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explaining that reasonable judges could conclude that the legislature acted within its authority when it granted decision-making power to juries over the (c) aggravator
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Court of Appeals No. A-9771.
July 9, 2008.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney III, Judge, Trial Court No. 4BE-04-1010 Cr.
Beth G. L. Trimmer, Assistant Public Advocate, Palmer, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Dian e L. Wendlandt, Assistant Attorney G eneral, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
On the evening of July 17, 2004, George Whitman III was visiting with two elders — a man and a woman — in Bethel. Without warning, Whitman began attacking them. Whitman repeatedly beat and kicked the man, leaving him with permanent brain damage. Then Whitman raped the woman. Based on this incident, Whitman was convicted of first-degree assault upon the man, and of first-degree sexual assault and second-degree assault upon the woman. He received a composite sentence of 76 years' imprisonment with 42 years suspended — i.e., 34 years to serve — for these offenses. Whitman now appeals his convictions and sentence.
Whitman asserts that the fairness of his trial was prejudiced because the trial judge allowed a government witness (the State's mental health expert) to refer to Whitman's mental health records from the Department of Corrections as "Corrections" records rather than simply "clinical" records — a reference which, according to Whitman, alerted the jurors to the fact that Whitman had been previously incarcerated.
Next, Whitman argues that the jury erred when it found that two aggravating factors — (c)(2) (deliberate cruelty) and (c)(10) (conduct among the most serious within the definition of the offense) applied to his sexual assault conviction. With regard to aggravator (c)(2), Whitman argues that there was insufficient evidence to support a finding that he acted with deliberate cruelty when he raped the woman. And with regard to aggravator (c)(10), Whitman argues that the jury should never have been asked to decide whether his rape of the woman was among the most serious conduct within the definition of first-degree sexual assault. Relying on the Alaska Supreme Court's decision in Michael v. State, 115 P.3d 517, 519-520 (Alaska 2005), Whitman argues that it is a question of law, not fact, whether a defendant's particular conduct is among the most serious within the definition of an offense.
We conclude that there is no merit to Whitman's claim of error regarding the mental health expert's testimony — for Whitman's trial attorney expressly agreed that the expert could refer to the mental health records as originating in the Department of Corrections.
We likewise conclude that there is no merit to Whitman's claim of error regarding aggravator (c)(2). The jury was properly instructed on the legal meaning of "deliberate cruelty", and the evidence supports their verdict.
As to W hitman's claim of error regarding aggravator (c)(10), this claim was not preserved in the trial court, so Whitman must now demonstrate plain error. Reasonable judges could conclude that it is proper under Alaska law to have a jury decide aggravator (c)(10), since this is the procedure specified in AS 12.55.155(f). Moreover, even if aggravator (c)(10) should have been decided by the sentencing judge rather than the jury, our review of the record convinces us that Whitman was not prejudiced by this flaw. For these reasons, we conclude that Whitman has failed to show plain error.
The expert witness's reference to "Corrections" records
Before his trial, Whitman filed notice that he was going to rely on evidence that he suffered from a mental disease or defect to negate the culpable mental state required for his crimes. In support of this defense, Whitman offered the testimony of Dr. Loren L. Bradbury, a psychologist. Dr. Bradbury testified that, based on his clinical interview with Whitman and the results of psychological testing, there were indications that Whitman suffered from a mental disease or defect in the nature of paranoia. Bradbury testified that this disease or defect could impede Whitman's ability to perceive reality and to exercise sound judgement, and that it could prevent Whitman from forming the intent necessary for the crimes of first-degree assault and first-degree sexual assault.
In rebuttal to Bradbury's testimony, the State presented the testimony of Dr. David J. Sperbeck, the forensic psychologist who was appointed by the superior court to evaluate Whitman before trial (after Whitman gave notice of his defense based on mental disease or defect). Dr. Sperbeck's clinical interview with Whitman lasted less than ten minutes because Whitman quickly became agitated and uncooperative. Nevertheless, based on this brief interaction with Whitman and on a review of Whitman's mental health records, Sperbeck concluded that Whitman did not suffer from a serious psychiatric disorder that would cause him to misinterpret reality.
