Opinion
Court of Appeals No. A-11111 No. 6082
08-20-2014
DIRKSTON A. GONZALES JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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.
Trial Court No. 3AN-07-6078 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge. Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Dirkston A. Gonzalez Jr. appeals his convictions for first-degree murder, attempted murder, and first-degree burglary. These convictions arose from an altercation that occurred at a party at an Anchorage residence. After the altercation was broken up and everyone was asked to leave, Gonzales returned to the house and shot two people with a handgun, killing one of them.
In this appeal, Gonzales attacks the validity of his convictions on two grounds.
First: A significant amount of evidence against Gonzales was obtained as a result of a traffic stop made shortly after the shooting. Gonzales asked the superior court to suppress this evidence, arguing that the traffic stop was illegal. The superior court denied this suppression motion, and Gonzales challenges the superior court's ruling in this appeal.
Second: At Gonzales's trial, the judge allowed the jurors to dry-fire the murder weapon (a double-action revolver), so that the jurors could see for themselves how much force was required to pull the trigger. Gonzales argues that it was illegal for the judge to let the jurors do this.
For the reasons explained in this opinion, we find no merit to these arguments, and we therefore affirm Gonzales's convictions.
For the murder, the attempted murder, and the burglary, the superior court sentenced Gonzales to a composite term of 161 years' imprisonment with 50 years suspended — 111 years to serve. Gonzales argues that this sentence is excessive. For the reasons explained here, we conclude that the superior court's sentencing decision is not clearly mistaken.
The facts underlying the traffic stop
Early on Sunday morning, June 10, 2007, the Anchorage police 911 dispatch received two calls — one at 3:12 a.m. and the other at 3:19 a.m. — reporting that a shooting had occurred at a residence on De Armoun Road. The two callers (in combination) told the 911 dispatcher that the shooter had just left the scene, riding as a passenger in a maroon or burgundy SUV with tinted windows, in the company of three or four other people.
When this information was broadcast, Anchorage Police Sergeant Glen Daily was on duty in a parking lot about 8 miles away, near the corner of 36th Avenue and the New Seward Highway. Daily had just arrested someone for driving under the influence, and he was waiting for a tow truck to come and haul away the arrestee's vehicle.
The tow truck arrived about five minutes later, and Sgt. Daily then drove south on the Seward Highway (that is, in the direction of De Armoun Road), looking for the suspect vehicle.
It was 3:30 on a Sunday morning, and there was essentially no traffic on the Seward Highway. As Daily neared the 76th Avenue exit (heading south), he spotted a maroon SUV with dark tinted windows heading in the opposite direction (i.e., away from the scene of the shooting) in the northbound lanes of the Seward Highway. Daily immediately did a u-turn across the highway median and caught up with this other vehicle between Dowling and Tudor Roads.
Daily paced the maroon SUV with his patrol car. The vehicle was in the center lane of the highway, and it appeared to be headed straight up the highway, north toward mid-town Anchorage. Then, without using a turn signal, the driver of the vehicle abruptly veered out of the center lane, crossed the right lane, and took the Tudor Road exit.
By leaving the highway in this fashion without signaling, the driver of the vehicle committed a traffic violation. Because the vehicle matched the description of the suspect vehicle, and because of the traffic violation, Daily followed the vehicle up the Tudor exit ramp.
See 13 AAC 02.215(a) & (b).
At the top of the ramp, where the traffic light was red, Daily pulled up next to the vehicle. He observed that its back windows were darkly tinted: Daily could see that there were passengers in the vehicle, but he could not get a good look at them. Daily could, however, see the driver. Daily described the driver as having "a death-grip on the steering wheel" and as "staring straight ahead — not looking side to side; not up [or] down; nothing. ... [J]ust staring ... for the 15 [or] 20 seconds that [they] sat there at the [traffic] light."
When the light turned green, the suspect vehicle made a left turn, heading west on Tudor Road. After the vehicle went through the intersection with the Old Seward Highway, Daily turned on his overhead lights to perform a traffic stop. The vehicle did not stop immediately; the driver slowed, but he continued driving west on Tudor, and then he turned right (north) on Denali Street. The driver then pulled into an alley behind the Home Depot store. He traveled down the alley about 50 or 75 feet away from Denali Street, and stopped his vehicle.
Because this vehicle matched the description of the suspect vehicle, and because the driver had pulled his vehicle into a fairly isolated place before stopping, Daily was on his guard. He waited in his vehicle and called for backup.
