Opinion
Court of Appeals No. A-9974.
September 15, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-05-7292 CR.
Rex Lamont Butler, Rex Lamont Butler Associates, Inc., Anchorage, for the Appellant. Kenneth M. Rosenstein, 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
Steve Claudy Lapitre was convicted of second-degree murder for the shooting death of Kylan Brown. On appeal, Lapitre argues that the trial judge should have given a self-defense instruction, but we conclude that Lapitre failed to timely renew his claim of self-defense after he expressly abandoned this defense prior to trial. He argues that at sentencing, the trial court should not have relied on the grand jury testimony of Brown's girlfriend, Angela Button, who died before the trial. But the judge properly determined that Button's testimony was reliable and adequately corroborated for consideration at sentencing. And we conclude that the judge properly concluded that Lapitre was a worst offender based on his prior record and the circumstances of this offense.
Background
The shooting occurred outside of a nightclub in Anchorage where Lapitre had been dancing in the club with his girlfriend, Brittany Howard, and Brown had been dancing with his girlfriend, Angela Button. There were essentially two eye-witness accounts offered at trial.
A witness named Gary Swan testified that Lapitre was standing outside when Brown and Button came out of the club. Swan told the police that Lapitre made a derogatory remark to Brown, and he testified that Button then said to Brown, "Did you hear what he said?" Then Button and Brown retrieved their car, and Button drove up near the club. Brown got out and stood next to the car. Lapitre ran around the rear of the vehicle and hit Brown two to four times in the neck area. Then a shot rang out, and Brown fell back into the car. The incident unfolded so quickly that Swan believed that Lapitre must have had the gun in his hand when he was hitting Brown.
Lapitre testified that Button almost hit him with the vehicle she was driving as he was walking away from the club. Brown then jumped out of the vehicle and made a derogatory remark to Lapitre, and Lapitre walked over to see if Brown had mistaken him for someone else. Lapitre testified that Brown then started hitting him, and that while they were fighting, Lapitre's handgun fell out of his holster. Both men went for the gun, and it discharged accidently while they were struggling.
The jury acquitted Lapitre of first-degree murder but convicted him of murder in the second degree.
At sentencing, Superior Court Judge Philip R. Volland considered Lapitre's prior convictions, including his juvenile record, and the circumstances of this offense, including Button's grand jury testimony. Judge Volland concluded that Lapitre was a worst offender and sentenced him to ninety-nine years' imprisonment.
Was Lapitre Entitled to a Self-Defense Instruction?
Lapitre filed a pretrial notice of his intent to rely on a claim of self-defense. The State moved for permission to introduce evidence that Lapitre had fired the same gun in a prior incident. The State argued that the prior incident was admissible to rebut Lapitre's claim of self-defense and to prove that Lapitre had the intent to assault Brown. In response, to avoid the admission of this evidence, Lapitre stated that he would not be claiming self-defense:
It is unlikely that intent will be an actual issue in this case, as Lapitre is not claiming that he fired the weapon in self-defense. . . . Lapitre is claiming that the decedent is the victim of his own aggression and an unintentional discharge of the weapon.
Based on these arguments, the judge ruled that evidence of the prior incident was probably inadmissible and cautioned the State not to comment on the incident.
Then at the end of the trial, after the parties had delivered their closing arguments, Lapitre requested a self-defense instruction. Judge Volland declined, concluding that Lapitre had failed to present enough evidence to justify the instruction.
Shortly after the jury found Lapitre guilty of second-degree murder, Lapitre made a motion for a new trial on the ground that he was entitled to a self-defense instruction. The trial court denied the motion, concluding that there was insufficient evidence to support the instruction, that Lapitre had disavowed his notice of self-defense, and that the State would have been prejudiced if the court had granted Lapitre's untimely request.
On appeal, Laptire argues that the trial court erred by denying the instruction and the motion for new trial. The State concedes that Lapitre likely would have been entitled to a self-defense instruction had he provided timely notice, but argues that Lapitre's express abandonment of self-defense barred him from raising it at the end of the trial.
Lapitre argues that his trial testimony "rekindled" his right to assert self-defense. But Lapitre's testimony was also entirely consistent with his theory that he did not intend to shoot Brown: Lapitre testified that he and Brown struggled for the gun and that it discharged by accident. Lapitre never alluded to self-defense in his opening statement or closing arguments. Lapitre's counsel conceded that he litigated the case without reliance on self-defense: he informed the trial court that the need for the instruction occurred to him over the weekend after closing arguments. Thus, there was no obvious discrepancy between Lapitre's trial testimony and his earlier unambiguous declaration that he would not be claiming self-defense.
