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Anderson v. State

Court of Appeals of Alaska

June 7, 2019

LANOLAN ANDERSON, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-09-05898 CR Anchorage, Jack W. Smith, Judge.

          Krista Maciolek, Law Office of Krista Maciolek, Inc., Palmer, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.

          Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.

          OPINION

          WOLLENBERG, JUDGE

         Lanolan Anderson was convicted of three counts of first-degree assault. The superior court sentenced him to a composite term of 20 years to serve.

         On appeal, Anderson raises several claims. First, Anderson argues that the court erred in failing to suppress his clothing, which the police seized without a warrant. Second, Anderson argues that the court erred in instructing the jury regarding a witness's unavailability. Third, Anderson argues that the court erred in rejecting two of his proposed mitigating factors and by giving insufficient weight to a third mitigating factor. Finally, Anderson argues that the court improperly found that Anderson had two prior felony convictions, rather than one, when determining the applicable presumptive sentencing range.

         For the reasons explained in this decision, we rej ect Anderson's claims, and we affirm Anderson's convictions and his sentence.

         Underlying facts and proceedings

         In May 2009, shortly before midnight, Anderson kicked in the front door of a residence in Anchorage, and he and two accomplices (all three armed with handguns) entered the residence. Once inside, Anderson's accomplices shot two of the occupants and pistol-whipped a third. Anderson was also shot during this incident.

         All three occupants of the residence required medical treatment for their wounds, and two of them were taken to Providence Medical Center. Because Anderson was wounded, he contacted a friend, and this friend also took him to the emergency room at Providence.

         In response to the report of the shooting, Anchorage Police Officer Jean Mills went to Providence, where she expected to meet and interview the victims of the alleged home invasion. Mills arrived at the hospital just as Anderson got out of his friend's vehicle, and Mills could see that Anderson was bleeding from a wound to his abdomen. From this, Mills assumed that Anderson was one of the victims.

         Mills accompanied Anderson into the emergency room and stayed there as the hospital staff treated him. Mills took photographs of Anderson as the medical staff worked on him, and she observed a gunshot wound to Anderson's left side when the staff cut off his clothing. Anderson at first confirmed that he had been at the residence where the home invasion occurred, but he later changed his story, telling Mills that he was in a grocery store parking lot when he was shot.

         Another officer then informed Mills that Anderson was a possible suspect in the home invasion. After some further questioning, Mills seized all of the clothing that the medical staff had removed from Anderson, including his shoes.

         The police subsequently compared a photograph of the soles of Anderson's shoes to photographs of shoe impressions left on the kicked-in front door of the residence, and they appeared to match. At trial, a witness from the crime laboratory testified to the match between Anderson's shoes and the shoe impressions on the front door of the residence. Crime lab representatives also testified that there was a blood stain on one of the shoes and that one of the victims could not be excluded as a source of the DNA found in the stain.

         Anderson and his two accomplices were charged with numerous felonies, including three counts of first-degree assault (one for each alleged victim).[1] Prior to trial, Anderson filed a motion to suppress, arguing that the police unconstitutionally seized his clothing from the hospital emergency room. Anderson asked the court to suppress his clothing, as well as photographs of the clothing and the forensic analysis comparing the soles of his shoes to shoeprints recovered from the crime scene.

         The parties agreed to forgo an evidentiary hearing and to have the court decide the motion based on Officer Mills's police report. Based on the police report, the superior court found that the seizure of Anderson's clothing was justified by the plain view exception to the warrant requirement.

         Anderson and his co-defendants were tried together. At trial, Anderson argued that the alleged victims had actually assaulted him.

         The jury found Anderson guilty of the three first-degree assaults, but the jury was unable to reach verdicts on the remaining counts, including counts of first-degree robbery and conspiracy to commit first-degree robbery. Ultimately, the State dismissed the remaining counts against Anderson, and his case proceeded to sentencing on the three assault convictions. (The jury could not reach verdicts as to Anderson's co-defendants, and their cases were later resolved without a trial.)

