he must now show plain error.7
To establish plain error, Douglas must show that the error is one
that is (1) so obvious that it must have been apparent to a
competent judge and a competent lawyer even without an objection
and (2) so substantially prejudicial that failing to correct it
on appeal would perpetuate a miscarriage of justice.8
The prosecutors statements regarding the presumption of
innocence were incorrect. The presumption of innocence remains
in force throughout the presentation of evidence and the closing
arguments, and it governs the jurys deliberations.9
However, in Douglass case, the jury was instructed as
follows:
The distinguishing features of a criminal
trial are what are known in the language of
the law as the presumption of innocence and
the burden of proof beyond a reasonable
doubt. The law presumes a defendant to be
innocent of crime. Thus, a defendant,
although accused, begins the trial with a
clean slate with no evidence favoring
conviction. The presumption of innocence
alone is sufficient to acquit a defendant,
unless you are satisfied beyond a reasonable
doubt of the defendants guilt, after careful
and impartial consideration of all the
evidence in the case.
In Brown v. State,10 the Alaska Supreme Court held
that comments similar to the prosecutors did not amount to plain
error because the jury instructions made it clear that the
presumption of innocence remained in effect throughout the trial
and jury deliberations.11
Although the prosecutors statement in Douglass case was
wrong, the jury was given proper instructions regarding the
presumption of innocence. From our review of the record, we
conclude that the prosecutors brief comment was not so
substantially prejudicial that failing to reverse Douglass
conviction creates a miscarriage of justice. Douglas
also argues that the prosecutor improperly commented on Douglass
right to remain silent.
During trial, the State introduced evidence of
statements Douglas made (a) at the time of his arrest, (b) during
the omnibus hearing in a separate witness tampering case, and (c)
at a pretrial hearing in the present case. Douglas did not
object to this evidence. At trial, when discussing one of the
tapes of prior proceedings, Judge Weeks warned the prosecutor
that he should not comment on Douglass right to remain silent.
The court said:
Youre not at any time to comment in any way
on [Douglas] not responding to questions, or
his right to counsel, or the Fifth Amendment.
Youre not at any time to say anything about [
] those things that are on the tape. To the
extent that theyre played, the jury may hear
those. Youre not its not to come out of
[your] mouth at any time about any of those
kinds of rights.
However, during closing argument, the prosecutor made the
following comment to the jury while referring to the recordings
and evidence of Douglass statements:
[I]ts interesting, this is November of 02,
hes had months now, hes had months to
formulate how do I talk my way out of this;
how do I explain this.
Later, the prosecutor said:
Four months, hes got four months to think
[]how am I going to explain this. Right out
of the window, I said shes psychotic; right
off the bat, I said shes crazy. I also said
Ms. Galeon was crazy because if they believe
Ms. Galeon, Im in as much trouble as if they
believe her. How am I going to explain
this?[] So four months later, for the first
time, he offers the bite theory and the
menses theory in the same hearing, the one
that the judge well, youll hear youve heard
it.
Douglas did not object to either statement. Because Douglas did
not object at trial, he must now show plain error.12
We have held that a person who is under arrest for a
crime cannot normally be impeached by the fact that he was silent
following his arrest.13 But here, the prosecutor did not ask the
jury to draw any unfavorable inference because Douglas elected to
assert a constitutional right.
The statements the prosecutor attributed to Douglas
reflected evidence admitted during trial. The State introduced
evidence of statements Douglas made at the time of his arrest,
and Douglas did not object. The arresting officers testified
that Douglas had made statements that [K.I.] is on psychotic
medications, and that K.I. was crazy and that Galeon was also
crazy. The State admitted the audiotape made while Douglas was
processed at the police station. Douglas did not object to the
admission of the tape. In fact, the State offered the tape in
evidence after Douglas established during cross-examination of
one of the police officers that Douglas was Mirandized by the
police and then asked for an attorney. Although an officer
testified that he advised Douglas not to discuss the case because
he asked for an attorney, Douglas continued to ask questions and
talk about the situation.
The State also offered the electronic recordings of
Douglass in-court statements from two different hearings that
contained statements about the case. Douglas did not object to
the admission of either recording.
We reject Douglass contention that the prosecutor
improperly commented on Douglass right to remain silent. Douglas
voluntarily offered a variety of comments after he was arrested.