See AS 12.47.070.
Before Sperbeck took the stand, Whitman's attorney asked the superior court to instruct Sperbeck not to refer to any Department of Corrections mental health records that pre-dated Whitman's current offenses — i.e., records stemming from Whitman's previous incarceration. The attorney argued that any information suggesting that Whitman had been in jail previously would be both irrelevant and prejudicial.
In response to the defense attorney's concerns, Superior Court Judge Leonard R. Devaney III ruled that Sperbeck's testimony would be limited to (1) what Sperbeck personally observed when he assessed Whitman, and (2) the information that Sperbeck gained from the assessments and reports of other mental health clinicians and nurses who had had contact with Whitman.
When Sperbeck took the stand (telephonically), Judge Devaney told him about this ruling in the presence of the jury. The judge stated, "The court is going to allow you to give us your opinion as to the mental state of the defendant, but I'm going to limit [the] basis [of your opinion] to your own observations and the notes and information provided to you by the [other] mental health clinician[s] as well[.]" Sperbeck replied that he understood these limits on his testimony.
During the prosecutor's direct examination, Sperbeck stated that he had reviewed Whitman's mental health records. He explained that when a mental health examiner is asked to perform an assessment and the defendant does not cooperate, the examiner's next step is to try to determine whether this failure to cooperate was willful or whether it was due to a mental disease or defect. Sperbeck then testified: "I determined, based on a review of the Department of Corrections' mental health records, that the defendant did not have a serious psychiatric disorder that would cause him to misinterpret reality." Whitman's attorney did not object to this testimony.
The prosecutor then asked, "Based upon your personal involvement in the case, as well as your review of the available DOC records, were you able to form any opinion . . . as to . . . the existence of a mental defect or disease . . . ?" Sperbeck responded, "It was my opinion that . . . the defendant obviously appeared to be extremely aggressive and angry and immature." At this point, the defense attorney objected — and, in response to the objection, Judge Devaney struck Sperbeck's comment about Whitman being "angry and immature".
The prosecutor then proceeded with his examination. He began his next question with words, "Now, you have discussed the use of records of the Department of Corrections . . . ". The defense attorney again objected, leading to the following colloquy:
Defense Attorney: [to the judge] Did you not say [that] he was to refer to them as "clinical" records?
The Court: [But] it's already come out, so I think . . .
Defense Attorney: I'll withdraw it.
Toward the end of the prosecutor's direct examination of Sperbeck, Sperbeck explained that the mental health records he was relying on were the records generated by the Department of Corrections "[after Whitman] was admitted to their in-patient psychiatric unit in September of 2004", as well as the records generated by Whitman's mental health counselor through August 2005. In other words, Sperbeck stated that all of these records were generated after July 2004 — the month when Whitman was arrested and imprisoned awaiting trial on these charges.
On appeal, Whitman argues that Sperbeck repeatedly violated the mid-trial ruling that required him to refer to the mental health records as simply "clinical records" rather than Department of Corrections records. Whitman further asserts that Judge Devaney committed error when he announced this ruling in front of the jury.
But, as explained above, the defense attorney's goal in seeking this ruling was to ensure that the jury did not learn that Whitman had been imprisoned (for other matters) prior to the July 2004 incident being litigated at trial. This goal was preserved — for although Sperbeck may have technically violated the judge's ruling by identifying the mental health records as coming from the Department of Corrections, Sperbeck also clearly stated that these records were generated after the July 2004 incident. Moreover, as also explained above, the defense attorney almost immediately withdrew the single objection that she voiced on this point.
Accordingly, we conclude that there was no error.
