State of Alaska v. Stacey Allen Graham

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-17411
Petitioner, ) Court of Appeals No. A-12222
)
v. ) Superior Court No. 3AN-13-08758 CR
)
STACEY GRAHAM, ) OPINION
)
Respondent. ) No. 7606 – July 22, 2022
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Kevin M. Saxby,
Judge.
Appearances: Nancy R. Simel, Assistant Attorney General,
Anchorage, and Kevin G. Clarkson, Attorney General,
Juneau, for Petitioner. Renee McFarland, Assistant Public
Defender, Anchorage, and Samantha Cherot, Public
Defender, Anchorage, for Respondent.
Before: Bolger, Chief Justice, Winfree, Maassen, Carney,
and Borghesan, Justices.
MAASSEN, Justice.
CARNEY, Justice, concurring in part and dissenting in part.
I. INTRODUCTION
A drunk driver lost control of his truck on a wet roadway and struck and
killed two teenage girls. The driver pleaded guilty to two counts of second-degree
murder with a sentencing range of 13 to 20 years for each count. At the sentencing
hearing, members of both victims’ families and two local law enforcement officers
spoke, and the sentencing court viewed tribute videos for the two young victims. The
court imposed a term of 20 years in prison with 4 years suspended on each count, for a
composite sentence of 32 years to serve, noting that it was the highest sentence imposed
in Alaska for an unintentional vehicular homicide.
The court of appeals vacated the sentence based on several perceived errors
in the sentencing court’s calculation of the appropriate sentence; it also identified
evidentiary errors which it believed contributed to the emotionally charged sentencing
hearing and improperly influenced the judge’s decision. The court of appeals directed
that a different judge preside over resentencing.
The State filed a petition for hearing, which we granted. We conclude that
the superior court properly began its sentencing analysis in the benchmark range for
second-degree murder and appropriately considered an aggravator. We cannot conclude,
as the court of appeals did, that the superior court gave too much weight to the
sentencing goals of general deterrence and community condemnation. We do decide,
however, that it was an abuse of discretion to allow the testimony of two police officers
as victim impact evidence and to admit victim tribute videos without first reviewing them
for relevance and unfair prejudice. We cannot say that the unusually severe sentence was
untainted by these errors, but we do not believe that the superior court’s admission of the
challenged evidence requires recusal on remand. We therefore vacate the sentence and
remand for re-sentencing by the same judge.
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II. FACTS AND PROCEEDINGS
A. Facts
August 9, 2013, was the day of a golf tournament and barbecue hosted by
Stacey Graham’s employer. Graham began drinking early that morning, brought a fifth
of vodka and orange juice to the tournament (where drinks were served to participants),
and continued drinking throughout the day. He and a friend bought another fifth of
vodka after the tournament, and Graham had at least one more drink at the friend’s house
before leaving in his pickup truck.
Around 6:45 p.m. other motorists saw Graham’s truck “barreling down”
Dimond Boulevard in Anchorage with its tires squealing. One motorist reported that the
truck was hydroplaning. Another driver and his wife saw Graham’s truck speed by,
swerve to avoid another vehicle exiting a parking lot, and then fishtail. Other witnesses
reported that Graham honked at the vehicle in front of him at a traffic light, sped past
when the light turned green, and changed lanes repeatedly to pass other cars, causing his
truck to fishtail again. Another motorist reported that Graham cut in front of him, passed
a second vehicle at high speed, and cut off an SUV. The driver thought Graham had
“road rage” and was driving drunk. Graham’s speed was estimated to be between 40 to
65 miles per hour; the witnesses agreed that Graham was going too fast for the wet road
conditions.
At one point, when Graham swerved into the right lane, his truck slid
sideways on the wet pavement, regained some traction, then veered right and jumped the
curb. The truck struck Jordyn Durr and Brooke McPheters, two fifteen-year-old girls
who were walking together on the sidewalk. The truck then hit a sign and came to rest
on its side.
Both girls were pronounced dead at the scene. Graham was trapped inside
his truck; he had to be extricated by the fire department before being taken to the hospital
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with serious injuries. A test taken three hours after the crash showed a blood-alcohol
content of .180, more than twice the legal limit. The sample also contained marijuana
metabolites.
A grand jury indicted Graham on two counts of second-degree murder
under AS 11.41.110(a)(2) and two counts of manslaughter under AS 11.41.120(a)(1);
a charge of driving under the influence under AS 28.35.030(a)(1) was later added by
information. Graham’s criminal history was negligible; he had one speeding ticket, no
prior arrests, and no significant issues with alcohol abuse. He was 31 years old at the
time and had a family and a steady job.
Graham agreed to plead guilty to both counts of second-degree murder and
to a sentencing range of 13 to 20 years on each count, to be served consecutively, for a
total range of 26 to 40 years. The superior court accepted the plea.
B. Proceedings
1. Statements and presentations
Superior Court Judge Kevin Saxby presided over a sentencing hearing. In
addition to members of the girls’ families, the State sought to present the testimony of
two police officers. The court allowed the testimony over a defense objection, reasoning
that “[v]ictims are permitted to designate people to speak on their behalf” and that “[t]wo
of the victims can’t speak.” Sergeant John McKinnon testified about his experience at
the accident scene and breaking the news to the girls’ parents. Chief Mark Mew testified
about the impact of drunk-driving deaths on the community generally and asked the
court to impose a sentence severe enough to deter even the worst possible offenders.
The State then asked to play two tribute videos that the victims’ families
wanted the court to see; the court allowed them to be played over a defense objection.
The videos were 14 and 17 minutes long, respectively. They were both in slide-show
format, displaying a stream of photographs from the victims’ lives beginning in infancy
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and accompanied by popular and sentimental music.1 One of the videos began with a
voice mail message one of the victims had left for her parents shortly before her death.
Members of the girls’ families spoke next. They described the two girls
killed in “the prime of teenage life” and the grief of knowing they would never
experience the many milestones their families had looked forward to sharing with them.
The family members asked that Graham “be held accountable for his actions” and called
for him to be given the plea agreement’s maximum sentence of 40 years to serve.
A representative from the Office of Victim’s Rights spoke on behalf of
other family members. She emphasized that drunk driving is “a stranger crime,”
tragically entangling the lives of people who had never met before. She testified that it
was also a “highly preventable” crime that called for a “clear message” from the court
that the community “will not tolerate it.”
Graham’s father and stepmother spoke on his behalf, describing Graham
as “a good man, a good kid, a good father [who] made an awful, terrible, ugly decision
to drive.” Graham also spoke; he asked the girls’ families to accept that he was
“completely broken, knowing the pain [he had] caused them.” He testified that he was
committed to speaking out against drunk driving: he would warn others that “it only
takes once. It can, it will, it did.”
2. The parties’ sentencing arguments
The State acknowledged that Graham was remorseful, had a favorable
background, and had “high prospects for rehabilitation.” Its sentencing argument
focused on the issues of general deterrence and community condemnation. It also
highlighted several past cases that could be read for the proposition that 13 years to serve
1
The court of appeals detailed the musical selections in its opinion. Graham
v. State, 440 P.3d 309, 314 n.4 (Alaska App. 2019).
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is a common punishment for drunk drivers whose conduct is not extreme — i.e., who
“merely” drive drunk as opposed to driving drunk and aggressively like Graham — and
whose conduct results in a single fatality.
The State discussed the letters the court had received from the victims’
friends and families and recognized that “there would not be a dry eye in the courtroom”
following the day’s presentations. The State asked the court to impose the agreement’s
maximum sentence of 40 years to serve, which would be “the lengthiest sentence ever
imposed in a DUI death.”
Graham began his sentencing argument by asserting that — as reflected in
reported Alaska cases — the highest penalty for a drunk-driving homicide that did not
involve intentionally assaultive conduct was 20 years to serve. Graham emphasized the
difference between retribution and justice, urging the court not to allow emotion to hold
sway over reason and the law. He argued that a severe sentence would have a limited
deterrent effect and that his age, lack of criminal record, and lack of a history of alcohol
abuse all favored a lenient sentence. Regarding the degree of recklessness, he argued
that his conduct was not significantly more dangerous than that of the typical drunk
driver.
3. Graham’s sentence
The superior court began its sentencing remarks by recognizing that
because Graham had no prior convictions, the statutory sentencing range was “10 to 99
years,” though other court-created guidelines would affect the appropriate sentence
within that range. The court noted that the parties, by agreement, had narrowed this
range to 26 to 40 years (13 to 20 years per count to be served consecutively). The court
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next discussed several aggravators proposed by the State.2 The court agreed on the
applicability of one aggravator — “the defendant’s conduct created a risk of imminent
physical injury to three or more persons.”3 But it rejected two others. It rejected the
“dangerous instrument” aggravator,4 reasoning that the “use of a dangerous instrument
is true in virtually all second degree murder cases” and is thus “not really a
distinguishing factor in this case.” And it rejected the “most serious conduct”
aggravator,5 concluding that “reckless driving . . . that leads to the death of another . . . is
within [the] mainstream” of the crimes that constitute second-degree murder.
Such “mainstream” second-degree murder, the court concluded, “ordinarily
calls for a 20- to 30-year sentence for a first conviction,” citing as support the court of
appeals’ decision in Felber v. State.6 The court in Felber had affirmed a 66-year
composite sentence for a defendant who pleaded guilty to “twenty-three criminal
charges — ranging from second-degree murder and several counts of first-degree assault,
to vehicle theft, driving under the influence, and driving with a suspended license.”7 The
second-degree-murder component of the sentence in Felber was 25 years, which the
court of appeals observed was “in the middle of the 20- to 30-year Page benchmark for
2
AS 12.55.155(c) lists factors that, if proven, the court must consider and
that “may allow imposition of a sentence above the [statutory] presumptive range.”
