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Starkweather v. State (12/10/2010) ap-2284

Starkweather v. State (12/10/2010) ap-2284

                                               NOTICE
 
        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 Courts: 

                              303 K Street, Anchorage, Alaska  99501
 
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                         E-mail:  corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

JUSTIN A. STARKWEATHER, 
                                                             Court of Appeals No. A-9296 
                                Appellant,                 Trial Court No. 3KN-02-253 Cr 

                        v. 
                                                                    O   P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                 No. 2284    -    December 10, 2010 

                Appeal from the Superior Court, Third Judicial District, Kenai, 
                Charles K. Cranston and Charles T. Huguelet, Judges. 

                Appearances:     Sharon B. Barr, Assistant Public Defender, and 
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 
                Tamara     E.  de  Lucia,   Assistant   Attorney   General,  Office   of 
                Special Prosecutions and Appeals, Anchorage, and Daniel S. 
                Sullivan, Attorney General, Juneau, for the Appellee. 

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

                MANNHEIMER, Judge. 

                Justin A. Starkweather appeals his convictions for burglary, theft, sexual 

assault, attempted murder, and first-degree assault, stemming from an attack on a woman 

in Soldotna in 2002.  In our previous decision in this case, Starkweather v. State, Alaska 

App.   Memorandum   Opinion   No.   5506   (August   19,   2009),   2009   WL   2568545,   we 

----------------------- Page 2-----------------------

rejected all of Starkweather's allegations of pre-trial error and trial error except one.  The 

exception was Starkweather's claim that the superior court should have ordered the 

district attorney's office to disclose the prosecutor's handwritten notes of a pre-trial 

interview between the prosecutor and a potential witness, Fred Bahr Jr.. 

                When Starkweather requested production of these notes, the prosecutor 

objected, but the prosecutor turned the notes over to the superior court for an in camera 

review.    The superior court reviewed the prosecutor's notes and concluded that they 

contained   nothing   discoverable,   but   the   court   preserved   the   notes   (under   seal)   for 

purposes of any later appeal. 

                In our prior decision, we concluded that most of the prosecutor's notes were 

non-discoverable   under   Alaska   Criminal   Rule   16(b).         Starkweather,   Memorandum 

Opinion at 15, 2009 WL 2568545 at *7-8.  See Sivertsen v. State, 963 P.2d 1069, 1071 

(Alaska App. 1998), where we held that Criminal Rule 16(b)(1)(A) does not require 

prosecutors to disclose oral statements that a witness makes during a trial preparation 

interview. 

                However, the prosecutor's notes included descriptions of two statements 

that Bahr attributed to Starkweather.         As we noted in our prior opinion, Criminal Rule 

16(b)(1)(A)(ii) requires the State to disclose "the substance of any oral statements made 

by the accused".     Thus, even though the State was not required to disclose most of the 

prosecutor's     interview    notes,   the  State  was   required    to  disclose   the   substance    of 

Starkweather's       two   out-of-court     statements    (as  related   by   Bahr).   Starkweather, 

Memorandum Opinion at 15-16, 2009 WL 2568545 at *8-9. 

                Because of this discovery violation, we remanded Starkweather's case to 

the   superior   court   for   consideration   of   two   issues:  (1)   whether   Starkweather   was 

otherwise     alerted   to  the  existence    of  the  two   statements    and,   if   not,   (2)  whether 

Starkweather was prejudiced by the non-disclosure of the two statements. Id. at 18, 2009 

                                                 - 2 -                                             2284
 

----------------------- Page 3-----------------------

WL 2568545 at *9.        (And, because we remanded Starkweather's case to the superior 

court, we did not resolve the issues that he raised regarding his sentencing.) 

                The superior court has now issued findings regarding the two non-disclosed 

statements, and the parties have filed supplemental briefs.           These supplemental briefs 

address the superior court's findings, and Starkweather also raises several claims of error 

concerning the procedures that the superior court followed during the remand litigation. 

        Starkweather's argument that the superior court should have called the 
        trial prosecutor to the stand as part of the remand litigation 

                On remand, Starkweather's attorney asked the superior court to hold an 

evidentiary hearing for a single purpose:   calling the trial prosecutor to the stand so that 

she could be interrogated under oath. 

                The defense attorney told the superior court that she wished to interrogate 

the prosecutor concerning her initial failure to disclose the two statements that Fred Bahr 

attributed to Starkweather - specifically, to determine whether the prosecutor acted in 

good faith or bad faith.   In addition, Starkweather's attorney told the superior court that 

she wished to interrogate the prosecutor concerning the circumstances of her interview 

with Fred Bahr, the exact content of Bahr's descriptions of Starkweather's statements 

during that interview, and Bahr's tone of voice when he related these statements.  In 

particular, the defense attorney stated that she wished to investigate whether the two 

statements that Bahr attributed to Starkweather had actually been made by Starkweather 

- that is, whether Bahr personally heard Starkweather make these two statements, or 

whether   Bahr   was   only   relating   what   someone   else   told   him   about   Starkweather's 

statements. 

                                               - 3 -                                           2284
 

----------------------- Page 4-----------------------

                Finally, Starkweather's attorney also told the superior court that she wished 

to investigate whether the prosecutor's notes conveyed "the entirety of the discoverable 

information given by Bahr". 

                Superior Court Judge Charles T. Huguelet (the judge who presided over the 

remand litigation) declined to order the trial prosecutor to testify under oath.              Instead, 

Judge Huguelet concluded that Starkweather's concerns were already answered by the 

existing record. 

                With regard to whether the trial prosecutor acted in good faith when she 

initially failed to disclose her handwritten notes of her pre-trial interview with Bahr, 

Judge Huguelet pointed out that the prosecutor had not hidden or destroyed the interview 

notes, but had instead produced the notes for inspection when she was directed to do so 

by Superior Court Judge Charles K. Cranston (the original trial judge in Starkweather's 

case).  Judge Huguelet also pointed out that the prosecutor openly asserted that the notes 

were   not   discoverable,   and   that   Judge   Cranston   reached   the   same   conclusion   after 

examining the notes in camera. 