         At Anderson's sentencing, the superior court rejected Anderson's two proposed mitigators - that he played a minor role in the offenses, and that his conduct was the result of serious provocation from the victims.[2] But the superior court did find that one of the assaults qualified as among the least serious conduct within the definition of the offense.[3] Anderson conceded one aggravating factor - that he had a history of aggravated assaultive behavior.[4]

         Finally, over Anderson's objection, the superior court found that Anderson had two prior felony convictions for purposes of determining the applicable presumptive sentencing range. Because the court found that Anderson was a third felony offender, he was subject to a presumptive sentencing range of 15 to 20 years for each first-degree assault conviction.[5] The court sentenced Anderson to a term of 15 years on each count. The court imposed some of this time consecutively, giving Anderson a composite sentence of 20 years, with no time suspended.

         Anderson now appeals.

         Why we affirm the superior court's denial of Anderson's suppression motion

         Prior to trial, Anderson moved to suppress his clothing, arguing that the State had no justification for seizing the clothing without a warrant. The parties agreed that the superior court could decide this motion based solely on Officer Mills's police report and the parties' briefing - that is, without holding an evidentiary hearing.

         Based on the police report, the court concluded that the seizure of the evidence was lawful because the evidence was in plain view. More specifically, the court found that (1) Officer Mills was in a place where she was lawfully entitled to be; (2) the discovery of Anderson's clothing was inadvertent, since Anderson arrived at the hospital while Mills was waiting for the victims of the home invasion; and (3) the evidentiary relevance of the clothing was immediately apparent.[6]

         Before we analyze the superior court's ruling, we must discuss the two meanings of the phrase "plain view."

         In his leading treatise on search and seizure law, Professor Wayne R. LaFave points out that the phrase "plain view" is actually used in two distinct Fourth Amendment contexts.[7]

         The first context, known as the "plain view doctrine," originated in Justice Stewart's plurality opinion in Coolidge v. New Hampshire[8] This doctrine "refers exclusively to the legal justification ... for the seizure of evidence which has not been particularly described in a warrant and which is inadvertently spotted in the course of a constitutional search already in progress or in the course of an otherwise justifiable intrusion into a constitutionally protected area."[9]

         But courts also use the phrase "plain view" in a second context: to describe the situation "in which there has been no Fourth Amendment search at all," and where "an observation is made by a police officer without a prior physical intrusion into a constitutionally protected area."[10] In this second context, where the observation of the evidence is not the result of a Fourth Amendment intrusion, "the observation is lawful without the necessity of establishing either pre-existing probable cause or the existence of a search warrant or one of the traditional exceptions to the warrant requirement."[11]

         As Professor LaFave emphasizes, this second meaning of "plain view" "involves no intrusion covered by the Fourth Amendment [and] need not meet the three requirements set out in the Coolidge plurality opinion."[12] For this reason, courts sometimes describe this second context as "open view" rather than "plain view," to avoid any ambiguity.[13]

         When Anderson litigated his suppression motion in the trial court, the State relied on the Coolidge plain view doctrine to justify the seizure of Anderson's clothing. But Anderson argued that the Coolidge plain view doctrine did not apply to his case.

         Anderson took the position that Officer Mills was lawfully in his hospital room, and thus the seizure of Anderson's clothing was not the result of a police intrusion into a constitutionally protected space. Rather, Anderson contended, the only Fourth Amendment violation that the police committed was the seizure of his clothing.

         In other words, Anderson essentially argued that his case fell within the second category of cases described by Professor LaFave - situations where the police, acting without a warrant, seize evidence that is in open view.

         "Open view" seizures are not necessarily lawful. While there may have been no unconstitutional search, the State must still establish that the seizure of the evidence was justified. It is true that the seizure of an article that is in open view does not involve any invasion of privacy, but the seizure does invade the owner's possessory interest in the item.[14] As Professor LaFave explains, "the seizure itself constitutes an interference with 'effects' protected by the Fourth Amendment."[15] Thus, in ...


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