3
AS 12.55.155(c)(6).
4
AS 12.55.155(c)(4) (authorizing use of aggravator when “the defendant
employed a dangerous instrument in furtherance of the offense”).
5
AS 12.55.155(c)(10) (authorizing use of aggravator when “the conduct
constituting the offense was among the most serious conduct included in the definition
of the offense”).
6
243 P.3d 1007 (Alaska App. 2010).
7
Id. at 1008.
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first felony offenders who engage in conduct that is typical for second-degree murder.”8
In affirming the composite sentence, the Felber court had noted that the defendant “was
a third felony offender, and his conduct” — which included using his motor vehicle to
intentionally ram other vehicles and killing a bystander while fleeing from
police — “was far from typical within the range of conduct encompassed by the second-
degree murder statute.”9
The superior court in this case, after acknowledging the 20- to 30-year Page
benchmark as reaffirmed in Felber, observed that “the norm” in second-degree murder
cases reviewed by the court of appeals “for someone who wasn’t using their vehicle
deliberately as a weapon” was nonetheless “quite a bit less than 20 years.” As an
example the court cited Phillips v. State, an unreported decision in which the court of
appeals had recently upheld a composite sentence of 20 years to serve for a defendant
convicted of five offenses, including “second-degree murder, first-degree assault, driving
under the influence, driving with a revoked license, and reckless driving.”10 The superior
court noted that the murder component of the composite sentence “was obviously less
than 20 years” and that the case had some similarities to Graham’s case — particularly
“the level of recklessness” — and also some differences that favored Graham, such as
the Phillips defendant’s prior convictions and “extremely high . . . blood alcohol
content,” considerably higher than Graham’s.
8
Id. at 1013. The court of appeals had previously established a benchmark
for second-degree murder sentencing in Page v. State, 657 P.2d 850, 855 (Alaska App.
1983) (“It would appear appropriate . . . that one convicted of [second-degree murder]
should receive a sentence of from twenty to thirty years.”)).
9
Felber, 243 P.3d at 1013.
10
No. A-11269, 2014 WL 6608927, *6 (Alaska App. Nov. 14, 2014)
(unpublished).
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The superior court observed that when determining the seriousness of
Graham’s offense, it was required to consider factors the court of appeals had identified
in Pusich v. State as “significant in drunk-driving homicides: the degree of the
defendant’s recklessness, the magnitude of the consequences of the defendant’s conduct,
the age of the defendant, the defendant’s record of past offenses, and the defendant’s
record of alcohol abuse.”11 The superior court found Graham’s degree of recklessness
“extreme” — “aggressive driving akin to road rage.” It found “the magnitude of the
consequences” to be “on the high end” — “multiple pedestrian deaths.” It found that
Graham was old enough, at 31, to be no longer subject to the impulsiveness of youth,
though the age factor was largely “neutral.” The court also found that Graham’s lack of
a criminal record weighed in his favor and that his history of alcohol abuse was scant but,
given “some legitimate concerns,” not “something that should just be ignored.”
From a discussion of the Pusich factors the court moved on to address other
factors — often referred to as “the Chaney factors” — made relevant to all criminal
sentencings by AS 12.55.005.12 The court noted the pre-sentence report’s conclusion
that Graham “is a very good prospect for rehabilitation”; the court agreed with this, given
Graham’s genuine remorse and his desire “to make changes and . . . to be a voice for
sobriety.”13 The court found that confinement was not necessary to protect the public as
long as Graham pursued and successfully completed the recommended substance abuse
11
907 P.2d 29, 38 (Alaska App. 1995).
12
AS 12.55.005 declares the sentencing statutes’ legislative purpose and lists
the Chaney factors, following State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
13
See AS 12.55.005(2) (identifying “the prior history of the defendant and the
likelihood of rehabilitation” as factor for consideration in sentencing).
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treatment.14 Considering “the circumstances of the offense and the extent to which the
offense harmed the victim or endangered the public safety or order,”15 the court referred
to its earlier findings that Graham “killed two completely innocent people” and “placed
multiple others at risk,” and that “[h]is behavior was extremely reckless and showed a
manifest indifference to human life.”
The court then considered the Chaney factor of deterrence, “of both
[Graham] himself and of other people.”16 The court found that Graham was probably
already sufficiently deterred from re-offending but that “it’s also important to deter
others,” and that “this is one type of crime where general deterrence can sometimes be
effective.” The court reasoned that people who are considering whether to drink and
drive, as well as “their loved ones [and] their friends, are likely to weigh the costs and
benefits of calling a cab rather than driving as they realize that lengthy prison terms are
[on] the other side of the balance.”
The court then turned to consideration of “community condemnation and
reaffirmation of societal norms.”17 The court remarked that it had “heard [a] lot of
community condemnation here today, appropriately so,” and that “[t]he community and
people are right when they say this just has to stop.” The court said that “[c]ommunity
14
See AS 12.55.005(3) (identifying “the need to confine the defendant to
prevent further harm to the public” as factor for consideration in sentencing).
15
See AS 12.55.005(4).
16
See AS 12.55.005(5) (identifying “the effect of the sentence to be imposed
in deterring the defendant or other members of society from future criminal conduct” as
factor for consideration in sentencing).
17
See AS 12.55.005(6) (identifying “the effect of the sentence to be imposed
as a community condemnation of the criminal act and as a reaffirmation of societal
norms”).
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condemnation is especially high for drunk driving now” and “even higher here, where
two innocent young girls were essentially smashed to death.” The court concluded that
“it would be hard to think of a situation that would unite people more in their
condemnation of the behavior that led to these deaths, and that demands a substantial
sentence.” The court added, however, that an important societal norm was “the principle
that our penal system exists for the purpose of reforming criminal behavior, when that’s
possible to do.”
Summarizing these factors, the court decided it was “very important to
recognize community condemnation here and to provide as much general deterrence” as
it could while at the same time “rendering the lowest sentence that meets all of the
sentencing goals.” While not rendering “a sentence that is the maximum possible, under
the circumstances,” the court acknowledged that the sentence it intended to impose
would “be the highest sentence rendered in Alaska history for conduct of this type.”
That sentence was 20 years with four suspended on each count of second-degree murder,
to be served consecutively, for a total of 32 years to serve — a sentence near the mid­
point of the 26- to 40-year range to which the parties had agreed.
4. Disqualification request
After sentencing, Graham moved to disqualify Judge Saxby, contending
that his sentencing remarks had shown bias in favor of the victims. Judge Saxby denied
Graham’s motion, explaining that one comment Graham had cited as evidence of
bias — that the judge wished he could do more for “the families that have lost so
much” — referred not just to the victims’ families but to Graham’s as well. The chief
judge of the court of appeals assigned another superior court judge to review Judge
Saxby’s recusal decision, and he affirmed it.
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5. The decision of the court of appeals
Graham appealed to the court of appeals, arguing that his sentence was
excessive.18 The court of appeals vacated the sentence, identifying what it found to be
four errors in the superior court’s decision.19 First, it concluded that the superior court
erred by applying the 20- to 30-year Page benchmark in a case of a vehicular homicide
that did not result from intentionally assaultive conduct.20 Second, it concluded that the
superior court erred by deciding that Graham’s conduct was atypically dangerous
because it endangered three or more people.21 Third, it concluded that the superior court
improperly relied on general deterrence as a sentencing goal in the absence of evidence
that a more severe sentence would actually have any salutary effect.22 And finally, the
court of appeals concluded that the superior court improperly allowed the concept of
retribution to color its discussion of the sentencing goal of “community condemnation.”23
The court of appeals remanded for re-sentencing before a different judge, concluding that
Judge Saxby’s sentencing decision indicated that he must have allowed himself to be
affected by the weight of prejudicial, emotionally laden material presented at the
sentencing hearing.24
The State filed a petition for hearing, which we granted.
18
Graham v. State, 440 P.3d 309, 312 (Alaska App. 2019).
19
Id. at 319.
20
Id. at 319-20.
21
Id. at 321.
22
Id. at 326-27.
23
Id. at 324.
24
Id. at 328.
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III. STANDARD OF REVIEW
We review questions of law de novo.25 Whether a sentencing court
appropriately applied an aggravating factor is a mixed question of fact and law.26
“Determining whether the factor applies ‘involves a two-step process: the court must
(1) assess the nature of the defendant’s conduct, a factual finding, and then (2) make the
legal determination of whether that conduct falls within the statutory standard.’ ”27 We
review the factual findings about the defendant’s conduct for clear error, and we review
de novo the legal determination about the factor’s applicability.28 For issues involving
sentencing discretion — such as “whether and how much a defendant’s sentence should
be adjusted on account of an aggravating or mitigating factor — we will employ the
‘clearly mistaken’ standard of review.”29
“We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion.”30 Also reviewed for an abuse of discretion is a judge’s decision on
a recusal motion.31
25
Ebli v. State, Dep’t of Corr., 451 P.3d 382, 387 (Alaska 2019).
26
State v. Tofelogo, 444 P.3d 151, 154 (Alaska 2019).
27
Id. (quoting Michael v. State, 115 P.3d 517, 519 (Alaska 2005)).
28
Id.29
Id. at 154-55 (quoting Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska
App. 1991)).
30
Jones v. Bowie Indus., Inc., 282 P.3d 316, 324 (Alaska 2012).
31
Griswold v. Homer Advisory Planning Comm., 484 P.3d 120, 126 (Alaska
2021).
