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Waggy v. State

March 18, 1998

DIANA M. WAGGY, APPELLANT,
v.
STATE OF ALASKA, APPELLEE.



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.

MEMORANDUM AND JUDGMENT

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 ...


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