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 ...