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IV. DISCUSSION
This petition raises issues in two distinct areas of sentencing: (1) the
standards that apply to sentencing in vehicular homicide cases and (2) the admissibility
of different types of victim impact evidence. In the first category are the four points the
court of appeals identified as errors in the superior court’s sentencing decision: its
application of the 20- to 30-year Page benchmark, its application of the statutory
aggravator for “conduct [that] created a risk of imminent physical injury to three or more
persons,” its consideration of the general deterrence factor, and its consideration of the
community condemnation factor.32
The court of appeals addressed the evidentiary issues in the context of its
decision that the case should be assigned to a different judge for re-sentencing.33 The
court of appeals characterized the victim tribute videos as “lengthy presentations whose
primary purpose and effect [was] to engender emotions that [would] improperly
influence the judge’s sentencing decision,” and it described the testimony of the police
officers and Victims’ Rights attorney as having been admitted “under the mistaken
rationale that these statements qualified as ‘victim impact’ statements under
AS 12.55.023(b).”34
We disagree with the court of appeals’ decision on the sentencing
standards. We conclude that the superior court did not err by anchoring its analysis in
the Page benchmark. We further conclude that the superior court was not clearly
mistaken in its decision that the statutory aggravator applied or in its discussion of the
factors of community condemnation and general deterrence. We agree with the court of
32
Graham v. State, 440 P.3d 309, 319-27 (Alaska App. 2019).
33
Id. at 327-28.
34
Id. at 328.
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appeals that the police officers’ testimony was admitted under a “mistaken rationale.”35
As for the victim tribute videos, we conclude it was an abuse of discretion to admit them
without first reviewing them for unfairly prejudicial effect and editing them as necessary,
and we identify factors to be considered in such a review. Finally, we disagree with the
court of appeals’ conclusion that the case should be reassigned on remand. We discuss
each of these issues in turn.
A. The Superior Court Appropriately Applied The Page Benchmark As
The Starting Point for Sentencing.
The Page benchmark has its origins in a 1983 decision of the court of
appeals.36 Page was convicted of second-degree murder and given the maximum
allowable sentence for that crime of 99 years.37 Reviewing the sentence for
excessiveness, the court of appeals first observed that maximum sentences are
appropriate only for “worst offenders.”38 The court next recognized that Page’s 99-year
sentence “exceed[ed] any sentence previously approved by” Alaska’s appellate courts
for second-degree murder.39 A review of all sentences for second-degree murder
considered on appeal “since 1970 indicate[d] that the typical sentence was twenty to
twenty-five years.”40 From this survey the court of appeals concluded that “[i]t would
35
Id. The parties have not briefed whether the superior court properly
admitted the testimony of the Victims’ Rights attorney, and we therefore do not address
it.
36
Page v. State, 657 P.2d 850 (Alaska App. 1983).
37
Id. at 854.
38
Id.39
Id.40
Id. at 855.
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appear appropriate . . . that one convicted of [second-degree murder] should receive a
sentence of from twenty to thirty years,” and “[a]ny sentence substantially exceeding that
amount would appear at least provisionally suspect.”41
The court in Page cautioned that the “benchmark sentence can only be a
guide, not a rule, since the legislature clearly could have made presumptive sentencing
applicable to second-degree murderers and elected not to do so.”42 The court explained:
“Naturally, mitigating circumstances could reduce the sentence down to the five-year
minimum[43] and aggravating circumstances could enhance it up to the ninety-nine year
maximum.”44 But a benchmark “helps to focus the attention of the trial court and the
parties on individual cases and ensure that typical cases would receive a typical
sentence.”45 Because Page was a worst offender his case was atypical; the court
concluded, therefore, that his 99-year sentence “while severe was not clearly mistaken.”46
In this case, the court of appeals decided it was error for the superior court
to have “tak[en] the Page benchmark range as the starting point for Graham’s
41
Id.42
Id.43
The statutory minimum was later increased to ten years, then to 15 years.
See former AS 12.55.125(b) (2013) (ten-year minimum); AS 12.55.125(b) (2020) (15­
year minimum).
44
Page, 657 P.2d at 855.
45
Id.46
Id. The court of appeals nonetheless vacated Page’s sentence and remanded
for resentencing because the superior court had erred by making the sentences for
second-degree murder and first-degree robbery consecutive. Id. at 855-56.
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sentence.”47 It explained that “the 20- to 30-year Page benchmark range applies only to
second-degree murders that arise from intentional assaults,” and the benchmark would
thus apply to a drunk-driving homicide only “where the defendant purposely used their
vehicle as a weapon against the victims.”48 The court of appeals asserted that it had
never retreated from this principle, rejecting the superior court’s reliance on Felber for
the proposition that “reckless driving that leads to the death of another is within [the]
mainstream” of second-degree murder cases and therefore subject to the benchmark.49
The court of appeals explained that because the defendant in Felber intentionally used
his vehicle as a weapon, his conduct “was atypically blameworthy, not just for a
vehicular homicide, but even within the entire range of conduct encompassed by the
second-degree murder statute”; therefore, according to the court of appeals, Felber did
not mark a change of direction for second-degree murder cases like Graham’s that did
not involve intentionally assaultive conduct.50
The court of appeals pointed to two other second-degree murder cases to
illustrate this rule: Gustafson v. State51 and Phillips v. State.52 Gustafson did not involve
a drunk-driving homicide, but rather an intentional shooting from one motor vehicle into
47
Graham v. State, 440 P.3d 309, 319 (Alaska App. 2019).
48
Id. at 320 (emphasis in original).
49
Id.50
Id.51
854 P.2d 751, 766 (Alaska App. 1993).
52
70 P.3d 1128, 1144-45 (Alaska App. 2003).
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another.53 The defendant, Gustafson, was given a 65-year sentence for the homicide.54
Reviewing the sentence for excessiveness, the court of appeals noted that it could exceed
the Page benchmark for second-degree murder “only if there are articulable reasons
either to view Gustafson as an atypically dangerous offender or to view his offense as
atypically serious.”55 The court found both these reasons in the record. While not
intending to kill, Gustafson had fired the gun knowing “that he was firing toward
unprotected and unsuspecting people”; he suffered from a personality disorder that
continued to make him a danger to others; and his “prospects for rehabilitation [were]
guarded.”56 A sentence well above the Page benchmark range was therefore not clearly
mistaken.57
Phillips involved the death of a police officer during a struggle with the
defendant, Phillips, following a series of assaults and robberies.58 The trial court
concluded that Phillips was a worst offender and sentenced him for the second-degree
murder to the allowable maximum of 99 years.59 The court of appeals rejected Phillips’
argument that he should have been sentenced within the Page benchmark range, noting
that Page applies to “a typical first felony offender convicted of a typical second-degree
53
854 P.2d at 754.
54
Id.55
Id. at 763.
56
Id. at 766.
57
Id. at 766-67.
58
70 P.3d 1128, 1132, 1142 (Alaska App. 2003).
59
Id. at 1143.
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murder.”60 Phillips was a third felony offender, “and his status [was] further aggravated
by the fact that he committed this murder just two days after being released from prison
on felony parole.”61 In addition, his crime was worse than the typical second-degree
murder “because the victim was a law enforcement officer engaged in his duties.”62 The
court of appeals nonetheless vacated the sentence and remanded for resentencing,
concluding that the trial court had misinterpreted Gustafson as meaning that an
intentional assault that leads to death is necessarily above the Page benchmark.63
According to the court of appeals, this reading of Gustafson stood the decision “on its
head”: “Gustafson acknowledges that second-degree murders stemming from non-
assaultive conduct are typically among the least serious; but Gustafson does not say that
second-degree murders stemming from intentional assaults are necessarily among the
most serious.”64 If that were the case, “the category of ‘typical’ second-degree murders
[would be] a null set — for this category would include neither intentional nor
unintentional assaults.”65
In sum, citing Gustafson, Phillips, and Felber — all involving intentionally
assaultive conduct, and two involving sentences above the Page benchmark
60
Id.61
Id.62
Id.63
Id. at 1144-45.
64
Id. at 1145.
65
Id.-19- 7606
range66 — the court of appeals in this case reiterated the proposition that “the Page
benchmark sentencing range applies only to second-degree murders that arise from
intentional assaults,” and it held that the superior court therefore erred by beginning with
the premise that the benchmark applied.67
The notion that vehicular homicides are not typical second-degree murders
for purposes of the Page benchmark found support in our decision in Pears v. State.68
In Pears we analyzed whether sentences imposed for vehicular homicide under the
newly expanded second-degree murder statute should be compared to previous second-
degree murder sentences or to previous manslaughter sentences involving reckless
driving.69 We decided that “a comparison with prior manslaughter sentences [was]
appropriate.”70 But Pears had a unique historical context. The Alaska legislature had
recently redefined second-degree murder to include conduct that showed “an extreme
66
Gustafson v. State, 854 P.2d 751, 754 (Alaska App. 1993) (affirming 65­
year sentence); Phillips, 70 P.3d at 1143 (vacating 99-year sentence and remanding for
resentencing); Felber v. State, 243 P.3d 1007, 1011, 1014 (Alaska App. 2010) (affirming
40-year sentence with 15 years suspended).
67
Graham v. State, 440 P.3d 309, 320-21 (Alaska App. 2019) (emphasis
added).
68
698 P.2d 1198, 1203 (Alaska 1985); see McPherson v. State, 800 P.2d 928,
933 (Alaska App. 1990) (Bryner, C.J., dissenting) (noting holding of Pears that “the
differences in conduct between traditional second-degree murder cases and cases
involving drunken driving homicides were sufficient to preclude application of the same
benchmark in both types of cases”), rev’d in part, McPherson v. State, 855 P.2d 420(Alaska 1993).
69
Pears, 698 P.2d at 1201-02.
70
Id. at 1202.
