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Smith v. State (4/30/2010) ap-2261

Smith v. State (4/30/2010) ap-2261

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


KEEN SMITH,                        
                    Appellant,       Court of Appeals No. A-10512
                                   Trial Court No. 3AN-07-12389 Cr
STATE OF ALASKA,                         O  P  I  N  I  O  N
End of Caption                        No. 2261    April 30, 2010
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Patrick J.  McKay,

          Appearances:  Blair M. Christensen, Assistant
          Public  Advocate, and Rachel  Levitt,  Public
          Advocate, Anchorage, for the Appellant.  John
          J.   Novak,   Assistant   Attorney   General,
          Criminal  Division Central Office, Anchorage,
          and  Daniel  S.  Sullivan, Attorney  General,
          Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          Keen  Smith  appeals the sentence he received  for  the
crime  of  first-degree assault (reckless infliction  of  serious
physical  injury by means of a dangerous 
instrument).1 Smith raises three primary claims in this appeal, all having to do with proposed mitigating factors.
Smith asserts that the superior court should have found his offense to be mitigated under AS 12.55.155(d)(3), the mitigator that applies to cases where the defendants conduct was significantly affected by some degree of duress, coercion, threat, or compulsion.
Smith also asserts that the superior court should have found his offense to be mitigated by the non-statutory mitigating factor that this Court first recognized in Smith v. State, 711 P.2d 561, 571-72 (Alaska App. 1985) the mitigating factor of extraordinary potential for rehabilitation.
Finally, Smith argues that this Court should recognize a new non-statutory mitigator a mitigator that Smith calls developmental immaturity. This proposed mitigator would apply to adolescent defendants whose criminal behavior can be attributed to the fact that adolescents brains are not fully developed, and that they therefore lack the degree of understanding and impulse control that an adult would have.
For the reasons explained in this opinion, we conclude that the superior court correctly rejected proposed mitigator (d)(3). However, with respect to the non- statutory mitigator of extraordinary potential for rehabilitation, and with respect to the proposed new non- statutory mitigator of developmental immaturity, we conclude that the superior courts rulings are inadequate to allow meaningful appellate review. We therefore remand Smiths case to the superior court for further consideration of these non-statutory mitigators.
Underlying facts