                (To this, we would add that, with the exception of the two statements that 

Bahr attributed to Starkweather, this Court reached the same conclusion in our earlier 

decision in this case:      that is, we held that, with the exception of the two statements 

attributed to Starkweather, the prosecutor's notes were not discoverable.) 

                Starkweather argues that it was impossible for Judge Huguelet to reach any 

firm   conclusion   concerning   the   prosecutor's   good   or   bad   faith   without   placing   the 

prosecutor under oath and subjecting the prosecutor to cross-examination.                  We do not 

agree.   Given the circumstances here, and given this Court's prior decision in Sivertsen, 

963 P.2d at 1071 (where we held that a prosecutor normally need not disclose their notes 

of a trial preparation interview with a witness), there is nothing in the record to indicate 

that the prosecutor acted in bad faith - even though she was mistaken with respect to 

                                                 - 4 -                                            2284
 

----------------------- Page 5-----------------------

the portion of her notes that contained the descriptions of Starkweather's two out-of­ 

court statements. Judge Huguelet could reasonably conclude that putting the prosecutor 

on the stand would amount to nothing more than a fishing expedition. 

                 Starkweather's       attorney's     alternative    rationale    for  interrogating      the 

prosecutor   was   to   flesh   out   the   circumstances   of   her   interview   with   Fred   Bahr,   to 

determine the exact content of Bahr's descriptions of Starkweather's statements during 

that interview, and to hear the prosecutor's testimony regarding Bahr's tone of voice 

when he related these statements. 

                 It appears that a substantial portion of this information - specifically, the 

particular questions put to Bahr by the prosecutor, and the prosecutor's observations or 

impressions concerning Bahr's demeanor during the interview - is protected by the 

work product privilege.  Moreover, as we have already explained, we held in Sivertsen 

that a prosecutor normally does not need to disclose the contents of a trial preparation 

interview with a witness. 

                 With   respect   to   the   suggestion   that,   during   Bahr's   interview   with   the 

prosecutor, he might have described other statements made by Starkweather, the record 

again   contains   no   indication   of   this.   The   prosecutor's   notes   contain   only   the   two 

statements that we described in our first opinion in Starkweather's case.                    And, as we 

noted in our earlier opinion in this case, when Judge Cranston directed the prosecutor to 

answer (as an officer of the court) whether her notes omitted any significant statement 

made by Bahr during the interview, the prosecutor answered, "Nothing."  Starkweather, 

Memorandum Opinion at 12, 2009 WL 2568545 at *6. 

                 In   short,  there   is  nothing    to  suggest    that  Bahr    attributed    any   other 

statements      to  Starkweather      during    the  interview.     Again,     Judge    Huguelet     could 

reasonably   conclude   that   the   defense   attorney   was   merely   fishing,   and   that   nothing 

would be gained by putting the prosecutor under oath to have her repeat what she had 

                                                   - 5 -                                              2284
 

----------------------- Page 6-----------------------

already told Judge Cranston in open court - to wit, that her notes of the interview 

contained everything of substance that Bahr said. 

                This    leaves    Starkweather's      contention    that  cross-examination       of   the 

prosecutor was required so that Starkweather's attorney could investigate the possibility 

that Bahr might not have personally heard Starkweather make the two statements at issue 

-    the   possibility   that   Bahr   was   only  relating   what   someone   else   told   him   about 

Starkweather's statements.        But this was already clear from the record. 

                As Judge Huguelet noted in his findings, the defense received independent 

disclosure of one of the statements that Bahr attributed to Starkweather:  Starkweather's 

purported statement to his girlfriend, Melissa Larson, "I just did something bad, and it's 

your fault because you wouldn't come and talk to me."               The independent disclosure of 

this   statement   is   contained   in   the   notes   and   transcript   from   an  interview  of   Bahr 

conducted      by   Investigator    James    Truesdell    on  March     21,  2002,    and  a  follow-up 

interview of Melissa Larson conducted by Truesdell on April 4, 2002. 

                In Bahr's police interview, Bahr reported that Melissa Larson told him that 

Starkweather told her that "he fucked up, he did something wrong, and he needed to talk 

to   her".    And     in  Truesdell's     follow-up    interview     with   Larson,    she   stated   that 

Starkweather made this statement to her (although she described Starkweather's words 

slightly differently). 

                In other words, Judge Huguelet could reasonably conclude that it was clear, 

from   the   existing   record,   that   Bahr   did  not   personally   hear   Starkweather   make   this 

statement, and that Bahr's only knowledge of the statement came from talking to Larson. 

                With regard to the second statement that Bahr attributed to Starkweather 

-  "Bring [Larson] back or I will kick your ass" - Judge Huguelet did not make an 

explicit finding as to whether Bahr personally heard this statement.                  However, from 

Bahr's   description   of   Starkweather's   words,   it   is   apparent   that   Bahr   described   this 

                                                  - 6 -                                             2284
 

----------------------- Page 7-----------------------

statement as having been made directly to him by Starkweather (over the telephone). 

Indeed, Starkweather's defense attorney actively argued that this was the case - i.e., that 

when Starkweather made this statement, he was speaking directly to Bahr.  The defense 

attorney     argued    that  this  incident   showed,     among     other   things,  that   Bahr   and 

Starkweather were acquainted (and that Bahr was lying when he claimed that he did not 

know Starkweather). 

                In sum, Judge Huguelet could reasonably conclude that it was unnecessary 

to have the prosecutor take the stand to describe her understanding as to whether Bahr 

personally heard Starkweather utter the two statements that Bahr attributed to him. 

                For all of these reasons, Judge Huguelet could reasonably conclude that it 

was unnecessary to make the prosecutor take the stand and be cross-examined about any 

of   the   topics   suggested   by   Starkweather.   Thus,   Judge   Huguelet   did   not   abuse   his 

discretion    when    he  declined    to  order  the  prosecutor   to   take  the  stand   during   the 

proceedings on remand. 

