|
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
KEEN SMITH,
Appellant, Court of Appeals No. A-10512
Trial Court No. 3AN-07-12389 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2261 April 30, 2010
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Patrick J. McKay,
Judge.
Appearances: Blair M. Christensen, Assistant
Public Advocate, and Rachel Levitt, Public
Advocate, Anchorage, for the Appellant. John
J. Novak, Assistant Attorney General,
Criminal Division Central Office, Anchorage,
and Daniel S. Sullivan, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
Keen Smith appeals the sentence he received for the
crime of first-degree assault (reckless infliction of serious
physical injury by means of a dangerous | instrument | ).1 Smith raises three primary claims in this appeal, all having to do with proposed mitigating factors. | |
| Smith asserts that the superior court should have found his offense to be mitigated under AS 12.55.155(d | )(3 | ), the mitigator that applies to cases where the defendants conduct was significantly affected by some degree of duress, coercion, threat, or compulsion. |
| Smith also asserts that the superior court should have found his offense to be mitigated by the non-statutory mitigating factor that this Court first recognized in Smith v. State, 711 P.2d 561, 571-72 (Alaska App. 1985 | ) the mitigating factor of extraordinary potential for rehabilitation. | |
| Finally, Smith argues that this Court should recognize a new non-statutory mitigator a mitigator that Smith calls developmental immaturity. This proposed mitigator would apply to adolescent defendants whose criminal behavior can be attributed to the fact that adolescents brains are not fully developed, and that they therefore lack the degree of understanding and impulse control that an adult would have. | ||
| For the reasons explained in this opinion, we conclude that the superior court correctly rejected proposed mitigator (d | )(3 | ). However, with respect to the non- statutory mitigator of extraordinary potential for rehabilitation, and with respect to the proposed new non- statutory mitigator of developmental immaturity, we conclude that the superior courts rulings are inadequate to allow meaningful appellate review. We therefore remand Smiths case to the superior court for further consideration of these non-statutory mitigators. |
Underlying facts
Smith entered a negotiated plea in this case,
and the plea agreement included a provision that the
case would be submitted to the sentencing court on
stipulated facts. However, the parties stipulation did
not specify a particular version of the facts as being
true. Rather, the parties merely stipulated that
various participants and witnesses had given the police
different (and sometimes irreconcilable) versions of
the incident when they were interviewed during the
investigation of this case. Under the terms of the
parties stipulation, these various accounts of the
incident were submitted to the superior court, and the
superior court was then left to sort out what had
really happened.
Here is a summary of the information
presented to the superior court pursuant to the parties
stipulation:
At approximately 12:30 a.m. on the night of
November 1-2, 2007, Byron Rogers and Allen Odomin (two
roommates who worked together at a restaurant) left
work and stopped at Party Time Liquor to purchase
alcoholic beverages. At the liquor store, they ran
into Jonathan Odomin (Allens brother) and Jonathans
girlfriend, Amanda Walker. Ms. Walker is the sister of
Rigoberto Walker, the shooting victim in this case.
After running into each other at the liquor
store, Byron Rogers, Allen Odomin, Jonathan Odomin, and
Amanda Walker all went back to the apartment complex
where they lived. (Rogers and Allen Odomin lived in
the same complex as Jonathan and Amanda, but on a
different floor.) Rigoberto Walker was, at this time,
on the run from the juvenile justice system; he had
taken refuge with his sister and Jonathan Odomin.
About an hour later, Jonathan Odomin knocked
on the window of the apartment shared by Byron Rogers
and Allen Odomin. Jonathan was bleeding from a split
lip, and he reported that he had just been beaten up in
the front yard of the apartment complex. Jonathan then
ran upstairs to his own apartment, to tell Amanda and
Rigoberto Walker what had happened.
A little later, Jonathan Odomin, his brother
Allen, and Byron Rogers saw Rigoberto Walker standing
across the street from the apartment complex, arguing
with three juvenile males. These young men were later
identified as J.T., age 14, Daniel Byrd, age 16, and
the defendant in this case, Keen Smith, age 16.