          Smith entered a negotiated plea in this case,
and  the  plea agreement included a provision that  the
case  would  be  submitted to the sentencing  court  on
stipulated facts.  However, the parties stipulation did
not  specify a particular version of the facts as being
true.   Rather,  the  parties  merely  stipulated  that
various participants and witnesses had given the police
different  (and sometimes irreconcilable)  versions  of
the  incident  when  they were interviewed  during  the
investigation  of  this case. Under the  terms  of  the
parties  stipulation,  these various  accounts  of  the
incident were submitted to the superior court, and  the
superior  court  was then left to  sort  out  what  had
really happened.
          Here   is   a   summary  of  the  information
presented to the superior court pursuant to the parties
          At  approximately 12:30 a.m. on the night  of
November 1-2, 2007, Byron Rogers and Allen Odomin  (two
roommates  who  worked together at a  restaurant)  left
work  and  stopped  at Party Time  Liquor  to  purchase
alcoholic  beverages.  At the liquor  store,  they  ran
into  Jonathan  Odomin (Allens brother)  and  Jonathans
girlfriend, Amanda Walker.  Ms. Walker is the sister of
Rigoberto Walker, the shooting victim in this case.
          After  running into each other at the  liquor
store, Byron Rogers, Allen Odomin, Jonathan Odomin, and
Amanda  Walker  all went back to the apartment  complex
where  they lived.  (Rogers and Allen Odomin  lived  in
the  same  complex  as Jonathan and Amanda,  but  on  a
different floor.)  Rigoberto Walker was, at this  time,
on  the  run from the juvenile justice system;  he  had
taken refuge with his sister and Jonathan Odomin.
          About  an hour later, Jonathan Odomin knocked
on  the  window of the apartment shared by Byron Rogers
and  Allen Odomin.  Jonathan was bleeding from a  split
lip, and he reported that he had just been beaten up in
the front yard of the apartment complex.  Jonathan then
ran  upstairs to his own apartment, to tell Amanda  and
Rigoberto Walker what had happened.
          A  little later, Jonathan Odomin, his brother
Allen,  and Byron Rogers saw Rigoberto Walker  standing
across  the street from the apartment complex,  arguing
with  three juvenile males.  These young men were later
identified  as J.T., age 14, Daniel Byrd, age  16,  and
the defendant in this case, Keen Smith, age 16.
          Jonathan thought that the three juveniles who
were  arguing with Walker were the same people who beat
him  up.  This, however, turned out to be wrong:  later
investigation revealed that Jonathan Odomin was  beaten
up  by  three different (and still unidentified)  young
men  who  just happened to be passing by the  apartment
complex.   Keen  Smith and his two companions  did  not
commit  this  crime.  However, Walker confronted  Smith
and  his two companions under the mistaken belief  that
they  were  the ones who beat up Jonathan  Odomin  (his
sisters boyfriend).
          Smith  and  his companions truthfully  denied
that  they  were  the ones who beat  up  Jonathan,  but
Jonathan  insisted  that they were his  attackers,  and
Walker backed him up.  Smith and his companions started
to walk away, down an alley, but Walker (who apparently
was  intoxicated)  followed the  three  young  men  and
challenged them to fight.  Within a few seconds,  Smith
pulled out a revolver and handed it to Daniel Byrd (one
of his companions).
          According   to  Byrd  and  J.T.  (the   third
companion),  Smith  encouraged Byrd  to  shoot  Walker.
Smith,  however, repeatedly denied this.  According  to
Smith,  he handed the gun to Byrd because Smith thought
he was about to engage in a fist fight with Walker, and
he  did  not  wish to be carrying a loaded gun  in  his
waistband when he did so.  Smith later declared that he
was  taken by surprise when Byrd used the gun to  shoot
          In any event, whether or not Smith encouraged
Byrd  to  shoot,  it is clear that Walker  himself  was
encouraging Byrd to shoot.  In Walkers later  statement
to  the police, he acknowledged that he told Byrd,  You
can  fire  right now.  J.T. confirmed that Walker  told
them, Shoot me.
          Moreover,  according to the statements  given
by Byrd and Smith, Walker was actually taunting them to
shoot.   Smith told the police that Walker was  saying,
Ill  take  all three of you at the same time.   You[re]
all some bitches.  You[re] all some bitches.  Shoot me!
Shoot me!  And Byrd told the police that Walker said to
him, Shoot me, shoot me!  Hurry up, nigger.  Dont be  a
bitch.  (Walker, Bird, Smith, and J.T. all are black.)
          After  Walker  taunted Byrd  to  shoot,  Byrd
closed his eyes and pulled the trigger  and Walker  was
wounded.  Smith, Byrd, and J.T. then ran away  and  hid
the gun.
          Later, J.T. led the police to the place where
they  had thrown away the gun, and the police retrieved
the weapon.  (It was a .38 special.)
          Both Smith and Byrd (who, as explained above,
were  16 years old at the time) were indicted as adults
for  attempted  murder, first-degree  assault  (because
Walker  was  seriously  wounded),  and  tampering  with
physical evidence (for throwing the revolver away).
          Approximately six months later, Smith reached
a  plea  agreement with the State.  Under the terms  of
this  agreement, Smith pleaded guilty (as an adult)  to
first-degree assault, with open sentencing  within  the
applicable presumptive sentencing rules, and the  other
criminal charges were dismissed.
          Superior  Court Judge Patrick J. McKay  ruled
that    Smiths   sentencing   was   governed   by    AS
12.55.125(c)(2),  the  provision  that  governs   first
felony offenders convicted of class A felonies when the
defendant   either  used  a  dangerous  instrument   or
inflicted serious physical injury on the victim.  Under
this  statute, Smith faced a presumptive range of 7  to
11 years imprisonment.
          Judge  McKay  rejected  the  States  proposed
aggravators   and   also   rejected   Smiths   proposed
mitigators.   The judge then imposed a sentence  toward
the  lower end of the presumptive range:  10 years with
3 years suspended (i.e., 7 years to serve).

Why we affirm the superior courts rejection of proposed
mitigator (d)(3)

