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Jerel Tremayne Williams v. State of Alaska (1/15/2021) ap-2688

Jerel Tremayne Williams v. State of Alaska (1/15/2021) ap-2688

                                                          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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                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JEREL TREMAYNE WILLIAMS,  

                                                                           Court of Appeals No. A-12826  

                                        Appellant,                      Trial Court No. 3AN-14-08109 CR  



                              v.  

                                                                                       O P I N I O N  

STATE OF ALASKA,  



                                        Appellee.                           No. 2688 - January 15, 2021  



                    Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                               

                    Anchorage, Jack W. Smith and Michael Spaan, Judges.  



                    Appearances:  Marilyn J. Kamm, Attorney at Law, Anchorage,  

                                                                                  

                    under  contract  with  the  Office  of  Public  Advocacy,  for  the  

                                                                        

                    Appellant.        Eric  A.  Ringsmuth,  Assistant  Attorney  General,  

                                                                                                 

                    Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,  

                                                                                    

                    Attorney General, Juneau, for the Appellee.  



                    Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                      

                    Judges.  



                    Judge WOLLENBERG.  



                    Following a jury trial, Jerel Tremayne Williams was convicted of second-                          



degree   murder   and   first-degree   robbery   in   connection   with   the   shooting   death   of  



Christopher Fulton.   


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

                     Williams raises six claims on appeal. His first claim requires us to construe  

                                                                                                                         



Alaska   Evidence   Rule   505(b)   -   the   rule   recognizing   a   confidential   marital  

                                                                                                                          



communications privilege.   Williams argues  that the trial court erred in ruling that  

                                                                                                                                



conversations between him and his wife fell within the crime-fraud exception to this rule  

                                                                                                                                



and were therefore not privileged.  In particular, Williams contends that his request for  

                                                                                                                                  



his wife to buy him a plane ticket so he could flee the state was not made to enable or aid  

                                                                                                                                  



the  planning  or  commission  of  a  crime  in  which  both  he  and  his  wife  were  joint  

                                                                                                                              



participants, and as a result, his statements were not admissible under the crime-fraud  

                                                                                                                    



exception to the privilege.  

                                           



                     For the reasons explained in this opinion, we conclude that the crime-fraud  

                                                                                                                    



exception to theconfidentialmaritalcommunications privilegedoes notrequireevidence  

                                                                                                                         



of joint participation on the part of both spouses in an underlying criminal or fraudulent  

                                                                                                                      



endeavor.   The exception applies whenever one spouse makes a communication to  

                                                                                                                                   



enable  or  aid  the  planning  or  commission  of  a  crime  or  fraud,  regardless  of  the  

                                                                                                                                 



complicity of the other spouse.  Because Williams's statements to his wife met this test,  

                                                                                                                                



we agree with the trial court that they were not protected by the confidential marital  

                                                                                                                           



communications privilege.  

                           



                     Williams also raises four additional claims of error relatedto: (1)purported  

                                                                                                                       



deficiencies in the prosecutor's grand  jury  presentment; (2)  the admissibility  of an  

                                                                                                                                  



eyewitness  identification;  (3)  restrictions  on  Williams's  ability  to  cross-examine  a  

                                                                                                                                    



witness  about  her  expectations  of  favorable  treatment  in  an  unrelated  criminal  

                                                                                                                        



prosecution; and (4) the propriety of Williams's sentence.  For the reasons explained in  

                                                                                                                                   



this opinion, we reject each of these claims of error.  

                                                                        



                     Finally, Williamsnotes thathis judgment erroneously reflectsmerger ofhis  

                                                                                                                                  



two second-degree murder convictions "for sentencing" only. The State concedes error.  

                                                                                                                                       



We conclude that this concession is well-founded.  

                                                         



                                                               - 2 -                                                          2688
  


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

                    We therefore remand Williams's case to the superior court with directions  

                                                                                                                     



to amend the judgment to reflect a single conviction for second-degree murder.  In all  

                                                                                                                                



other respects, we affirm Williams's convictions and sentence.  

                                                                                                 



          Background facts and procedural history  

                                                               



                    In September 2014, Williams and his girlfriend, Samantha Herbert, went  

                                                                          



to an apartment belonging to Christopher Fulton.  Williams had previously purchased  

                                                                                                                     



heroin  from  Fulton.              According  to  later  testimony  from  Fulton's  girlfriend,  Josie  

                                                                                                                            



Pritchard,  Williams  and  Herbert  entered  the  apartment  uninvited,  with  Williams  

                                                                                                                     



brandishing a handgun.   While Herbert pilfered Fulton's and Pritchard's valuables,  

                                                                                                                    



Fulton fought Williams for control of the gun.   At some point during the struggle,  

                                                                                                                      



Pritchard heard a "loud bang" and saw Fulton collapse, bleeding from a wound to the  

                                                                                                                               



head.  Fulton died from his injuries shortly thereafter.  