Jonathan thought that the three juveniles who
were arguing with Walker were the same people who beat
him up. This, however, turned out to be wrong: later
investigation revealed that Jonathan Odomin was beaten
up by three different (and still unidentified) young
men who just happened to be passing by the apartment
complex. Keen Smith and his two companions did not
commit this crime. However, Walker confronted Smith
and his two companions under the mistaken belief that
they were the ones who beat up Jonathan Odomin (his
sisters boyfriend).
Smith and his companions truthfully denied
that they were the ones who beat up Jonathan, but
Jonathan insisted that they were his attackers, and
Walker backed him up. Smith and his companions started
to walk away, down an alley, but Walker (who apparently
was intoxicated) followed the three young men and
challenged them to fight. Within a few seconds, Smith
pulled out a revolver and handed it to Daniel Byrd (one
of his companions).
According to Byrd and J.T. (the third
companion), Smith encouraged Byrd to shoot Walker.
Smith, however, repeatedly denied this. According to
Smith, he handed the gun to Byrd because Smith thought
he was about to engage in a fist fight with Walker, and
he did not wish to be carrying a loaded gun in his
waistband when he did so. Smith later declared that he
was taken by surprise when Byrd used the gun to shoot
Walker.
In any event, whether or not Smith encouraged
Byrd to shoot, it is clear that Walker himself was
encouraging Byrd to shoot. In Walkers later statement
to the police, he acknowledged that he told Byrd, You
can fire right now. J.T. confirmed that Walker told
them, Shoot me.
Moreover, according to the statements given
by Byrd and Smith, Walker was actually taunting them to
shoot. Smith told the police that Walker was saying,
Ill take all three of you at the same time. You[re]
all some bitches. You[re] all some bitches. Shoot me!
Shoot me! And Byrd told the police that Walker said to
him, Shoot me, shoot me! Hurry up, nigger. Dont be a
bitch. (Walker, Bird, Smith, and J.T. all are black.)
After Walker taunted Byrd to shoot, Byrd
closed his eyes and pulled the trigger and Walker was
wounded. Smith, Byrd, and J.T. then ran away and hid
the gun.
Later, J.T. led the police to the place where
they had thrown away the gun, and the police retrieved
the weapon. (It was a .38 special.)
Both Smith and Byrd (who, as explained above,
were 16 years old at the time) were indicted as adults
for attempted murder, first-degree assault (because
Walker was seriously wounded), and tampering with
physical evidence (for throwing the revolver away).
Approximately six months later, Smith reached
a plea agreement with the State. Under the terms of
this agreement, Smith pleaded guilty (as an adult) to
first-degree assault, with open sentencing within the
applicable presumptive sentencing rules, and the other
criminal charges were dismissed.
Superior Court Judge Patrick J. McKay ruled
that Smiths sentencing was governed by AS
12.55.125(c)(2), the provision that governs first
felony offenders convicted of class A felonies when the
defendant either used a dangerous instrument or
inflicted serious physical injury on the victim. Under
this statute, Smith faced a presumptive range of 7 to
11 years imprisonment.
Judge McKay rejected the States proposed
aggravators and also rejected Smiths proposed
mitigators. The judge then imposed a sentence toward
the lower end of the presumptive range: 10 years with
3 years suspended (i.e., 7 years to serve).
Why we affirm the superior courts rejection of proposed
mitigator (d)(3)
Before we discuss Smiths proposed non-
statutory mitigating factors, we first address the
question of whether the superior court should have
found mitigator (d)(3) because, if the superior court
should have found mitigator (d)(3), then the question
of non-statutory mitigators might well be moot.
As we noted earlier, mitigator (d)(3) applies
to cases where the defendants criminal conduct was
significantly affected by some degree of duress,
coercion, threat, or compulsion. Smith argues that
mitigator (d)(3) applies to his case because Walker
provoked the assault. Here is the factual basis for
Smiths claim, as set forth in his brief:
By all accounts, [Walker] was intoxicated and
pick[ed] a fight with Smith and his two
companions ... . Byron Rogers told the
police that [Walker] said [to him] that he
was going to get the three [young men].
[Walker] kept trying to pick a fight with
Smith and his companions[,] and [even though]
they walked away, [Walker] followed them.
[Walker] would not leave the three juveniles
alone[,] and [he] insisted on fighting them
because [he] falsely believed that the
juveniles [had] assaulted [his sisters
boyfriend,] Jonathan Odomin.