          Before   we  discuss  Smiths  proposed   non-
statutory  mitigating  factors, we  first  address  the
question  of  whether the superior  court  should  have
found  mitigator (d)(3)  because, if the superior court
should  have found mitigator (d)(3), then the  question
of non-statutory mitigators might well be moot.
          As we noted earlier, mitigator (d)(3) applies
to  cases  where  the defendants criminal  conduct  was
significantly  affected  by  some  degree  of   duress,
coercion,  threat,  or compulsion.  Smith  argues  that
mitigator  (d)(3)  applies to his case  because  Walker
provoked  the assault.  Here is the factual  basis  for
Smiths claim, as set forth in his brief:
     By all accounts, [Walker] was intoxicated and
     pick[ed]  a  fight  with Smith  and  his  two
     companions  ...  .   Byron  Rogers  told  the
     police  that [Walker] said [to him]  that  he
     was  going  to  get  the three  [young  men].
     [Walker]  kept trying to pick  a  fight  with
     Smith and his companions[,] and [even though]
     they  walked  away, [Walker]  followed  them.
     [Walker]  would not leave the three juveniles
     alone[,]  and [he] insisted on fighting  them
     because   [he]  falsely  believed  that   the
     juveniles   [had]  assaulted   [his   sisters
     boyfriend,] Jonathan Odomin.
     Based  on these facts, Smith argues  that  he
     acted    under   some   degree   of   duress,
     compulsion, or threat.
          We  conclude that mitigator  (d)(3)
does  not apply to these facts.  Even  though
Smith  wishes  to categorize these  facts  as
giving rise to duress, compulsion, or threat,
Smiths  claim is more properly  viewed  as  a
claim of provocation.
          Smith  does not allege that  Walker
actually   threatened   him   or   his    two
companions, or that Walker displayed a weapon
or  otherwise  suggested that he  was  armed.
Rather,  Smith alleges only that Walker  kept
challenging  Smith  and  his  companions   to
fight,  and that Walker continued  to  follow
them  (and  to challenge them to fight)  when
they  tried  to walk away.  Even  when  Smith
took  out the revolver and handed it to Byrd,
Walker  took  no defensive action.   Instead,
Walker challenged Byrd to shoot him.  This is
why  Judge McKay (in his sentencing  remarks)
declared  that this case did not  present  an
instance of imperfect self-defense.
          Nor   do   these  facts   establish
duress, compulsion, or threat  at least,  not
as  those terms are commonly understood.   At
best, these facts establish provocation.  And
because   Smiths   claim  really   rests   on
provocation, mitigator (d)(3) does not apply.
Instead,  the legislature enacted  two  other
mitigators  mitigators (d)(6) and (d)(7)   to
cover claims of provocation.
          Mitigator  (d)(6)  applies  when  a
felony  defendant  is  being  sentenced   for
assault  under  AS 11.41.200   11.41.220   in
other   words,  when  a  defendant  is  being
sentenced  for  first-,  second-,  or  third-
degree  assault.   In sentencings  for  these
three  degrees of felony assault, the offense
is  mitigated  if  the defendant  acted  with
serious provocation from the victim.
          As  used  in mitigator (d)(6),  the
phrase serious provocation is a term of  art.
AS  12.55.155(h) declares that, for  purposes
of   applying  mitigator  (d)(6),  sentencing
courts  are to use the definition of  serious
provocation found in Alaskas heat of  passion
statute,  AS 11.41.115.  The heat of  passion
statute   defines  serious   provocation   as
conduct  ... sufficient to excite an  intense
passion  in  a  reasonable  person   in   the
defendants situation, other than a person who
is  intoxicated,  under the circumstances  as
the defendant reasonably believed them to be.
AS 11.41.115(f)(2).
          Putting   all  of  this   together,
mitigator (d)(6) codifies the rule that  when
a  defendant is sentenced for felony  assault
(assault  in  the  first,  second,  or  third
degree), the offense will be mitigated if the
defendant proves that they were subjected  to
the same amount or degree of provocation that
would  reduce a murder to manslaughter  under
the heat of passion statute, AS 11.41.115.
          In   contrast,   mitigator   (d)(7)
applies  when a defendant is being  sentenced
for any felony except ... a crime defined  by
AS  11.41.410  11.41.470  in other words, for
any  felony  other than a sexual felony.   In
sentencings  for  these non-sexual  felonies,
the   offense  is  mitigated  if  the  victim
provoked the crime to a significant degree.
          The  Alaska criminal code does  not
expressly define what constitutes significant
provocation for purposes of mitigator (d)(7).
However, in Roark v. State, 758 P.2d 644, 646-
47  (Alaska App. 1988), this Court  suggested
that  the  concept of significant provocation
was intended to encompass a greater range  of
provocation   than  the  serious  provocation
required by mitigator (d)(6).
          In  sum,  mitigator (d)(6) requires
proof   of   serious  provocation   (a   more
restrictive    standard   than    significant
provocation)  in cases where a  defendant  is
being  sentenced  for the  three  degrees  of
felony assault defined in AS 11.41.200,  210,
and 220.  In contrast, mitigator (d)(7) (with
its less restrictive standard of provocation)
applies  to  all other felonies   except  for
sexual  assaults  (a  crime  defined  by   AS
11.41.410   11.41.470),  where  no  claim  of
provocation is allowed.
          We acknowledge that, if one were to
read   the   language  of  mitigator   (d)(7)
literally, this mitigator would apply to  all
defendants  being sentenced  for  any  felony
other   than   a  sexual  felony    including
defendants who are being sentenced for first-
,  second-,  and  third-degree  assault.   In
other words, mitigator (d)(7), with its lower
standard  of  provocation,  would  completely
overlap with mitigator (d)(6), which requires
proof of a higher standard of provocation for
defendants  convicted of first-, second-,  or
third-degree assault.
