Opinion
No. 5727
08-03-2011
DONALD VOORHIS, Appellant, v. STATE OF ALASKA, Appellee. Court of Appeals No. A-10375 Trial Court No. 3PA-06-2192 CR
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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District,
Palmer, Eric Smith, Judge.
Appearances: Sharon Barr, 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 John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
Donald Voorhis appeals from his convictions for attempted murder, third-degree assault, and three misdemeanor offenses, related to a three-day standoff with the Alaska State Troopers. He contends that Superior Court Judge Eric Smith should have released certain medical and personnel records of the troopers involved in the standoff following an in camera review. We conclude that the judge did not abuse his discretion when he declined to release these records. Voorhis also argues that his composite sentence of fifty-two years' imprisonment with seven years suspended is excessive. But we conclude that the judge's sentencing decision was not clearly mistaken.
Background
We primarily rely on the facts stated in the presentence report, as there appears to be no serious factual dispute. The report states that Voorhis threatened a man named Johnny Yow on the Rampart Loop Road in Talkeetna on September 6, 2006. Voorhis stopped Yow's vehicle at gun point and fired a shot into the roadway near the passenger side of the vehicle.
The troopers obtained an arrest warrant, and on September 8, 2006, Sergeant Walter Blajeski came to Voorhis's trailer to serve the warrant. Voorhis met Blajeski at the door with a rifle pointed at Blajeski's chest. Blajeski retreated and called for assistance.
A three-day standoff ensued. Various trooper negotiators, family members, and even a forensic psychologist tried to talk Voorhis out of the trailer with no success. The troopers attempted to flush out Voorhis with two types of tear gas without success. Then when Voorhis appeared near the door of the trailer, the troopers tried to storm the trailer, but backed off after exchanging gun fire with Voorhis inside. During this incident Voorhis fired his rifle directly at Investigator Nathan Bucknall and near Trooper Ben Mank, who was entering the trailer. The troopers eventually borrowed a bulldozer to tear down a wall of the trailer.
After Voorhis's arrest, two other individuals came forward with a complaint about his behavior. David Davis and Ronald Davis reported that Voorhis had threatened them on the Rampart Loop Road on the same day he had threatened Yow. Voorhis had pointed a rifle at both men and ordered David Davis out of his truck.
Voorhis was convicted of attempted murder in the first degree based on the shots he fired at Trooper Bucknall in the trailer, and assault in the third degree for threatening Yow, David Davis, Ronald Davis, and Blajeski with his rifle before the standoff. Voorhis was also convicted of assault in the third degree for shots he fired at the troopers during the standoff, including Bucknall, Mank, and Blajeski.
Voorhis has a long history of prior criminal offenses extending back to 1975. He has over thirty prior convictions including a felony conviction for vehicle theft, three misdemeanor assault convictions, two convictions for resisting arrest, and one conviction for escape.
Voorhis has struggled with psychiatric problems for several years. He had four admissions to Alaska Psychiatric Institute before this incident. A psychologist who examined Voorhis after his arrest determined that he suffers from anti-social personality disorder. He previously was sentenced to substance abuse treatment for driving under the influence but he did not comply with that order.
Judge Smith imposed a sentence of four years' imprisonment with one year suspended for the assault against Yow when Voorhis discharged his weapon. The judge imposed a sentence of four years with two years suspended for each of the assault convictions for Voorhis's threats against the Davis brothers. The judge imposed a sentence of five years with two years suspended for the assault against Trooper Blajeski when he came to arrest Voorhis. And the judge imposed a sentence of thirty-five years for Voorhis's conviction of attempted murder. The judge also imposed concurrent three-year sentences for Voorhis's assaults against the troopers involved in the standoff and concurrent one-year sentences for Voorhis's misdemeanor convictions. Voorhis's composite sentence is fifty-two years' imprisonment with seven years suspended. He now appeals.