During cross-examination, Douglass attorney brought out the fact
that after the police started to advise Douglas of his Miranda
rights,14 he asked for an attorney. Even though the police
advised Douglas not to talk about the case because he had asked
for an attorney, Douglas continued to discuss the case. The
State introduced evidence of Douglass statements during this
process and Douglas did not object to the admission of the tape.
We conclude that the prosecutors argument was a fair
comment on the evidence admitted in the case. Douglas, whenever
he chose to speak about his case before trial, never mentioned
the theories he eventually proposed during trial. The
prosecutors statement did not attack Douglass decision to remain
silent; instead it attacked Douglass decision to speak,
specifically his history of ever-changing theories. Although the
Fifth Amendment protects Douglass right to remain silent before
and during trial, it does not immunize his speech from later
criticism. The prosecutors criticism was not in error.
Douglass argument regarding the admission of his prior
assault conviction
The superior court admitted evidence that Douglas had a
fourth-degree assault conviction for assaulting K.I. when a
domestic violence restraining order was in effect. Douglas
argues that the superior court erred by not explicitly weighing
whether the probative value of this evidence was outweighed by
its prejudicial impact. Douglas also argues that even if the
evidence was admissible, the superior court should have given the
jury a limiting instruction on the proper use of this type of
evidence.
Before trial, the State filed notices of its intent to
offer evidence of Douglass prior bad acts, including the assault
mentioned above, under Evidence Rule 404(b)(4). Douglas opposed
and specifically objected (before the jury was selected) on the
grounds that the probative value of the prior assault was
outweighed by its prejudicial impact. Judge Weeks implicitly
rejected that argument when he ruled that the assault conviction
was admissible, but did not conduct the probative
value/prejudicial impact balancing test on the record.
During trial, the State offered evidence of the
assaultive conduct and conviction for that conduct, and discussed
it during opening and closing arguments. Judge Weeks did not give
a limiting instruction to the jury regarding this evidence of
prior bad acts.
In Bingaman v. State,15 we established requirements for
a trial court to apply when admitting evidence of other crimes of
domestic violence under Evidence Rule 404(b)(4). According to
Bingaman, in cases involving domestic violence, evidence of other
crimes involving domestic violence by the defendant against the
same or another person ... is admissible.16 However, we held
that the admission of such evidence is only constitutional if it
is limited: The trial judge must still ensure that the defendant
is tried for the crime currently charged not for the things that
the defendant might have done on other occasions, and not for the
kind of person that the defendant might be.17 This required the
trial court to explicitly conduct the balancing test required
under Evidence Rule 403 and explain that analysis on the
record.18 Furthermore, if the court decided the evidence was
admissible, the court was required to instruct the jury that the
evidence of the defendants other acts is not sufficient, standing
alone, to justify the defendants conviction.19
Douglass prior assault was committed a few months
before the assault in the present case, and was committed upon
the same victim. The superior court admitted evidence of this
assault under Evidence Rule 404(b)(4) i.e., to prove Douglass
propensity to commit domestic violence. But conceivably, this
evidence was also independently admissible under Evidence Rule
404(b)(1) to prove the nature of Douglass relationship with K.I.
In any event, Douglas did not ask the superior court to
give the cautionary instruction described in Bingaman: the
instruction that evidence of other acts of domestic violence,
standing alone, is insufficient to support a defendants
conviction. Even though we described this instruction as
mandatory in Bingaman, we now hold that
this instruction is mandatory only if the defendant requests it,
or when the amount and nature of other-crimes evidence introduced
against the defendant demonstrates that the failure to give this
instruction would amount to plain error.
In a typical case, even when evidence of a defendants
other crimes is introduced under Evidence Rule 404(b)(4) (i.e.,
introduced to prove the defendants character), the defendants
trial will remain fair even in the absence of a Bingaman
instruction. Our decision in Bingaman was not based on the
perception that, absent this type of instruction, the defendants
trial would always be tainted by due process error. Rather, the
purpose of the Bingaman instruction is to amplify a principle
that is already contained in the standard jury instructions:
that the jury must not find the defendant guilty unless the
government proves the crime charged in the indictment. Except in
extraordinary cases like Bingaman, we trust that juries will not
lose sight of this principle even where evidence of other crimes
is admitted under Rule 404(b)(4).
The facts of Douglass case do not approach the kind of
extraordinary circumstances found in Bingaman where, as we
described in our opinion, only twenty percent of the testimony
presented at [the defendants] trial dealt with the acts ...
charged [in the indictment, and the] remaining eighty percent of
the testimony dealt with other acts or occurrences.20 And, as we
noted above, Douglas did not request a Bingaman instruction.
