Summary
affirming a composite sentence of 85 years' imprisonment for a defendant with two prior felony convictions who was found guilty of second-degree murder, first-degree robbery, and first-degree assault
Summary of this case from Williams v. StateOpinion
Court of Appeals No. A-9596.
April 15, 2009.
Appeal from the Superior Court, First Judicial District, Juneau, Larry Weeks, Judge, Trial Court No. 1JU-00-00105 CR.
G. Blair McCune, Anchorage, for Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
In a jury trial conducted by Superior Court Judge Larry Weeks, Ronald Smith was convicted of murder in the second degree (felony murder), robbery in the first degree, and assault in the first degree. Smith appeals, arguing that Judge Weeks erred in refusing to instruct the jury on manslaughter as a lesser-included offense of felony murder, that Judge Weeks erroneously gave instructions that limited Smith's ability to present his claim of self-defense, that Judge Weeks improperly limited Smith's ability to cross-examine two of the State's key witnesses, and that Judge Weeks imposed an excessive sentence of 85 years of imprisonment. We affirm.
AS 11.41.110(a)(3).
AS 11.41.500(a)(3).
AS 11.41.200(a)(1).
Factual and procedural background
Smith was originally convicted of the same charges at an earlier trial. We reversed Smith's convictions, and Smith was convicted again at his retrial. This appeal followed.
Smith v. State, 81 P.3d 304 (Alaska App. 2003).
Id.
Smith's convictions are based on an incident that occurred in the early morning hours of January 25, 2000, when Smith and another man, Rey Soto, went to the trailer home of Alfred Torres and his brother, Kenneth Thomas. The underlying facts are described in detail in our opinion on Smith's first appeal. The State proceeded at both trials on the theory that Smith and Soto went to Torres and Thomas's trailer with a gun and a baseball bat, intending to rob them. Smith defended at both trials on the theory that he and Soto went to the trailer to buy marijuana, the drug deal "went bad," Torres attacked them with a baseball bat, and Smith reacted in self-defense.
Id. at 304-05.
Smith testified at the first trial that he managed to get the baseball bat from Torres and toss it aside. Soto then picked up the baseball bat and hit Thomas with it. Eventually, the two men retreated to their car, keeping the baseball bat with them. Smith claimed that he did not bring a gun with him to the trailer. Soto's testimony at the first trial was consistent with Smith's.
Id. at 306.
Id.
Id.
At the second trial, Soto testified for the prosecution. Smith did not testify on his own behalf at the retrial. But he cross-examined Soto using Soto's testimony from the first trial, and he presented two witnesses who testified that Torres admitted to them that this was a "drug deal gone bad," not a robbery. It was undisputed at Smith's retrial that Soto, not Smith, struck the blow that killed Thomas. The jury convicted Smith on all counts.
Why we reject Smith's contention that his case should be reversed because Judge Weeks did not instruct on manslaughter as a lesser-included offense of felony murder
On appeal, Smith argues that Judge Weeks should have instructed the jury on manslaughter as a lesser-included offense of felony murder. A defendant is entitled to a lesser-included offense instruction only if (1) the purported lesser offense is "necessarily included" in the greater, and (2) one or more elements distinguishing the greater offense from the lesser are actually disputed, so that a jury could rationally convict the defendant of the purported lesser offense without finding him guilty of the greater offense. Smith argues that the jury could have believed that this was a "drug deal gone bad" and that Smith was not guilty of robbery. Accordingly, Smith argues, the jury could have found that Smith and Soto committed manslaughter by using excessive force "that was not privileged under self-defense." In other words, Smith claims that his commission of robbery is the disputed element that distinguishes the felony murder charge from the purported lesser-included offense of manslaughter.
See Petersen v. State, 930 P.2d 414, 433 (Alaska App. 1996); Dolchok v. State, 763 P.2d 977, 981 (Alaska App. 1988); Willet v. State, 836 P.2d 955, 958 (Alaska App. 1992) (quoting Johnson v. State, 665 P.2d 566, 569 (Alaska App. 1983)).
The problem with Smith's theory is that the jury in this case not only convicted Smith of felony murder, but also separately convicted him of robbery. Thus, it is clear from the verdict that the jury found beyond a reasonable doubt that Smith committed the offense of robbery. It therefore would have been irrational for the jury to have acquitted Smith of the felony murder charge on the theory that he did not commit robbery.
Judge Weeks did not err in giving instructions that limited the jury's consideration of Smith's claim of self-defense
Judge Weeks instructed the jury as follows: "If you find that the crime of robbery has been proven beyond a reasonable doubt, then you may not consider the issue of self defense with respect to felony murder or robbery." At trial, Smith expressed reservations with respect to this instruction, but ultimately agreed that it was a correct statement of the law.
In Gray v. State, the Alaska Supreme Court held:
463 P.2d 897 (Alaska 1970).
[A] person who commits an armed robbery forfeits his right to claim as a defense the necessity to protect himself against the use of excessive force by . . . the intended victim of the robbery . . . absent a factual showing that at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed.
Id. at 909.
Therefore, the right to defend oneself may be regained only if the defendant abandons his criminal activity, such that the dangerous situation created by the robbery no longer exists, and he is then subjected to an assault.
Id. at 909-10; Toomey v. State, 581 P.2d 1124, 1126 (Alaska 1978).
Here, Smith argued that he never committed a robbery and that he only defended himself. Smith presented no evidence that he initially engaged in a robbery but later withdrew and was then unlawfully assaulted by Torres and Thomas. We therefore conclude that, under these circumstances, Judge Weeks correctly instructed the jury that if it found the State had proven beyond a reasonable doubt that Smith engaged in a robbery, it could not consider the issue of self-defense with respect to the felony murder or robbery charges.