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indifference to the value of human life”;71 for the first time, this allowed accidental but
reckless homicides to be prosecuted as second-degree murder.72 The defendant in Pears
was “the first person in this state to be convicted of murder for an accidental motor
vehicle homicide.”73 This meant that the only second-degree murder sentences we had
previously reviewed on appeal involved conduct with a specific intent to kill.74 To find
cases involving comparable conduct for sentencing purposes, therefore, we had to look
to manslaughter convictions (which involved a less culpable level of intent — “conscious
disregard of a substantial and unjustifiable risk” as opposed to “extreme indifference to
the value of human life”).75 We limited Pears six years after deciding it; we wrote that
its holding “was based upon the particular facts before us therein, and . . . attempts to
extend either the holding or the dicta of the Pears decision beyond the facts of that case
would be in error.”76
The historical vacuum on which Pears turned has since been filled with
over 35 more years of sentencing for vehicular homicides — some charged as
manslaughter but others as second-degree murder. Although a vehicular homicide could
not be a typical second-degree murder when Page and Pears were decided, the calculus
has changed. “Benchmarks must be based on ‘past sentencing decisions dealing with
71
AS 11.41.110(a)(2); ch. 166, § 3, SLA 1978.
72
Pears, 698 P.2d at 1201 n.5.
73
Id.
74
Id. at 1202.
75
Id. at 1201 n.5, 1202-03; see also id. at 1205 (Compton, J., dissenting)
(contending that comparisons between the two standards are not useful because of their
qualitative differences).
76
State v. Wentz, 805 P.2d 962, 966 n.5 (Alaska 1991).
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similarly situated offenders.’ ”77 Similarly situated offenders are those convicted of the
same crime. The range of sentences for manslaughter should no longer be used to define
the appropriate range of sentences for a crime the legislature has decided amounts instead
to second-degree murder.
The legislative prerogative bears emphasis. “In general, the comparative
gravity of offenses and their classification and resultant punishments [are] for legislative
determination.”78 As the court of appeals has observed, “It is well established that all of
the categories of conduct classified within a single statutory provision must, in the
abstract, be presumed equally serious; differences in seriousness between similarly
classified offenses must thus be evaluated on a case-by-case basis.”79 When the
legislature expanded the definition of second-degree murder in 1978 to include instances
when “the person knowingly engages in conduct that results in the death of another
person under circumstances manifesting an extreme indifference to the value of human
life,”80 it reflected a legislative judgment that this sort of unintentional assaultive conduct
bears a level of culpability similar to that of other offenses within the ambit of the same
statute. A sentencing court therefore does not err if it begins its analysis by assuming
that all second-degree murders — including vehicular homicides committed under
“circumstances manifesting an extreme indifference to the value of human life” — are
77
State v. McPherson, 855 P.2d 420, 422 n.3 (Alaska 1993) (quoting
McPherson v. State, 800 P.2d 928, 933 (Alaska App. 1990) (Bryner, C.J., dissenting)).
78
Alex v. State, 484 P.2d 677, 685 (Alaska 1971); see also Leuch v. State, 633
P.2d 1006, 1012-13 (Alaska 1981) (“[J]udgments as to the extent to which the
community condemns a particular offense are more properly made in the legislative area
than by the judiciary.”).
79
State v. Jackson, 776 P.2d 320, 328 (Alaska App. 1989).
80
AS 11.41.110(a)(2); ch. 166, § 3, SLA 1978.
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“equally serious” and fall within the same benchmark range. From this starting point,
the defendant’s mental state — whether the second-degree murder involved intentionally
assaultive conduct — may compel movement up or down within the statutory sentencing
range.81 But as a starting point, the superior court’s reliance on the Page benchmark
range in this case was not error.82
Benchmarks “are not to be used as inflexible rules but rather as historically-
based starting points for analysis in individual cases.”83 And we necessarily agree with
the court of appeals that “[t]o insure against unjustified sentencing disparity,” this
analysis “must take into account the sentences imposed in comparable cases. Past
sentencing decisions ‘supply an historical record of sentencing practices for specific
types of cases’ — a record that can ‘provide realistic, experientially based sentencing
norms for guidance in future cases.’ ”84
The superior court observed that although there were many cases for
comparison purposes, “there’s never been one yet . . . for which a 20-year sentence for
81
See State v. Hodari, 996 P.2d 1230, 1234-36 (Alaska 2000) (explaining
why benchmarks are “starting points” rather than “rigid rules which ‘can only be
deviated from when certain specific, limited exceptions are established’ ” (quoting
Williams v. State, 809 P.2d 931, 933 (Alaska App. 1991))).
82
The superior court explained, “[T]he court decisions that control my
decision making say that you should start with 20 to 30 years as the norm. That’s your
basis, and then you go down or up from there.”
83
Hodari, 996 P.2d at 1237.
84
Graham v. State, 440 P.3d 309, 313 (Alaska App. 2019) (quoting Pusich
v. State, 907 P.2d 29, 35 (Alaska App. 1995)); see also State v. Bumpus, 820 P.2d 298,
305 (Alaska 1991) (“Although ‘permissible range of reasonable sentences’ has never
been precisely defined, it is obviously a function in any particular case of such
consideration[s] as the presence of aggravating factors, the psychological make-up of the
defendant, the need for isolation, and the sentences imposed in comparable cases.”).
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second-degree murder for someone who wasn’t using their vehicle deliberately as a
weapon has been approved by [an] appellate court.” The court continued: “In fact, the
ones that have been approved, the norm is quite a bit less than 20 years.” The court
discussed one case for comparison purposes: Phillips v. State, in which the court of
appeals approved a composite sentence of 20 years for a defendant convicted of one
second-degree murder as well as “first-degree assault, driving under the influence,
driving with a revoked license, and reckless driving.”85 The superior court
acknowledged that the murder component of the composite sentence in Phillips “was
obviously less than 20 years,” and, further, that a comparison favored Graham in some
respects but not others; in short, the case was not particularly useful as a guide.
In addition, Phillips involved one death, not two. In the superior court’s
view, the starting point within the benchmark range “would have to be for each count
because it would be nonsensical to have the benchmark remain at 20 to 30 years when
there are multiple victims.” The court was correct that a sentence must take into account
the number of victims. As the court of appeals explained in Pusich v. State,86 following
our decision in Dunlop v. State,87 a vehicular homicide with two victims justifies two
separate homicide convictions and a correspondingly increased sentence: “After Dunlop,
in the context of determining the proper sentence for vehicular homicide, the act of
killing several people and injuring others can no longer be deemed ‘generally
85
No. A-11269, 2014 WL 6608927, *6 (Alaska App. Nov. 14, 2014)
(unpublished). The court also mentioned a sentencing it had participated in a few months
earlier, involving one death and injury to four other people and resulting in an 18-year
sentence, including “15 years for the murder.”
86
907 P.2d 29.
87
721 P.2d 604 (Alaska 1986).
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comparable’ to [the] act of killing one person”; the number of victims necessarily goes
to “the seriousness of the consequences of the defendant’s actions.”88
We recognize that the superior court in this case was deciding a sentence
not only bounded by statute and case law but also guided by the parties’ agreement that
an appropriate sentence was 13 to 20 years per count, to be served consecutively, with
an “agreed upon range [of] 26 to 40 years.” The sentence given was near the middle of
the agreed range and consistent with the Page benchmark. We conclude, therefore, that
the superior court did not err in this aspect of its analysis.
.B The Superior Court Appropriately Relied On An Aggravating Factor,
General Deterrence, And Community Condemnation To Increase The
Sentence.
Having determined that Graham was given “an extraordinarily severe
sentence,” the court of appeals attributed the excessiveness in part to the superior court’s
improper reliance on an aggravator — for conduct endangering three or more
persons — and its misapplication of the Chaney factors of general deterrence and
community condemnation.89 While we agree that the sentence must be reconsidered on
remand, we do not agree that the superior court erred in its consideration of the
aggravator, nor do we agree that the superior court’s remarks showed an improper
reliance on the two Chaney factors.
1. The superior court did not err in applying the “risk to three or
more persons” aggravator.
The aggravating and mitigating factors codified in AS 12.55.155(c) and
(d) do not apply to sentencings for first- or second-degree murder, but the factors may
be considered “by analogy in murder sentencings as points of reference when the parties
88
Pusich, 907 P.2d at 36.
89
Graham, 440 P.3d at 321-27.
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argue how a particular defendant’s crime should be viewed in comparison to a typical
murder.”90 The superior court accordingly applied the aggravator for conduct that
“created a risk of imminent physical injury to three or more persons,” which the court
of appeals decided was error.91 According to the court of appeals, “[a]lthough it is
undisputed that Graham’s driving created a risk of injury to three or more people, this
fact does not distinguish Graham’s case from the typical drunk-driving homicide.”92 The
court quoted our decision in Jeffries v. State: “[A] drunk driver’s recklessness and his
obliviousness to risks ‘pose[s] a grave danger at every intersection . . . , not just at the
place where [the defendant’s] luck happened to run out.’ ”93
In Jeffries, however, we were deciding not whether the driver’s conduct
justified an aggravator, but rather whether the evidence supported a conviction of
second-degree murder under AS 11.41.110(a)(2), which requires proof of “extreme
indifference to the value of human life.”94 We observed that “the question whether an
actor’s conduct demonstrates extreme indifference to the value of human life is primarily
90
Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002); see Hinson v. State,
199 P.3d 1166, 1172 (Alaska App. 2008) (Because “second-degree murder is an
unclassified felony to which presumptive sentencing does not apply[,] aggravating
factors apply only by analogy.”); AS 11.41.110(b) (“Murder in the second degree is an
unclassified felony and is punishable as provided in AS 12.55.”).
91
Graham, 440 P.3d at 321 (quoting AS 12.55.155(c)(6)).
92
Id.93
Id. (alterations in original) (quoting Jeffries v. State, 169 P.3d 913, 918
(Alaska 2007)).
94
Jeffries, 169 P.3d at 915-24.