          If  we interpreted mitigator (d)(7)
in   this   expansive   fashion,   it   would
essentially nullify mitigator (d)(6).   There
would  never  be  a need for a  defendant  to
prove,  or  a sentencing judge to  find,  the
serious  provocation  required  by  mitigator
(d)(6)  if  the less restrictive  significant
provocation required by mitigator (d)(7)  was
all   that   was   needed  to  mitigate   the
defendants crime.
          Such  a  broad  interpretation   of
mitigator  (d)(7) would violate  one  of  the
primary   rules  of  statutory  construction:
that   a   court  should  assume   that   the
legislature   did  not  enact  redundant   or
useless  statutes.2  As both this  Court  and
the Alaska Supreme Court have noted, [o]ne of
the    prime    directives    of    statutory
construction is to avoid interpretations that
render  parts  of  a statute  inoperative  or
superfluous, void or insignificant.  Champion
v.  State,  908  P.2d 454, 464  (Alaska  App.
1995),  quoting 22,757 Square Feet,  more  or
less  v.  State,  799 P.2d 777,  779  (Alaska
          Moreover, if this Court interpreted
mitigator  (d)(7)  to  apply  to  the   three
degrees   of  felony  assault  specified   in
mitigator (d)(6), we would violate the  basic
principle of statutory construction  favoring
a  specific  provision of a  statute  over  a
general one when the two conflict.  McGee  v.
State, 162 P.3d 1251, 1255 (Alaska 2007).3
          For these reasons, we conclude that
mitigator (d)(7) does not apply to defendants
who  are  being sentenced for felony  assault
under  AS 11.41.200  220.  Instead, mitigator
(d)(6)  defines  the standard of  provocation
that,  if proved, will mitigate these  felony
assaults,  and mitigator (d)(7)  defines  the
lesser  standard of provocation that  applies
to   all   other   felonies  (except   sexual
felonies,   which   are  not   mitigated   by
          We  now  turn  to the  question  of
whether mitigator (d)(3) can be employed as a
vehicle for raising a claim of provocation.
          Mitigator (d)(3) applies  to  cases
where  the  defendant committed  the  offense
under   some  degree  of  duress,   coercion,
threat,   or   compulsion   insufficient   to
constitute  a  complete  defense,  but   that
significantly    affected   the    defendants
          Obviously,   Walkers   action    of
challenging Smith and his companions to fight
did  not give rise to duress as that term  is
normally understood in the criminal law.   As
defined  in  AS 11.81.440(a), the defense  of
duress   applies  to  situations  where   the
defendant was coerced to [engage in  criminal
          conduct] by the use of unlawful force upon
the  defendant or a third person, which force
a   reasonable   person  in  the   defendants
situation  would have been unable to  resist.
In other words, the defense of duress defined
in   AS   11.81.440(a)  does  not  refer   to
situations  where a person  commits  a  crime
because of overmastering emotion.
          But  in Bell v. State, 658 P.2d 787
(Alaska App. 1983), this Court held that even
though the word duress, standing alone, might
refer  only to instances where the  defendant
is subjected to actual or threatened unlawful
force,  the complete phrase duress, coercion,
threat,  or  compulsion has a broader  scope.
658  P.2d at 790-91.  We noted that mitigator
(d)(3)  does  not require proof  of  a  valid
defense  of  duress  or compulsion.   To  the
contrary:  the mitigator expressly applies to
types   of   duress,  coercion,  threat,   or
compulsion    that   are   insufficient    to
constitute  a  complete  defense,  but  which
significantly   affected   [the   defendants]
conduct.  Id. at 790.
          More  particularly, we held in Bell
that  the  phrasing of mitigator  (d)(3)  was
broad enough to encompass a situation where a
prisoner escaped from a correctional facility
because  he felt compelled to take  immediate
action   to   deal  with  a   sudden   family
emergency.  Id. at 791.
          One  might  argue, based  on  Bell,
that the term compulsion is potentially broad
enough   to  encompass  situations  where   a
defendant  commits an assault  while  in  the
grip   of  overmastering  emotion,  as  Smith
appears  to  suggest here.  But in  mitigator
(d)(3),  the word compulsion does not  appear
by  itself.   Rather, it is one component  of
the  phrase,  duress,  coercion,  threat,  or
compulsion.  Under the principle of  noscitur
a   sociis,  we  are  to  construe  the  word
compulsion in light of the other three  words
in   this  phrase:   duress,  coercion,  [or]
          This    principle   of    statutory
construction   suggests   that    the    term
compulsion  should be not be  interpreted  to
include  overmastering emotion or passion  of
the type Smith proposes.  And, indeed, in Lee
v.  State,  673 P.2d 892 (Alaska App.  1983),
this   Court   rejected  the  argument   that
mitigator  (d)(3) applied to crimes  stemming
from purely emotional compulsion.
          The  defendant in Lee was convicted
          of first-degree assault for shooting and
severely   wounding  a  police  officer   who
arrived  at  Lees  home  to  investigate  the
neighbors  report  of  a  disturbance.5   Lee
argued  that mitigator (d)(3) applied to  his
offense because he was under emotional stress
at  the time of the offense and had acted out
of  internal compulsion.  In support of  this
argument,   Lee   relied  on   his   troubled
financial   and   domestic  situations,   his
intoxication at the time of the shooting, and
expert  testimony indicating that he  had  an
impulsive   personality   and   was    easily
          This  Court acknowledged  that,  in
Bell,   we  construed  mitigator  (d)(3)   as
applying  to  a type of compulsion  that  was
internal (as opposed to a compulsion  arising
from  the coercive or threatening actions  of
other  people).7   But  we  noted  that   our
decision  in  Bell  dealt  with  an   offense
committed under a good faith but unreasonable
belief by the defendant that his conduct  was
necessary.8  We then declared:

