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Waggy v. State

Alaska Court of Appeals

March 18, 1998


Court of Appeals No. A-6510 Trial Court No. 3PA-94-2730 Cr

Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge.

The opinion of the court was delivered by: Mannheimer, Judge.


On December 9, 1994, Diana M. Waggy drove from Anchorage to the Wasilla home of her long-time friend, James Wolf. Waggy brought her seven-year-old daughter with her. She also brought a .357 magnum pistol that she had purchased earlier that day, using a false name. During the drive, Waggy told her daughter that they were going to Wasilla so that she could kill Wolf.

When Waggy arrived in Wasilla, she entered Wolf's house and pulled her gun. When Wolf ran outside, she chased him and gunned him down, killing him. Convicted of first-degree murder, Waggy was sentenced to 85 years' imprisonment. She now appeals this sentence, contending that it is excessive. For the reasons explained here, we affirm Waggy's sentence.

The evidence presented at the sentencing hearing showed that Waggy is a deeply troubled woman with severe psychological problems. She was often depressed to the point of dysfunction. She periodically threatened to kill either herself or members of her family, other intimate friends, her employers, and her mental health counselors. She deluged the Anchorage Crisis Line with telephone calls (as many as 50 calls in a month), and she was twice hospitalized at the Alaska Psychiatric Institute.

For several years, Waggy and Wolf had maintained a tangled relationship. When she and Wolf first met, Wolf was romantically attracted to her, while Waggy wanted the two of them to remain simply friends. As the relationship progressed, although the two were never sexually intimate, Waggy became more and more emotionally dependent upon Wolf. Wolf, for his part, came to perceive the full extent of Waggy's mental illness, and he ultimately despaired that Waggy would ever be able to lead a normal life or that he could maintain a relationship with her.

Wolf tried to end the relationship, but Waggy clung to him, hounding him with visits and telephone calls. Wolf ultimately convinced Waggy to leave Anchorage and move to Seattle to live with her mother. However, Waggy's mother was not a good nurturer, and Waggy soon returned to Alaska. Out of work and without a place to live, Waggy concluded that Wolf was to blame for all of her current difficulties because he was the one who convinced her to move to Seattle.

During the drive to Wasilla, Waggy told her daughter that she intended to kill Wolf to pay him back for the misfortune he had caused her. Waggy's daughter begged her not to kill Wolf, but Waggy ignored her. Waggy arrived at Wolf's residence and parked in his driveway. She then loaded the .357 pistol and entered the house uninvited.

According to Waggy's later account, she asked Wolf if she could stay at his home while she looked for work and a permanent place to live. When Wolf refused, Waggy drew out the gun and put it to her own head, threatening to shoot herself. Her intention, Waggy claimed, was to show Wolf how desperate she was, so that he would understand his moral obligation to help her. As Waggy described it, Wolf grabbed the gun, trying to wrest it from her. Somehow, during their struggle for the weapon, it discharged. After that, Waggy remembers nothing until several minutes later - at which time Wolf was lying wounded on the ground, and Waggy was beating him on the head with the pistol.

Waggy decided to drive back to Anchorage. She got back into her car and tried to back out of Wolf's driveway, but her car got stuck in a snowberm. She then went back to Wolf's house and searched for the keys to his car. Unable to find the keys, she went outside to where Wolf's body lay; she turned the body over, searched Wolf's pockets, and found the keys. Waggy and her daughter then drove back to Anchorage in the stolen car. During the drive, Waggy told her daughter that, in retrospect, she should have listened to her daughter's advice.

The State's evidence painted a picture of deliberate homicide. As already described, Waggy told her daughter during the drive to Wasilla that she was going to kill Wolf to repay him for the trouble he had caused her. Upon their arrival, Waggy loaded the pistol - even though there was seemingly no need to load the weapon if Waggy's only intention was to scare Wolf into thinking she might commit suicide. The physical evidence also supported a finding that Waggy had deliberately attacked Wolf and had continued to shoot him even after he was wounded and disabled.

Wolf suffered four bullet wounds. From the position and trajectory of these wounds, it is unlikely that any of them could have been sustained during a struggle in which Wolf had his hands on the pistol. One of these wounds entered the outer side of Wolf's right forearm and exited on the inner side of the forearm, closer to the elbow. This wound was consistent with a "defensive" wound, as if Wolf had instinctively raised his arm to ward off threatened harm. A second wound entered Wolf's chest from the front, traveling through his body in a fairly level trajectory, as if both Wolf and the shooter were standing facing each other. The two remaining wounds were inflicted by bullets that entered Wolf's back and traveled in a distinctly upward trajectory, one exiting from his shoulder and the other from his armpit. These wounds appeared to have been inflicted while Wolf lay prone in front of the shooter, or conceivably while Wolf was on his hands and knees or otherwise doubled forward.