        The question of whether Starkweather was prejudiced by the State's initial 
       failure to disclose the two statements that Bahr attributed to Starkweather 

                We now reach the question that we directed the superior court to investigate 

during the remand proceedings:           whether the investigation or presentation of Stark­ 

weather's defense might have been prejudiced by the prosecutor's failure to disclose the 

two statements that Bahr attributed to Starkweather. 

                As we have already explained, Judge Huguelet found that the first of these 

statements   -   Starkweather's   purported   statement   to   his   girlfriend,   Melissa   Larson, 

"I just did something bad, and it's your fault because you wouldn't come and talk to me." 

- had already been independently disclosed to the defense.  This statement is described 

                                                - 7 -                                            2284
 

----------------------- Page 8-----------------------

in Investigator Truesdell's notes and transcripts of his interview with Bahr on March 21, 

2002, and his follow-up interview with Melissa Larson on April 4, 2002. 

                 Although Starkweather, in his supplemental brief, declares that he was 

prejudiced by the prosecutor's failure to disclose Bahr's two "statements" (i.e., referring 

to   the   statements   in   the   plural),   Starkweather   concedes   that   the   first   statement   was 

independently disclosed to the defense before trial, and Starkweather's supplemental 

brief contains no argument that he was prejudiced by the prosecutor's failure to disclose 

this first statement. 

                 This   leaves   the   second   statement   attributed   to   Starkweather   by   Bahr: 

Starkweather's purported statement to Bahr (over the phone), "Bring [Larson] back or 

I   will   kick   your   ass." Judge   Huguelet   found   that   this   statement   was   not   otherwise 

disclosed to the defense, but the judge also concluded that this statement was cumulative 

of other   statements made by Starkweather and his family that were disclosed to the 

defense. 

                 When Judge Huguelet declared that the second statement was cumulative 

of   other   evidence   disclosed      to  the   defense,   the   judge   was   apparently   referring   to 

Investigator Truesdell's interviews with Starkweather and his parents. 

                 During Truesdell's interview with Starkweather, Starkweather indicated 

that he had been worried about Melissa Larson's welfare because "[t]his guy Freddie 

[i.e., Bahr] [had] basically been keeping her away from home and stuff.  Even [Larson's] 

mom called me, all crazy, wondering about her."                Starkweather told Truesdell that he 

asked Larson whether "everything [was] cool with this guy, ... because I was going to 

go track this guy down and beat him up and shit." 

                 During Truesdell's interview with Starkweather's parents, Starkweather's 

father    told  him    that  he  overheard     his   son   talking   to  someone     on   the  telephone. 

According to Starkweather's father, his son "actually kind of threw a threat [to this 

                                                   - 8 -                                              2284
 

----------------------- Page 9-----------------------

person] on the phone."  The elder Starkweather described his son as saying, "You need 

to let this girl go, or I'm either going to come over there, or I'm gonna call the police or, 

you know - I mean, stuff's gonna happen." Starkweather's mother immediately added 

that her son also said, "I need to talk to her." 

                In his supplemental brief to this Court, Starkweather argues that Bahr's 

description of Starkweather's threatening statement ("Bring [Larson] back or I will kick 

your ass.") was important to the defense case because this statement "corroborate[d] 

Starkweather's       and   [Starkweather's]      parents'   statements    that  Starkweather      was  ... 

threatening Bahr that night."        But as Judge Huguelet noted in his findings on remand, 

Starkweather's angry and threatening behavior toward Bahr "does not seem to have been 

seriously in dispute [at Starkweather's trial]." 

                The record supports Judge Huguelet's observation. At Starkweather's trial, 

both sides relied on the fact that Starkweather was upset with Bahr - although the two 

sides asked the jury to draw   different inferences from this fact.               In the prosecutor's 

summation   to   the   jury,   the   prosecutor   relied   on   the   evidence   that   Starkweather   was 

growing increasingly angry over the fact that his girlfriend, Melissa Larson, was running 

around with Fred Bahr - and the prosecutor reminded the jury that Starkweather stated 

that he was thinking about doing something violent to Bahr.  Likewise, Starkweather's 

defense attorney asked the jury to consider the fact that "[Starkweather] and Fred [Bahr] 

have had words. Fred won't let him talk to Melissa, and they're mad at each other."  The 

defense attorney then argued that Starkweather's angry behavior toward Bahr might have 

prompted Bahr to frame Starkweather for the crimes committed in this case. The defense 

attorney rhetorically asked the jury, "Is that a motive for Fred to set [Starkweather] up? 

That very well could be." 

                In a separate argument, Starkweather asserts that the threatening statement, 

"Bring her back or I will kick your ass," was important evidence because it showed that 

                                                  - 9 -                                             2284
 

----------------------- Page 10-----------------------

Starkweather       and  Bahr    knew    each   other.   But    as  Judge   Huguelet     noted,  even    if 

Starkweather told Bahr, "Bring her back or I will kick your ass," this statement does not 

show that Starkweather and Bahr knew each other. 

                Moreover, as Judge Huguelet also noted, both Starkweather and Bahr told 

the   police   that,  while   they   were   aware    of  each   other's   existence,   they   were   not 

acquainted with each other. 

                In   Starkweather's   interview   with   the   troopers   on   February   2,   2002,   he 

described how Melissa Larson had been running around with a guy named "Freddie". 

When Trooper Sgt. Barry Wilson asked Starkweather, "Who's Freddie?", Starkweather 

answered, "I don't know Freddie. ... I just know his name, and [I've] got his [telephone] 

number right there, because I've been trying to get ahold of [Larson]."                A little later in 

the same interview, Starkweather told the troopers, "I got out of jail [and] found out that 

[Larson had] been off on the run with some guy or something.  ... [And] I was trying to 

get ahold of them, [and] they knew [it].         This dude was fucking-all saying stuff to me, 

and ... [he] [w]ouldn't let me talk to [Larson] - this Freddie guy." 

                And in Fred Bahr's interview with the troopers on March 21, 2002, he 

stated (with regard to Starkweather) that he "never met the dude.  I don't know who this 

dude is." 