Based on these facts, Smith argues that he
acted under some degree of duress,
compulsion, or threat.
We conclude that mitigator (d)(3)
does not apply to these facts. Even though
Smith wishes to categorize these facts as
giving rise to duress, compulsion, or threat,
Smiths claim is more properly viewed as a
claim of provocation.
Smith does not allege that Walker
actually threatened him or his two
companions, or that Walker displayed a weapon
or otherwise suggested that he was armed.
Rather, Smith alleges only that Walker kept
challenging Smith and his companions to
fight, and that Walker continued to follow
them (and to challenge them to fight) when
they tried to walk away. Even when Smith
took out the revolver and handed it to Byrd,
Walker took no defensive action. Instead,
Walker challenged Byrd to shoot him. This is
why Judge McKay (in his sentencing remarks)
declared that this case did not present an
instance of imperfect self-defense.
Nor do these facts establish
duress, compulsion, or threat at least, not
as those terms are commonly understood. At
best, these facts establish provocation. And
because Smiths claim really rests on
provocation, mitigator (d)(3) does not apply.
Instead, the legislature enacted two other
mitigators mitigators (d)(6) and (d)(7) to
cover claims of provocation.
Mitigator (d)(6) applies when a
felony defendant is being sentenced for
assault under AS 11.41.200 11.41.220 in
other words, when a defendant is being
sentenced for first-, second-, or third-
degree assault. In sentencings for these
three degrees of felony assault, the offense
is mitigated if the defendant acted with
serious provocation from the victim.
As used in mitigator (d)(6), the
phrase serious provocation is a term of art.
AS 12.55.155(h) declares that, for purposes
of applying mitigator (d)(6), sentencing
courts are to use the definition of serious
provocation found in Alaskas heat of passion
statute, AS 11.41.115. The heat of passion
statute defines serious provocation as
conduct ... sufficient to excite an intense
passion in a reasonable person in the
defendants situation, other than a person who
is intoxicated, under the circumstances as
the defendant reasonably believed them to be.
AS 11.41.115(f)(2).
Putting all of this together,
mitigator (d)(6) codifies the rule that when
a defendant is sentenced for felony assault
(assault in the first, second, or third
degree), the offense will be mitigated if the
defendant proves that they were subjected to
the same amount or degree of provocation that
would reduce a murder to manslaughter under
the heat of passion statute, AS 11.41.115.
In contrast, mitigator (d)(7)
applies when a defendant is being sentenced
for any felony except ... a crime defined by
AS 11.41.410 11.41.470 in other words, for
any felony other than a sexual felony. In
sentencings for these non-sexual felonies,
the offense is mitigated if the victim
provoked the crime to a significant degree.
The Alaska criminal code does not
expressly define what constitutes significant
provocation for purposes of mitigator (d)(7).
However, in Roark v. State, 758 P.2d 644, 646-
47 (Alaska App. 1988), this Court suggested
that the concept of significant provocation
was intended to encompass a greater range of
provocation than the serious provocation
required by mitigator (d)(6).
In sum, mitigator (d)(6) requires
proof of serious provocation (a more
restrictive standard than significant
provocation) in cases where a defendant is
being sentenced for the three degrees of
felony assault defined in AS 11.41.200, 210,
and 220. In contrast, mitigator (d)(7) (with
its less restrictive standard of provocation)
applies to all other felonies except for
sexual assaults (a crime defined by AS
11.41.410 11.41.470), where no claim of
provocation is allowed.
We acknowledge that, if one were to
read the language of mitigator (d)(7)
literally, this mitigator would apply to all
defendants being sentenced for any felony
other than a sexual felony including
defendants who are being sentenced for first-
, second-, and third-degree assault. In
other words, mitigator (d)(7), with its lower
standard of provocation, would completely
overlap with mitigator (d)(6), which requires
proof of a higher standard of provocation for
defendants convicted of first-, second-, or
third-degree assault.
If we interpreted mitigator (d)(7)
in this expansive fashion, it would
essentially nullify mitigator (d)(6). There
would never be a need for a defendant to
prove, or a sentencing judge to find, the
serious provocation required by mitigator
(d)(6) if the less restrictive significant
provocation required by mitigator (d)(7) was
all that was needed to mitigate the
defendants crime.