Discussion
The Motion to Compel
Prior to trial Voorhis requested disclosure of two types of records for the troopers involved in this incident. He requested the medical records of Troopers Mank and Bucknall, who were required to give blood samples for drug and alcohol testing after they exchanged gunfire with Voorhis inside his trailer. In support of this request, Voorhis stated that there might be information in the medical files to impeach the troopers' credibility.
Voorhis also requested the personnel files of all of the troopers who had been involved in the standoff. He alleged that those records could be relevant to a proposed defense theory that the troopers had used excessive force during this incident and the troopers could have had complaints filed against them for the use of excessive force or other complaints that could impeach their credibility.
Judge Smith ordered the State to submit for in camera review the medical records of Mank and Bucknall and the personnel records of the troopers who had fired bullets or gas during the standoff at Voorhis's trailer. After reviewing these materials, the judge declined to release any of them.
The judge's order stated that there was one letter of reprimand that arguably pertained to the two reasons supporting the defendant's request. But the judge ruled that the letter made reference to one-time incidents that had a high potential for prejudice and limited probative value.
This part of the judge's ruling appears to refer to a letter of reprimand, which states that one of the troopers had committed violations of various personnel rules relating to three incidents: (1) using a Taser on his ten-year-old step-son; (2) shooting a cow moose using a permit held by his wife; and (3) drinking beer during the operation of a marked trooper patrol vehicle. The letter also refers to prior personnel actions involving less serious violations. The letter imposes a suspension of five working days.
Alaska Criminal Rule 16(b)(7) allows the court "in its discretion" to require disclosure of relevant information not covered by the other subdivisions of Rule 16(b) "[u]pon a reasonable request showing materiality to the preparation of the defense." This provision does not require disclosure of information that is "reasonably not thought to be germane to the case."
Sawyer v. State, 244 P.3d 1130, 1133-34 (Alaska App. 2011) (quoting Howe v. State, 589 P.2d 421, 424 (Alaska 1979)).
We review Judge Smith's decision to deny disclosure of these files for abuse of discretion. An abuse of discretion has occurred when the reasons for the exercise of the trial judge's discretion are clearly untenable or unreasonable.
Id. at 1133 (citing Gunnerud v. State, 611 P.2d 69, 72-73 (Alaska 1980)).
Id.
We conclude that the judge did not abuse his discretion when he declined to release the reprimand letter. The judge could reasonably conclude that none of the incidents described in the letter involved a complaint about the use of excessive force or a complaint that might impeach the trooper's testimony in this case.
See generally Booth v. State, 251 P.3d 369, 374-75 (Alaska App. 2011) (stating that the court is not required to disclose information relevant only to a collateral matter or for impeaching a witness's general credibility).
In addition, later in the trial, the judge ordered the State to inform the troopers that they must disclose any of the troopers' personnel records that had been released to the media as part of a separate controversy. It appears from a newspaper source cited by both parties that the reprimand letter was among these materials that had been released to the media (for purposes unrelated to this case). After the judge issued this order, Voorhis did not raise the issue again. He never told the trial judge that the State had violated this order, and he does not raise the issue in this appeal. From this record, it appears that Voorhis received the reprimand letter that Judge Smith declined to release in his initial ruling.
S ee Lisa Demer, Is Wooten a Good Trooper?, Anchorage Daily News (July 27, 2008), available athttp://www.adn.com/2008/07/26/476430/is-wooten-a-good-trooper-72708.html.
We have also reviewed all of the other materials that were submitted to Judge Smith for in camera review. We conclude that none of the personnel records involves a complaint about the use of excessive force or a complaint that could be used to impeach the testimony of the officers involved in this case. In addition, the medical records do not include any information that could be relevant for impeachment. We therefore conclude that the judge's decision to deny Voorhis's motion to compel was not an abuse of discretion.
The Sentence Appeal
At the conclusion of the trial, the jury found that two aggravating circumstances applied to Voorhis's offenses. The jury found that one of Voorhis's assaults against Trooper Blajeski was among the most serious conduct included in the definition of the offense. The jury also found that Voorhis's assaults against Blajeski, Bucknall, and Mank were knowingly directed at law enforcement officers.
