Opinion
Court of Appeals No. A-10642 Trial Court No. 4FA-08-4215 CR No. 5928
03-27-2013
RICHARD R. BLEVINS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge.
Appearances: Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
Judge MANNHEIMER.
Richard Blevins was convicted of attempted murder for shooting his ex-girlfriend's new boyfriend, Michael Twitchell. One of Blevins's bullets struck Twitchell's spinal cord, and the shooting left Twitchell a quadriplegic. For this crime, Blevins received a sentence of 70 years' imprisonment with 20 years suspended (i.e., 50 years to serve).
Blevins appeals both his conviction and his sentence.
The challenged testimony regarding the extent of Twitchell's physical disabilities
Blevins asserts that his trial was unfair because, when Twitchell took the stand, the trial judge allowed the prosecutor to elicit testimony regarding the various life activities that Twitchell could no longer engage in, now that he was a quadriplegic. Blevins contends that this testimony had no purpose other than to arouse the jury's sympathy and prejudice the jury against him.
The question of whether Twitchell had suffered "serious physical injury" as defined in AS 11.81.900(b)(56) was at issue in Blevins's trial because Blevins's attorney argued that Blevins had not acted with the intent to kill Twitchell. The defense attorney argued that the jury should acquit Blevins of attempted murder and, instead, convict him of the lesser offense of first-degree assault — an offense that requires proof of serious physical injury.
See the various provisions of AS 11.41.200(a).
Toward the beginning of Twitchell's testimony, the prosecutor asked him to describe the hobbies that he had engaged in before the shooting. Blevins's attorney objected, arguing that Twitchell's former hobbies had no particular relevance because Blevins was willing to stipulate that Twitchell had suffered serious physical injury. The trial judge overruled this objection and allowed Twitchell to testify that he had formerly engaged in several outdoor sports, and that he had formerly worked as a custom home builder.
The prosecutor then asked Twitchell to describe how his life had changed since the shooting. The defense attorney again objected, this time arguing that even if the proposed testimony had some relevance, its probative value was outweighed by its potential for unfair prejudice, and thus the testimony should be excluded under Alaska Evidence Rule 403. The trial judge again overruled the defense attorney's objection, and Twitchell then testified that his spinal injury had "changed [his] life completely":
Twitchell: I no longer have any of the independence I used to. I lived completely on my own for years, totally independent. Now I am completely dependent [on others]. ... Out of all the activities I used to do, there's not one I can do now. I can get around, [but] it's a lot of work ...At this point, Blevins's attorney objected again, and this time the trial judge sustained the objection.
A little later in Twitchell's testimony, the prosecutor asked Twitchell about the physical extent of his injuries, and the surgery that had been performed after the shooting. The trial judge allowed the prosecutor to ask these questions, but the trial judge barred the prosecutor from having Twitchell describe a normal day in his life, now that he was a quadriplegic.
In connection with this last ruling, the trial judge addressed the jurors directly, cautioning them not to be swayed by sympathy:
The Court: I want to just mention to the jury [that] any time there are serious physical injuries in a case, there are two issues. The State is entitled to show whether or not the [victim] suffered serious physical injuries; that's [an] element of their proof. However, [such] injuries necessarily [e]voke an element of sympathy. You are not to decide any question in this case based on sympathy for either the victim or the accused. Does everybody understand that?
On appeal, Blevins argues that the trial judge's rulings were improper. Blevins contends that Twitchell's testimony on these matters was irrelevant or, even if slightly relevant, its probative force was far outweighed by its potential for unfair prejudice — i.e., its potential to induce the jury to find Blevins guilty of attempted murder on an improper basis (sympathy for the victim).
It is dubious whether the answers to the objected-to questions had any significant probative value regarding the issues to be litigated at Blevins's trial.
We do not say this simply because Blevins was willing to stipulate that Twitchell had suffered serious physical injury. This willingness to stipulate did not render testimony about the nature of Twitchell's injuries irrelevant — because the State was entitled to prove its case despite any offered stipulation.
See Old Chief v. United States, 519 U.S. 172, 178-79; 117 S.Ct. 644, 649-650; 136 L.Ed.2d 574 (1997).
Evidence that the shooting had left Twitchell a quadriplegic was certainly relevant to the question of whether Twitchell's injuries qualified as "serious physical injury" under the definition codified in AS 11.81.900(b)(56). However, the objected-to testimony concerning the contrast between Twitchell's former and current lifestyles would add little to the jury's understanding or assessment of this issue, and this testimony obviously carried a risk of unfair prejudice — the risk that the jury's decision would be swayed by sympathy. To the extent that this testimony had marginal relevance to the issue of whether Twitchell's injuries qualified as "serious physical injury", the testimony should nevertheless have been excluded under Alaska Evidence Rule 403.