Neighbors told the police that they heard shots and a woman screaming, "I'll kill you! I'll kill you!" One of these neighbors saw Wolf running around the outside of his house, being chased by Waggy. The glass from Wolf's front storm door was completely broken out and was sprayed across his porch, indicating that Wolf had crashed through the door in an attempt to escape from the house.

The only significant amounts of blood were found outside the house. This tended to show that Wolf was shot outside the house, not inside the house (as Waggy asserted). There were several drops and smears of blood inside the house, but all of these were most likely attributable to the fact that Waggy, with her clothes dripping Wolf's blood, went back into the house to search for the keys to his car.

The heart of Waggy's argument on appeal is that her murder of Wolf was substantially mitigated compared to typical intentional homicides:

Ms. Waggy was emotionally distraught[.] ... She had no job and nowhere to go. She was suicidal and desperate. While Ms. Waggy killed Mr. Wolf, was not done in a cold, premeditated[,] or organized fashion. The physical ... and psychological evidence presented at sentencing indicates that this killing was done in the heat of emotion.

This view of the homicide is based on the evidence most favorable to Waggy. Waggy's argument is based on the testimony of friends and counselors who testified that Waggy was under severe emotional strain in the days preceding the homicide and that she repeatedly threatened suicide. Waggy's psychiatric expert, Dr. Stephen Raffle, testified that Waggy was in a "suicidal mode" (although "not necessarily imminently suicidal") on the day of the homicide. Dr. Raffle also testified that Waggy's mental disorders "diminished ... her ability to clear, conscious, well-thought-out, logical choices".

The government's evidence, on the other hand, suggested that Waggy had not been suicidal and distraught to the point of disorganization. Rather, Waggy had planned Wolf's death for almost a full day, and she had carried out the homicide according to plan.

When psychiatrist Irvin Rothrock interviewed Waggy, Waggy was able to describe in fair detail all of the events of December 9th except the shooting itself. According to Dr. Rothrock, all of Waggy's activities on that day - running errands, purchasing the handgun, picking up her daughter, and driving to Wolf's house - demonstrated planning and ensuing action designed to accomplish pre-existing intent. Dr. Rothrock pointed out that, regardless of whether Waggy drove to Wasilla intending to kill Wolf (as the prosecution asserted) or merely to scare him by threatening to commit suicide in his presence (as the defense asserted), her actions show planning and deliberation.

Dr. Rothrock further testified that Waggy's apparent inability to remember the shooting did not mean that the shooting was unplanned or unintended. He stated: Often times, I evaluate people who do not seem to remember what occurred at a particular time during the commission of a crime. However, from the testimony of witnesses and from the physical evidence, it seems pretty clear that they were acting in an intentional and planned fashion.

Moreover, Dr. Rothrock disagreed with the defense assertion that Waggy was suicidal when she drove to Wasilla to confront Wolf. Dr. Rothrock conceded that Waggy "had thought of suicide, and she had threatened suicide in the past", but he did not see any indication that Waggy was "suicidal" on that particular day, in the sense of truly intending to kill herself.

Dr. Rothrock explained that many of the people who threaten suicide do not really intend to kill themselves; rather, their purpose is to make other people fear that they will kill themselves. In Waggy's case, although she repeatedly threatened suicide, "she didn't seem to be making any plans or doing anything that would be likely to bring about her death". Dr. Rothrock noted that none of Waggy's threats to commit suicide had ever led to any actual harm. Even though Waggy was "pretty desperate and very angry" on December 9th, Dr. Rothrock concluded that she did not intend to kill herself.

After hearing the conflicting psychiatric testimony, Superior Court Judge Beverly W. Cutler concluded that Waggy's shooting of Wolf was not a suicide attempt gone awry, not "a situation ... where she really meant to be killing herself that day, and somehow she ended up killing him." Judge Cutler accepted Dr. Rothrock's Conclusion that "a lot of [Waggy's] suicidal behavior was attention-getting, and she certainly didn't really intend to kill herself".

Instead, Judge Cutler analogized Waggy's act of killing Wolf to "a fairly severe domestic violence murder". The Judge concluded that Waggy killed Wolf because she was convinced that Wolf was under an obligation to help her, and Wolf refused to help her any further. Judge Cutler recognized that Waggy was mentally ill. Nevertheless, Judge Cutler concluded that Waggy's mental disorders did not prevent her from planning to kill Wolf. Because of Waggy's "mélange of feelings and emotions", admittedly fueled by her mental illness, Waggy decided that if Wolf was not going to help her, then she was going to do something to make Wolf sorry that he hadn't helped her. Thus, Judge Cutler concluded, the sentencing goals of deterrence and reaffirmation of societal norms remained primary when sentencing Waggy for this murder.