Within a few minutes, other officers arrived to assist Daily. Daily and his fellow officers then performed a "felony stop" of the vehicle: ordering the occupants to come out singly, with their hands up. One of the occupants was the defendant, Dirkston Gonzales.
Under the back seat of the vehicle, the police found a revolver with three spent cartridges. This was the revolver that was used in the shooting.
The police contacted five witnesses to the shooting and brought them to the scene of the traffic stop, to see if they could identify any of the people who had been riding in the maroon SUV. Two of these witnesses identified Gonzales as the shooter. (The other three witnesses did not know who the shooter was.)
Following his indictment, Gonzales asked the superior court to suppress all of the evidence obtained as a result of the traffic stop (including the witness identifications that occurred at the scene of the traffic stop). Gonzales argued that Daily had lacked reasonable suspicion to stop the vehicle.
Based on the evidence described above, the superior court denied Gonzales's suppression motion. The court concluded that the traffic stop was justified because Daily observed the driver of the maroon SUV commit a traffic violation (by exiting the Seward Highway without signaling).
Because the superior court concluded that the traffic stop was justified on this basis, the court declined to decide whether, apart from the traffic violation, Daily had reasonable suspicion to make a traffic stop.
Why we uphold the superior court's ruling
Gonzales does not contest the superior court's finding that Sgt. Daily observed the driver of the SUV commit a traffic violation. However, Gonzales argues that the superior court should not have upheld the traffic stop on this basis. According to Gonzales, Daily did not really care about the traffic violation, and he only used the traffic violation as a "pretext" for stopping the vehicle to investigate whether the occupants of the vehicle were connected to the shooting.
Gonzales concedes that, under federal law, the observed traffic violation was sufficient to justify the stop, regardless of Daily's motives. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
However, Gonzales notes that Alaska law is currently unsettled on the question of whether an investigative stop can be challenged as "pretextual". See this Court's discussion of this issue in Morgan v. State, 162 P.3d 636, 638-39 (Alaska App. 2007). Gonzales asks us to now resolve this issue by formally declaring that pretextual stops violate the Alaska Constitution, and by holding that the traffic stop in his case was an unlawful pretextual stop.
But in the superior court, Gonzales did not challenge the traffic stop as pretextual. He challenged it only on the basis that the stop was unsupported by reasonable suspicion. As a result, the superior court made no ruling on this issue, nor did the court make any of the findings of fact required to resolve a "pretext" challenge. In particular, the court made no finding as to Sgt. Daily's precise motives for stopping the vehicle, and no finding as to whether Daily's decision to stop the vehicle departed from reasonable police practices.
See Morgan, 162 P.3d at 638; Nease v. State, 105 P.3d 1145, 1148 (Alaska App. 2005); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012), § 1.4(e), Vol. 1, pp. 166-67.
Given the facts of this case, we seriously doubt whether Gonzales could have established that Sgt. Daily departed from reasonable police practices when he relied on the traffic violation to stop a motor vehicle which, he suspected, was carrying the perpetrator of a just-committed homicide.
But, in any event, Gonzales is not entitled to raise this issue on appeal — because, under Alaska law, a search and seizure claim can not be raised for the first time on appeal (at least, absent "singularly egregious" illegality on the part of the police). Moreau v. State, 588 P.2d 275, 279-80 & n. 13 (Alaska 1978). We accordingly conclude that Gonzales is not allowed to challenge the traffic stop as pretextual for the first time in this appeal.
This leaves Gonzales's argument that the traffic stop was not supported by reasonable suspicion.
As we have described, the traffic stop took place less than twenty minutes after the shooting was reported. The vehicle that was stopped matched the description of the vehicle in which the shooter fled the scene of the crime. The vehicle was headed away from the scene of the shooting, and there was essentially no other traffic on the highway at the time. When Sgt. Daily came up to this vehicle and paced it, the driver of the vehicle abruptly exited the highway without giving an advance signal. Then, when Daily pulled up alongside the vehicle, the driver stared straight ahead, with a "death-grip" on the steering wheel.
Our prior cases in this area strongly suggest that the traffic stop in this case was supported by a reasonable suspicion of recent serious harm. In particular, we note that in McQuade v. State, 130 P.3d 973 (Alaska App. 2006), this Court upheld an investigative stop under strikingly similar circumstances — including a suspect vehicle that abruptly left the Seward Highway at the Tudor Road exit, crossing from an inner lane without properly signaling. Id. at 975-77.