Lapitre argues that the trial court failed to consider the proper remedies for an untimely notice of self-defense. Alaska Criminal Rule 16(c)(5) provides:
Failure to provide timely notice [of an affirmative defense] under this rule shall entitle the prosecutor to a continuance. If the court finds that a continuance is not an adequate remedy under the circumstances of the case, the court may impose other sanctions, including prohibiting the defendant from asserting the designated defense.
Lapitre argues that Judge Volland failed to consider a continuance.
Neither party requested a continuance, and it appears undisputed that a continuance would have been pointless. The trial was nearly over when Lapitre requested the self-defense instruction. The evidence was closed, and the parties had delivered their closing arguments. All that remained was to instruct the jury. A continuance would not have given the State any effective response to the proposed instruction.
Lapitre also argues that the trial judge should have considered reopening the evidence to allow him to raise this defense. This type of decision is committed to the discretion of the trial judge, and we would not reverse except for an abuse of that discretion. But Lapitre did not ask Judge Volland to reopen the evidence, so he must now establish plain error.
See Western Airlines, Inc. v. Lathrop Co., 499 P.2d 1013, 1020 (Alaska 1972) (holding that it was not an abuse of discretion for trial judge to refuse to reopen evidence after plaintiff had concluded its case-in-chief and waived rebuttal).
When Judge Volland denied Lapitre's motion for a new trial he noted that the prejudice to the State could not be cured by simply reopening the evidence and allowing the State additional argument. He concluded that this issue "would have been so central to the trial that it would have affected the entire conduct of the trial, including jury selection." Judge Volland was in the best position to judge the possible impact of allowing Lapitre to assert self-defense. We cannot say that his conclusion was the kind of obvious mistake that would constitute plain error. We therefore conclude that Lapitre was not entitled to a self-defense instruction because he failed to timely renew this defense after he had expressly abandoned it prior to trial. Did the Judge Rely on Inadmissible Evidence at Sentencing? Angela Button's police interview and grand jury testimony
Brown's girlfriend, Angela Button, gave a statement during a police interview after the shooting. She also testified at the grand jury proceedings the following day, but she died before trial. She stated that Lapitre made a derogatory remark as she was leaving the club with Brown. After they retrieved their car, Button stopped near the club; Brown got out and challenged Lapitre to fight. Then Lapitre ran up from behind the car with a gun in his hand. Button heard a shot, and Brown fell back into the car.
Prior to trial, Lapitre filed a motion to introduce exculpatory portions of Button's grand jury testimony. The judge ruled that Button's testimony was admissible as former testimony because the State had a sufficient motive to cross examine Button at the grand jury proceeding. The judge also found that Button's testimony was reliable because her testimony at grand jury was virtually identical to the statement she gave to the police, because the grand jury proceeding was held just one day after the shooting, and because Button faced questions from the grand jurors. But Lapitre withdrew his request to introduce Button's grand jury testimony after the judge ruled that the State could introduce other portions of the testimony under the rule of completeness. We express no opinion on the validity of these rulings.
See A. R. E. 804(b)(1).
See Sipary v. State, 91 P.3d 296, 299-301 (Alaska App. 2004).
A summary of Button's statement to the police was included in the presentence report. But at the sentencing hearing, when the judge asked if he could consider Button's grand jury testimony, Lapitre objected, arguing that he did not have the opportunity to confront Button and that Button's version of the events was influenced by Button's status as Brown's girlfriend.
In Hamilton v. State, this court balanced the traditional admissibility of verified hearsay information at sentencing against concerns about the reliability of hearsay raised in cases reviewing other proceedings. We determined that the risks of the abuse of hearsay information were sufficiently important "that the state should be required to prove the unavailability of declarant witnesses before using their hearsay declarations against a defendant who denies the allegations under oath and submits to cross-examination." If hearsay declarants are unavailable, the State has the burden of proving "the veracity of each declarant and corroborating his or her testimony."
771 P.2d 1358, 1362 (Alaska App. 1989).
Id.
Id. at 1363.
Prior to the sentencing hearing, Lapitre did not make any objection to Button's statements in the presentence report. And Lapitre did not take the stand to specifically deny those statements under oath. There is some question about whether Lapitre raised an adequate objection. Nonetheless, Judge Volland assumed that Lapitre's trial testimony constituted a sufficient testimonial denial, but ruled that he could consider Button's grand jury testimony.