However, even if the trial judge abused his discretion by allowing the prosecutor to ask these questions, we are convinced that any error was harmless. The fact that Twitchell was a quadriplegic was evident to everyone in the courtroom, and the jurors could readily infer that Twitchell was no longer capable of engaging in a normal range of physical activities. And while Twitchell was on the stand, the trial judge explicitly cautioned the jurors not to be swayed by sympathy for his physical disabilities.
Given this record, we are convinced that if the admission of this testimony was error, the error was harmless — because there is no realistic possibility that this testimony altered the jury's decision.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holding that the test for the harmlessness of non-constitutional error is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
Blevins's sentence appeal
The penalty range for attempted murder is 5 to 99 years' imprisonment. As we explained at the beginning of this opinion, Blevins was sentenced to serve 50 years (70 years with 20 years suspended) for this crime.
AS 12.55.125(b).
Blevins argues that this prison term is excessive, and he points to other reported cases where defendants convicted of attempted murder received significantly shorter sentences. Based on these cases, Blevins argues that a sentence of 35 years to serve would have been more appropriate. He contends that, even though the result of his actions was "horrific", the sentencing judge should have given more weight to the fact that Blevins was a youthful first-felony offender who had a substantial capacity for rehabilitation.
See Rudden v. State, 881 P.2d 328 (Alaska App. 1997) (affirming a sentence of 35 years to serve); Sam v. State, 842 P.2d 596 (Alaska App. 1992) (affirming a sentence of 30 years to serve); Marshall v. State, unpublished, 2004 WL 1418703 (Alaska App. 2004) (affirming a sentence of 30 years to serve); Taleak v. State, unpublished, 1998 WL 802058 (Alaska App. 1998), and Rogers v. State, unpublished, 1997 WL 129079 (Alaska App. 1997) (both decisions affirming a sentence of 35 years to serve); Johnson v. State, unpublished, 1995 WL 17221334 (Alaska App. 1995), and Jimenez v. State, unpublished, 1993 WL 13156775 (Alaska App. 1993) (both decisions affirming a sentence of 40 years to serve).
While it is true that this Court has often affirmed lesser sentences for attempted murder, we have also repeatedly explained that our decision to affirm a sentence does not mean that we would not have affirmed a more severe sentence in that case, nor does our decision set a ceiling on sentences in similar cases.
Pusich v. State, 907 P.2d 29, 35 (Alaska App. 1995) ("[T]he fact that lesser sentences have been affirmed for [the same offense] does not mean that these sentences constitute the limit of sentencing discretion[.]"); Hurn v. State, 872 P.2d 189, 199-200 (Alaska App. 1994) ("[O]ur affirmance of a sentence on appeal means only that we conclude the sentence is not excessive; it does not set a ceiling on sentences in similar cases, nor does it necessarily mean that we would not have affirmed a greater sentence in the appeal being litigated.").
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Additionally, we note that in Starkweather v. State, 244 P.3d 522, (Alaska App. 2010), we declared that "the wide range of penalties for attempted murder [i.e., 5 to 99 years' imprisonment] reflects the broad range of conduct encompassed within the definition of the offense, and the degree of harm suffered by the victim is a primary factor in determining the defendant's sentence." Id. at 532.
Here, the physical harm suffered by Twitchell is severe and permanent — thus suggesting a sentence toward the top of the penalty range, absent other significant factors favoring a lesser sentence.
In addition, the sentencing judge rejected the notion that Blevins's attack on Twitchell was a spur-of the-moment assault prompted by Blevins's intoxication. Instead, the judge concluded that Blevins's attack on Twitchell was a premeditated attempt to kill him — "[the] action of an angry, purposeful young man" who went from bar to bar, looking for Twitchell, and who, shortly before the attack, called Twitchell on a mobile phone to threaten his life.
The sentencing judge acknowledged that Blevins was a youthful offender. But the judge was skeptical of Blevins's prospects for rehabilitation. The judge concluded that Blevins had very little insight into his actions, and the judge further concluded those actions manifested a "total loss of control" and a "total lack of moral forethought".
Finally, the judge concluded that, in sentencing Blevins, he had to emphasize the need to deter others from similar crimes. The judge declared that "the word must go out to the [community]" that attacks like this would not be tolerated.
Other judges might, perhaps, have weighed these factors differently and imposed a lesser sentence. But as this Court explained in Erickson v. State,
[Alaska law] gives considerable leeway to individual sentencing judges. The "clearly mistaken" [standard of sentence review] is founded on two concepts: first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within "a permissible range of reasonable sentences".950 P.2d 580, 586 (Alaska App. 1997), quoted with approval by the supreme court in State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000).
In the present case, the sentencing judge gave a reasoned explanation for Blevins's sentence, and the judge's analysis is supported by the record. We conclude that Blevins's sentence is not clearly mistaken — that it is within the permissible range of reasonable sentences.
Conclusion
The judgement of the superior court is AFFIRMED.