Such a broad interpretation of
mitigator (d)(7) would violate one of the
primary rules of statutory construction:
that a court should assume that the
legislature did not enact redundant or
useless statutes.2 As both this Court and
the Alaska Supreme Court have noted, [o]ne of
the prime directives of statutory
construction is to avoid interpretations that
render parts of a statute inoperative or
superfluous, void or insignificant. Champion
v. State, 908 P.2d 454, 464 (Alaska App.
1995), quoting 22,757 Square Feet, more or
less v. State, 799 P.2d 777, 779 (Alaska
1990).
Moreover, if this Court interpreted
mitigator (d)(7) to apply to the three
degrees of felony assault specified in
mitigator (d)(6), we would violate the basic
principle of statutory construction favoring
a specific provision of a statute over a
general one when the two conflict. McGee v.
State, 162 P.3d 1251, 1255 (Alaska 2007).3
For these reasons, we conclude that
mitigator (d)(7) does not apply to defendants
who are being sentenced for felony assault
under AS 11.41.200 220. Instead, mitigator
(d)(6) defines the standard of provocation
that, if proved, will mitigate these felony
assaults, and mitigator (d)(7) defines the
lesser standard of provocation that applies
to all other felonies (except sexual
felonies, which are not mitigated by
provocation).
We now turn to the question of
whether mitigator (d)(3) can be employed as a
vehicle for raising a claim of provocation.
Mitigator (d)(3) applies to cases
where the defendant committed the offense
under some degree of duress, coercion,
threat, or compulsion insufficient to
constitute a complete defense, but that
significantly affected the defendants
conduct.
Obviously, Walkers action of
challenging Smith and his companions to fight
did not give rise to duress as that term is
normally understood in the criminal law. As
defined in AS 11.81.440(a), the defense of
duress applies to situations where the
defendant was coerced to [engage in criminal
conduct] by the use of unlawful force upon
the defendant or a third person, which force
a reasonable person in the defendants
situation would have been unable to resist.
In other words, the defense of duress defined
in AS 11.81.440(a) does not refer to
situations where a person commits a crime
because of overmastering emotion.
But in Bell v. State, 658 P.2d 787
(Alaska App. 1983), this Court held that even
though the word duress, standing alone, might
refer only to instances where the defendant
is subjected to actual or threatened unlawful
force, the complete phrase duress, coercion,
threat, or compulsion has a broader scope.
658 P.2d at 790-91. We noted that mitigator
(d)(3) does not require proof of a valid
defense of duress or compulsion. To the
contrary: the mitigator expressly applies to
types of duress, coercion, threat, or
compulsion that are insufficient to
constitute a complete defense, but which
significantly affected [the defendants]
conduct. Id. at 790.
More particularly, we held in Bell
that the phrasing of mitigator (d)(3) was
broad enough to encompass a situation where a
prisoner escaped from a correctional facility
because he felt compelled to take immediate
action to deal with a sudden family
emergency. Id. at 791.
One might argue, based on Bell,
that the term compulsion is potentially broad
enough to encompass situations where a
defendant commits an assault while in the
grip of overmastering emotion, as Smith
appears to suggest here. But in mitigator
(d)(3), the word compulsion does not appear
by itself. Rather, it is one component of
the phrase, duress, coercion, threat, or
compulsion. Under the principle of noscitur
a sociis, we are to construe the word
compulsion in light of the other three words
in this phrase: duress, coercion, [or]
threat.4
This principle of statutory
construction suggests that the term
compulsion should be not be interpreted to
include overmastering emotion or passion of
the type Smith proposes. And, indeed, in Lee
v. State, 673 P.2d 892 (Alaska App. 1983),
this Court rejected the argument that
mitigator (d)(3) applied to crimes stemming
from purely emotional compulsion.
