ARRON N. YOUNG, Appellant,
STATE OF ALASKA, Appellee.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael MacDonald, Judge, Trial Court Nos. 4FA-08-3022 CR & 4FA-08-2834 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. [*]
COATS, Senior Judge.
Arron N. Young was convicted of three counts of attempted murder in the first degree and five counts of misconduct involving weapons in the first degree in connection with a shooting spree that occurred on a busy road in Fairbanks in 2008. Young appeals his convictions and sentence. We affirm Young's convictions for attempted murder in the first degree. But we conclude that Young's five counts of misconduct involving weapons in the first degree should merge into a single count. Because the merger of these counts affects Young's sentence, we remand this case to the superior court for resentencing.
Factual and procedural background
During the summer of 2008, there were several crimes in Fairbanks that the Fairbanks police attributed to an ongoing dispute between members of the Bloods and Crips gangs. On the afternoon of August 15, 2008, a shooting occurred on College Road in Fairbanks. During this incident, the occupants of a silver SUV shot at a green sedan in which Joseph Fainuu, Eddy Delarosa, and Jared Jermaine Askew were riding. The three men in the sedan were either self-identified members or associates of the Bloods gang. Arron Young, a member of the Crips gang, was later identified as the driver of the silver SUV and one of the shooters.
Numerous shots were fired as the two vehicles traveled down College Road. The bullets shattered the back window of the green sedan, and there were several bullet holes in the back of the car. Besides the men in the green sedan, several other people were endangered by the shots. David Throop testified that a bullet shattered his windshield as he was driving down College Road and that his hands were cut. Sarah O'Callaghan was walking with her bike when a bullet traveled past her head, and she dove into a ditch. David Waters, Jamie Waters, and Kaylynn Waters were in a car that was struck by one of the bullets.
Later that night, police apprehended Young. Young had a loaded gun in the front waistband of his pants. In Young's pocket, the police found a key to a vehicle matching the description of the silver SUV that was involved in the shooting. During the trial, a forensic firearm and tool mark examiner testified that some of the bullets and cartridge casings recovered from the crime scene were fired from the gun the police found on Young.
A grand jury indicted Young on three counts of attempted murder in the first degree (one count for each of the men in the green sedan) and six counts of misconduct involving weapons in the first degree (one for each of the five bystanders who were endangered, as well as a general count of misconduct involving weapons in the first degree that covered the entire incident).
Three witnesses identified Young as the driver of the SUV: Jason Gazewood, John Anzalone Jr., and Arles Arauz.
In his defense at trial, Young contended that he was not involved in the shooting and that he had been with his sister, Angie Young, when the shooting occurred. Young argued that the gun that was in his possession was given to him by another gang member who asked him to dispose of the weapon. At the conclusion of the trial, the jury convicted Young of all charges.
The superior court sentenced Young to a composite term of 42 years to serve.
Why we conclude the superior court did not err in admitting evidence of Jason Gazewood's identification of Young
Young argues that the superior court erred in denying his motion to suppress Jason Gazewood's identification of him as a person involved in the College Road shooting. He contends that Gazewood's identification was tainted because it was the result of an unfairly suggestive photo lineup.
At an evidentiary hearing on Young's motion to suppress the identification, Gazewood testified that he was sitting in his car on College Road when he saw the green sedan pass him. He then saw a second vehicle approaching, in which he saw a man he believed was the shooter. He described the man as black or Samoan, with pulled-back hair. He made a statement to this effect to the police.
Three days later, Fairbanks police detective Peyton Merideth, the investigating officer in the case, went to Gazewood's office and showed him a photo lineup.
Gazewood had extensive prior experience as a prosecutor and is now a defense attorney. He had seen hundreds of photo lineups. Consequently, Detective Merideth did not give Gazewood any instructions about how to view the lineup. Although Gazewood was not told that the suspect's photo was in the lineup, he assumed that it was.
The lineup consisted of six photographs. Gazewood testified that, while he was looking at the photo lineup, he eliminated some of the photos immediately. He then deliberated between the photo of Young and two other photos of men with similar features. He narrowed his search down to two photographs. One of them was the photo of Young. Gazewood moved his finger back and forth between the photos. While he had his finger on Young's photo, Detective Merideth said, "Go with your instincts." Gazewood assumed that, because he had his finger on Young's photo when Merideth spoke, Merideth wanted him to pick that photo. (Gazewood indicated that he was not watching Merideth at the time and did not know what Merideth was doing. And the superior court found that Merideth's comment was "unwitting.") Gazewood testified that he was very frustrated because he thought he was going to probably pick Young anyway. He thought that Merideth's comment had interfered with his deliberations.
The superior court concluded that the photo lineup procedure was not unnecessarily suggestive. The court found that there was nothing in the photo array to make Young's photo stand out from the other photographs. The court pointed out that another eyewitness, John Anzalone Jr., had picked out a different photograph in the lineup that resembled Young. The court also found that Gazewood had decided to ...