Under these circumstances, the trial judge did not
commit plain error by failing to give a Bingaman instruction sua
sponte.
Douglass cumulative error argument
Douglas maintains that even if none of the claims he
raised establishes reversible error by itself, the cumulative
effect of the individual errors warrants reversal of his
conviction.21
However, to the extent that we agree with Douglas that
the superior court erred, the errors are minor or technical, and
not overly prejudicial. We therefore reject Douglass cumulative
error argument.
Sentencing issues
The jury convicted Douglas of two counts of first-
degree sexual assault (an unclassified felony which, at the time
of Douglass crimes, carried a maximum penalty of 30 years on each
count) and two counts of fourth-degree assault (a class A
misdemeanor with a maximum sentence of 1 year).22 Douglas was a
first felony offender for purposes of presumptive sentencing and
was subject to a presumptive 8-year term for each sexual
assault.23
The State alleged seven aggravating factors under AS
12.55.155(c), and the judge found the following six: (c)(1) (K.I.
sustained physical injury as a result of the sexual assault);
(c)(2) (Douglass conduct manifested deliberate cruelty to K.I.);
(c)(5) (Douglas knew K.I. was particularly vulnerable due to
disability); (c)(8) (Douglass prior criminal history included
conduct involving aggravated or repeated instances of assaultive
behavior); (c)(10) (Douglass conduct was among the most serious
conduct within the definition of first-degree sexual assault);
and (c)(28) (K.I. had provided evidence related to prior offenses
committed by Douglas). Judge Weeks rejected aggravating factor
(c)(18)(A), that the offenses were committed against a spouse or
a member of the same social unit living together.
Judge Weeks found that Douglas had a profound
antisocial nature, and that he was a particularly violent and
dangerous offender. Judge Weeks concluded that the sexual
assaults were reprehensible and destructive to both K.I. and the
community, and found that Douglas was a worst offender24 with no
likelihood of rehabilitation. Judge Weeks sentenced Douglas to a
30-year term with 15 years suspended on each of the first-degree
sexual assault convictions; the unsuspended 15 years to serve on
each count was imposed consecutively and the suspended time on
each count was imposed concurrently. He also sentenced Douglas
to 1-year sentences on each fourth-degree assault conviction, to
run concurrently with the time to serve on the first-degree
sexual assault convictions, resulting in a composite 30-year term
to serve.
We first address Douglass argument that a composite 30-
year term to serve is excessive.
The record fully supports Judge Weekss findings
regarding Douglass worst offender status (described above). Even
though Judge Weeks found that Douglas was a worst offender,
thereby justifying the imposition of a maximum term, he did not
impose the maximum possible sentence for Douglass two sexual
assault convictions.
Judge Weeks did impose the unsuspended imprisonment for
each sexual assault consecutively. However, at the time of
Douglass sentencing in April 2004, a sentencing judges authority
to impose consecutive sentences was governed by former AS
12.55.025(e) and (g).25 These two sections required consecutive
sentences in certain circumstances, but in all other instances a
sentencing judge had the discretion to impose sentences
consecutively or concurrently. Both this court and the Alaska
Supreme Court construed former AS 12.55.025(e) and (g) as
creating a preference for consecutive sentences, which a
sentencing judge had the discretion to reject.26
Douglas argues that his composite term is excessive
when it is compared to the sentence the defendants received in
three reported cases: Lewis v. State,27 Goolsby v. State,28 and
Mosier v. State.29 Each of these cases relied on a sentencing
range of 10 to 15 years imprisonment for aggravated sexual
assaults recognized by this court in State v. Andrews.30
However, in State v. Wentz,31 and again in State v. Hodari,32 the
Alaska Supreme Court emphasized that the proper focus of sentence
review is whether the sentence imposed falls within a range of
reasonableness that:
should be determined not by imposition of an
artificial ceiling which limits a large class
of offenses to the lower end of the
sentencing spectrum, but, rather, by an
examination of the particular facts of the
individual case in light of the total range
of sentences authorized by the legislature
for the particular offense.[33]
Applying that standard , and considering Judge Weekss
careful evaluation of the sentencing criteria that applied to
Douglass case, we conclude that the imposition of a net 30-year
term to serve is not clearly mistaken.34
Next, Douglas argues that Judge Weeks violated the rule
set out in Juneby v. State35 and AS 12.55.155(e) when Judge Weeks
found the (c)(1) physical injury aggravator based on conduct for
which Douglas had been separately convicted of fourth-degree
assault.