The defendant in Lee was convicted
of first-degree assault for shooting and
severely wounding a police officer who
arrived at Lees home to investigate the
neighbors report of a disturbance.5 Lee
argued that mitigator (d)(3) applied to his
offense because he was under emotional stress
at the time of the offense and had acted out
of internal compulsion. In support of this
argument, Lee relied on his troubled
financial and domestic situations, his
intoxication at the time of the shooting, and
expert testimony indicating that he had an
impulsive personality and was easily
provoked.6
This Court acknowledged that, in
Bell, we construed mitigator (d)(3) as
applying to a type of compulsion that was
internal (as opposed to a compulsion arising
from the coercive or threatening actions of
other people).7 But we noted that our
decision in Bell dealt with an offense
committed under a good faith but unreasonable
belief by the defendant that his conduct was
necessary.8 We then declared:
Nothing in Bell indicated that the scope of
[mitigator] (d)(3) is sufficiently broad to
encompass behavior that is merely impulsive
or the result of situational stress. Lees
reliance on this mitigating factor was based
exclusively on a showing of impulsive
character and financial and emotional stress.
Lee did not present any evidence indicating
that he acted out of a mistaken belief that
his conduct was necessary. We therefore
conclude that there is insufficient evidence
in the record to support a finding that Lees
conduct was the result of internal compulsion
within the meaning of [mitigator (d)(3)].
Lee, 673 P.2d at 896.
This Courts holding in Lee that
mitigator (d)(3) does not encompass the type
of mental or emotional compulsion that arises
purely from situational stress or from a
defendants impulsiveness leads us to
conclude that Smith is not entitled to rely
on mitigator (d)(3) under the facts of this
case.
Smith was convicted of first-degree
assault for soliciting or encouraging his
companion, Byrd, to shoot Walker. The only
compulsion that prompted Smith to hand the
revolver to Byrd, and to then solicit or
encourage Byrd to shoot Walker, was the fact
that Walker openly challenged Smith and Byrd
to fight him and the fact that, when Byrd
had the gun in his hand, Walker challenged
Byrd to shoot him and suggested that Smith
and Byrd would be cowards if they did not
shoot.
These facts do not fall within the
definition of compulsion. Rather, they fall
within the definition of provocation. And if
we were to interpret mitigator (d)(3) to
cover this dubious form of provocation, there
would never be a need for a defendant to
prove, or a sentencing judge to find, the
serious provocation required by mitigator
(d)(6) or the significant provocation
required by mitigator (d)(7).
In other words, if this Court
adopted Smiths suggestion that mitigator
(d)(3) should apply to cases where a
defendant commits a crime in response to a
provocation that would not be enough to
satisfy mitigator (d)(6) or mitigator (d)(7)
(whichever one applied), we would render
mitigators (d)(6) and (d)(7) redundant or
useless in all cases where a defendant claims
that their offense was mitigated by
provocation.
The rules of statutory construction
counsel against this course. As we noted
earlier, [o]ne of the prime directives of
statutory construction is to avoid
interpretations that render parts of a
statute inoperative or superfluous, void or
insignificant. Champion, 908 P.2d at 464.
For these reasons, we conclude that
mitigator (d)(3) does not apply to Smiths
case. Accordingly, we affirm the superior
courts rejection of this mitigator.
The proposed non-statutory mitigator of extraordinary
potential for rehabilitation
In addition to proposing mitigator (d)(3),
Smith argued that two non-statutory mitigators applied
to his case, and that therefore his case should be
forwarded to the statewide three-judge sentencing panel
(which is the only court authorized to consider non-
statutory mitigators).9
The first of Smiths two non-statutory
mitigators was extraordinary potential for
rehabilitation.10
Smiths attorney presented substantial
evidence that Smiths criminal behavior arose from
family stresses, from peer-group pressure, and from
general teenage immaturity. (As we noted earlier,
Smith was 16 years old at the time of this offense.)
The chief defense witness on this issue was
Dr. Nan Truitt, a clinical psychologist who had worked
both at McLaughlin Youth Center and in the adolescent
unit at Alaska Psychiatric Institute. Truitt described
many factors that pointed toward Smiths successful
rehabilitation, and she concluded that Smith had much
better chances than the majority of the children whom
she had evaluated in her years working with troubled
youths. She told the court that she believed, to a
reasonable degree of psychological and scientific
certainty, that Smith had an extraordinary potential
for rehabilitation, and that he was not likely to re-
offend.
Truitt acknowledged that she, herself, had
diagnosed Smith as being on the borderline between
oppositional defiant disorder and a full-blown conduct
disorder.