Nothing  in Bell indicated that the scope  of
[mitigator] (d)(3) is sufficiently  broad  to
encompass  behavior that is merely  impulsive
or  the  result of situational stress.   Lees
reliance on this mitigating factor was  based
exclusively   on  a  showing   of   impulsive
character and financial and emotional stress.
Lee  did  not present any evidence indicating
that  he acted out of a mistaken belief  that
his  conduct  was  necessary.   We  therefore
conclude  that there is insufficient evidence
in  the record to support a finding that Lees
conduct was the result of internal compulsion
within the meaning of [mitigator (d)(3)].

Lee, 673 P.2d at 896.
          This  Courts holding in  Lee   that
mitigator (d)(3) does not encompass the  type
of mental or emotional compulsion that arises
purely  from  situational stress  or  from  a
defendants   impulsiveness    leads   us   to
conclude that Smith is not entitled  to  rely
on  mitigator (d)(3) under the facts of  this
          Smith was convicted of first-degree
assault  for  soliciting or  encouraging  his
companion, Byrd, to shoot Walker.   The  only
compulsion  that prompted Smith to  hand  the
revolver  to  Byrd, and to  then  solicit  or
encourage Byrd to shoot Walker, was the  fact
          that Walker openly challenged Smith and Byrd
to  fight  him  and the fact that, when  Byrd
had  the  gun in his hand, Walker  challenged
Byrd  to  shoot him and suggested that  Smith
and  Byrd  would be cowards if they  did  not
          These facts do not fall within  the
definition of compulsion.  Rather, they  fall
within the definition of provocation.  And if
we  were  to  interpret mitigator  (d)(3)  to
cover this dubious form of provocation, there
would  never  be  a need for a  defendant  to
prove,  or  a sentencing judge to  find,  the
serious  provocation  required  by  mitigator
(d)(6)   or   the   significant   provocation
required by mitigator (d)(7).
          In   other  words,  if  this  Court
adopted   Smiths  suggestion  that  mitigator
(d)(3)   should  apply  to  cases   where   a
defendant  commits a crime in response  to  a
provocation  that  would  not  be  enough  to
satisfy mitigator (d)(6) or mitigator  (d)(7)
(whichever  one  applied),  we  would  render
mitigators  (d)(6)  and (d)(7)  redundant  or
useless in all cases where a defendant claims
that   their   offense   was   mitigated   by
          The rules of statutory construction
counsel  against this course.   As  we  noted
earlier,  [o]ne  of the prime  directives  of
statutory    construction   is    to    avoid
interpretations  that  render  parts   of   a
statute  inoperative or superfluous, void  or
insignificant.  Champion, 908 P.2d at 464.
          For these reasons, we conclude that
mitigator  (d)(3) does not  apply  to  Smiths
case.   Accordingly, we affirm  the  superior
courts rejection of this mitigator.

The proposed non-statutory mitigator of extraordinary
potential for rehabilitation