See Hamilton v. State, 59 P.3d 760, 766-67 (Alaska App. 2002); Beauvois v. State, 837 P.2d 1118, 1121 (Alaska App. 1992).
However, as we explained above, the superior court did not uphold the stop on a "reasonable suspicion" basis, so we need not resolve that question. Instead, the superior court ruled that the stop was justified because Sgt. Daily personally observed the driver of the suspect vehicle commit a traffic violation — by exiting the highway without signaling. The superior court's finding moots any argument about whether there was reasonable suspicion to support the traffic stop — because, as this Court explained in Nease v. State, an officer's direct observation of a traffic violation provides probable cause for a traffic stop.
For these reasons, we uphold the superior court's denial of Gonzales's suppression motion.
The facts relating to the jury's physical examination of the murder weapon
At Gonzales's trial, the State called firearms expert Robert Shem to testify about the ballistics evidence in the case and to describe the characteristics of the presumed murder weapon, a revolver.
Shem testified that, to fire this weapon, a person needed to exert between 3½ and 4 pounds of force on the trigger if the hammer was already cocked, and between 10 and 10½ pounds of force on the trigger if the hammer was down.
In connection with Shem's testimony on this subject, the prosecutor asked the trial judge to allow the jurors to dry-fire the revolver so that they could better gauge the amount of force required to pull the trigger. Gonzales's attorney objected that this would be an improper jury experiment, and he also argued that the information conveyed — i.e., how much force was required to pull the trigger — would be irrelevant to the jury's decision of the case.
The trial judge concluded that the jurors should decide whether they wished to try firing the revolver — and that, if the jurors did decide to try firing the gun, this should take place in the courtroom under the supervision of a state trooper.
Later, while the jury was deliberating, the jurors sent a request to the judge, asking to be allowed to examine the revolver. In response, the judge allowed the jurors to return to the courtroom (under the supervision of the bailiff and two state troopers) and examine the weapon in whatever way they wished. The jury's examination of the weapon was audio recorded (in the same manner as other court proceedings). The judge, the attorneys, and Gonzales were not present. (Earlier, Gonzales had expressly waived his right to attend this demonstration.)
Once the jurors were inside the courtroom, six of them said that they did not wish to handle the revolver, and six of them dry-fired the weapon.
Why we conclude that the jury's examination of the weapon was proper
In the trial court, when the State proposed having the jurors examine the revolver, Gonzales opposed the State's request by arguing that the proposed examination of the weapon would not yield any relevant information — that the amount of force required to pull the weapon's trigger was irrelevant to the jury's decision of the case.
But on appeal, Gonzales takes a very different approach: Gonzales now asserts that information about the trigger pull was "directly material to the central issue in the trial" — because, if Gonzales had to exert an appreciable amount of force to pull the trigger, this would tend to show that he "[acted with] the state of mind required for the charges of first-degree murder and attempted murder" (to wit, an intent to kill).
Gonzales argues that, by authorizing the jury's examination of the firearm, the trial judge allowed the jurors to become "unsworn witnesses to critical information" about the case. Gonzales further argues that, because of the physical differences between the individual jurors, and between the jurors and Gonzales, it was almost inevitable that the jurors would be misled by the results of their efforts to pull the trigger of the revolver.
This Court rejected essentially the same arguments in Bowlin v. State, 823 P.2d 676 (Alaska App. 1991). The defendant in Bowlin was charged with refusing to submit to a breath test (after being arrested for drunk driving). The main issue at trial was whether Bowlin, who had asthma, was physically capable of blowing enough air into the breath test machine to trigger the mechanism and run the test.
The State's theory of the case was that Bowlin willfully refused to blow enough air into the machine to activate the test, while Bowlin testified that she tried several times to activate the machine but, because of her asthma, she failed despite her best efforts. At the State's request, the trial judge allowed the jurors to go to the police station and take turns blowing into the breath test machine, to see how much air was required to activate the machine's testing mechanism.
Bowlin, 823 P.2d at 676-77.
Id. at 677-78.
On appeal, Bowlin argued that this procedure was improper for two primary reasons. First, Bowlin argued that the jurors' experimentation with the breath test machine created "new evidence" and new "witnesses" (i.e., the jurors themselves) that Bowlin's attorney could not subject to confrontation or cross-examination. Second, Bowlin argued that the jurors' testing of the breath test machine was irrelevant, or at least extremely misleading, because this testing differed substantially from the actual event being litigated — Bowlin's act of blowing into the machine at the time of her arrest. Bowlin pointed out that she had asthma (while the jurors did not), so presumably it was much easier for the jurors to activate the breath test machine than it was for Bowlin.