                The testimony presented at Starkweather's trial further corroborated the fact 

that Starkweather and Bahr were not acquainted.   In her trial testimony, Melissa Larson 

said that she did not think she had ever introduced Bahr to Starkweather.                     Larson's 

mother testified that, because of her concern about her daughter, she asked Starkweather 

what he knew about Fred Bahr, and Starkweather told her that he did not know anything 

about him. 

                For these reasons, we agree with Judge Huguelet that Starkweather failed 

to identify any plausible way in which he was prejudiced by the prosecutor's failure to 

                                                 -  10 -                                           2284
 

----------------------- Page 11-----------------------

disclose the two statements that Bahr attributed to Starkweather.   Accordingly, we now 

reject Starkweather's claim that he is entitled to a new trial because of the non-disclosure 

of these statements. 

        Whether Starkweather could properly receive separate convictions and 
        sentences for attempted murder and first-degree assault arising from the 
        same criminal conduct 

                Based on the assault on M.B., Starkweather was indicted for attempted first- 
degree   murder 1     and   for   first-degree   assault. (The   first-degree   assault   count   of   the 

indictment alleged three separate theories: intentionally causing serious physical injury, 

recklessly causing serious physical injury by means of a dangerous instrument, and 

inflicting serious physical injury under circumstances manifesting extreme indifference 
to the value of human life). 2      The jury found Starkweather guilty of both charges. 

                During the sentencing proceedings, Starkweather argued that he should not 

receive separate convictions and sentences for both attempted murder and first-degree 

assault - that the superior court should, instead, enter one merged conviction based on 

the   attempted   murder   verdict   and   the   first-degree   assault   verdict.   Judge   Cranston 

rejected this argument, relying on this Court's unpublished opinion in DeJesus v. State, 

Alaska App. Memorandum Opinion No. 4044 (May 5, 1999), 1999 WL 272423. 

                In  DeJesus,   the   defendant   argued   that   he   should   not   receive   separate 

convictions and sentences for attempted murder and second-degree assault arising from 

the same incident - that entering separate convictions for these two related crimes 

would violate Alaska's guarantee against double jeopardy as interpreted by the Alaska 

    1   AS 11.41.100(a)(1)(A). 

    2   AS 11.41.200(a)(1), (a)(2), and (a)(3). 

                                                - 11 -                                              2284 

----------------------- Page 12-----------------------

Supreme   Court   in  Whitton   v.   State,   479   P.2d   302,   310   (Alaska   1970).      This   Court 

rejected the defendant's argument and affirmed the entry of separate convictions for 

these two offenses: 

                         When we analyze the separate crimes at issue, we note 
                 that there is a significant difference in the interests protected 
                 [by] each [criminal statute].        [The] [a]ttempted first-degree 
                 murder [statute] penalizes a substantial step undertaken with 
                 the   intent   to   kill   another.  No   [infliction   of]   injury   ...   is 
                 required for this crime.      On the other hand, for the crime of 
                 second-degree assault as charged in this case, the defendant's 
                 conduct must have caused injury to another by means of a 
                 dangerous instrument.   We consider that difference between 
                 the   two   crimes   to   be  substantial   and   [we]   conclude   that 
                 multiple sentences are authorized. 

DeJesus, Memorandum Opinion at 15-16, 1999 WL 272423 at *6. 

                 In the present appeal, Starkweather argues that our analysis of this question 

in  DeJesus      should   not   govern   his   case.   He   argues   that   the   facts   of   his   case   are 

significantly different from the facts presented in DeJesus - and that, under the facts of 

his case, a  Whitton analysis points to a merger of the two offenses because "the [first­ 

degree] assault was ... part and parcel of the attempted murder". 

                 Starkweather's       argument     is  premised     on   the  assumption      that,  under 

Whitton, the question of whether the verdicts on two or more offenses merge into a single 

conviction hinges on the particular details of the defendant's conduct.  This is incorrect. 

We expressly rejected this view of  Whitton in Erickson v. State, 950 P.2d 580 (Alaska 

App. 1997). 

                 The defendant in Erickson argued that  Whitton called for "case-specific 

double jeopardy rulings", as opposed to rules of general application that apply to all 

                                                  -  12 -                                             2284
 

----------------------- Page 13-----------------------

defendants convicted of particular pairs or groupings of offenses. 3            We acknowledged 

that "[s]ome of the language used [by the supreme court] in                Whitton supports [this] 

interpretation of the decision" - for example, the passage in Whitton, 479 P.2d at 312, 

where "the supreme court called on trial judges to assess whether significant differences 
in intent or conduct are revealed by 'the facts of the case'." 4 

                However,   when   we   examined       Whitton  and   all   of   the   supreme   court's 

subsequent double jeopardy decisions applying Whitton, we concluded that the supreme 

court "has consistently treated double jeopardy issues as questions of law".  Id. at 585. 

That is, "the [supreme] court has decided these issues de novo, using statutory analysis, 

rather than reviewing trial court decisions for abuse of sentencing discretion under the 
particular facts of the defendant's case." 5 

                Adhering to our decision in Erickson, we reject Starkweather's argument 

that the answer to his double jeopardy claim rests on an examination of the particular 

facts of his case. 

                However, this still leaves the question of whether our ruling in DeJesus was 

correct.   Are   the   offenses   of   attempted   murder   and   first-degree   assault   sufficiently 

distinct so that, when they arise from a single criminal episode, a   defendant should 

receive a separate conviction and sentence for each offense? 

                For purposes of determining whether separate convictions and punishments 

may be imposed for separate statutory offenses arising out of the same conduct, the 

federal double jeopardy test and the Alaska double jeopardy test are seemingly different. 