          In  addition  to proposing mitigator  (d)(3),
Smith  argued that two non-statutory mitigators applied
to  his  case,  and that therefore his case  should  be
forwarded to the statewide three-judge sentencing panel
(which  is  the only court authorized to consider  non-
statutory mitigators).9
          The   first   of   Smiths  two  non-statutory
mitigators    was    extraordinary    potential     for
          Smiths    attorney   presented    substantial
evidence  that  Smiths  criminal  behavior  arose  from
family  stresses,  from peer-group pressure,  and  from
general  teenage  immaturity.  (As  we  noted  earlier,
          Smith was 16 years old at the time of this offense.)
          The  chief defense witness on this issue  was
Dr.  Nan Truitt, a clinical psychologist who had worked
both  at  McLaughlin Youth Center and in the adolescent
unit at Alaska Psychiatric Institute.  Truitt described
many  factors  that  pointed toward  Smiths  successful
rehabilitation, and she concluded that Smith  had  much
better  chances than the majority of the children  whom
she  had  evaluated in her years working with  troubled
youths.   She  told the court that she believed,  to  a
reasonable   degree  of  psychological  and  scientific
certainty,  that  Smith had an extraordinary  potential
for  rehabilitation, and that he was not likely to  re-
          Truitt  acknowledged that she,  herself,  had
diagnosed  Smith  as  being on the  borderline  between
oppositional defiant disorder and a full-blown  conduct
          (Conduct  disorder  is  the  worse  category:
according  to  the DSM-IV, the essential feature  of  a
diagnosis  of  conduct disorder  is  a  repetitive  and
persistent  pattern  of behavior  in  which  the  basic
rights  of  others  or  major age-appropriate  societal
norms or rules are violated.)
          However,  Truitt pointed out  that,  even  if
Smith   should  be  classified  as  having  a   conduct
disorder, his condition was adolescent onset  which was
a  hopeful  sign.  According to Truitt, a  majority  of
adolescents with this diagnosis go on [to]  life  as  a
pretty typical adult.
          We  do  not  wish  to  suggest  that  Truitts
testimony   came   in  unchallenged.   The   prosecutor
conducted  a detailed and probing cross-examination  of
Truitt,  pointing  out that there were  other  ways  to
interpret  Smiths conduct, and other ways to  interpret
Smiths  performance  on the psychological  tests.   The
prosecutor also pointed out that Smith might have  lied
to  Truitt  when  he  described the  shooting  and  his
reaction  to  it.   However,  the  State  presented  no
competing  testimony  concerning Smiths  potential  for
          This  Court has stated that, when a defendant
asserts  the  non-statutory mitigator of  extraordinary
potential for rehabilitation, the defendant must  prove
by   clear  and  convincing  evidence  that  they   can
adequately be treated in the community and need not  be
incarcerated for the full presumptive term in order  to
prevent future criminal activity.  Beltz v. State,  980
P.2d  474,  481 (Alaska App. 1999), quoting  Lepley  v.
State, 807 P.2d 1095, 1100 (Alaska App. 1991).  We also
     Such a prediction of successful treatment and
     non-recidivism should only be made  when  the
     sentencing court is reasonably satisfied both
     that  it  knows  why a particular  crime  was
     committed and that the conditions leading  to
     the  criminal  act  will  not  recur   either
     because the factors that led the defendant to
     commit  the crime are readily correctable  or
     because   the  defendants  criminal   conduct
     resulted  from unusual environmental stresses
     unlikely to recur.
Beltz,  980  P.2d at 481.  These, then,  were
the legal considerations that Judge McKay was
supposed to weigh or resolve when he ruled on
Smiths proposed non-statutory mitigator.
          Moreover, as we explained  earlier,
even  though the parties submitted this  case
to  the  superior court on stipulated  facts,
the  parties stipulation did not  identify  a
particular  version of events as being  true.
Rather,  the  parties  only  stipulated  that
various  witnesses  told the  police  various
things.   Thus, the parties stipulation  left
certain     important    factual     disputes
          One  crucial  unresolved  issue  of
fact was Smiths state of mind  in particular,
his  purpose or intention when he handed  the
revolver  to his companion, Daniel Byrd.   As
we  noted earlier, both Byrd and Smiths other
companion,  J.T., told the police that  Smith
openly urged Byrd to shoot Walker.  Smith, on
the  other hand, contended that he handed the
gun  to  Byrd to get rid of it,  so  that  he
would  not be carrying a loaded firearm  when
he  engaged  in a fist fight with Walker  (as
Walker was challenging him to do).
          Judge McKay ruled against Smith  on
this proposed mitigator, but his ruling is so
terse  that  it  does  not  allow  meaningful
appellate review.  Judge McKay did  not  make
any  factual  findings regarding Dr.  Truitts
testimony,  or  regarding  the  question   of
Smiths intent when he handed the gun to Byrd,
or  with  regard to any of the other  factual
assertions  that the defense attorney  relied
on   when   the  attorney  argued  for   this
mitigating  factor.   Further,  Judge   McKay
failed  to discuss any of our cases  defining
this  non-statutory  mitigator,  nor  did  he
offer  any other indication of why he thought
that  Smiths proof did not meet the  standard
set  forth  in  those  cases.   Here  is  the
complete text of Judge McKays ruling:

     The  Court:   I ... very reluctantly  do
not   find   an   extraordinary   chance   of
rehabilitation  with Mr. Smith.   Mr.  Smith,
you  have  [a] good chance of rehabilitation,
...  [and] that, by far, is my highest Chaney
criteri[on] in sentencing you.  You just dont
rise   to   that   extraordinary   level   of
rehabilitation.  ...  Its a very,  very  high
standard  to meet, and youre just not  there.
But  ...  you  have  a very  good  chance  of
rehabilitation.  This Court fully expects not
to see you [again] after youve completed [the
sentence that] you need to complete here.

          As   can   be  seen,  Judge   McKay
declared  that  he did not  expect  Smith  to
engage    in    future   criminal   behavior.
Nevertheless,   Judge  McKay   rejected   the
proposed mitigator.
          Judge     McKays    ruling    gives
essentially  no  insight into what  testimony
the  judge  found  to be  credible,  or  what
factual  assertions he found to be  true,  or
how  he assessed the evidence in light of the
legal  test  set forth in our cases  on  this
subject.   For these reasons, we must  remand
Smiths  case to the superior court and direct
Judge McKay to clarify his decision.