The defense and the government also offered differing views on Waggy's prospects for rehabilitation. Both Dr. Raffle, the defense expert, and Dr. Rothrock, the government expert, concluded that Waggy suffered from borderline personality disorder, a severe type of mental illness. Dr. Rothrock testified that borderline personality disorder is very difficult to treat, even with medication, and the success rate from even long-term treatment is quite low. Dr. Raffle, on the other hand, expressed some hope that Waggy would recover from this condition. He testified that Waggy had never received the correct medications for her mental illness until she was sent to prison following the homicide. He asserted that Waggy was now much better, and that her prognosis was "fair".

Judge Cutler discounted Dr. Raffle's Conclusion that the improvement in Waggy's mental condition could be attributed to better medication. Instead, the Judge believed that Waggy's improvement was primarily attributable to the fact that Waggy now lived in prison - where all of her major needs were supplied, where the demands placed on her were simple and predictable, and where she was confronted with very few choices. Thus, Judge Cutler concluded, Waggy's prognosis for long-term recovery was probably not as good as portrayed by the defense. (And, as noted above, even the defense expert, Dr. Raffle, described Waggy's prospects as only "fair".)

Based on her Conclusions regarding the seriousness of the offense, Waggy's conscious planning of the homicide, and Waggy's poor prognosis for recovery from her mental illness, Judge Cutler sentenced Waggy to serve 85 years in prison for the murder of Wolf.

First-degree murder is an unclassified felony with a maximum penalty of 99 years' imprisonment and a minimum penalty of 20 years' imprisonment. AS 11.41.100(b) and AS 12.55.125(a). This court's decision in Riley v. State, 720 P.2d 951 (Alaska App. 1986), strongly suggests that a defendant who commits first-degree murder is often, by virtue of the crime alone, properly categorized as a "worst offender", thus authorizing a sentencing Judge to consider sentences up to the 99-year maximum term of imprisonment. In Riley, this court rejected a proposed 60-year benchmark sentence for first-degree murder - primarily because 99-year sentences for first-degree murder have consistently been upheld by the Alaska appellate courts. Id., 720 P.2d at 952.

Waggy's main contention in this appeal, expressed in several different ways, is that her crime was mitigated by her mental illness. Because of her mental illness, Waggy argues, she did not - in fact, could not - engage in the type of conscious planning and deliberation that characterizes the most serious first-degree murders. Rather, she was distraught, disorganized, and, for the most part, powerless in the face of overwhelming emotion.

As explained above, the evidence was in definite conflict on these issues. Interpreted in the light most favorable to Waggy, the evidence supports her arguments. However, Judge Cutler did not interpret the evidence in the light most favorable to Waggy, and we are bound to uphold Judge Cutler's view of the evidence unless her findings are shown to be clearly erroneous. See Cockerham v. State, 933 P.2d 537, 539 n.9 (Alaska 1997); Geczy v. LaChappelle, 636 P.2d 604, 606 n.6 (Alaska 1981). See also Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991) (a sentencing Judge's findings regarding the existence of aggravating and mitigating factors are reviewed under the "clearly erroneous" standard of review). Having reviewed the record, we conclude that the evidence supports Judge Cutler's Conclusions that Waggy actively planned Wolf's murder, that the killing was done in deliberate retaliation for Wolf's refusal to help Waggy any further, and that Waggy's prospects for recovery from her mental illness were questionable.

Waggy asserts that, because her crime stemmed from mental illness, she is less culpable than a person who commits murder for hire or who engages in some other type of premeditated murder. Judge Cutler, as noted above, did consider the relationship between Waggy's act of homicide and her mental illness. However, as this court indicated in Hart v. State, 702 P.2d 651, 663-64 (Alaska App. 1985), mental illness may or may not be a mitigating factor at sentencing, depending upon the circumstances of the case. Compare Washington v. State, 828 P.2d 172, 175 (Alaska App. 1992) (a defendant's mental illness does not automatically entitle him or her to a mitigated sentence).

A person who is mentally ill may not always have the same moral blameworthiness as other people. By the same token, a person's mental illness may make them more dangerous and less susceptible to rehabilitative measures than other people. Here, all the experts agreed that Waggy suffered from serious, debilitating mental illnesses - illnesses that made it very difficult for her to function normally in society. Judge Cutler declared that, given this psychiatric testimony, a maximum sentence was not appropriate. Nevertheless, Judge Cutler found that Waggy deliberately drove to Wasilla to kill Wolf because he would no longer support her, either emotionally or financially. For this reason, Judge Cutler analogized the slaying to "the worst ... domestic violence murders", and she felt obliged to emphasize the sentencing goals of deterrence and reaffirmation of societal norms.

Having reviewed the record, we can not say that Judge Cutler's sentencing decision is clearly mistaken. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). We therefore uphold Waggy's sentence.

The judgment of the superior court is AFFIRMED.


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