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one for the factfinder,”95 specifically rejecting the argument that “prolonged driving
misconduct over an extended period of time [was] inherently necessary for an extreme-
indifference murder conviction.”96 Accordingly, in the quotation from Jeffries excerpted
by the court of appeals, we were not making an observation about drunk drivers
generally, but rather describing the defendant Jeffries, who the evidence showed was so
extremely intoxicated “that he was literally ‘blind’ drunk to oncoming cars, not merely
distracted or somewhat slowed down.”97 That is why, as a factual matter, he posed such
“a grave danger at every intersection.”98
Jeffries thus does not support a conclusion that a drunk-driving homicide
may not be viewed as more serious under the “risk to three or more persons” aggravator
because such a risk is inherent in the crime as defined. A drunk driver who runs a red
light and kills another person may be charged with second-degree murder even in the
absence of evidence that the defendant was driving recklessly before reaching that fateful
intersection. Here, in contrast, the superior court found that “[a] number of people
observed [Graham] lose control,” describing him as “fishtailing or drifting . . . at least
three times before the collision.” Witnesses described Graham as “either tailgating or
engaged in dangerous passing,” “nearly collid[ing] with another vehicle,” and “honking
at slower vehicles” — conduct one witness described as “road rage.” The court
concluded that Graham’s conduct was “far more serious . . . than merely running a red
light,” “add[ing] up to aggressive driving, extremely reckless driving behavior.”
95
Id. at 917.
96
Id. at 918.
97
Id.
98
Id.
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When deciding whether an aggravating factor applies, a court must
(1) make a factual finding assessing the nature of the defendant’s conduct, and
(2) determine as a legal matter whether that conduct falls within the statutory standard.99
“Once the sentencing court has concluded that the facts bring the case within the
aggravator’s literal language,” it is then a matter for the court’s discretion to determine
how much weight the aggravator should have.100
Graham does not challenge the superior court’s factual findings; as the
court of appeals acknowledged, it is undisputed that Graham’s conduct “created a risk
of injury to three or more people.”101 And we disagree with the court of appeals’
conclusion that the type of conduct Graham exhibited — “aggressive driving” involving
tailgating and a number of near collisions, described by at least one witness as “road
rage” — is typical of a drunk driving homicide, which may as easily result from a drunk
driver’s failed attempt to drive normally. In Jeffries we rejected the defendant’s
argument that second-degree murder convictions required “prolonged driving
misconduct over an extended period of time” to satisfy the statutory standard of “extreme
indifference.”102 We cited two cases in which intoxicated drivers were convicted of
second-degree murder after crossing the center line and, as in this case, killing two
people; we noted that “neither case involved prolonged or overtly ‘egregious’ driving
misconduct apart from erratic driving resulting from each defendant’s severe
99
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
100
State v. Tofelogo, 444 P.3d 151, 158 (Alaska 2019).
101
Graham v. State, 440 P.3d 309, 321 (Alaska App. 2019).
102
Jeffries, 169 P.3d at 918.
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intoxication.”103
We conclude that the superior court’s findings regarding Graham’s conduct
are not clearly mistaken and that it did not err when it decided that his conduct was more
serious because it “created a risk of imminent physical injury to three or more persons.”
2. The superior court did not abuse its discretion in applying the
Chaney sentencing factor of deterrence.
By statute, a sentencing court is required to consider “the effect of the
sentence to be imposed in deterring the defendant or other members of society from
future criminal conduct.”104 The superior court in this case concluded that the goal of
specific deterrence had already been met; Graham was “likely to take very seriously, for
the rest of his life, the act of drinking and driving.” But the court also recognized the
importance of general deterrence and the effect a long sentence could have on others
when considering whether to get behind the wheel, as well as the friends and family
members who might dissuade them from doing so. The court recognized that “we never
get the deterrent effect we hope to get but any deterrent effect is an improvement over
the situation, and . . . we’re likely to get some.”
The court of appeals concluded that it was error for the superior court to
rely on this factor to justify an “extraordinarily severe” sentence despite having “no
verified reason to believe that imposing such a sentence . . . will achieve the societal goal
of preventing drunk-driving.”105 The court of appeals acknowledged the historical
assumption by both legislatures and courts “that statutory penalty ranges and judicial
103
Id. (citing Richardson v. State, 47 P.3d 660, 661 (Alaska App. 2002);
Puzewicz v. State, 856 P.2d 1178, 1179 (Alaska App. 1993)).
104
AS 12.55.005(5).
105
Graham, 440 P.3d at 327.
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sentencing decisions do make a difference — not just for the individual defendant, but
for the community as a whole.”106 But it further observed that “there are limits to what
sentencing judges can hope to achieve in terms of deterring others from committing
similar crimes,” and that whether longer sentences have a greater deterrent effect is
essentially unknowable.107 The court of appeals cited the testimony of Chief Mew to
show that drunk driving arrests had increased in the years leading up to Graham’s crime
despite no significant change in sentencing standards, and it cited statistics compiled by
state and federal agencies to show that Graham’s “unprecedentedly harsh sentence” had
not had any apparent impact on drunk-driving fatalities in the four years since his
sentencing.108 With this background, the court queried “whether sentencing judges can
realistically hope to put a stop to drunk-driving homicides by imposing an additional 10
or 12 years on top of the sentencing range that already applies to this crime. . . . If not,
then the added years in Graham’s case simply create an unjustified disparity in
sentencing.”109
We disagree with this analysis in several respects. First, the superior court
clearly did not expect that the sentence it imposed would “put a stop to drunk-driving
homicides”; it never implied such an unrealistic goal. The superior court said that “we
never get the deterrent effect we hope to get but any deterrent effect is an improvement,”
and “I think we’re likely to get some.” And the court of appeals’ statistical analysis
purporting to show that Graham’s sentence had no generally deterrent effect is
106
Id. at 324 (emphasis in original).
107
Id. at 325.
108
Id. at 325-26.
109
Id. at 326.
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unconvincing. The court points to increases in drunk-driving arrests since 2015,110 but
whether that number reflects more drunk driving, stricter enforcement, or some
combination of factors is open to question. And the numbers of Alaska’s drunk-driving­
related homicides, varying from 15 in 2013 to 30 in 2016 and back down to 22 in 2017,
are too small a set to prove much of anything statistically.
We acknowledge the debate about whether increased sentences actually
have a greater deterrent effect.111 But the legislature requires sentencing courts to
consider “the effect of the sentence to be imposed in deterring . . . other members of
society from future criminal conduct,”112 and our case law has long viewed general
deterrence as an especially important consideration in drunk-driving cases.113 A
110
Id.111
See Michael Tonry, The Functions of Sentencing and Sentencing Reform,
58 STAN.L.REV. 37, 52 (2005) (concluding that “increases in severity of punishment do
not yield significant (if any) marginal deterrent effects”); Anthony N. Doob, Cheryl
Marie Webster, Sentence Severity and Crime: Accepting the Null Hypothesis, 30 CRIME
& JUST. 143, 143 (2003) (concluding that “sentence severity has no effect on the level
of crime in society”); cf. Daniel S. Nagin, Criminal Deterrence Research at the Outset
of the Twenty-First Century, 23 CRIME & JUST. 1, 36 (1998) (expressing “confiden[ce]
. . . that our legal enforcement apparatus exerts a substantial deterrent effect” but
acknowledging gaps in empirical understanding); Raymond Paternoster, How Much Do
We Really KnowAbout Criminal Deterrence?, 100 J.CRIM.L. & CRIMINOLOGY 765, 765
(2010) (concluding that there is a “marginal deterrent effect for legal sanctions” but
acknowledging “a great asymmetry between what is expected of the legal system through
deterrence and what the system delivers”).
112
AS 12.55.005(5).
113
See Godwin v. State, 554 P.2d 453, 455 (Alaska 1976) (“In any case
involving loss of life, . . . and particularly in an offense involving driving while under the
influence of alcohol, major considerations are the goals of deterrence of other members
of the community and community condemnation of the offender and the offense so as
(continued...)
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sentencing judge has broad discretion in determining the priority and relative weights of
the sentencing goals.114 We do not believe the court abused its discretion by giving some
weight to this statutory goal.
3. The superior court did not abuse its discretion in its
consideration of the Chaney sentencing factor of community
condemnation.
The superior court also emphasized another Chaney factor: “the effect of
the sentence to be imposed as a community condemnation of the criminal act and as a
reaffirmation of societal norms.”115 The court observed that “[c]ommunity condemnation
is especially high for drunk driving now” and “even higher” in this case involving “two
innocent young girls [who] were essentially smashed to death.” But the court saw
societal norms as something of a counterbalance, noting “the principle that our penal
system exists for the purpose of reforming criminal behavior when that’s possible to
do. . . . [R]ehabilitation does . . . remain an important sentencing goal in this case.”
The court of appeals concluded that the superior court misinterpreted the
community condemnation factor, improperly infusing it with “raw emotion and notions
of retribution.”116 The court of appeals explained that community condemnation is not
“just a polite term for retribution — the concept of making defendants ‘pay’ for their
113
(...continued)
to reaffirm societal norms and to maintain respect for those norms.”); Clemans v. State,
680 P.2d 1179, 1189-90 (Alaska App. 1984) (“Both the supreme court and this court
have consistently underscored the seriousness of homicides committed by drunken
drivers” and “have repeatedly held that deterrence of others and reaffirmation of societal
norms should be given a prominent role in sentencing.”).
114
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
115
AS 12.55.005(6).
116
Graham v. State, 440 P.3d 309, 324 (Alaska App. 2019).