The jury convicted Douglas of two counts of fourth-
degree assault based on conduct that occurred at roughly the same
time as each sexual assault. During the sentencing proceeding,
the prosecutor alerted Judge Weeks to the issue addressed in
Juneby, namely that a sentencing court should not find an
aggravating factor based on conduct for which the defendant is
being separately punished. The prosecutor asked Judge Weeks to
enter findings to indicate that he acknowledged Juneby. Judge
Weeks found aggravator (c)(1) that a person other than an
accomplice sustained physical injury by clear and convincing
evidence but made no findings or comments about the relationship
of (c)(1), Juneby, and AS 12.55.155(e).
The State argues that any potential error does not
require resentencing because, even though Judge Weeks found the
aggravator, he did not rely on that aggravator when imposing the
sentence. Both parties cite Anderson v. State,36 a case in which
this court remanded for resentencing because it was not clear
from the contemporaneous record whether the sentencing judge
would have exercised his discretion in the same way had he
realized that Juneby prohibited him from relying on the disputed
aggravator.37 Judge Weeks made no mention of (c)(1) when he
imposed the sentence. On the other hand, since Judge Weeks made
no explicit Juneby findings, it is not clear if Judge Weeks
relied on the aggravating factor at all. However, because we are
remanding the case for the other reasons expressed below, Judge
Weeks will have the opportunity to expressly address the Juneby
issue.
Next, we address several issues Douglas raises based on
Blakely v. Washington.38 In Blakely, the United States Supreme
Court held that [a]ny 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.39
Douglas argues that Blakely applies to a sentencing
judges election to impose consecutive sentences. However, in
Edmonds v. State,40 we held that Blakely does not affect that
decision.41 Douglas also argues that Blakely prohibits judges
from making worst offender findings. Whatever the merit of
Douglass argument, Judge Weeks was not obliged to find that
Douglas was a worst offender to impose the composite term that
Douglas received because Judge Weeks did not impose the maximum
sentence for any of Douglass individual crimes.
The issue remains whether any of the aggravators relied
on by Judge Weeks was Blakely-compliant. In Cleveland v.
State,42 we held that Blakely is satisfied if at least one
aggravating factor is established by the jurys verdict, by a
defendants concession, or by the existence of a defendants prior
convictions.43
The State contends that Douglas conceded aggravators
(c)(5) and (c)(8) at sentencing when Douglass counsel twice said,
I have no comment on that aggravator, referring to (c)(5) and
(c)(8). Douglas denies conceding those aggravators, arguing that
not commenting on an aggravator does not constitute a concession
that the State could otherwise prove the aggravator. This court
has previously found concession when a defendant says he does not
dispute an aggravator, or when a defendant agrees that an
aggravator applies.44 But we have not held that a defendant
concedes an aggravator by not commenting on it.
We acknowledge that there might be logic to such a rule
when applied to mitigating factors. The defense bears the burden
of proof on mitigators, and thus a defendants failure to make any
argument in favor of a proposed mitigator might justifiably be
viewed as equivalent to a concession that the proposed mitigator
has no merit. Compare Petersen v. State45 (holding that when a
defense attorney declines to present argument in favor of a
proposed jury instruction or otherwise offer a rationale for
giving the requested instruction, the defendant forfeits any
claim of error); Cornwall v. State46 (same); Hohman v. State47
(holding that when a defense attorney offers evidence which is
challenged for lack of relevance, and the attorney fails to make
an offer of proof concerning the potential relevance of the
challenged testimony, the defendant thereby forfeits the point on
appeal).
But the situation is different with respect to
aggravating factors. Here, the prosecution bears the burden of
proof, and a defendants decision to decline argument concerning
an aggravator does not relieve the government of its burden. We
therefore reject the States contention that Douglass failure to
offer argument in opposition to aggravators (c)(5) and (c)(8)
constituted a concession of those aggravators.
The State can satisfy Blakely without a jury finding
beyond a reasonable doubt when proof of aggravator (c)(8) relies
solely on a defendants uncontested prior convictions.48 However,
in its presentencing memorandum, the State relied on uncharged
conduct and a single prior assault conviction. Although a single
aggravated assault is sufficient to support aggravator (c)(8),49
Douglass prior fourth-degree assault conviction was not
aggravated. And under Blakely, the (c)(8) aggravator may not be
supported by Judge Weekss findings that Douglas had committed
uncharged and unreported assaultive behavior.