    3   Id. at 584. 

    4   Ibid. 

    5   Ibid. 

                                                - 13 -                                            2284 

----------------------- Page 14-----------------------

                In Missouri v. Hunter, 459 U.S. 359, 366; 103 S.Ct. 673, 678; 74 L.Ed.2d 

535 (1983), the United States Supreme Court declared that, in this context, the federal 

double jeopardy clause "does no more than prevent the sentencing court from prescribing 

greater punishment than the legislature intended."              In other words, under the federal 

double jeopardy test, the question of whether the law permits separate convictions and 

punishments   is   answered   by   ascertaining   whether   the   legislature   intended   to   allow 

separate convictions and punishments.             In  Todd v. State, 917 P.2d 674, 677 (Alaska 

1996), the Alaska Supreme Court acknowledged that this is the federal rule. 

                However, in Todd, the Alaska Supreme Court suggested that the Whitton 

rule requires a different analysis, separate from ascertaining the legislature's intent.  In 

other words, the supreme court suggested that the double jeopardy clause of the Alaska 

Constitution   may   restrict   the   authority   of   the   legislature   to   punish   a   defendant   for 

separate   statutory   offenses   arising   from   the   same   criminal   conduct,   even   when   the 

legislature clearly wishes to authorize separate punishments.  Todd, 917 P.2d at 681-83. 

                The supreme court did not actually have to decide in  Todd whether the 

Alaska double jeopardy clause limits the authority of the legislature to divide a single 

criminal   occurrence   into   separately   punishable        offenses.    And,   given   the   way   the 

supreme court applied the Whitton test in Todd (and has applied Whitton in other cases), 

there is some reason to believe that the Alaska double jeopardy test is actually closer to 

the federal test than it might appear.  See Cronce v. State, 216 P.3d 568, 572-73 (Alaska 

App. 2009) (Mannheimer, J., concurring). 

                However, for purposes of deciding Starkweather's appeal, we will assume 

that the Alaska double jeopardy test - i.e., the Whitton test - is more expansive than 

its federal counterpart.      Accordingly, to answer the question of whether   Alaska law 

allows separate convictions for both attempted murder and first-degree assault arising 

from the same criminal conduct, we will first analyze this question under the narrower 

                                                 -  14 -                                            2284
 

----------------------- Page 15-----------------------

federal   double   jeopardy   test:     what   did   the   legislature   intend?   A   separate   Whitton 

analysis   will   only   be   needed   if   we   conclude   that   the   legislature   intended   to   permit 

separate convictions. 

                 As we are about to explain, we have examined the legislative history of the 

statutory provision prescribing the punishment for attempted murder.                      We conclude, 

from   this   legislative   history,   that   the   legislature   did   not   intend   to   have   defendants 

convicted and punished separately for both attempted murder and first-degree assault 

when an attempted murder results in serious physical injury to the victim.                    Rather, the 

nature and extent of the victim's injuries are factors that a sentencing judge will consider 

when assessing the defendant's term of imprisonment within the broad sentencing range 

for attempted murder (10 to 99 years' imprisonment). 

                 The pertinent legislative history begins in 1978, when the Alaska legislature 

enacted our current criminal code.             In that original version of the criminal code, the 

Alaska statute defining attempts - AS 11.31.100 - declared that an attempt to commit 
murder was a class A felony.  See former AS 11.31.100(d)(1) (1978). 6                    This meant that 

the punishment for attempted murder was 0 to 20 years' imprisonment. 7 

                 Ten    years    later,  in  1988,    legislation    was   proposed      to  increase    the 

punishment for attempted murder.  See House Bill 371 (15th Legislature).  When House 

Bill 371 came before the House Health, Education, and Social Services Committee for 

hearing     on  March   15,   1988,   the   Committee   was   told   that   the   proposed   increased 

punishment for attempted murder was intended to close a "loophole" that existed under 

the current statute for defendants who engaged in conduct that would have been murder 

    6   SLA 1978, ch. 166, § 2. 

    7   AS 12.55.125(c). 

                                                  -  15 -                                               2284 

----------------------- Page 16-----------------------

except that, by sheer luck, the victim did not die. 8   Assistant Attorney General Stephanie 

Joannides (speaking on behalf of the Department of Law in support of the bill) explained 

that   the  crime   of  attempted   murder    encompassed      a  wide   range  of  conduct    and 

accompanying results - from attempts to kill that failed completely, to attempts to kill 
in which "the [victim] might be so injured that they might as well be dead". 9 

               During     Ms.   Joannides's   testimony,    one   of  the  Committee     members 

(Representative Nilo Koponen) asked her "if people [were to be] charged [with,] and 

sentenced for, both attempted murder and assault."  Ms. Joannides replied, "Whichever 
situation can be proved by the prosecutor, but never both charges at the same time." 10 

               Three weeks later, on April 8, 1988, Ms. Joannides testified in support of 

the bill before the House Judiciary Committee.  By that time, Judiciary Committee staff 

had prepared two alternative versions of the bill. 

               One version would have made the penalties for attempted murder the same 

as the penalties for first-degree sexual assault.     At that time, the maximum penalty for 

first-degree sexual assault was 30 years' imprisonment, with specified presumptive terms 

for first, second, and third felony offenders.     See former AS 12.55.125(i) (1988).  The 

second version of the bill would make the penalty range for attempted murder the same 

as the penalty range for second-degree (unintentional) murder.          At that time, the crime 

of second-degree murder carried a maximum penalty of 99 years' imprisonment, with 

a mandatory minimum of 5 years' imprisonment.  See former AS 12.55.125(b) (1988). 

    8   Minutes of the House Health, Education, and Social Services Committee for March 

15, 1988, Tape 1, Side 2, log no. 124. 

    9  Id., log no. 341. 

    10 Id., log no. 155. 

                                              -  16 -                                         2284 

----------------------- Page 17-----------------------

               Ms. Joannides urged the Judiciary Committee to adopt this second version 

of the bill; that is, she urged the Committee to adopt an indeterminate penalty range of 

5 to 99 years for attempted murder, rather than making attempted murder subject to the 

rules of presumptive sentencing that governed the punishment for first-degree sexual 

assault. According to the minutes of the April 8th committee hearing, Ms. Joannides told 

the Committee: 

                       [Because of the rules that limit a sentencing judge's 
               discretion under presumptive sentencing, it] would be almost 
               impossible for the court to fashion a sentence close to the 
               maximum if [an] attempted murder was particularly terrible. 
               Under     [the   second    proposed    version    of  the  bill],  the 
               [sentencing] court [still] has guidelines to follow, but it also 
               has more discretion with different scenarios - ranging from 
               missing     a  shot  fired  [toward   the  victim],  to  deliberately 
               torturing [the victim] with the intent to kill, but failing. 