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crimes,” but rather “reflects society’s expectations that legal and moral norms will be
upheld.”117 The factor should not be used “to give voice to the community’s outrage at
a particular defendant or at a particularly disturbing crime,” or as a justification for a
sentencing judge’s “one-person re-assessment of the range of penalties that should apply
to the defendant’s crime.”118 Concluding that Judge Saxby had misused the factor in
these ways, the court of appeals pointed to his statements that “[p]eople are right when
they say [that drunk-driving homicide] just has to stop” and that he could “be a voice”
for the community by imposing a severe sentence.119
We disagree with the court of appeals’ reading of the superior court’s
remarks about community condemnation, which we believe takes them out of context.
The court’s remarks that it could “be a voice” for the community in saying that drunk
driving “has to stop” are consistent with our own admonition that “[t]he unique nature
of [drunk driving related homicide] mandates that the trial court, in fashioning a
sentence, place heavy emphasis on societal condemnation of the conduct.”120 And
moments after this remark the court expressly recognized the mitigating nature of other
societal norms, particularly “the principle that our penal system exists for the purpose of
reforming criminal behavior, when that’s possible to do”; the court had already
acknowledged that Graham had “good potential for rehabilitation.” And ultimately,
while rendering a sentence that it believed to be “the highest sentence rendered in Alaska
history for conduct of this type,” it also recognized that it was bound by the principle that
117
Id. at 323.
118
Id.119
Id. at 324 (second alteration in original).
120
Sandvik v. State, 564 P.2d 20, 25 (Alaska 1977) (quoting Layland v. State,
549 P.2d 1182, 1184 (Alaska 1976)).
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it was “supposed to be rendering the lowest sentence that meets all of the sentencing
goals.”
In sum, we cannot say that the superior court abused its discretion when
weighing the sentencing factors.
C. It Was An Abuse Of Discretion To Allow Police Witnesses To Testify
As Victim Representatives.
The State challenges the court of appeals’ conclusion that the superior
court’s handling of evidence at the sentencing, along with comments the superior court
made at that time, require Judge Saxby’s recusal on remand. Though we do not agree
that the case needs to be reassigned for resentencing, we agree that there were
evidentiary errors, as explained below.
1. The victim’s rights statute does not authorize the police officers
to speak on behalf of the victims.
The Alaska Constitution guarantees the rights of crime victims to be heard
at sentencing.121 The legislature has defined “victim” for these purposes as “a person
against whom an offense has been perpetrated.”122 In a homicide case victims include
“(i) a person living in a spousal relationship with the deceased before the deceased died;
(ii) an adult child, parent, brother, sister, grandparent, or grandchild of the deceased; or
(iii) any other interested person, as may be designated by a person having authority in
law to do so.”123 The legislature has prescribed the process by which a victim’s rights
at sentencing are protected: “A victim may submit to the sentencing court a written
121
Alaska Const. art I, § 24; see also AS 12.61.010(a)(9); AS 12.55.023(b)
(providing victim the right to give sworn testimony or make an unsworn oral
presentation at sentencing).
122
AS 12.55.185(19)(A).
123
AS 12.55.185(19)(C).
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statement that the victim believes is relevant to the sentencing decision and may give
sworn testimony or make an unsworn oral presentation to the court at the sentencing
hearing.”124 In cases involving felonies and certain types of misdemeanors, “when the
victim does not submit a statement, give testimony, or make an oral presentation, the
victims’ advocate may submit a written statement or make an oral presentation at the
sentencing hearing on behalf of the victim.”125
At the beginning of Graham’s sentencing hearing, the State informed the
superior court of its intent to present the testimony of Chief Mew and Sergeant
McKinnon of the Anchorage Police Department. The prosecutor explained that Chief
Mew “had been asked by the families to provide a brief statement” and would talk about
“the impact of DUI murders and DUI manslaughters on the rank and file of the
Anchorage Police Department.” Sergeant McKinnon would speak “for himself and . . .
for the other officers who have given, over the years, the victim notifications to families
of the dead.” Over a defense objection, the court allowed the testimony, reasoning that
the victims’ families were “allowed to have representatives speak on their behalf.”
Sergeant McKinnon testified about going to the scene of the accident and
later notifying the families that the two girls were dead. He testified that the experience
was “the single-most difficult” in his life; that he struggled for the strength to carry out
the duty of “delivering the worst possible news to these parents”; that he “can still hear
the unique sounds and wails from that day”; and that he “could not sleep for weeks”
afterward. Chief Mew testified that he could not “add a single word to” the stories of the
families or the effect the deaths had on them; instead, he talked about the impact of drunk
driving generally and the rise of drinking-related accidents. He told the court that drivers
124
AS 12.55.023(b).
125
Id.
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would make decisions based on the outcome of Graham’s case and asked the court to
impose a sentence “severe enough” to prevent future drunk-driving fatalities.
We do not exclude the possibility that police officers’ testimony may be
relevant at sentencings. But these officers’ testimony was not relevant as victim impact
evidence, and we agree with the court of appeals that it was not admissible on the ground
articulated by the superior court: that the victims’ families had authorized the officers
to “speak on their behalf.”126
Victims are not parties to a criminal prosecution; they do not have the right
to call witnesses.127 Victims’ right to be heard at sentencing and to have a victim’s
advocate speak for them if they cannot speak are not grants of speaking privileges to
members of the public at large, even if asked to speak by the victims themselves. Alaska
Statute 12.55.023(b) allows the victim’s advocate to speak on victims’ behalf only when
the victims themselves do not “submit a statement, give testimony, or make an oral
presentation.” Here the victims presented testimony and other victim-impact evidence,
and the statutory authorization for a designated spokesperson does not apply.
Victim testimony at sentencing has a legitimate constitutional purpose: to
remind the sentencing authority that “the victim is an individual whose death represents
a unique loss to society and in particular to his family.”128 Sergeant McKinnon gave
126
See Graham v. State, 440 P.3d 309, 328 (Alaska App. 2019) (noting “the
mistaken rationale that these statements qualified as ‘victim impact’ statements under
AS 12.55.023(b)”).
127
See Cooper v. District Court, 133 P.3d 692, 697-99, 709 (Alaska App.
2006) (tracing evolution of criminal law from individual pursuit of redress to societal
pursuit of justice, and noting legislature’s purposeful failure to make victims parties to
criminal cases with right to appeal sentencing decisions).
128
Payne v. Tennessee, 501 U.S. 808, 825 (1991) (quoting Booth v. Maryland,
(continued...)
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testimony for himself and other officers who performed the difficult duty of notifying
families of a loved one’s death. Chief Mew’s testimony began with an admission that
he could not speak on behalf of the deceased victims or their families; he used his
testimony to appeal for a sentence that would make Graham an example to deter other
similar crimes in the future. The police officers’ testimony did not serve the allowable
constitutional purpose of humanizing the victims or describing the impact of their loss
on their families, and it should not have been admitted as victim impact evidence.
D. It Was An Abuse Of Discretion To Admit The Tribute Videos Without
First Reviewing Them For Relevance And Prejudicial Impact.
The superior court interpreted Graham’s objection to the two victim tribute
videos as an objection to the audio-visual format; it concluded that there was no public
policy basis for limiting victims to live testimony, as visual presentations “are routinely
made in courts every day.” Graham then clarified his objection as not based on public
policy but rather on the lack of statutory authority. The judge permitted the videos to be
played over the objection.
The court of appeals discussed the tribute videos extensively, deciding that
they crossed some line of admissibility and supported the conclusion that the case should
be reassigned on remand to a judge who had not allowed himself to be swayed by “an
hours-long drumbeat of grief and outrage.”129 The court of appeals did not, however,
128
(...continued)
482 U.S. 496, 517 (1987) (White, J., dissenting)); id. (“Victim impact evidence is simply
another form or method of informing the sentencing authority about the specific harm
caused by the crime in question.”).
129
Graham, 440 P.3d at 314-15 n.4 (describing content of videos); id. at 328(stating that “judges should not carelessly subject themselves to lengthy presentations
whose primary purpose and effect is to engender emotions that will improperly influence
the judge’s sentencing decision”).
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elaborate on the appropriate standards for the admission of such evidence or instruct the
superior court how to consider it on remand. But the parties have briefed the issue
thoroughly and well on this petition. Like the court of appeals, we have viewed the
videos in their entirety, but we do not decide whether they were admissible in whole or
in part. Rather, we conclude that it was an abuse of discretion to allow them to be played
at sentencing without first previewing them and editing them, as necessary, for relevance,
cumulativeness, and prejudicial effect. This is consistent with the goal of avoiding
sentencing disparities that may be attributed to the community’s attachment to, and
affection for, the particular victims of a crime. Recognizing that there can be no bright-
line rules for the admissibility of victim tribute evidence, we highlight the concerns that
should factor into a sentencing court’s analysis.130
In Payne v. Tennessee, the United States Supreme Court held that the only
constitutional limitation on the presentation of this type of evidence is the Fourteenth
Amendment’s Due Process Clause, which requires only that victim impact evidence not
be “so unduly prejudicial that it renders the trial fundamentally unfair.”131 The Court
identified two purposes of victim impact evidence that would ordinarily satisfy this test:
showing the “victim’s uniqueness as an individual human being” and showing the impact
the victim’s death had on the community.132 Within these constitutional parameters, the
130
Neither party disputes that victim impact evidence in video form is
admissible as an “unsworn oral presentation” under AS 12.55.023(b). We therefore
assume for purposes of discussion that video presentations are authorized by the
sentencing statutes.
131
501 U.S. at 825.
132
Id. at 823-25.