The proposed non-statutory mitigator of developmental

     Smith   also   proposed  a  new,   previously
unrecognized  non-statutory  mitigator,  which  he
called developmental immaturity.  The gist of this
proposed  new  non-statutory  mitigator  is   that
teenagers are not as culpable as adults:  they  do
not yet have the cognitive faculties and judgement
of   adults,  because  their  brains   are   still
developing  and their frontal lobes have  not  yet
physically  matured.  According to Smith,  because
teenagers do not have fully developed brains, they
are  less  able  than  adults  to  understand   or
appreciate   their  actions,  to   control   their
impulses, or to foresee the consequences of  their
          This  is  the same rationale that the  United
States Supreme Court relied on in Roper v. Simmons, 543
U.S. 551, 569-570; 125 S.Ct. 1183, 1195-96; 161 L.Ed.2d
1  (2005),  when  the Supreme Court held  that  it  was
unconstitutional  to  impose the  death  penalty  on  a
          In essence, Smith is arguing that even though
the  Alaska legislature has declared that teenagers  as
young  as 16 can be prosecuted and convicted as  adults
for  serious  felonies,11 these young teenagers  should
presumptively be entitled to some leniency (in the form
          of a non-statutory mitigator) when it comes to
          In  support of this proposed mitigator, Smith
presented  the  superior court with the  amicus  curiae
brief filed by the American Medical Association and the
American  Psychiatric  Association  (among  others)  in
Roper  v.  Simmons.  Smith also provided  the  superior
court   with  the  special  sentencing  recommendations
formulated   by   the  American  Bar  Association   for
adolescent offenders.
          (The  States  sentencing memorandum  did  not
address these matters.)
          At  Smiths  sentencing  hearing,  two  expert
witnesses  testified in support of this  proposed  non-
statutory mitigator.
          Dr.  Ronald  Roesch, a forensic  psychologist
and professor of psychology at Simon Fraser University,
testified  that  adolescents who  commit  violent  acts
generally  do not continue to commit acts  of  violence
when they grow to adulthood.  According to Roesch,  the
recidivism rate for juveniles (among a group  who  were
tracked  until  the  age  of 25)  is  approximately  20
percent.  Roesch asserted that the explanation for this
low  recidivism rate is that youthful acts of  violence
tend   to   arise  from  adolescents  difficulties   in
controlling their impulses, in paying heed to the long-
term  consequences of their actions, and  in  rejecting
the  influence of their peers.  Roesch testified  that,
when  adolescents grow into adulthood,  they  get  more
sober  and  maybe  take  fewer risks  and  make  better
          Dr.  Roesch described the research into human
development that the Supreme Court relied on  in  Roper
v.  Simmons:  the findings that adolescents are in fact
different   [from   adults].   According   to   Roesch,
adolescents  are  over-represented,  statistically,  in
virtually every category of reckless behavior, but this
reckless behavior is transient:  as they mature,  their
recklessness subsides.  Roesch told the superior court:
          [A]dolescence is a time of change, [and]
     theres  a  potential for change.   They  dont
     make  decisions as well as adults, but theyre
     capable of doing [better] as they mature  and
     as they learn better problem-solving skills.
               Dr.    Nan   Truitt   (who   mainly
     testified   about   Smiths   potential    for
     rehabilitation)   supported    Dr.    Roeschs
     testimony  on the developmental  deficits  of
     adolescents in general.
               As we have already noted, Truitt is
     a  clinical  psychologist with  post-doctoral
     training  in neuropsychology.  She worked  at
     McLaughlin  Youth Center for two  years,  and
     then   in  the  adolescent  unit  of   Alaska
     Psychiatric  Institute.  Truitt  corroborated
     Roeschs   testimony  that   the   brains   of
     juveniles are less than fully developed   and
     that,  for this reason, they do not  have  an
     adult  capacity to understand and  appreciate
     the   situations   they  confront,   or   the
     consequences   of   their   conduct.     With
     particular  reference to  this  case,  Truitt
     testified  that  Smith  reacted  emotionally,
     rather  than  soberly, to  the  confrontation
     with Walker because his frontal lobe was  not
     fully developed.
          Despite the extensive discussion of
this issue in the pre-sentence memoranda, and
despite  the  expert testimony  presented  in
support   of   this  proposed   non-statutory
mitigator  at  the sentencing hearing,  Judge
McKays ruling on this proposed mitigator  was
terse and explained little of his analysis or
reasoning.   Here  is the  complete  text  of
Judge McKays ruling:

     The Court:  [A]s horrendous as [life] is
at  16  years  [of  age]  were  not  able  to
control  some of our reactions, [and]  we  do
maybe have a hot cognition, and ... were  not
able  to make good snap judgments  it  doesnt
rise to ... the level of a mental disease  or