(Conduct disorder is the worse category:
according to the DSM-IV, the essential feature of a
diagnosis of conduct disorder is a repetitive and
persistent pattern of behavior in which the basic
rights of others or major age-appropriate societal
norms or rules are violated.)
However, Truitt pointed out that, even if
Smith should be classified as having a conduct
disorder, his condition was adolescent onset which was
a hopeful sign. According to Truitt, a majority of
adolescents with this diagnosis go on [to] life as a
pretty typical adult.
We do not wish to suggest that Truitts
testimony came in unchallenged. The prosecutor
conducted a detailed and probing cross-examination of
Truitt, pointing out that there were other ways to
interpret Smiths conduct, and other ways to interpret
Smiths performance on the psychological tests. The
prosecutor also pointed out that Smith might have lied
to Truitt when he described the shooting and his
reaction to it. However, the State presented no
competing testimony concerning Smiths potential for
rehabilitation.
This Court has stated that, when a defendant
asserts the non-statutory mitigator of extraordinary
potential for rehabilitation, the defendant must prove
by clear and convincing evidence that they can
adequately be treated in the community and need not be
incarcerated for the full presumptive term in order to
prevent future criminal activity. Beltz v. State, 980
P.2d 474, 481 (Alaska App. 1999), quoting Lepley v.
State, 807 P.2d 1095, 1100 (Alaska App. 1991). We also
clarified:
Such a prediction of successful treatment and
non-recidivism should only be made when the
sentencing court is reasonably satisfied both
that it knows why a particular crime was
committed and that the conditions leading to
the criminal act will not recur either
because the factors that led the defendant to
commit the crime are readily correctable or
because the defendants criminal conduct
resulted from unusual environmental stresses
unlikely to recur.
Beltz, 980 P.2d at 481. These, then, were
the legal considerations that Judge McKay was
supposed to weigh or resolve when he ruled on
Smiths proposed non-statutory mitigator.
Moreover, as we explained earlier,
even though the parties submitted this case
to the superior court on stipulated facts,
the parties stipulation did not identify a
particular version of events as being true.
Rather, the parties only stipulated that
various witnesses told the police various
things. Thus, the parties stipulation left
certain important factual disputes
unresolved.
One crucial unresolved issue of
fact was Smiths state of mind in particular,
his purpose or intention when he handed the
revolver to his companion, Daniel Byrd. As
we noted earlier, both Byrd and Smiths other
companion, J.T., told the police that Smith
openly urged Byrd to shoot Walker. Smith, on
the other hand, contended that he handed the
gun to Byrd to get rid of it, so that he
would not be carrying a loaded firearm when
he engaged in a fist fight with Walker (as
Walker was challenging him to do).
Judge McKay ruled against Smith on
this proposed mitigator, but his ruling is so
terse that it does not allow meaningful
appellate review. Judge McKay did not make
any factual findings regarding Dr. Truitts
testimony, or regarding the question of
Smiths intent when he handed the gun to Byrd,
or with regard to any of the other factual
assertions that the defense attorney relied
on when the attorney argued for this
mitigating factor. Further, Judge McKay
failed to discuss any of our cases defining
this non-statutory mitigator, nor did he
offer any other indication of why he thought
that Smiths proof did not meet the standard
set forth in those cases. Here is the
complete text of Judge McKays ruling:
The Court: I ... very reluctantly do
not find an extraordinary chance of
rehabilitation with Mr. Smith. Mr. Smith,
you have [a] good chance of rehabilitation,
... [and] that, by far, is my highest Chaney
criteri[on] in sentencing you. You just dont
rise to that extraordinary level of
rehabilitation. ... Its a very, very high
standard to meet, and youre just not there.
But ... you have a very good chance of
rehabilitation. This Court fully expects not
to see you [again] after youve completed [the
sentence that] you need to complete here.
As can be seen, Judge McKay
declared that he did not expect Smith to
engage in future criminal behavior.
Nevertheless, Judge McKay rejected the
proposed mitigator.
Judge McKays ruling gives
essentially no insight into what testimony
the judge found to be credible, or what
factual assertions he found to be true, or
how he assessed the evidence in light of the
legal test set forth in our cases on this
subject. For these reasons, we must remand
Smiths case to the superior court and direct
Judge McKay to clarify his decision.