Id. at 680.
This Court rejected both of these arguments and upheld the trial judge's decision to allow the jurors to try out the breath test machine. In our decision, we noted that the great weight of judicial authority favors allowing jurors to examine and/or test the physical evidence in a case.
Id. at 679, citing Allen v. State, 146 S.W.2d 384, 386 (Tex. Crim. App. 1940) (the jury experimented with the pistol admitted into evidence to see if, as claimed by the defendant, the cylinder would "hang" or stick at a particular place in its revolution and cause the handgun to discharge accidentally); State v. Best, 232 N.W.2d 447, 457 (S.D. 1975) (a defendant on trial for child abuse claimed that her infant's injuries had been inflicted when the baby's two-year-old brother struck the baby with a telephone. The jurors experimented with the telephone (which had been admitted into evidence), testing its weight to see if it was conceivable that a two-year-old could have used it to inflict serious injury.); People v. Engler, 540 N.Y.S.2d 591, 594 (N.Y. App. 1989) (the jurors experimented with a vaporizer to test the defendant's claim that a child's injuries had been sustained when the child fell into the vaporizer); Taylor v. Reo Motors, Inc., 275 F.2d 699, 705 (10th Cir. 1960) (the jurors dismantled a heat exchanger to test a witness's testimony about the way it functioned).
More recently, in State v. Pease, 163 P.3d 985 (Alaska App. 2007), we had occasion to address this issue again. We once more examined the case law in this area, including ten cases that we had not cited in our Bowlin decision, one of which upheld the jurors' experimentation with a gun to determine its trigger pull. See People v. Agado, 964 P.2d 565, 567-68 (Colo. App. 1998).
Rex v. Smith, described in Notable British Trials, Series 1922, Trial of George J. Smith, page 118 (quoted in John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn rev'n, 1972), § 1160, Vol. 4, p. 357, n. 1); Taylor v. Commonwealth, 17 S.E. 812, 816 (Va. 1893); State v. Balisok, 866 P.2d 631, 633-34 (Wash. 1994); United States v. Hephner, 410 F.2d 930, 936 (7th Cir. 1969); People v. Agado, 964 P.2d 565, 567-68 (Colo. App. 1998); State v. Chamberlain, 819 P.2d 673, 676, 683 (N.M. 1991); United States v. Abeyta, 27 F.3d 470, 477 (10th Cir. 1994); United States v. Silks, unpublished, 1988 WL 141090, *2 (9th Cir. 1988); United States v. Avery, 717 F.2d 1020, 1026 (6th Cir. 1983).
We summed up our research by stating: "Courts have repeatedly upheld jurors' efforts to test the credibility or plausibility of trial testimony by experimenting with items of physical evidence admitted during the trial, or by re-enacting the events or conditions described by witnesses." Pease, 163 P.3d at 989.
Gonzales's defense to the murder and attempted murder charges was that he reacted spontaneously, and in a panic, to a fast-developing situation — and, thus, he lacked a conscious intent to kill. In the defense attorney's summation to the jury, she argued that the State had failed to prove that Gonzales acted with intent to kill because "it happened too fast; there was too much going on", and because "there [was] alcohol involved." The defense attorney pointed to the testimony that Gonzales appeared to be "panicked" and "shocked" after the shootings. And the defense attorney also asserted that the trigger pull on the revolver was "not a heavy trigger pull"; rather, the revolver had a trigger pull that was "on the light side of normal". Thus, according to the defense attorney, "It happened. And there's a panic, and the trigger was pulled again."
Under these circumstances, the trial judge could reasonably conclude that allowing the jurors to examine the revolver (and in particular, allowing the jurors to get a sense of how much force was required to pull the trigger) would aid the jurors in deciding this case — i.e., aid them in evaluating Gonzales's assertion of panic and spontaneity versus the State's assertion that Gonzales acted with a conscious intent to kill when he fired the shots. We therefore uphold the trial judge's decision to allow the jurors to examine the revolver.
The superior court's sentencing decision
The superior court sentenced Gonzales to a term of 99 years' imprisonment with 20 years suspended (i.e., 70 years to serve) for the crime of first-degree murder. The court sentenced Gonzales to a consecutive term of 60 years with 30 years suspended (i.e., 30 years to serve) for the crime of attempted murder. In addition, the court imposed a consecutive 2 years to serve for Gonzales's offense of first-degree burglary.