See Alaska R. Crim. P. 32.1(d)(5) (requiring presentence objection to information in the presentence report); Garland v. State, 172 P.3d 827 (Alaska App. 2007) (defendant who declined to enter testimonial denial did not adequately dispute verified information included in presentence report).
As noted above, Judge Volland specifically determined that Button's testimony w as reliable when he found that the testimony was admissible against the State as former testimony and against Lapitre under the rule of completeness. This finding also supports the court's consideration of this evidence at the sentencing hearing. Judge Volland's finding was adequately supported because Button's grand jury testimony was given under oath, because the testimony was given only one day after the incident in which Brown was killed, and because the grand jury testimony was consistent with the statement that Button gave to the police only ninety minutes after the shooting.
To admit this type of statement at sentencing, the State must also show that an unavailable declarant's statement was corroborated. A statement is adequately corroborated if it is supported by other trial testimony. In this case, Button's statements were largely corroborated by Swan's testimony; the main difference was that Swan testified that Lapitre pistol-whipped Brown before he shot him.
Brown v. State, 12 P.3d 201, 208-09 (Alaska App. 2000).
We therefore conclude that the State adequately established that Button's statements were reliable and adequately corroborated for sentencing purposes.
Lapitre's juvenile adjudications
On May 14, 1997, Lapitre was adjudicated a delinquent minor for two incidents involving firearms. Lapitre admitted that he committed the crimes of assault in the fourth degree and misconduct involving weapons in the fifth degree in October 1996, for shooting a handgun at a student at Lathrop High School in Fairbanks. Lapitre also admitted that he committed third-degree assault in November 1996, when he fired a gun several times in a nightclub, placing a security officer and several patrons in fear of serious physical injury. These adjudications were relevant to Judge Volland's findings that Lapitre's criminal history included conduct involving aggravated and repeated instances of assaultive behavior, that Lapitre had previously been adjudicated as a delinquent for a crime that would be an adult felony, and that Lapitre's conduct was among the most serious included in the definition of the offense.
AS 12.55.155(c)(8).
AS 12.55.155(c)(19).
AS 12.55.155(c)(10).
On appeal, Lapitre argues that his admissions in these juvenile cases were not knowing and voluntary because he relied on his belief that the records would be sealed. The only factual basis for this argument is the unsworn statement from Lapitre's mother at sentencing.
If Lapitre actually believed that his juvenile record could not be used in an adult sentencing proceeding, then his belief was mistaken. Delinquency Rule 27(a)(1) allows an adult probation officer to review delinquency records for the purpose of preparing a presentence report. This provision was in effect at the time that Lapitre was originally adjudicated.
See Hart v. State, 75 P.3d 1073 (Alaska App. 2003).
See Alaska Supreme Court Order No. 919 (effective Jan. 15, 1989).
Even if Lapitre could establish this mistaken belief, it would not constitute a due process violation. We have recognized that a guilty plea may satisfy due process even though a defendant does not understand every collateral consequence of a criminal conviction. A collateral consequence is one that originates outside of the trial court. The possible release of juvenile records for preparation of a future presentence report originates from the operation of the delinquency rules, not as a direct consequence of a delinquency judgment imposed by the court. We conclude that the presentence report could properly include information related to Lapitre's juvenile adjudications.
See Peterson v. State, 988 P.2d 109, 115 (Alaska App. 1999).
See Limani v. State, 880 P.2d 1065, 1067 (Alaska App. 1994).
See AS 47.12.120(b)(1) — (7) (listing the consequences that a court may impose after finding that a minor is delinquent).
Did Lapitre Establish Mitigating Factors?
Lapitre asserted that the sentencing court should find three mitigating factors: he acted in response to severe provocation; he acted under some degree of duress or threat; and his conduct was the least serious for this category of offense. Judge Volland concluded that Lapitre did not prove these mitigating factors, finding that Lapitre's conduct was the most serious within the definition of second-degree murder and that Brown's actions were insufficient to establish that Lapitre acted under duress or threat.
AS 12.55.155(d)(7).
AS 12.55.155(d)(3).
AS 12.55.155(d)(9).
On appeal, Lapitre argues that these mitigating factors were established by clear and convincing evidence. He argues that there was clear evidence that the victim was the initial aggressor and that this aggression would have sufficiently excited an intense passion in a reasonable person in the defendant's situation so as to constitute "serious provocation" under AS 11.41.115(f)(2). Lapitre also argues there was evidence to support the conclusion that Lapitre acted out of mortal fear, which although possibly insufficient to establish a complete defense, was sufficient to show that the duress significantly affected his conduct. And Lapitre argues that because he was acting out of fear, his conduct was the least serious.
