Opinion
Court of Appeals No. A-9678.
August 18, 2010.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-04-3625 CR.
Paul Malin, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Eugene C. G ordon of first-degree murder, attempted first-degree murder, and first-degree burglary, and Superior Court Judge Eric Smith imposed a composite sentence of 75 years to serve. Gordon now appeals, arguing (1) that Judge Smith erred in denying his request to dismiss the grand jury indictment because the State presented inadmissible evidence; and (2) that Judge Smith imposed an excessive composite sentence. We conclude that any improper evidence did not appreciably affect the grand jury's decision and that Gordon's sentence was not clearly mistaken.
AS 11.41.100(a)(1)(A).
AS 11.31.100(a); AS 11.41.100.
AS 11.46.300(a)(1).
Background
On December 14, 2004, Gordon broke into Jesus Manglona's house, and shot and killed Manglona while he lay sleeping in his bed next to Laurie Welsh. Gordon and Welsh had been involved in a romantic relationship that had ended approximately three months before this incident.
After she was awakened by the gunshot, Welsh saw Gordon standing at the foot of the bed, pointing a revolver at her. Gordon told Welsh that she and Manglona both deserved to die. At one point Gordon put the gun to the side of Welsh's head, and Welsh had to stick her thumb between the hammer and the firing pin to prevent the gun from firing.
Welsh testified before the grand jury that Gordon took the gun back from her, looked at Manglona, and stated: "I killed him, and I'm not going back to prison. I killed him." Gordon left momentarily, and Welsh called 911. Gordon went to his truck where he called Welsh on her cell phone, telling her he was going to "blow [his] brains out." Alaska state troopers arrived and surrounded Gordon in his truck.
It took the troopers three hours to convince Gordon to get out of his truck. After Gordon's arrest, he told the troopers that he would not talk to them until he was allowed to talk to Welsh. The troopers allowed Gordon to talk to Welsh, and, in the presence of the troopers, Gordon told Welsh that he was truly sorry about what had happened and that he was guilty for what he had done.
Trooper Leonard Wallner testified before the grand jury that after Gordon was done talking with Welsh, he started to question Gordon:
[A]fter the conversation with Ms. Welsh . . . I wanted to extend the chat with [Gordon], and he basically said he's not talking to me[,] he . . . said that he wanted to talk to a lawyer first, which was fine.
A grand juror then said, "We've heard some testimony that [Gordon] said that he didn't want to go back to prison, are we entitled to know what that would be about? Why he didn't want [to] go back to prison or what he was in prison for, or is that not acceptable to ask?" The prosecutor replied, "Usually we try to stay away from that kind of stuff. We always try not to have to redo these things." The juror then volunteered, "Okay, I'll withdraw the question."
The grand jury indicted Gordon for first-degree murder, attempted first-degree murder, first-degree burglary, two counts of second-degree murder, manslaughter, and third-degree assault. Gordon filed a motion to dismiss the grand jury indictment, contending that the prosecutor improperly presented evidence that Gordon invoked his right to remain silent and testimony regarding Gordon's prison service. Judge Smith denied Gordon's motion, the case proceeded to trial, and a jury convicted Gordon on all counts.
AS 11.41.110(a)(1) (2).
AS 11.41.120(a)(1).
AS 11.220(a)(1)(A).
At sentencing, Judge Smith merged Gordon's convictions for second-degree murder, manslaughter, and third-degree assault, so Gordon's judgment reflects convictions for first-degree murder, attempted first-degree murder, and first-degree burglary. Judge Smith imposed a composite sentence of 75 years to serve. Gordon appeals.
The Motion to Dismiss
Gordon argues that the superior court erred when it denied his motion to dismiss based on the presentation of inadmissable evidence to the grand jury. Evidence that would be legally admissible at trial is also admissible before the grand jury.
Gordon argues that the prosecutor improperly presented the admission that he made to Welsh: "I killed him, and I'm not going back to prison." However, as Judge Smith recognized, Gordon's statement reflected his acknowledgment that he was criminally responsible for killing Manglona. It also suggested that he would have to kill Welsh to avoid going back to prison. This statement was therefore admissible to show Gordon's intent to kill Manglona and Welsh and his guilty state of mind.
Evidence of Gordon's prior prison service would not be admissible to show that he was a person of bad character likely to commit murder. But under the circumstances of this case, the prejudice from this potential inference does not outweigh the probative value of Gordon's admission. The prosecutor also avoided any unnecessary prejudice when he declined to allow a grand juror's question to Trooper Wallner about Gordon's prior prison service. We accordingly conclude that Gordon's statement was admissible evidence that could be presented to the grand jury.
See Alaska R. Evid. 403.
Gordon also argues that the prosecutor improperly presented evidence that he invoked his right to remain silent. Gordon points to Wallner's testimony that after Gordon was transported to the Palmer trooper post, Gordon told the troopers that he would not say anything until he was allowed to talk to Welsh. At another point, when the prosecutor asked Wallner about Gordon's demeanor, Wallner testified that he wanted to extend his discussion with Gordon, but that Gordon wanted to talk to a lawyer first.
The State concedes that it is generally impermissible for a prosecutor to make reference to a defendant's assertion of his Fifth Amendment right to remain silent. But we conclude that we need not determine the admissibility of Gordon's statements, because even if they were inadmissible, they did not appreciably affect the grand jury's decision.