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Court left the states free to set their own rules governing the use of victim impact
evidence in criminal sentencings.133
Since then, state courts considering the admissibility of victim tribute
videos, like those at issue here, have usually relied on the two acceptable aims of victim
impact evidence articulated in Payne — demonstrating the victim’s unique humanity and
the impact of the victim’s death on the community. In People v. Brady, involving the
murder of a police officer, the California Supreme Court considered the admissibility of
a variety of victim impact evidence, including two videos.134 The court first commented
on the videos’ length, cautioning courts against admitting “lengthy” videos but noting
that those at issue — totaling approximately 10 minutes — were shorter than some the
court had approved in other cases.135
The first video showed the victim celebrating Christmas with his family just
a few days before his death.136 The court found no abuse of discretion in its admission,
explaining:
This videotape depicted a rather ordinary event — a family
holiday celebration. It is a brief “home movie” that depicted
real events; it was not enhanced by narration, background
music, or visual techniques designed to generate emotion;
and it did not convey outrage or call for vengeance or
sympathy. . . . [I]t humanized [the officer] and provided
133
Id. at 825.
134
236 P.3d 312, 320, 334 (Cal. 2010).
135
Id. at 337-39.
136
Id. at 337-38.
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some sense of the loss suffered by his family, and it
supplemented but did not duplicate their testimony.[137]
The second video showed portions of the officer’s memorial and funeral
services, including images of the flag-draped casket, the police honor guard, and
mourning family members.138 The footage was shot by a television station but “not
professionally edited”; the only audio was the sounds of the rifle salute, a bagpiper
marching in the procession, and “brief periods of church bells tolling and a woman
singing.”139 The court again highlighted the considerations that favored the video’s
admissibility, beginning with its brevity, at six minutes.140 It was also significant that the
video
did not include images of [the officer] as a child, was not a
eulogy (as all actual eulogies from the ceremony were edited
out), was not enhanced by narration or visual imagery, and
was not accompanied by an extensive audio track playing
sentimental music. Although the videotape was prepared for
the penalty phase, it depicted actual events and was not of
professional quality.[141]
The court observed that certain aspects of the video — “[t]he flag ceremony, the rifle
salute, and the bagpipes [—] were not particularly relevant to the effect of [the officer’s]
murder on his family and friends, and tended to produce an emotional response from the
137
Id.138
Id. at 338.
139
Id.140
Id. at 339.
141
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viewer.”142 But “[e]motional evidence of how a community mourns the loss of a beloved
citizen . . . does not necessarily violate the federal or the state Constitution”; victim
impact evidence need not merely imply “loss, grief, and anguish; it may also demonstrate
it.”143 Admission of this video, too, was not an abuse of discretion.
In People v. Prince, the California Supreme Court approved the admission
at sentencing of a 25-minute interview of one of the defendant’s victims, taped by her
hometown television station a few months before her murder.144 The interview
highlighted the young woman’s high school accomplishments and plans for college and
career.145 The court recognized the power of victim impact evidence: “Particularly if the
presentation lasts beyond a few moments, or emphasizes the childhood of an adult
victim, or is accompanied by stirring music, the medium itself may assist in creating an
emotional impact upon the jury that goes beyond what the jury might experience” from
other types of evidence.146 Noting the absence of “bright-line rules by which to
determine when such evidence may . . . be used,” the court acknowledged the “general
understanding” that victim impact evidence could appropriately be used to remind the
judge or jury that “the victim [was] an individual whose death represent[ed] a unique loss
to society.”147 The taped interview satisfied these flexible standards: it was not “an
emotional memorial tribute to the victim,” accompanied by an emotional musical
142
Id.143
Id.144
156 P.3d 1015, 1038 (Cal. 2007).
145
Id.146
Id. at 1093.
147
Id. at 1092 (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)).
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soundtrack, or focused on her childhood, and in sum “was not of the nature to stir strong
emotions that might overcome the restraints of reason.”148
In State v. Addison, the New Hampshire Supreme Court allowed the use of
three short video clips, totaling less than three minutes in length, and 36 family
photographs of a slain police officer that included some from his infancy and
childhood.149 After determining that the state sentencing statute allowed this type of
evidence, the court held that the evidence was also constitutionally permissible under
Payne, as it followed the twin aims laid out by the Supreme Court.150 The court affirmed
the trial court’s conclusion that evidence of the victim as a child was relevant to convey
the magnitude of the loss to the victim’s family.151 The videos of the victim with his
children were short and “very relevant to the harm done to these boys by not having their
father any longer.”152
The New Jersey Supreme Court reached a different conclusion in State v.
Hess, disapproving the admission of a 17-minute tribute video at the sentencing for the
murder of a police officer.153 The video included childhood photos, pictures of the
officer’s gravestone, television coverage of his funeral, and poems, all “scored to
148
Id. at 1093.
149
87 A.3d 1, 105-106, 111-12, 115 (N.H. 2013).
150
Id. at 115.
151
Id. at 114.
152
Id.
153
23 A.3d 373, 381 (N.J. 2011).
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popular, holiday, country, religious, and military music.”154 The court concluded that the
video did “not project anything meaningful about the victim’s life as it related to his
family and others at the time of his death” but rather tended to provoke an emotional
response and should have been significantly redacted.155
In Salazar v. State, the Texas Court of Criminal Appeals reviewed the
admissibility of a 17-minute tribute video featuring over 140 photographs of the victim
set to emotional music.156 The court held that the video should have been excluded,
though relatives’ testimony about the victim, and photographs of him from around the
time of his death, were probative and admissible.157 The court concluded that the video
was of low probative value because half the photographs were of the adult victim as a
child; the court observed that the crime “extinguished [the victim’s] future, not his past,”
and that childhood photos may be particularly prejudicial because they imply a crime
against the “angelic infant.”158 The risk of prejudice was heightened by the “sheer
volume” of photographs.159 The court stated the general principles that there is no
bright-line rule for the admissibility of victim impact evidence but courts “must guard
against the potential prejudice of ‘sheer volume,’ barely relevant evidence, and overly
154
Id. at 393-94.
155
Id.
156
Salazar v. State, 90 S.W.3d 330, 333 (Tex. Crim. App. 2002).
157
Id. at 337-38.
158
Id. at 337.
159
Id.-43- 7606
emotional evidence.”160 “[B]oth defendants and juries must [] know that the homicide
victim is not a faceless, fungible stranger. . . . [But] the punishment phase of a criminal
trial is not a memorial service for the victim.”161
These courts agree on some of the factors sentencing courts should consider
when deciding whether a victim tribute video is consistent with the Supreme Court’s
analysis in Payne: demonstrating the victim’s unique humanity and the impact of the
victim’s death on the community while not undermining the defendant’s constitutional
right to a sentencing based on a reasoned analysis of relevant information. Videos tend
to be admissible if they are short, unedited views of the victim’s life near the time of the
loss or of the community’s actual mourning.162 Factors weighing against admissibility
include heavy editing, dramatizations, enhanced sound or visual effects, and a failure to
focus on the victim at the time of the loss. Sentimental music should be used sparingly,
as its purpose can often be to appeal to the emotions.163
160
Id. at 336.
161
Id. at 335-36; see also State v. Bixby, 698 S.E.2d 572, 587 (S.C. 2010)
(holding that seven-minute video of police officer’s funeral was permissible victim
impact evidence under Payne as it “showed the traditional trappings of a law
enforcement officer’s funeral, demonstrating the general loss suffered by society,” and
“showed footage of actual mourners, displaying for the jury the specific impact of the
murder on particular members of society”).
162
People v. Brady, 236 P.3d 312, 337-39 (Cal. 2010).
163
See Graham v. State, 440 P.3d 309, 314 & n.4 (Alaska App. 2019) (aptly
describing video montages at issue as “the type of videos that are designed to evoke
emotion and are commonly played at memorial services” and reciting playlist for each
video).
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Different jurisdictions have drawn the line of admissibility differently.164
A common thread, however, is the necessity that the trial court review any video
evidence before it is presented at the sentencing hearing so that the court has the
opportunity to exclude irrelevant, cumulative, or overly prejudicial material.165 The
sentencing judge has the duty to ensure that the defendant’s due process rights are not
violated by the court’s consideration of evidence “so unduly prejudicial that it renders
the trial fundamentally unfair.”166 This requires careful review of video evidence by the
sentencing judge before the evidence is introduced at the hearing.
We recognize that the calculus of emotional impact is different in
jurisdictions like ours where it is the judge, not a jury, who determines the appropriate
sentence. Our case law has long assumed that judges are able to review potentially
prejudicial material prior to sentencing and still rule in accordance with the law,
reasoning that “[o]ur trial judges, as a group, are more knowledgeable and experienced
164
Compare Hicks v. State, 940 S.W.2d 855, 856-57 (Ark. 1997), with Salazar
v. State, 90 S.W.3d 330, 332-33 (Tex. Crim. App. 2002) (reaching opposite conclusions
on admissability of similar victim tribute videos).
165
Hicks, 940 S.W.2d at 856-57 (noting that “the trial judge viewed the
videotape before allowing it to be played to the jury, and he ruled portions of the tape
inadmissible,” and affirming given trial judge’s “expressed and careful consideration of
the videotape’s relevancy and purpose”); Brady, 236 P.3d at 337 (“The trial court
properly informed its exercise of discretion by viewing the videotapes before allowing
the jury to view them.”); People v. Prince, 156 P.3d 1015, 1093 (Cal. 2002) (“In order
to combat th[e] strong possibility [of grave prejudice from emotional victim tributes],
courts must strictly analyze evidence of this type.”); State v. Addison, 87 A.3d 1, 114
(N.H. 2013) (noting with approval that trial court held hearing, reviewed proposed
evidence, and considered specific objections before allowing photographs and video
recordings to be presented at sentencing).
166
Payne v. Tennessee, 501 U.S. 808, 825 (1991).