The proposed non-statutory mitigator of developmental
immaturity
Smith also proposed a new, previously
unrecognized non-statutory mitigator, which he
called developmental immaturity. The gist of this
proposed new non-statutory mitigator is that
teenagers are not as culpable as adults: they do
not yet have the cognitive faculties and judgement
of adults, because their brains are still
developing and their frontal lobes have not yet
physically matured. According to Smith, because
teenagers do not have fully developed brains, they
are less able than adults to understand or
appreciate their actions, to control their
impulses, or to foresee the consequences of their
actions.
This is the same rationale that the United
States Supreme Court relied on in Roper v. Simmons, 543
U.S. 551, 569-570; 125 S.Ct. 1183, 1195-96; 161 L.Ed.2d
1 (2005), when the Supreme Court held that it was
unconstitutional to impose the death penalty on a
juvenile.
In essence, Smith is arguing that even though
the Alaska legislature has declared that teenagers as
young as 16 can be prosecuted and convicted as adults
for serious felonies,11 these young teenagers should
presumptively be entitled to some leniency (in the form
of a non-statutory mitigator) when it comes to
sentencing.
In support of this proposed mitigator, Smith
presented the superior court with the amicus curiae
brief filed by the American Medical Association and the
American Psychiatric Association (among others) in
Roper v. Simmons. Smith also provided the superior
court with the special sentencing recommendations
formulated by the American Bar Association for
adolescent offenders.
(The States sentencing memorandum did not
address these matters.)
At Smiths sentencing hearing, two expert
witnesses testified in support of this proposed non-
statutory mitigator.
Dr. Ronald Roesch, a forensic psychologist
and professor of psychology at Simon Fraser University,
testified that adolescents who commit violent acts
generally do not continue to commit acts of violence
when they grow to adulthood. According to Roesch, the
recidivism rate for juveniles (among a group who were
tracked until the age of 25) is approximately 20
percent. Roesch asserted that the explanation for this
low recidivism rate is that youthful acts of violence
tend to arise from adolescents difficulties in
controlling their impulses, in paying heed to the long-
term consequences of their actions, and in rejecting
the influence of their peers. Roesch testified that,
when adolescents grow into adulthood, they get more
sober and maybe take fewer risks and make better
decisions.
Dr. Roesch described the research into human
development that the Supreme Court relied on in Roper
v. Simmons: the findings that adolescents are in fact
different [from adults]. According to Roesch,
adolescents are over-represented, statistically, in
virtually every category of reckless behavior, but this
reckless behavior is transient: as they mature, their
recklessness subsides. Roesch told the superior court:
[A]dolescence is a time of change, [and]
theres a potential for change. They dont
make decisions as well as adults, but theyre
capable of doing [better] as they mature and
as they learn better problem-solving skills.
Dr. Nan Truitt (who mainly
testified about Smiths potential for
rehabilitation) supported Dr. Roeschs
testimony on the developmental deficits of
adolescents in general.
As we have already noted, Truitt is
a clinical psychologist with post-doctoral
training in neuropsychology. She worked at
McLaughlin Youth Center for two years, and
then in the adolescent unit of Alaska
Psychiatric Institute. Truitt corroborated
Roeschs testimony that the brains of
juveniles are less than fully developed and
that, for this reason, they do not have an
adult capacity to understand and appreciate
the situations they confront, or the
consequences of their conduct. With
particular reference to this case, Truitt
testified that Smith reacted emotionally,
rather than soberly, to the confrontation
with Walker because his frontal lobe was not
fully developed.
Despite the extensive discussion of
this issue in the pre-sentence memoranda, and
despite the expert testimony presented in
support of this proposed non-statutory
mitigator at the sentencing hearing, Judge
McKays ruling on this proposed mitigator was
terse and explained little of his analysis or
reasoning. Here is the complete text of
Judge McKays ruling:
The Court: [A]s horrendous as [life] is
at 16 years [of age] were not able to
control some of our reactions, [and] we do
maybe have a hot cognition, and ... were not
able to make good snap judgments it doesnt
rise to ... the level of a mental disease or
defect.