See Dorman v. State, 622 P.2d 448, 456-59 (Alaska 1981); Coleman v. State, 553 P.2d 40, 50-52 (Alaska 1976); Dunn v. State, 653 P.2d 1071, 1083-84 (Alaska App. 1982).
When the grand jury hears inadmissible evidence, the court must first determine whether the remaining evidence is legally sufficient to support the indictment. If the remaining evidence is legally sufficient, the court must then determine whether "the probative force of th[e] admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict."
Stern v. State, 827 P.2d 442, 446 (Alaska App. 1992).
Id.
Both of the references to Gordon's right to remain silent were made in passing. Trooper Wallner's testimony that Gordon said he would not talk to the troopers until he had a chance to talk with Welsh was in response to a general question from the prosecutor about any other statements that Gordon made about the incident. And Wallner's other testimony that Gordon declined to talk with the troopers until he had a chance to talk to a lawyer was in response to the prosecutor's question about Gordon's demeanor. Thus it is unlikely that the grand jury understood these references to be an indication that Gordon was admitting guilt.
Moreover, there was persuasive admissible evidence supporting the grand jury's decision. Welsh testified that she was awakened by a gun shot while she was sleeping next to Manglona. When she awoke, she saw Gordon standing at the foot of the bed and holding a revolver. Gordon then stated: "I killed him and you're not going to have him." He repeatedly threatened Welsh with his gun, telling her that she needed to die, and he struggled with Welsh over the gun. Gordon attempted to shoot Welsh but she saved herself by sticking her thumb between the hammer and the firing pin of the handgun. Later, at the trooper post, Gordon told Welsh and the troopers that he was guilty for what he had done. In view of this strong evidence, we conclude that the passing references to Gordon's assertion of his right to remain silent did not appreciably affect the grand jury's decision to indict.
The Sentencing Decision
Gordon also argues that his sentence is excessive. Gordon cites cases in which the appellate courts have upheld shorter sentences for crimes similar to his. But "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."
Hurn v. State, 872 P.2d 189, 199-200 (Alaska App. 1994); see also Arenas v. State, 727 P.2d 313, 314 n. 1 (Alaska App. 1986).
Alaska courts have repeatedly upheld significant sentences in first-degree murder cases. We have stated that "a defendant who challenges a 99-year sentence for first-degree murder must show some reason to believe that his offense is mitigated or that his background is atypically favorable." Judge Smith was also warranted in sentencing Welsh to a substantial term of imprisonment for his separate conviction of attempted first-degree murder.
Johnson v. State, 77 P.3d 11, 14 (Alaska App. 2003).
See, e.g., Nelson v. State, 874 P.2d 298, 310 (Alaska App. 1994) (finding a sentence of 99 years for attem pted first-degree murder w as not clearly mistaken); Rudden v. State, 881 P.2d 328, 331-32 (Alaska App. 1994) (affirming sentence of 35 years for attempted first-degree murder); Sam v. State, 842 P.2d 596, 603-04 (Alaska App. 1992) (concluding sentence of 45 years with 15 suspended for attempted first-degree murder not clearly mistaken).
For example, in Nelson v. State, the defendant became enraged at seeing his ex-girlfriend sitting in a truck with another man, and fired eight shots into the cab of the truck. A jury convicted Nelson of first-degree murder for the killing of his ex-girlfriend, and attempted murder of the other man. Nelson had no criminal history, but this court found that his individual sentences of 99 years for each crime were not clearly mistaken.
Nelson, 874 P.2d at 300.
Id.
Id. at 310.
Similarly, in Stoneking v. State, this court upheld a composite sentence of 99 years for first-degree murder, attempted first-degree murder, first-degree assault, and first-degree burglary. Stoneking broke into his estranged wife's home and found her on the couch with another man. Stoneking shot both, killing his wife and seriously injuring her companion. This court concluded that Stoneking's 99-year composite sentence was "solidly within statutory boundaries."
Stoneking v. State, Memorandum Opinion and Judgment No. 5667 (Alaska App., April 17, 1996), 1996 WL 341289, *1-2.
Stoneking v. State, 800 P.2d 949, 950 (Alaska App. 1990) (explaining facts of the case).
Id. at 950.
Stoneking, 1996 WL 341289 at *1-2.
Gordon also claims that Judge Smith failed to consider his prospects for rehabilitation because the underlying causes of his offense were treatable emotional disorders. But Judge Smith did consider Gordon's prospects, noting that Gordon was "genuinely repentant," and that this factor balanced in his favor.
See Yu v. State, 706 P.2d 348, 349 (Alaska App. 1985) (finding that the trial judge failed to give appropriate consideration to the goal of rehabilitation where there was a "strong possibility that psychiatric or psychological treatment could be a factor that would be of considerable aid in helping [the defendant], upon release from imprisonment . . ." when defendant shot his mistress out of jealousy).
A sentencing judge is not required to give the goal of rehabilitation the highest priority in every case. Judge Smith reasonably concluded that a lengthy sentence was necessary to protect the public and to express community condemnation for this type of crime. Judge Smith also reasonably concluded that a lengthy sentence was necessary to serve as a warning to others who may be tempted by jealousy to turn to extreme violence. Under the circumstances of this case, Gordon has failed to demonstrate that his 75-year sentence was clearly mistaken. Conclusion
Tucker v. State, 721 P.2d 639, 643 (Alaska App. 1986) (citing Shearer v. State, 619 P.2d 726, 728 n. 5 (Alaska 1980)).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (adopting the clearly mistaken test for sentence appeals).
We therefore AFFIRM the superior court's judgment and sentence.