Minutes of the House Judiciary Committee for April 8, 1988, Tape 136, Side 1, log no. 

130. 

               Two weeks later, on April 22, 1988, both Ms. Joannides and Representative 

Alyce Hanley - the sponsor of House Bill 371 - appeared before the House Finance 

Committee in support of the bill. 

               Representative Hanley explained the reason why she proposed increasing 

the penalty for attempted murder.       According to the minutes of the committee hearing, 

                       Representative Hanley [told the Committee that] the 
               crime of attempted murder is more serious than first-degree 
               assault,   [but]  currently   the  penalties   are  the  same.    She 
               [informed the Committee] of [the] case of an individual who 
               testified against an auto theft ring, and [who later sustained] 
               serious injuries ... when his car was bombed.   She said [that,] 
               with    [the  current]   maximum      sentence    of  20  years   [for 

                                              -  17 -                                         2284
 

----------------------- Page 18-----------------------

                attempted      murder],    [plus  credit   for]  good    time,   and   ... 
                mitigating     circumstances,     a  [defendant    convicted     of  this 
                crime] could be out [of prison] in two and one-half years. 

Minutes of the House Finance Committee for April 22, 1988, Tape HFC 88-65, Side 2 

(no log numbers indicated). 

                After    Representative      Hanley    gave   this  explanation     of  her   bill,  Ms. 

Joannides   explained   to   the   Finance   Committee   that   because   attempted   murder   was 

classified as a class A felony under the then-existing law, "the situation would have to 

be totally grievous for [a sentencing] court to [justify] giving a sentence of ten ... years 
[or more]." 11 

                Ms. Joannides also expressed concern that "a maximum sentence of 30 
years would [not] be sufficient" for serious cases of attempted murder. 12 

                The   legislature   ultimately   adopted   the   course   urged   by   Ms.   Joannides: 

attempted murder was re-classified as an unclassified felony with the same penalty range 

as second-degree murder:          5 to 99 years' imprisonment.         See SLA 1988, ch. 59, § 1 

(reclassifying the offense of attempted murder) and § 5 (amending the sentencing statute, 

AS 12.55.125(b), to include attempted murder). 

                To summarize the foregoing legislative history:            It appears that when the 

Alaska Legislature re-categorized the offense of attempted murder as an unclassified 

felony, and when the legislature increased the penalties for this offense to a mandatory 

minimum of 5 years' imprisonment and a maximum of 99 years' imprisonment, the 

legislature's purpose was to establish a penalty range that would reflect the broad scope 

of conduct encompassed within attempted murder - from ineffectual attempts to kill 

    11  Ibid. 

    12  Ibid. 

                                                -  18 -                                             2284 

----------------------- Page 19-----------------------

that left the victim unharmed, to attempts that inflicted grievous injury on the victim and, 

by luck alone, fell short of inflicting death.  In other words, the degree of harm suffered 

by the victim is intended to be a primary factor in determining the defendant's sentence. 

                 This   interpretation   of   the   legislature's   purpose   is   corroborated   by   the 

answer that Ms. Joannides gave to Representative Koponen when he asked whether 

defendants would be sentenced for both attempted murder and assault.                       As explained 

earlier, Ms. Joannides replied that defendants would   "never [be sentenced for] both 

charges   at   the   same   time."   In   essence,   Ms.   Joannides   told   the   legislators   that   if   a 

defendant attacked another person with intent to kill, and in doing so inflicted injury on 

the victim, the defendant would only be sentenced for attempted murder and the injury 

would be taken into account when the court formulated the defendant's sentence. 

                 Sixteen years ago, in Rudden v. State, 881 P.2d 328 (Alaska App. 1994), 

this Court recognized this legislative purpose behind the decision to expand the penalty 

range for attempted murder. We noted that this increased penalty range "appears to have 

been intended ... to reflect the exceptionally broad range of conduct encompassed within 

the definition of attempted first-degree murder", as well as "the consequent need for a 

correspondingly broad range of sentencing alternatives".  Id. at 330.                 We explained: 

                         At   one   extreme,     an  attempted     first-degree    murder 
                 might cause no injury at all to the victim and might involve 
                 conduct falling far short of any immediate threat of deadly 
                 harm - the type of slight step beyond mere preparation that 
                 minimally      qualifies   as  an   attempt.      By   contrast,   at  the 
                 opposite   extreme,   an   attempted   first-degree   murder   might 
                 consist of a completed act of calculated deadly force that, 
                 through no lack of effort or intent by the offender, happens to 
                 fall slightly short of the mark, causing lasting and near-fatal 
                 injuries instead of death. 

Rudden, 881 P.2d at 330. 

                                                  -  19 -                                             2284
 

----------------------- Page 20-----------------------

                We now re-affirm the conclusion we drew in Rudden :               the wide range of 

penalties for attempted murder reflects the broad range of conduct encompassed within 

the definition of the offense, and the degree of harm suffered by the victim is a primary 

factor in determining the defendant's sentence. 

                Against    this  background,      we   now    return  to  the   question   posed    in 

Starkweather's case:       does Alaska law allow   separate convictions and sentences for 

attempted murder and first-degree assault when these separate statutory offenses arise 

out of the same attack on the victim? 

                The    State  argues   (correctly)   that  the  prohibition   on  attempts    to  take 

someone else's life is distinct from the prohibition on injuring another person.              This is 

demonstrated by the fact that a person can attempt to kill someone but inflict no injury 

on them - and, conversely, a person can inflict injury on someone without any intent 

to kill them.    Thus, the situation is more serious, and more blameworthy, when the 

defendant acts with intent to kill and inflicts injury on the victim. 