Again, Judge McKays ruling provides
little insight into what testimony the judge
found to be credible or what factual
assertions he found to be true. It appears,
from the judges remarks, that he credited at
least some of the evidence that Smith offered
in support of the proposed mitigator, and
that he agreed with Smith that teenagers have
a reduced capacity to control [their]
reactions and to exercise good judgement in
the heat of the moment.
If Judge McKay did, in fact, agree
with Smiths contention that teenagers have a
reduced capacity for judgement, foresight,
and self-control, then the fact that this
reduced capacity might not amount to a mental
disease or defect does not necessarily mean
that courts should reject any notion of a non-
statutory mitigator based on these
deficiencies.
In Smith, where this Court first
recognized the non-statutory mitigator of
extraordinary potential for rehabilitation,
part of this Courts rationale was that the
proposed mitigator was intimately related to
the statutory sentencing goal of
rehabilitating offenders. See AS
12.55.005(2); Smith, 711 P.2d at 570-72.
In the present case, it appears
that Smiths proposed non-statutory mitigator
of developmental immaturity is potentially
related to the legislatures overarching goal
of eliminating unjustified disparity in
sentencing as codified in the legislatures
directives to sentencing judges to assess the
relative seriousness of the defendants
offense in relation to other offenses, and to
assess the degree to which the defendants
conduct is deserving of community
condemnation. See AS 12.55.005(1) and (6).
Moreover, the legislature has
already adopted an apparent counterpart to
Smiths proposed non-statutory mitigator a
mitigator that applies to the mental
disabilities of the elderly. AS
12.55.155(d)(5) creates a mitigator for cases
where the conduct of an aged defendant was
substantially a product of ... mental
infirmities resulting from the defendants
age. In other words, the legislature has
already recognized that the seriousness or
blameworthiness of a felony can be mitigated
by a defendants mental infirmities, even when
those infirmities do not necessarily amount
to a mental disease or defect.
For these reasons, we again
conclude that we must remand Smiths case to
the superior court so that Judge McKay can
clarify his decision on this proposed new
mitigator.
Conclusion
For the reasons explained here, we conclude
that mitigator (d)(3) does not apply to the facts
of Smiths case, and we therefore AFFIRM the
superior courts ruling on this mitigator.
However, with respect to the superior courts
rulings on Smiths two proposed non-statutory
mitigators, we VACATE the superior courts
decisions, and we direct the superior court to
reconsider these issues.
To the extent that the superior court
concludes that its reconsideration of these
matters requires the court to resolve disputed
issues of fact, the court is authorized to take
testimony or otherwise receive evidence pertinent
to these issues of fact.
The superior court shall issue its rulings on
the two non-statutory mitigators within 90 days of the
date of this opinion. After the superior court issues
its rulings, the parties shall have 30 days to file
memoranda in response to the superior courts decision.
After this Court has received the parties memoranda (or
the time for filing those memoranda has expired), this
Court will resume its consideration of the two non-
statutory mitigators.
_______________________________
1 AS 11.41.200(a)(1).
2Carpentino v. State, 42 P.3d 1137, 1142 (Alaska App. 2002).
3Citing Allen v. Alaska Oil & Gas Conservation Commission,
147 P.3d 664, 668 (Alaska 2006) (In general, if two
statutes conflict, ... the specific controls over the
general.). See also Petrolane, Inc. v. Robles, 154
P.3d 1014, 1034 (Alaska 2007), quoting City of Cordova
v. Medicaid Rate Commission, 789 P.2d 346, 352 (Alaska
1990) (It is a maxim of construction that specific
statutes should be given precedence over more general
ones.).
4Noscitur a sociis literally, it is known by its associates
is the principle of statutory construction which
directs a court to construe an unclear or ambiguous
word or phrase in light of the words immediately
surrounding it. See Garner, Blacks Law Dictionary (8th
ed. 2004), p. 1087; Morgan v. State, 139 P.3d 1272,
1277 n. 8 (Alaska App. 2006).
5Lee, 673 P.2d at 893.
6Id. at 896.
7Id.
8Id., citing Bell, 658 P.2d at 791.
9 See AS 12.55.165 175.
10See Smith v. State, 711 P.2d 561, 571-72 (Alaska App. 1985).
11See AS 47.12.030(a).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