All told, Gonzales received a composite sentence of 161 years' imprisonment with 50 years suspended — 111 years to serve. Gonzales argues that this sentence is disproportionate to other sentences imposed on youthful offenders who committed more egregious murders. Gonzales also argues that the sentence is excessive because the superior court failed to give sufficient weight to Gonzales's youth and his potential for rehabilitation.
To explain our resolution of Gonzales's sentencing claims, we must first describe the facts of his crimes in more detail, and then we will explain how the superior court evaluated Gonzales's crimes and his potential for rehabilitation.
(a) Gonzales's underlying offenses
In June 2007, the residents of a south Anchorage home decided to throw a party. D.J. Irvin was one of the residents of this house, and he was present at the party. Stephanie Nilsson was one of the party guests.
About 60 people ultimately showed up at the party. Gonzales was one of the attendees: he and a group of his friends were driving around when they received a phone call about the party, and they decided to go.
At some point during the evening, a series of fights broke out. Gonzales was one of the individuals involved. Because of the fighting, the residents of the house told everyone to leave. However, Stephanie Nilsson stayed at the house.
About a half hour later, Gonzales and his friends returned to the house. Gonzales entered the house waving a handgun and wearing a t-shirt over his lower face like a bandana. He demanded to know where he could find a man with whom he had been fighting earlier.
Irvin (who was not the man Gonzales was looking for) confronted Gonzales and tried to convince him to put the gun away and leave. At some point, when Gonzales would not leave, Irvin became more aggressive; he started pushing Gonzales and tried to grab his gun. Gonzales was heard yelling, "Don't touch my gun."
Nilsson went into a bathroom to escape this situation. Irvin followed her into the bathroom and tried to close the door — but Gonzales, who was following Irvin, grabbed the door and tried to pull it open. When he was unsuccessful in opening the door, Gonzales fired his gun through the door — hitting Irvin in the chest and killing him.
Gonzales then opened the bathroom door, stepped over Irvin's prostrate body, and shot Nilsson, who was huddled on the floor by the sink. The bullet entered Nilsson's right shoulder near her neck; it penetrated her chest — breaking her clavicle and two ribs, and tearing out a third of her lung — before exiting her body beneath her right shoulder blade. Nilsson lived, but she was in the hospital for six weeks.
After the shootings, one of Gonzales's friends convinced him to leave, so Gonzales and his friends got into their vehicle and drove away. We have already described the traffic stop that led to Gonzales's arrest and the retrieval of the murder weapon.
(b) The sentencing hearing, and the superior court's sentencing decision
Gonzales was convicted of two unclassified felonies: first-degree murder for the shooting death of D. J. Irvin, and attempted murder for the shooting of Stephanie Nilsson. (He was also convicted of first-degree burglary, a class B felony, for returning to the house and breaking in.)
First-degree murder is punishable by a maximum of 99 years' imprisonment, and there is a mandatory minimum sentence of 20 years. Attempted murder is also punishable by a maximum of 99 years, and there is a mandatory minimum sentence of 5 years.
AS 12.55.125(a).
AS 12.55.125(b).
Under the provisions of AS 12.55.127(c)(1)-(2), Gonzales's sentences for murder and attempted murder had to be imposed consecutively at least to the extent of the mandatory minimum sentences. Thus, for these two crimes, Gonzales faced a potential sentence of up to 198 years' imprisonment, and the superior court was required to impose a sentence of at least 25 years' imprisonment.
AS 12.55.127(c)(2) provides: "If the defendant is being sentenced for ... two or more crimes under AS 11.41, a consecutive term of imprisonment shall be imposed for at least ... the mandatory minimum term under AS 12.55.125(a) for each [conviction for] murder in the first degree; [and] the mandatory minimum term for each additional crime that is an unclassified felony governed by AS 12.55.125(b)[.]"
Gonzales's sentencing hearing lasted five days. This was due primarily to the fact that both the prosecution and the defense presented extensive expert testimony. Gonzales was a youthful offender: he had just turned 17 when he committed the offenses in this case, and he was 21 years old at the time of sentencing. As a consequence, both sides relied on expert testimony relating to Gonzales's mental development and his long-term prospects for rehabilitation.
The State presented the testimony of Dr. Anthony Eusanio, a clinical and forensic psychologist. Dr. Eusanio was asked to evaluate Gonzales with respect to his degree of maturity and sophistication, his level of dangerousness, his amenability to treatment, and his potential for rehabilitation.