However, these mitigating factors, even if proved, would not alter Judge Volland's sentencing authority. Second-degree murder carries an indeterminate term of ten to ninety-nine years. A trial court may "impose any sentence within the range of imprisonment that the legislature has established for [second-degree murder], regardless of whether aggravating or mitigating factors are proved." Thus, even if Judge Volland found the mitigating factors, he would have retained the discretion to sentence Lapitre to any sentence within the sentencing range.
AS 12.55.125(b).
Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002).
Additionally, Lapitre's argument rests on a version of the facts viewed in the light most favorable to himself, including testimony explicitly rejected by the judge. Swan testified that Lapitre ran up, pistol-whipped Brown, and shot him. Button's statements also suggest that Lapitre ran up and shot Brown without serious provocation. This evidence was inconsistent with Lapitre's testimony and supported the judge's conclusion that Lapitre intentionally shot Brown.
We conclude that Judge Volland's factual findings on these mitigating factors were not clearly erroneous, and after an independent review we agree with his conclusion that those factors were not established. Was the Sentence Excessive?
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (explaining that factual findings made by the trial court are reviewed for clear error, but whether those facts establish an aggravating or mitigating factor is a legal question the appellate court must review de novo).
Lapitre also appeals his ninety-nine-year sentence. He argues that the superior court erred when it categorized him as a worst offender and imposed the maximum sentence of imprisonment for second-degree murder.
In addition to the juvenile adjudications described above, Lapitre has a number of adult criminal convictions relevant for sentencing purposes. On August 1, 2000, Lapitre was convicted of misconduct involving weapons in the third degree for an incident in which he assaulted his pregnant girlfriend and then brandished a handgun at her uncle who escorted her to the hospital. On May 8, 2001, Lapitre was convicted of criminal mischief in the third degree and resisting arrest for an incident when he kicked out the window of a police car after his arrest for a traffic offense. On July 29, 2002, Lapitre was convicted of criminal trespass in the first degree and assault in the fourth degree. On January 6, 2006, Lapitre was again convicted of misconduct involving weapons in the third degree for possession of a concealable firearm found after a traffic stop.
AS 11.61.200(a)(1) (felon in possession of a concealable firearm).
At the time of sentencing, Lapitre was awaiting trial on charges of misconduct involving weapons in the third degree and two counts of assault in the third degree. The presentence report stated that these charges arose when two men observed a man trying to move a dumpster in the parking lot of a bar. When they approached, the man pulled out a handgun and shot five rounds in their direction from a short distance away. The shell casings taken from that scene matched Lapitre's gun, and Lapitre's palm print was found on the dumpster.
Judge Volland concluded Brown's killing was equivalent to first-degree murder. The judge found that Lapitre's version of the events was improbable, that the crime was similar to Lapitre's previous violent acts, and that the evidence supported the conclusion that Lapitre "shot to kill."
Judge Volland found that Lapitre's record established that he was "violent, hostile, and impulsive," and that he had "abysmal" prospects for rehabilitation. The judge concluded that a lengthy sentence was necessary to express disapproval for "the rampant, unprovoked use of handguns by relatively young people in situations where the gunplay is not justified to any degree." The judge also found that Lapitre's history of similar misconduct required a lengthy sentence to deter him from further violence and to isolate him for the protection of the public. In summary, Judge Volland concluded that Lapitre was a worst offender based on his criminal history and the circumstances of this offense.
Generally a worst-offender designation will justify the imposition of the maximum sentence of imprisonment. A worst offender is defined as the worst type of offender within the group committing the offense inquestion. A worst-offender finding may be based on the defendant's criminal history, on the circumstances surrounding the offense, or both.
Brown v. State, 693 P.2d 324, 330 (Alaska App. 1984).
Hintz v. State, 627 P.2d 207, 210 (Alaska 1981).
Howell v. State, 115 P.3d 587, 593 (Alaska App. 2005).
Judge Volland concluded that Lapitre's crime was among the most serious within the definition of second-degree murder and that Lapitre's record established that he was a worst offender. These findings are supported by the record. The worst-offender designation was sufficient to support a maximum sentence for this offense. We conclude that Lapitre's sentence was not clearly mistaken. Conclusion
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (adopting the clearly mistaken test for sentence appeals).
We AFFIRM the superior court's judgment and sentence.