The State has not argued that, on this record, the
other aggravating factors found by Judge Weeks are Blakely-
compliant. Therefore, we must remand the case for further
proceedings on the statutory aggravators.
If the State is not able to establish a Blakely-
compliant aggravator, then the superior court shall re-sentence
Douglas, and transmit the amended judgment to this court. If the
State establishes a Blakely-compliant aggravator, the superior
court shall transmit the record of those proceedings to this
court.
Conclusion
Douglass conviction is AFFIRMED. We REMAND the case
for further proceedings on the aggravating factors. We retain
jurisdiction.
_______________________________
1 AS 11.41.410(a)(1) & AS 11.41.230(a)(1), respectively.
2 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
3 See Morgan v. State, 54 P.3d 332, 339 (Alaska App. 2002)
(adopting a preponderance of the evidence standard for a showing
that the complaining witness has made a prior knowingly false
accusation of sexual assault); Covington v. State, 703 P.2d 436,
442 (Alaska App. 1985) (holding that courts may allow evidence of
false prior allegations of sexual assault when the charges
somehow had been disproved or where the witness had conceded
their falsity).
4 See Shepard v. State, 847 P.2d 75, 83 (Alaska App. 1993).
5 Lerchenstein v. State, 770 P.2d 1150, 1153 (Alaska App.
1989).
6 A.R.E. 403.
7 Kailukiak v. State, 959 P.2d 771, 779 (Alaska App. 1998),
abrogated on other grounds by Harmon v. State, 11 P.3d 393
(Alaska App. 2000).
8 Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985); see
also Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).
9 Brown v. State, 601 P.2d 221, 225 (Alaska 1979).
10601 P.2d 221.
11Id. at 225-26.
12Kailukiak, 959 P.2d at 779.
13Nelson v. State, 691 P.2d 1056, 1059 (Alaska App. 1984); see
also Davis v. State, 501 P.2d 1026, 1030-31 (Alaska 1972).
14Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
1576 P.3d 398 (Alaska App. 2003).
16Id. at 406, (quoting A.R.E. 404(b)(4)).
17Id. at 414.
18Id. at 416.
19Id. at 416-17.
20Id. at 402.
21See Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
22See former AS 12.55.125(I); AS 12.55.135(a).
23See former AS 12.55.125(I)(1).
24See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975)
(holding that a maximum sentence should not be imposed without
some foundation for characterizing a defendant as the worst type
of offender and listing some of the factors which could support
such a characterization).
25The legislature repealed these sections in 2004 and replaced
them with AS 12.55.127. See SLA 2004, ch. 125, 7 (effective
July 1, 2004).
26See State v. Hodari, 996 P.2d 1230, 1233 (Alaska 2000);
Contreras v. State, 767 P.2d 1169, 1174 (Alaska App. 1989); Jones
v. State, 744 P.2d 410, 411 (Alaska App. 1987); State v. Andrews,
707 P.2d 900, 909 (Alaska App. 1985), affd, 723 P.2d 85 (Alaska
1986).
27706 P.2d 715 (Alaska App. 1985).
28739 P.2d 788 (Alaska App. 1987).
29747 P.2d 548 (Alaska App. 1987).
30707 P.2d at 912-13.
31805 P.2d 962 (Alaska 1991).
32996 P.2d 1230 (Alaska 2000).
33Wentz, 805 P.2d at 965 (emphasis in original); see also
Hodari, 996 P.2d at 1232-33.
34See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court is to uphold a sentencing
decision unless the sentence is clearly mistaken).
35641 P.2d 823 (Alaska App. 1982), modified in part, 665 P.2d
30 (Alaska App. 1983).
36123 P.3d 1110 (Alaska App. 2005).
37Id. at 1121.
38542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
39United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738,
756, 160 L. Ed. 2d 621 (2005) (discussing Blakely, 542 U.S. 296,
124 S. Ct. 2531).
40118 P.3d 17 (Alaska App. 2005).
41Id. at 21.
42143 P.3d 977 (Alaska App. 2006).
43Id. at 988.
44See Peltola v. State, 117 P.3d 771, 773, 774 (Alaska App.
2005).
45930 P.2d 414, 434 (Alaska App. 1996).
46915 P.2d 640, 653 n.11 (Alaska App. 1996).
47669 P.2d 1316, 1325-26 (Alaska App. 1983).
48See Milligrock v. State, 18 P.3d 11, 15-16 (Alaska App.
2005).
49Andrews v. State, 967 P.2d 1016, 1019 (Alaska App. 1998).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