                But as we explained above, both the legislative history from 1988 and this 

Court's prior decision in Rudden stand for the proposition that, in cases where the State 

proves that the defendant acted with an intent to kill, the legislature intended for the 

amount or degree of injury inflicted on the victim to be a primary factor in determining 

the severity of the defendant's sentence within the 5-year to 99-year range codified in 

AS 12.55.125(b).  Giving the defendant an additional, separate conviction and sentence 

for inflicting that injury is inconsistent with the legislature's purpose.  And, as we have 

explained, a representative of the Department of Law explicitly told a House committee 

that this would not happen. 

                We   accordingly   conclude   that,   under   the   federal   double   jeopardy   test 

announced in Missouri v. Hunter, it is unlawful for Starkweather to receive separate 

convictions for attempted murder and first-degree assault arising from the same attack. 

                                               - 20 -                                           2284
 

----------------------- Page 21-----------------------

The     federal   double    jeopardy    clause    protects   defendants     from    receiving    greater 

punishment than the legislature intended, and the entry of separate convictions in this 

situation is inconsistent with the legislature's intent. 

                In reaching this conclusion, we cast no doubt on the State's authority to 

separately charge attempted murder and first-degree assault (or some appropriate lesser 

degree of assault) based on the same attack.           As we have noted, a charge of attempted 

murder does not require proof of injury, and a charge of first-degree assault does not 

require proof of an intent to kill.      Thus, a charge of first-degree assault is not included 

within a charge   of attempted murder.          For the State to obtain a jury verdict on both 

alleged aspects of the defendant's conduct (whether the defendant acted with intent to 

kill, and whether the defendant inflicted serious physical injury), the State must charge 

the defendant with both crimes.         However, if the jury concludes that both crimes have 

been proved, the superior court must merge the two verdicts into a single conviction for 

attempted murder. 

                We   therefore   direct   the   superior   court   to   merge   the   jury's   verdicts   on 

attempted murder and first-degree assault into a single conviction for attempted murder. 

Because Starkweather received a consecutive 5 years' imprisonment for first-degree 

assault, the superior court must re-sentence him. 

        Starkweather's claim that his composite sentence is excessive 

                Starkweather       was   convicted    of  four   felonies:   attempted     first-degree 

murder, first-degree sexual assault, first-degree assault, and first-degree burglary.  For 

the crime of attempted murder, the superior court sentenced Starkweather to 64 years' 

imprisonment with 25 years suspended - i.e., 39 years to serve.                 The court sentenced 

Starkweather to consecutive sentences of 8 years' imprisonment for the sexual assault, 

                                                 - 21 -                                            2284
 

----------------------- Page 22-----------------------

5   years'   imprisonment   for   the   physical   assault,   and   3   years'   imprisonment   for   the 

burglary.    Thus, Starkweather's composite sentence for these four felonies is 55 years 

to serve.   Starkweather contends that this sentence is improperly severe. 

                In the previous section of this opinion, we concluded that Starkweather 

should not have received a separate conviction and sentence for first-degree assault, and 

that   he   must    be  re-sentenced.      However,      when     the  superior    court   re-sentences 

Starkweather, the superior court could conceivably increase Starkweather's sentence for 

attempted murder by as much as the 5 consecutive years that Starkweather received for 

this first-degree assault conviction.        See Allain v. State, 810 P.2d 1019, 1021 (Alaska 

App. 1991). 

                To   avoid   further   appellate   litigation   of   this   case,   we   conclude   that   we 

should address Starkweather's sentence appeal now.                 And to address Starkweather's 

sentence appeal, we must describe the underlying facts of this case - because, when a 

composite sentence is appealed on the ground of over-severity, the appellate court's task 

is to assess whether the combined sentence is clearly mistaken, given the whole of the 
defendant's conduct and history. 13 

                On February 2, 2002, a woman, M.B., was found lying on the floor of her 

bedroom; a dresser was resting on top of her.  There was a substantial amount of blood 

around her vaginal area and around her head, and she had bite marks on her chest.  M.B. 

had suffered extensive injuries to her face and to her internal organs - injuries so severe 

that she was hospitalized for over a year.          In his trial testimony, Dr. Michael A. Todd 

described the extent of the injuries inflicted on M.B.: 

    13  See Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 

554, 558-59 (Alaska App. 1987). 

                                                 - 22 -                                              2284 

----------------------- Page 23-----------------------

                        Dr.    Todd :     [M.B.]    was    the  victim    of  an   assault 
                 [notable]    for  its  intensity   and   ferocity.   ...   [M.B.]     had 
                extensive [injuries]:   her face was basically flattened, and the 
                bones of her face were sticking out through the skin.  ...  Her 
                central    face   was   basically    shattered.    Both    cheeks    were 
                demolished, her nose was demolished, ... the bones that form 
                the    platform    for  her   eyes   were    fractured,   her   jaw   was 
                fractured.    ... Her intestines had been smashed against her 
                back bone and I can't - it's hard to describe what force it 
                takes to do that, to actually take somebody's internal organs 
                and   smash   them   against   the   bones   in   their   back.  ... Her 
                pelvis was fractured in an almost ... spectacular way.  Again, 
                an injury that someone would sustain falling from a building 
                or being in a high-speed motor vehicle accident. 

                The evidence presented at trial showed that Starkweather, who was M.B.'s 

neighbor, broke down three different doors to get to M.B.:   the external garage door, the 

door between the garage and the laundry room, and finally M.B.'s bedroom door.  M.B. 

testified that she had no memory of the assault - indeed, no memory of anything until 

March 2003, when she woke up at Alaska Regional Hospital. 

                At Starkweather's sentencing, Judge Charles Cranston acknowledged that, 

at the time of this incident, Starkweather was a youthful offender (twenty years old) with 

a relatively insignificant criminal record.   Nevertheless, Judge Cranston concluded that 

Starkweather   was   a   worst   offender   for   sentencing   purposes,   based   on   the   extreme 

brutality of the assault and the fact that Starkweather left M.B. to die. 