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than is the ordinary juror in regard to homicide prosecutions.”167 But judges as well as
jurors may be affected by the emotional tenor of a court proceeding, as the court of
appeals recognized in this case.168 We agree with these observations of the New Jersey
Supreme Court:
Undoubtedly, concerns over prejudicial victim-impact
statements, including photographs and videos, are less
pronounced when a judge rather than a jury is imposing
sentence. Nevertheless, judges, no less than jurors, are
susceptible to the wide range of human emotions that may be
affected by irrelevant and unduly prejudicial materials. We
are fully aware that judges, who are the gatekeepers of what
is admissible at sentencing, will have viewed materials that
they may deem non-probative or unduly prejudicial. We
have faith that our judges have the ability to put aside that
which is ruled inadmissible. However, both the bar and [the]
bench should know the general contours of what falls within
the realm of an appropriate video of a victim’s life for
sentencing purposes.[169]
While recognizing judges’ human susceptibility to emotional appeals, we
assume that a judge who reviews potentially prejudicial material well in advance of a
public proceeding will be better able to compartmentalize the emotional response than
167
Egelak v. State, 438 P.2d 712, 715 (Alaska 1968) (declining to “presume
that trial judges would permit themselves to become unduly prejudiced against
defendants by virtue of having viewed photographs such as the ones at bar” (showing
body of spouse beaten to death by defendant)).
168
Graham, 440 P.3d at 327-28 (observing that the victim impact statements
were delivered “in a manner that was almost guaranteed to heighten the emotions of
everyone in the courtroom — including the judge” and cautioning that “judges should
not carelessly subject themselves to lengthy presentations whose primary purpose and
effect is to engender emotions that will improperly influence the judge’s sentencing
decision”).
169
State v. Hess, 23 A.3d 373, 392 (N.J. 2011) (citation omitted).
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if viewing the material for the first time in open court, immediately before having to
make a difficult sentencing decision in the public eye. In the present case the superior
court failed to review the tributes before playing them at sentencing. It was an abuse of
discretion to admit the videos over objection without reviewing them beforehand to
ensure that their contents comport with the constitutional limits and the twin purposes
of victim impact evidence laid out in Payne. We instruct the sentencing judge on remand
to review any video tribute evidence for relevance, prejudice, and cumulativeness under
the guidelines laid out here.
E. The Judge Did Not Abuse His Discretion By Declining To Recuse
Himself.
The court of appeals concluded that Judge Saxby’s admission of the
officers’ testimony and the tribute videos required that the re-sentencing be done before
a different judge because he had allowed himself to be exposed to overly prejudicial
evidence.170 We disagree.
Alaska Judicial Canon 3(E)(1) requires a judge to “disqualify himself or
herself in a proceeding in which the judge’s impartiality might reasonably be
questioned.” But we “will not overturn a judge’s decision [not to recuse] unless it is
plain that a fair-minded person could not rationally come to that conclusion on the basis
of the known facts.”171 And “a judge has an obligation not to order disqualification
‘when there is no occasion to do so.’ ”172
170
Graham, 440 P.3d at 328.
171
Amidon v. State, 604 P.2d 575, 577 (Alaska 1979) (“When the judge does
not recuse himself, the decision should be reviewable on appeal only if it amounted to
an abuse of discretion.”).
172
See Grace L. v. State, Dep’t of Health & Soc. Servs., Off. of Child’s Servs.,
(continued...)
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“A showing of actual bias in the decision rendered . . . or the appearance
of partiality might be sufficient grounds for us to reverse in an appropriate case. Where
only the appearance of partiality is involved, however, we will require a greater showing
for reversal.”173 A judge’s “belief that he could be impartial deserves great deference.”174
“A judge’s exposure to inadmissible evidence does not necessarily result in prejudice
warranting recusal. Likewise, the fact that a judge commits error in the course of a
proceeding does not automatically give rise to an inference of actual bias.”175 In other
words, “[m]ere evidence that a judge has exercised his judicial discretion in a particular
way is not sufficient to require disqualification.”176
Judge Saxby’s evidentiary decisions do not warrant recusal from further
proceedings. While the sentencing hearing was indeed emotionally charged, we
regularly trust trial judges to rule impartially in emotionally charged proceedings; indeed,
as our discussion of the victim tribute videos demonstrates, judges are sometimes
required to consider such evidence carefully even if it is ultimately so prejudicial as to
be inadmissible. And we have no reason to doubt that Judge Saxby can set aside the
charged atmosphere of a hearing held in 2015 — now seven years ago — as he
172
(...continued)
329 P.3d 980, 988-89 (Alaska 2014) (quoting Amidon, 604 P.3d at 577).
173
Perotti v. State, 806 P.2d 325, 328 (Alaska App. 1991) (alterations in
original) (quoting Amidon, 604 P.2d at 577).
174
Id.
175
Id. (citations omitted).
176
Sagers v. Sackinger, 318 P.3d 860, 867 (Alaska 2014) (quoting State v. City
of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973), overruled on other grounds by State
v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982)).
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reconsiders sentencing while disregarding evidence that has been determined to be
irrelevant or unfairly prejudicial.177
V. CONCLUSION
We REVERSE the decision of the court of appeals. We VACATE
Graham’s sentence and REMAND for further proceedings necessary for resentencing
consistent with this opinion.
177
See Grace L., 329 P.3d at 988-89 (noting that trial court judges must often
“compartmentalize their decisions — to review evidence that is later declared to be
inadmissable or to rule on similar legal issues at different stages of a contested case”).
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CARNEY, Justice, both concurring and dissenting.
I generally agree with the court’s resolution of this tragic case. The
superior court properly considered Page,1 and appropriately analyzed the aggravating
factor of endangering more than three people.2 And because any judge assigned to this
case would be required to review the memorial videos, I agree that it is not necessary for
the sentencing judge to be replaced on remand.3 Finally, I agree with the court that the
superior court abused its discretion when it allowed police officers4 to testify in addition
to the statutorily authorized victims, the girls’ parents.5
I concur with the court’s holding that the superior court abused its
discretion by admitting the lengthy and emotional videos “without first previewing them
and editing them.”6 But I believe the court’s discussion of the “concerns that should
factor into a sentencing court’s analysis” of such videos is insufficient7 — particularly
in light of the superior court’s stated intention to “be a voice” of the community and to
1
Page v. State, 657 P.2d 850 (Alaska App. 1983); see also Opinion at 15-25
(holding superior court appropriately applied Page benchmark).
2
Opinion at 25-29.
3
Opinion at 47-49.
4
The superior court also permitted an attorney with the Office of Victims’
Rights. Although the court does not address the attorney’s testimony because the parties
did not brief the issue, that testimony, too, clearly violates the statute. Opinion at 15
n.35.
5
Opinion at 34-37.
6
Opinion at 38.
7
Opinion at 38.
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impose “the highest sentence rendered in Alaska history for conduct of this type.”8
While there is no denying the overwhelming tragedy of the facts of this case or the
horrific loss of two innocent girls, the court’s statements raise questions about the
disproportionate impact these videos can have on sentencing courts and the potential for
such presentations to fundamentally undermine the fairness of the criminal justice
system.9
The memorial videos were of professional quality, accompanied by moving
musical soundtracks, and were supplemented by dozens of letters10 — as well as the
erroneously permitted testimony of the chief of police, another officer, and a victims’
rights attorney. To compile these presentations required time, resources, and access to
influential community members.
This situation raises troubling questions. What if the families had limited
means and less access to community leaders and local authorities? Would the court have
imposed the most severe sentence in Alaskan history if the victims had come from
impoverished families unable to create or commission professional quality videos or to
call upon the police chief to testify? What if the victims were being raised by single
parents unable to take time away from work to attend every hearing? What if the victims
had been struggling in school rather than academically successful? The superior court
asserted it was the voice of the community, but what about those segments of the
community that have no voice?
8
Opinion at 33 (quoting Graham v. State, 440 P.3d 309, 324 (Alaska App.
2019)).
9
Opinion at 32 (citing Graham, 440 P.3d at 324).
10
See Graham, 440 P.3d at 314-15 n.4, 327-28 (describing content of videos).
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Today’s opinion highlights sentencing factors that seek to balance a
“victim’s unique humanity” against a “defendant’s constitutional right” to fair
sentencing. But our system of criminal sentencing fundamentally recognizes that every
criminal case invokes institutional concerns as well. The fairness of any sentence must
be considered in relation to those imposed in similar circumstances to ensure that the
criminal justice system serves its intended purposes.11 Allowing a sentencing court to
consider polished video presentations without first previewing and editing them to avoid
disproportionate impacts ignores these institutional concerns and risks valuing victims
in proportion to their access to resources and their position in the community.
These concerns lead me to disagree with the court and conclude that the
superior court abused its discretion when it considered the videos along with the
improper witnesses as “community condemnation” when it fashioned Graham’s
sentence.12 By proclaiming its intention to “ ‘be a voice’ for the community” the superior
court demonstrated that its sentencing decision had been improperly influenced by the
lengthy presentations designed to engender emotions.13 The court abdicated its duty “to
provide an accessible and impartial forum for the just resolution”14 of this case and
11
See Opinion at 13-34 (judging the fairness of Graham’s sentence in relation
to other cases).
12
Opinion at 33-34.
13
See Opinion at 33, 37 n.130.
14
Mission Statement, ALASKA COURT SYSTEM, https://courts.alaska.gov/
home.htm (last visited Mar. 21, 2022).
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allowed itself to be swayed by what the court of appeals described as “an hours-long
drumbeat of grief and outrage.”15
Sentencing courts are obligated to carefully consider the facts and
circumstances of each case and each offender and to guard against sentencing disparities
“that may be attributed to the community’s attachment to, and affection for, particular
victims of a crime.”16 That obligation was not observed here. For that reason, I
respectfully dissent.
15
Graham, 440 P.3d at 328 (Alaska App. 2019); Opinion at 37.
16
Opinion at 38.
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