          Again, Judge McKays ruling provides
little insight into what testimony the  judge
found   to   be  credible  or  what   factual
assertions he found to be true.  It  appears,
from the judges remarks, that he credited  at
least some of the evidence that Smith offered
in  support  of  the proposed mitigator,  and
that he agreed with Smith that teenagers have
a   reduced   capacity  to  control   [their]
reactions  and to exercise good judgement  in
the heat of the moment.
          If  Judge McKay did, in fact, agree
with Smiths contention that teenagers have  a
reduced  capacity  for judgement,  foresight,
and  self-control, then the  fact  that  this
reduced capacity might not amount to a mental
disease  or defect does not necessarily  mean
that courts should reject any notion of a non-
statutory    mitigator   based    on    these
          In  Smith,  where this Court  first
recognized  the  non-statutory  mitigator  of
extraordinary  potential for  rehabilitation,
part  of  this Courts rationale was that  the
proposed mitigator was intimately related  to
the    statutory    sentencing    goal     of
rehabilitating     offenders.      See     AS
12.55.005(2); Smith, 711 P.2d at 570-72.
          In  the  present case,  it  appears
that  Smiths proposed non-statutory mitigator
of  developmental immaturity  is  potentially
related to the legislatures overarching  goal
of   eliminating  unjustified  disparity   in
sentencing   as codified in the  legislatures
directives to sentencing judges to assess the
relative   seriousness  of   the   defendants
offense in relation to other offenses, and to
assess  the  degree to which  the  defendants
conduct    is    deserving    of    community
condemnation.  See AS 12.55.005(1) and (6).
          Moreover,   the   legislature   has
already  adopted an apparent  counterpart  to
Smiths  proposed non-statutory  mitigator   a
mitigator   that  applies   to   the   mental
disabilities    of    the    elderly.      AS
12.55.155(d)(5) creates a mitigator for cases
where  the  conduct of an aged defendant  was
substantially   a  product  of   ...   mental
infirmities  resulting  from  the  defendants
age.   In  other  words, the legislature  has
already  recognized that the  seriousness  or
blameworthiness of a felony can be  mitigated
by a defendants mental infirmities, even when
those  infirmities do not necessarily  amount
to a mental disease or defect.
          For   these   reasons,   we   again
conclude that we must remand Smiths  case  to
the  superior court so that Judge  McKay  can
clarify  his  decision on this  proposed  new


     For  the  reasons explained here, we conclude
that  mitigator (d)(3) does not apply to the facts
of  Smiths  case,  and  we  therefore  AFFIRM  the
superior   courts   ruling  on   this   mitigator.
However,  with  respect  to  the  superior  courts
rulings   on  Smiths  two  proposed  non-statutory
mitigators,   we   VACATE  the   superior   courts
decisions,  and  we direct the superior  court  to
reconsider these issues.
     To   the  extent  that  the  superior   court
concludes  that  its  reconsideration   of   these
matters  requires  the court to  resolve  disputed
issues  of fact, the court is authorized  to  take
testimony  or otherwise receive evidence pertinent
to these issues of fact.
          The superior court shall issue its rulings on
the  two non-statutory mitigators within 90 days of the
date  of this opinion.  After the superior court issues
its  rulings,  the parties shall have 30 days  to  file
memoranda  in response to the superior courts decision.
After this Court has received the parties memoranda (or
the  time for filing those memoranda has expired), this
Court  will  resume its consideration of the  two  non-
statutory mitigators.

  1 AS 11.41.200(a)(1).

2Carpentino v. State, 42 P.3d 1137, 1142 (Alaska App. 2002).

3Citing Allen v. Alaska Oil & Gas Conservation Commission,
147  P.3d  664, 668 (Alaska 2006) (In general,  if  two
statutes  conflict, ... the specific controls over  the
general.).   See  also Petrolane, Inc. v.  Robles,  154
P.3d  1014, 1034 (Alaska 2007), quoting City of Cordova
v.  Medicaid Rate Commission, 789 P.2d 346, 352 (Alaska
1990)  (It  is  a maxim of construction  that  specific
statutes  should be given precedence over more  general

4Noscitur a sociis  literally, it is known by its associates
is   the  principle  of  statutory  construction  which
directs  a  court to construe an unclear  or  ambiguous
word  or  phrase  in  light of  the  words  immediately
surrounding it.  See Garner, Blacks Law Dictionary (8th
ed.  2004),  p. 1087; Morgan v. State, 139  P.3d  1272,
1277 n. 8 (Alaska App. 2006).

5Lee, 673 P.2d at 893.

6Id. at 896.


8Id., citing Bell, 658 P.2d at 791.

9 See AS 12.55.165  175.

10See Smith v. State, 711 P.2d 561, 571-72 (Alaska App. 1985).

11See AS 47.12.030(a).

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