Dr. Eusanio concluded that Gonzales had "unstable, high self-esteem" or narcissism. This trait made Gonzales more likely than a typical person to react with rage if someone said or did something that appeared insulting.
Gonzales apparently had a long history of trouble in school and trouble at home. At one point, he had been diagnosed with attention deficit hyperactivity disorder; at another point, he had been diagnosed with bipolar disorder. Dr. Eusanio believed that Gonzales had been diagnosed in these ways because his unstable narcissism made him prone to mood swings, and this type of mania "can look like bipolar disorder ... [or] attention deficit and hyperactivity".
Gonzales had also been diagnosed with "conduct disorder", which is defined as a pattern of antisocial behavior before age 18. Dr. Eusanio testified that Gonzales's behavior — "an accelerating pattern of rule-breaking" as he grew older — tended to confirm this diagnosis. Based on Gonzales's responses to personality assessments, Eusanio concluded that Gonzales had high levels of violent and aggressive tendencies, a high risk of dangerousness, and below-average amenability to treatment.
On cross-examination, Gonzales's attorney adverted to the lengthy mandatory minimum sentence that Gonzales had to receive (25 years' imprisonment), and the attorney suggested to Eusanio that, by the time Gonzales reached middle age ("45, 50, 55 years old") and became eligible for parole release, these troubling aspects of Gonzales's behavior would likely have changed.
Dr. Eusanio disputed the attorney's suggestion. He responded: "Actually, a lot of these aspects are stable. ... [T]he nature of the underlying personality dynamics is that they're deep and relatively stable, and difficult to revise." Later, however, Eusanio conceded that his testimony was based on the scientific analysis of groups of people who showed the same traits as Gonzales — and that he had no "crystal ball" to predict whether Gonzales (or any other specific individual) would commit another homicide.
Eusanio also acknowledged the statistical studies showing that adult male offenders tend to stop committing crimes when they reach their 40s and 50s — a result that Eusanio attributed to "a combination of learning from experience and [being] less driven biologically" (because, with age, "the hormones decrease"). He agreed with the defense attorney that he was "not able to predict what's going to happen with Mr. Gonzales when he is 45 [or] 50 years old."
The defense presented the testimony of Dr. Ronald Roesch, a clinical and forensic psychologist.
Dr. Roesch did not perform an individual assessment of Gonzales. He offered no opinion on Gonzales's level of dangerousness, his amenability to treatment, or his potential for rehabilitation. Rather, Roesch was called to testify about general research into human development.
Dr. Roesch referred, in particular, to recent studies showing that the pre-frontal area of the brain — the part that moderates emotions and allows a person to make "more intellectual, more reasoned" responses to events — does not become fully developed until a person reaches their mid-twenties. Thus, there is "a greater likelihood ... [that] an adolescent's deficiencies can be rehabilitated, can be reformed" because of the "inevitable changes that take place over time, as the individual matures [and] as the brain matures".
Dr. Roesch testified that psychological evaluations of teenagers and young adults need to be reviewed frequently, because "there [are] a lot of changes going on [from the teen years] into the twenties." Roesch also testified that it was "never too late to intervene" in a teenager's or young adult's life (although earlier intervention was better). And Roesch offered the opinion that, for all these reasons, an adolescent should never be categorized as a "worst offender".
The defense also called Dr. Katharine Leslie, a developmental psychologist specializing in the social and emotional development of children.
Dr. Leslie reviewed Dr. Eusanio's report, and she concluded that he did a good and thorough job, although she was skeptical of the view that Gonzales had a "conduct disorder". Dr. Leslie believed that a more appropriate diagnosis was "oppositional defiant disorder", because Gonzales's antisocial behavior was not consistent, but rather "more situational".
Dr. Leslie also believed that Gonzales was probably "capable of developing meaningful prospects for rehabilitation as he matures in a prison setting [over] the next two [or] three decades". She agreed with the defense attorney's suggestion that, given the controlled, structured environment of prison, Gonzales had good prospects for rehabilitation by age 50. Dr. Leslie asserted that, "from a developmental psychological point of view, ... it was not [Gonzales's] intention to kill Mr. Irvin or [to] hurt Ms. Nilsson."
On the last day of the hearing, the parties delivered their sentencing arguments. The prosecutor asked the court to impose a composite sentence of 130 years to serve. The defense attorneys (both of Gonzales's attorneys argued the sentencing issue) asked the court to impose the minimum sentence allowed by law: 25 years to serve.