                Judge Cranston noted that Starkweather broke down several doors to reach 

M.B., and that he then sexually assaulted M.B. with a blunt instrument and repeatedly 

kicked her, inflicting severe physical injury and permanent disfigurement.                    The judge 

also noted that these crimes were "senseless" in that "there was no apparent motive for 

[Starkweather's] behavior".   And Judge Cranston emphasized the fact that, when M.B. 

                                                  - 23 -                                             2284
 

----------------------- Page 24-----------------------

was nearly dead from this assault, Starkweather placed a dresser on top of her so that she 

would     be   unable   to  leave   the   room,   and   then  he   left   her   there   to  die,   alone   and 

incapacitated. 

                Judge Cranston also took account of Starkweather's conduct in jail during 

the   two   years   since   his   arrest   for   this   offense. During   that   time,   Starkweather   had 

threatened both inmates and corrections staff:  he had already lost a total of 600 days of 

good time credit for assaulting a staff member in February 2002, for making threats of 

immediate bodily harm, and for an "individual demonstration" that threatened the safety 

and security of the facility.      In addition, Starkweather had spent 338 days in punitive 

segregation for, among other things, fighting with inmates, perpetrating another assault 

on a   staff   member in September 2002, and refusing to obey direct orders of a staff 

member. 

                Based on the totality of Starkweather's conduct, and his apparent inability 

to control himself even in jail, Judge Cranston concluded that Starkweather "[was] a 

definite threat to society".     Judge Cranston further concluded that, given the nature of 

Starkweather's conduct, the sentencing goal of rehabilitation took a lesser priority to the 

sentencing goals of isolating Starkweather to protect society from further violence, of 

expressing societal condemnation of the type of brutal crime inflicted on M.B., and of 

deterring others from committing such crimes. 

                In his sentencing remarks, Judge Cranston declared that he had studied this 

Court's decision in Rudden v. State, 881 P.2d 328.                Apparently referring to the prior 

sentencing cases collected in footnote 2 of Rudden (881 P.2d at 332), Judge Cranston 

stated that these cases seemed to suggest a benchmark sentencing range of 30 to 40 years 

to serve for attempted murder.          However, Judge   Cranston noted that in the Rudden 

decision     itself,  this  Court  suggested     that  there  should    be  a  convergence      between 

                                                 - 24 -                                             2284
 

----------------------- Page 25-----------------------

sentences for attempted murder and sentences for completed murder when the facts of 

the attempt approach the seriousness of the completed crime. 

                (The   actual   quote   from  Rudden    is:   "As   the   gap   between   attempt   and 

completion narrows, the justification for disparate treatment of an offender convicted of 

attempted murder, [as opposed to] the completed crime, ... diminishes commensurately; 

as the crimes grow similar, so should the sentences."          881 P.2d at 330-31.) 

                Judge Cranston concluded that Starkweather's case presented a situation 

where an attempted murder fell short of completion due, primarily, to fortuity.  Another 

significant factor, Judge Cranston declared, was that Starkweather's prior history gave 

no hint of such extreme violence - that Starkweather's attack on M.B. was inexplicable 

and unpredictable. 

                Based    on   these  factors,  Judge    Cranston    declared   that  Starkweather's 

sentence for attempted murder should exceed the benchmark range of 30 to 40 years to 

serve that the judge had inferred from the footnote in Rudden. However, Judge Cranston 

then   proceeded   to   impose   a   sentence  within   that   range:  39   years   to   serve   (more 

precisely, 64 years with 25 years suspended). 

                Judge Cranston then imposed the applicable 8-year presumptive term for 

Starkweather's offense of   first-degree sexual assault, a 5-year sentence for the first- 

degree physical assault, and a 3-year sentence for first-degree burglary.  Because Judge 

Cranston imposed these three sentences consecutively to the attempted murder sentence 

(and to each other), this brought Starkweather's composite sentence to 55 years to serve 

(with an additional 25 years suspended). 

                Because Starkweather received a sentence of 39 years to serve for the crime 

of attempted murder, Starkweather's case does not require us to decide whether the 

benchmark sentencing range for attempted murder is (or should be) the 30-to-40-year 

range suggested by Judge Cranston in his sentencing remarks. All we need to say on this 

                                               - 25 -                                           2284
 

----------------------- Page 26-----------------------

issue is that, for the reasons identified by Judge Cranston, Starkweather's case presents 

an aggravated instance of attempted murder - an instance of inexplicable and horrific 

violence     that,   but   for  chance,   would   have   achieved     M.B.'s   death.    Whatever      the 

benchmark       sentencing     range   for  typical   instances    of  attempted    murder     might   be, 
Starkweather's case is distinguishable from a typical attempted murder. 14 

                When Starkweather's other two felonies - first-degree sexual assault and 

first-degree burglary - are added to the sentencing calculus, we readily conclude that 
a composite sentence of 55 years to serve is not clearly mistaken. 15               Therefore, even if 

the superior court decides to maintain Starkweather's current composite sentence when 

the superior court re-sentences Starkweather, we would affirm that sentence. 

        Conclusion 

                The judgement of the superior court is AFFIRMED, with the exception that 

the superior court must merge the guilty verdicts on the charges of attempted murder and 

first-degree assault into a single conviction for attempted murder, and must re-sentence 

Starkweather accordingly. 

    14  Compare       Hamilton    v.  State,  59  P.3d  760,   772   (Alaska   App.   2002)   ("we    have 

repeatedly   upheld   sentences   in   the   upper   end   of   the   penalty   range   for   defendants   who 
committed gratuitous or otherwise inexplicable acts of extreme violence"); Harmon v. State, 
908 P.2d 434, 444 (Alaska App. 1995) (holding that a first-degree murder is aggravated 
when the defendant tortures or inflicts gratuitous pain on the victim). 

    15  See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to 

affirm a sentencing decision unless the decision is clearly mistaken). 

                                                 - 26 -                                               2284 
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