Introduction to Whitman's arguments concerning aggravator (c)(2), deliberate cruelty, and aggravator (c)(10), conduct among the most serious within the definition of the offense
Because Whitman committed his offenses in July 2004, his sentencing was governed by the pre-March 2005 version of Alaska's presumptive sentencing law. With specific regard to W hitman's conviction for first-degree sexual assault, because W hitman was a third felony offender for presumptive sentencing purposes, he faced a presumptive term of 25 years' imprisonment under the pre-March 2005 version of AS 12.55.125(i) — and he faced a maximum sentence of 40 years' imprisonment if the State proved one or more of the aggravating factors listed in AS 12.55.155(c).
See former AS 12.55.155(a)(2) (pre-March 2005 version).
The State proposed four aggravating factors: (c)(2) — that Whitman acted with deliberate cruelty during the sexual assault; (c)(10) — that Whitman's conduct was among the most serious within the definition of first-degree sexual assault; (c)(19) — that Whitman's criminal history included a delinquency adjudication for conduct that would have been a felony if he had been an adult; and (c)(20) — that Whitman was on felony parole or probation at the time of his offenses. (These last two aggravators applied to all of Whitman's convictions, not just his conviction for first-degree sexual assault.)
Even though Whitman's case was governed by the pre-March 2005 sentencing law, Judge Devaney and the parties agreed that these aggravators would be litigated in the manner now prescribed by AS 12.55.155(f). In other words, the parties agreed that Judge Devaney would decide aggravators (c)(19) and (c)(20), and that aggravators (c)(2) and (c)(10) would be submitted to the jury.
Judge Devaney found aggravators (c)(19) and (c)(20), and the jury found aggravators (c)(2) and (c)(10).
Does the evidence support the jury's verdict on aggravator (c)(2)?
In Juneby v. State, 641 P.2d 823, 840 (Alaska App. 1982), we held that the term "deliberate cruelty" used in aggravator (c)(2) refers to "instances in which pain — whether physical, psychological, or emotional — is inflicted gratuitously or as an end in itself". We further held that the term "deliberate cruelty" did not encompass instances where "the infliction of pain or injury [was] merely a direct means to accomplish the crime charged". The jury in Whitman's case was instructed in accordance with our holdings in Juneby.
Whitman argues that the evidence does not support the jury's verdict on aggravator (c)(2). When a verdict is challenged as lacking a sufficient basis in the evidence, the question is whether the evidence and the inferences to be drawn from it, viewed in the light most favorable to upholding the verdict, are sufficient to support a conclusion by fair-minded jurors that the State had met its burden of proof — here, proof beyond a reasonable doubt.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).
Several facets of the evidence indicate the Whitman inflicted gratuitous violence on his victim. There was no evidence suggesting that the victim resisted the rape, and yet Whitman beat her severely. A police officer testified that the victim was "very, very badly beaten". The victim's injuries included a laceration to her lip that required sutures, lacerations around her eye, blood in her nose and ears, bruises on her right arm and on the backs of her hands, and injuries to her genitalia. With particular respect to the victim's head injuries, the emergency room doctor who treated her described the victim's facial swelling as "horrendous", and the doctor further stated that a person could die from an impact that was sufficiently forceful to inflict that type of injury.
Whitman argues that the evidence failed to establish that the victim's injuries resulted from the violence inflicted on her during the sexual assault, as opposed to the continuation of the assault after the rape was over. This would make a difference because Whitman was separately convicted of second-degree assault for the continuation of the assault. See Juneby, 641 P.2d at 842, where this Court held that an aggravating factor can not be premised on conduct for which the defendant is separately convicted and sentenced.
But the victim expressly testified that Whitman beat her while he was raping her. Moreover, when this issue was litigated in the superior court, neither party attempted to prove when exactly the victim's various injuries were inflicted. Because we must view the evidence in the light most favorable to upholding the jury's verdict, we conclude that the evidence was sufficient to support a finding that aggravator (c)(2) was proved.