Judge Weeks also instructed the jury:
If you find that the defendants [sic] came to this incident with a firearm then you may not consider self defense with respect to the charge of Assault in the First Degree.
If you find that the defendants [sic] did not have a firearm when they [sic] came to this incident then you may consider self defense to the charge of Assault in the First Degree.
Smith's trial attorney objected to the use of this instruction at trial.
It is true, as Smith points out, that a person does not automatically forfeit his right to self-defense just because he brings a gun with him to an encounter. However, this erroneous instruction did not prejudice Smith because, as we have previously noted, a defendant who commits a robbery has no right of self-defense unless he presents some evidence that he abandoned his criminal activity and was then forced to defend himself against an unlawful assault. In the present case, the jury convicted Smith of robbery. We have already explained why Smith's involvement in the robbery precluded him from claiming self-defense under these circumstances. This is true whether or not Smith brought a gun with him. Therefore, Smith could not have been prejudiced by this erroneous instruction.
See Klumb v. State, 712 P.2d 909, 911 (Alaska App. 1986); Brown v. State, 698 P.2d 671, 674 (Alaska App. 1985).
Judge Weeks did not improperly restrict Smith's ability to cross-examine the witnesses against him
Smith contends that Judge Weeks improperly restricted him from asking Torres whether he was dealing drugs from the trailer at the time of this incident. But, as Smith admits, Judge Weeks ultimately allowed him to introduce evidence of Torres's drug-dealing activities. Essentially, Smith argues that he should have been able to bring this evidence out earlier in the case. But a trial judge has considerable discretion to determine the order of proof. We fail to see how Smith was prejudiced by having this evidence admitted later rather than sooner. We therefore find no abuse of discretion.
See Alaska Evid. R. 611(a); American Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330, 1339 (Alaska 1982); Gaffard v. State, 440 P.2d 405, 409 (Alaska 1968), overruled on other grounds by Fields v. State, 487 P.2d 831, 836 (Alaska 1971).
Smith also argues on appeal that Judge Weeks improperly restricted his cross-examination of Soto. First, Smith argues that he should have been allowed to confront Soto with "photographs that the parties believed depicted Mr. Soto flashing gang signs with money and marijuana in the foreground." Second, Smith argues that he should have been allowed to ask Soto about his drug dealing and introduce extrinsic evidence that Soto was a drug dealer. Smith claims that he should have been given "great leeway" to cross-examine Soto because Soto had recanted his prior testimony and made an agreement with the prosecution. Smith also claims that he should have been able to present this information to rebut the State's portrayal of Soto as a "poor 19-year-old innocent."
Judge Weeks gave Smith a full opportunity to cross-examine Soto about his plea agreement with the State. Smith was able to establish Soto's bias in favor of the State by showing that the State was giving him favorable treatment on his murder, robbery, and assault convictions in return for his testimony against Smith and was not prosecuting him for perjury with respect to his earlier, contradictory testimony.
However, Smith argues that, in addition, he should have been able to question Soto about his history of drug dealing. But Smith never argued to Judge Weeks that Soto might have been biased because he feared that the State would prosecute him for his prior drug-dealing behavior. Rather, Smith's attorney argued that Soto's history of drug dealing was relevant "to show that, when push comes to shove, he'll say anything." In other words, Smith wanted to introduce this evidence for an impermissible purpose — to impeach Soto's character for truthfulness.
See Alaska Evid. R. 608(a); see also Alaska Evid. R. 405(a).
Smith also argues the evidence was relevant to rebut the State's portrayal of Soto as a young, innocent nineteen year old who was led astray by Smith. But this seems to be a mischaracterization of the testimony presented at trial. Soto testified that the incident started when he and a friend decided to go get some marijuana to smoke. He testified that his only objection to Smith's proposed plan — the robbery — was that it was too far away, the roads were icy, and it was really early in the morning. After putting up this minimal objection, Soto agreed to the plan and went home to get his baseball bat. When he was asked, "How did Kenneth Thomas get killed," Soto answered, "I hit him with a baseball bat." Therefore, the testimony at trial did not tend to paint Soto as a young innocent.
Judge Weeks did not abuse his discretion when he determined that there was no basis to admit Smith's proposed evidence of Soto's prior drug-dealing behavior under the circumstances.
Smith's sentence was not clearly mistaken
Judge Weeks sentenced Smith to 50 years for the second-degree (felony) murder charge, 20 years for the robbery, and 15 years for the assault, with all sentences to run consecutively. Thus, Smith's composite sentence is 85 years to serve. In Page v. State, we established a benchmark range between 20 to 30 years for murder in the second degree. But this benchmark is merely a starting point, and this court has frequently upheld sentences above this range. In imposing sentence, Judge Weeks emphasized that Smith had two prior felony convictions, other misdemeanor convictions, and that Smith had committed other acts that would have been felonies had he been charged with them. He pointed out that Smith had accumulated fourteen violations of institutional rules during his term of imprisonment. He concluded that Smith was a "worst offender" based upon his current convictions, prior record, and prospects for rehabilitation. We conclude that Judge Weeks's findings and the record support the sentence. We therefore conclude the sentence was not clearly mistaken.
657 P.2d 850, 855 (Alaska App. 1983).
See Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984) ("[T]he benchmark sentence established in Page [is] only a target and . . . deviation [can] be based on objective, well-reasoned factors.").
See, e.g., Ross v. State, 808 P.2d 290, 292 (Alaska App. 1991); Abruska v. State, 705 P.2d 1261, 1273-74 (Alaska App. 1985); Gregory, 689 P.2d at 509.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.