Toward the beginning of the superior court's sentencing remarks, the court voiced its conclusions about the expert testimony it had heard.
The court found that the State's witness, Dr. Eusanio, was "the only expert that really gave the Court some qualitative help in terms of judging Mr. Gonzales's rehabilitative potential as a whole." The court recognized that there is "no psychological assessment ... [or] mathematical formula that will tell you [whether an offender] is [or] is not going to [have] success [in rehabilitation]", but the court found that Dr. Eusanio's testimony "[gave] me some background and context ... in terms of who the defendant is and what, realistically, can we anticipate from him, or possibly can anticipate from him."
The superior court also found one of the defense experts, Dr. Roesch, to be a credible witness. However, the court also found that Dr. Roesch's testimony "didn't really tell me much that, generally, society doesn't already understand ... [in particular,] that young teenagers don't make the best decisions."
The court found that the defense's second expert, Dr. Leslie, was "a very pleasant person", but "she just really had a hard time separating [out] her optimism for the best of a particular individual, and it frankly biased her testimony." The court concluded that Dr. Leslie's optimism "just ... really outweighed her objectivity, in terms of her being able to give a reliable opinion. ... [S]he just couldn't get away from hoping for the best for Mr. Gonzales." And for that reason, the court concluded that it could not rely heavily on Dr. Leslie's opinion.
The superior court found, based on the facts of the offense, on Gonzales's juvenile record, and on his conduct in prison during the preceding four years, that Gonzales was "a bully" — a "person that relishes the opportunity to dominate other people". Even compared to typical teenagers and young adults, the court found that Gonzales showed a notable lack of empathy — "very little regard for anything or anyone, other than what he wants". The court stated that Gonzales's conduct was "not ... typical [of a] 17-year-old or [a] 16-year-old or even a 15-year-old young boy". Rather, Gonzales's conduct during and after the offense was "chilling".
The court further found that the murder and attempted murder in this case were "worst offenses" for sentencing purposes. With specific regard to the attempted murder, the court found that it was "only by the grace of God" that Nilsson survived being shot in the torso at point-blank range. The court also found that Gonzales stepped over Irvin's body and shot Nilsson while she begged for mercy — conduct that the court characterized as "the most cold-blooded [act] we can talk about".
With regard to Gonzales's prospects for rehabilitation, the court declared that the hopes for rehabilitation were "guarded". The court found "very little" in the record to indicate that things were going to get better, other than the fact that Gonzales was "going to get older". The court acknowledged the statistical studies indicating that young offenders become more mature and less violent sometime in their forties. But the court declared that, while there was hope that Gonzales might change, that was "something that [he is] going to have to prove".
The court concluded that Gonzales's sentence had to emphasize the goal of isolation, because Gonzales was "a clear danger right now", and there was "a need to ... isolate [him] from society for a long time". Based on Gonzales's present crimes and on his history, the court concluded that the danger he posed to the community "[was] likely to continue until [he was] well past [his] forties". The court also concluded that another important sentencing goal was community condemnation.
The court acknowledged that Gonzales was a youth, not a mature adult, and that it was proper to take Gonzales's youth into consideration. But the court declared that, even among adolescent offenders, Gonzales stood out as particularly dangerous: "You're going to have a tough time showing me some other 15-, 16-, or 17-year-old in this community that has made as many bad choices, and as callous choices, as [he has]." The court then explained how it analyzed the relevance of Gonzales's youth:
The Court: [An offender's] youth should only be considered in two ways: one, where the youth of the person contributes to that lack of self control and impulsive behavior that is typical of youth; or two, in terms of rehabilitation the ... fundamental hope that ... , as malleable youth, people can
change. [This is] pretty much exactly what [the courts] are talking about in Roper and the rest of those cases.
So when I impose this sentence, ... I'm going to impose [a term of imprisonment] as if you were an adult, ... but I'm going to recognize your youth [in that] I'm not going to restrict your parole. Because, frankly, if you were 35 or 40 years old, I might very well restrict your parole. ... [But] that's not going to happen, because you're a youth. I'm also going to be suspending a portion of the [term of imprisonment] with the hope that, ... with structure, you can perform well.
And maybe there will be a time, ... [when you have] matured and earned the trust to be outside of jail, and be part of the community again[.]
Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).