Was it error to allow the jury to decide aggravator (c)(10)?
On appeal, Whitman argues that the evidence was insufficient to support a finding of aggravator (c)(10) — i.e., a finding that Whitman's conduct was among the most serious within the definition of first-degree sexual assault. However, the evidence shows that Whitman, who was a guest in the house, attacked his victim without warning, raped her, and beat her severely for no apparent reason. We conclude that this evidence was sufficient to support a finding that Whitman's conduct was among the most serious first-degree sexual assaults.
However, Whitman's primary argument with regard to aggravator (c)(10) is that this aggravator should not have been decided by a jury, but rather by the sentencing judge. This argument is based on the Alaska Supreme Court's decision in Michael v. State, 115 P.3d 517 (Alaska 2005).
The question presented in Michael was to define the standard of review that an appellate court should employ when reviewing a trial court's decision concerning mitigator AS 12.55.155(d)(9) — conduct among the least serious within the definition of the offense. The supreme court held that, once the facts of the case have been determined, the question of whether the defendant's conduct qualifies as "among the least serious included in the definition of the offense" is a question of law — and thus, the court concluded, the proper standard of appellate review is de novo. (In other words, an appellate court need show no deference to the trial court's resolution of this issue.)
Based on the supreme court's holding in Michael — i.e., the decision that it is a question of law whether given conduct falls within the category of "among the least serious" within the definition of a particular offense — Whitman argues that it is likewise a question of law whether given conduct falls within the category of "among the most serious". Whitman further argues that, if it is a question of law whether given conduct should be classified as "among the most serious", then it is error to have a jury decide this issue — because judges, and not juries, are to decide issues of law.
However, as footnote 12 of the Michael opinion acknowledges, the legislature has now declared in AS 12.55.155(f) that aggravator (c)(10) is to be decided by a jury. 115 P.3d at 520. In footnote 12, the supreme court expressly declared that its decision in Michael was not intended to govern jury determinations of "among the most serious conduct" under the new statutory provision. (The court's precise words were, "We need not determine in this case the proper standard of review for a determination made by a jury under the new statute.")
We conclude that Whitman's case does not require us to resolve this issue left open in Michael — because the issue comes to us as a claim of plain error. In the superior court, Whitman did not object to the jury's role as adjudicator of aggravator (c)(10). Rather, Whitman raises this objection for the first time on appeal. Because of this, Whitman must show that it was plain error for the superior court to allow the jury to decide aggravator (c)(10).
A claim of error is not "plain error" if reasonable judges could disagree as to whether error was committed. Here, the Alaska Legislature has passed a statute that specifically entrusts juries with decisions regarding aggravator (c)(10), and reasonable judges could well conclude that the legislature acted within its authority by giving this decision-making power to juries.
Cook v. State, 36 P.3d 710, 722 (Alaska App. 2001); Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
Whitman argues that the reasoning in Michael leads to the conclusion that this statutory provision is invalid. But whatever the supreme court's decision in Michael might suggest about the potential impropriety of having a jury decide aggravator (c)(10), it is only a suggestion based on analogy. As we explained above, the supreme court expressly declined to decide whether to apply a de novo standard of review to a jury's decisions concerning aggravating factors under AS 12.55.155(f).
For these reasons, we conclude that it was not plain error to have the jury decide aggravator (c)(10) in Whitman's case.
We further note that, apart from aggravator (c)(10), Judge Devaney found aggravators (c)(19) and (c)(20), and we have upheld the jury's finding of aggravator (c)(2). We have examined Judge Devaney's sentencing remarks in light of these three aggravators, and it appears to us unlikely that his sentencing decision would have been any different if the jury had resolved aggravator (c)(10) in favor of Whitman. For this reason as well, we conclude that any potential problem concerning aggravator (c)(10) does not constitute plain error. Conclusion
The judgement of the superior court is AFFIRMED.