See AS 12.55.155(c)(10).
See AS 12.55.155(c)(13).
Judge Smith made findings on the relevant sentencing factors before he imposed the sentence. He found that this was an extremely dangerous situation that was not provoked by the troopers. He found that the troopers' conduct was a necessary response to Voorhis's threats and lack of cooperation. He found that Voorhis had shown no remorse and accepted no responsibility with respect to this incident. On the basis of these findings, the judge concluded that it was unlikely that Voorhis could be successfully rehabilitated.
The judge found that general deterrence and affirmation of societal norms were the critical sentencing considerations. These considerations were particularly important since this is an attempted murder case where weapons were pointed at and discharged at police officers. He found that it was important to emphasize that the police officers are entitled to do their job safely when they conduct an arrest. He also stated that the sentence would serve as a warning to others who might be tempted to use violence against officers who are simply trying to carry out their duties. The judge also found that isolation was important in view of Voorhis's bizarre misconduct. The judge imposed a composite sentence of fifty-two years' imprisonment with seven years suspended.
On appeal, Voorhis argues that his sentence is clearly mistaken when compared with the sentences that we have approved in various reported and unreported cases.
But this case does seem to be comparable to the sentence we approved in the case of Rudden v. State. Rudden shot a service station mechanic. He had an extensive misdemeanor record with one felony conviction and an anti-social personality disorder. Rudden was convicted of only one count of attempted first-degree murder.We held that Rudden's sentence of thirty-five years' imprisonment was not clearly mistaken.
881 P.2d 328 (Alaska App. 1994).
Id. at 329.
Id. at 329, 331.
Id. at 329.
Id. at 331-32.
This case also appears to be similar to a sentence we approved in Johnson v. State. Johnson shot a police officer and entered a plea of no contest to one count of attempted first-degree murder. His case involved an extended confrontation, and he attempted to murder a second police officer and committed third-degree assault against his girlfriend. We affirmed a sentence of forty years' imprisonment with parole eligibility restricted for the entire term.
Mem. Op. & J. No. 3280, 1995 WL 17221334 (Alaska App. Nov. 1, 1995).
Id. at *2.
Id. at *1-2.
Id. at *9, 11.
After taking the circumstances of this offense into account, Voorhis's sentence seems to be consistent with the sentences we approved in Rudden and Johnson.
Page 9 There may be other cases where we have held that lower sentences were not excessive, but those cases do not establish that a greater sentence would have been impermissible.
Morrell v. State, 216 P.3d 574, 579 (Alaska App. 2009).
Voorhis also argues that it was error for Judge Smith to consider trial court records of a sentence imposed in the case of State v. Tucker. He first argues that the court should not have relied on the felony complaint to establish the facts of the Tucker case. But Voorhis did not make this objection in the trial court, and this verified information appears to be similar to information we have previously approved for use at sentencing.
No. 4FA-98-1987 CR.
See Ulak v. State, 238 P.3d 1254, 1263 (Alaska App. 2010) (citing Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977)).
Tucker had threatened a victim who stopped her vehicle at a turnoff of the Elliott Highway near Fox, Alaska. When the troopers responded, Tucker shot at them. Tucker was ultimately apprehended. Tucker was convicted of three counts of attempted first-degree murder, four counts of third-degree assault, and two other felony charges. The superior court imposed a composite sentence of fifty-seven years to serve.
Tucker's case does appear to be comparable to Voorhis's case. We conclude that it was not an abuse of discretion for Judge Smith to consider Tucker's sentence when determining the appropriate sentence to impose for Voorhis's misconduct.
After reviewing the entire sentencing record, including Voorhis's prior criminal history and the circumstances of this offense, we conclude that the sentence was not clearly mistaken.
See generally McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
C onclusion
We AFFIRM the superior court's judgment and sentence.