The court then sentenced Gonzalez to a composite term of 161 years' imprisonment with 50 years suspended, or 111 years to serve. More specifically, the court imposed a sentence of 99 years with 20 suspended for the first-degree murder; a sentence of 60 years with 30 suspended for the attempted murder; and a sentence of 2 years to serve for the burglary — all consecutive to each other.
The superior court explained that its goal in imposing this sentence was to ensure that Gonzales would remain in prison until his early 50s, and then Gonzales would be eligible to apply for discretionary parole.
(Under the provisions of AS 33.16.090(b)(7)(C), Gonzales will become eligible to apply for discretionary parole after serving a little over 34 years — that is, after he serves one-third of 79 years (the active term of imprisonment for his primary crime, first-degree murder) plus one-fourth of 32 years (the total of the consecutive portions of the active terms of imprisonment he received for his other two crimes). As the superior court noted in its sentencing remarks, Gonzales was 21 years old at the time of sentencing, and he already had credit for approximately 4 years in jail.)
After the superior court imposed this sentence, the court addressed Gonzales personally:
The Court: I know that you wanted a much earlier opportunity to be able to earn parole in this case. But frankly, [given] the offenses that you committed, the way that you committed [them], the choices that you made, the people that you hurt, your current posture, and the danger that you pose to society right now, this is the appropriate sentence, and it meets the sentencing goals as I have described them.
(c) Why we affirm Gonzales's sentence
Gonzales raises three main attacks on the superior court's sentencing decision. First, Gonzales argues that his composite term of 111 years to serve is disproportionate to the sentences that this Court has affirmed for other youthful offenders convicted of murder. In support of this argument, Gonzales principally relies on this Court's decisions in Gray v. State, Cotting v. State, and Ridgely v. State. Second, Gonzales argues that the superior court failed to give sufficient weight to his potential for rehabilitation, especially given the fact that he was only 17 years old when he committed his crimes. And third, Gonzales argues that it was clearly mistaken for the superior court to impose a sentence that exceeds his life expectancy, if Gonzales does not obtain parole release.
267 P.3d 667 (Alaska App. 2011).
unpublished, 2008 WL 4059580 (Alaska App. 2008).
739 P.2d 1299 (Alaska App. 1987).
The three cases of Gray, Cotting, and Ridgely are distinguishable from Gonzales's case because they each involved only a single victim, while Gonzales committed both a murder and an attempted murder. And as we have already explained, the superior court concluded that Gonzales's attempted murder was a worst offense — because Gonzales's attempt to kill Nilsson came so close to success, because Nilsson had done absolutely nothing to Gonzales, and because Gonzales shot Nilsson as she huddled on the floor, asking for mercy.
In addition to this important factual distinction between Gonzales's case and Gray, Cotting, and Ridgely, we also note that a certain degree of sentencing discrepancy is an inevitable outcome of the "clearly mistaken" standard of review:
[The "clearly mistaken"] standard of review ... gives considerable leeway to individual sentencing judges. The "clearly mistaken" test 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.Erickson v. State, 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).
Moreover, as this Court explained in Hurn v. State, 872 P.2d 189, 199-200 (Alaska App. 1994), our 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".
In Gonzales's case, the superior court explained at some length why it concluded that Gonzales's crimes were particularly serious, why it concluded that Gonzales was a particularly dangerous offender, and why it concluded that Gonzales's antisocial behavior went far beyond anything that could be attributed simply to youthful impulsiveness and lack of maturity.
The superior court did not ignore Gonzales's potential for rehabilitation. Instead, the court specifically addressed Gonzales's prospects for rehabilitation: the court carefully explained why it believed that those prospects were guarded, why the court believed that Gonzales would remain dangerous at least until he reached middle age, and why the court therefore fashioned a sentence that would ensure Gonzales's imprisonment until his early 50s.
With respect to whether the superior court gave adequate consideration to Gonzales's youth, the court expressly stated that this was the reason it had chosen not to restrict Gonzales's normal eligibility for parole, and why the court had chosen a composite term of imprisonment that would potentially allow Gonzales to be released from prison in his early 50s.
It is up to the sentencing court to determine the weight and priority to be accorded to the various sentencing goals. Here, the superior court fully explained how it weighed the various sentencing goals in Gonzales's case, and the court's analysis is supported by the record. We accordingly conclude that the superior court's sentencing decision is not clearly mistaken.
See Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); Peters v. State, 943 P.2d 418, 421 (Alaska App. 1997).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
Conclusion
The judgement of the superior court is AFFIRMED.