                                                                   



                    Williams and Herbert fled the scene.  At the time, Pritchard did not know  

                                                                                                                            



Williams's name, although she had socialized with Williams and Herbert on a number  

                                                                                                                         



of prior occasions. A roommate told Pritchard that the name of Herbert's boyfriend was  

                                                                                                                              



"Derrick Hall," and it was this name that Pritchard conveyed to the police. Based on this  

                                                                                                                               



information, the police constructed a photo lineup, from which Pritchard selected a  

                                                                                                                    



suspect whose name was Derrick Hall.  

                                                    



                    Afewdays later, after learning fromacquaintances thatHerbert'sboyfriend  

                                                                                                                      



was not Derrick Hall, Pritchard contacted the police to inform them that she had made  

                                                                                                               



a mistake.  In the interim, the police had located Derrick Hall in Las Vegas and verified  

                                                                                                                         



that he was not in Alaska at the time of Fulton's death.  Upon viewing a second photo  

                                                                                                                



lineup that contained Williams, Pritchard "instantly" recognized Williams as the person  

                                                                                                                          



who had killed Fulton.  

                         



                                                              -  3 -                                                         2688
  


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

                              Two days after Fulton's death, Williams called his estranged wife, Laramie                                                                         



Williams (who was living in Georgia), and he asked her to buy him a plane ticket out of                                                                                                        



Alaska.   Williams stated that he had shot someone in the face, and he referred Laramie                                                                                          



Williams   to   news   reports   of   Fulton's   death  and  the   resulting   police   investigation.   



Unbeknownst to Williams, Laramie Williams allowed her mother to listen to and record                                                                                                 



this conversation, and her mother later provided the recording to the police.                                                                               



                              Williams was indicted and proceeded to trial on charges of first-degree                                                                    



                                                                                                                                       1  

murder,   second-degree   murder,   and   first-degree   robbery.                                                                                                                         

                                                                                                                                             The  State  pursued  two  



                                                                                                                                                                                            

theories of second-degree murder: (1) that Williams knowingly engaged in conduct that  



                                                                                                                                                                                 

resulted in the death of another person under circumstances manifesting an extreme  



                                                                                                                                                                                              

indifference to the value of human life, and (2) that in the course of committing or  



                                                                                                                                                                            2  

                                                                                                                                                                                

                                                                                                                                                            

attempting to commit robbery, Williams caused the death of another person. 



                                                                                                                                                                         

                              At trial, Williams testified on his own behalf, and he offered an exculpatory  



                                                                                                                                                                                 

account of the shooting.  According to Williams, he and Herbert had gone to Fulton's  



                                                                                                                                                                                   

apartment to purchase heroin. After oneof Fulton's roommates let Williams and Herbert  



                                                                                                                                                                                               

into the apartment, however, Fulton drew a gun.  The two men struggled for control of  



                                                                                                                                                                                           

the weapon, and during the course of the struggle, the gun went off.  Williams then fled  



                                                                                                                           

the apartment without knowing the extent of Fulton's injuries.  



                                                                                                                                                                                            

                              Thejuryultimatelyacquitted Williams offirst-degreemurder butfoundhim  



                                                                                                                                                                   

guilty of the remaining charges. At sentencing, the court merged the two second-degree  



                                                                                                                                                                                              

murder counts and imposed a composite sentence for the murder and robbery of 75  



                                                                                                                                                      

years' imprisonment with 10 years suspended (65 years to serve).  



        1      AS   11.41.100(a)(1)(A);   AS   11.41.110(a)(2)   &   (a)(3);   and   AS   11.41.500(a),  



respectively.  



        2      AS 11.41.110(a)(2) and (a)(3), respectively.  



                                                                                            - 4 -                                                                                        2688
  


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

                                       This appeal followed.               



                    Williams's argument that his statements to his wife were protected by the                                                                                                                                   

                    confidential marital communications privilege                                                                 



                                       Prior to trial, Williams moved to dismiss his indictment, arguing that his                                                                                                                      



statements   to   his   wife   were   protected  by  the   confidential   marital   communications  



privilege, and that the grand jury therefore should not have considered the recording of                                                                                                                                                               



Williams's phone call, or the testimony from his wife or her mother.                                                                                                                                      



                                       The   trial   court  denied   Williams's   motion.     The   court   concluded   that  



Williams had been attempting to persuade his wife to commit the crime of hindering                                                                                                                                              



prosecution by assisting him in fleeing apprehension for a felony, and thus the crime-                                                                                                                                                   



fraud   exception   to   the   confidential   marital   communications   privilege   authorized  



admission of his incriminating statements.                                                 



                                       Alaska    Evidence    Rule    505(b)(1)    codifies    the    confidential    marital  



communicationsprivilege. This                                                                privilegeprecludeseitherspousefrombeing                                                                                        "examined  



as to any confidential communications made by one spouse to the other during the                                                                                                                                                                   



                                                                                                                                                      3  

marriage, without the consent of the other spouse."                                                                                                                                                                                                            

                                                                                                                                                            But the privilege is not absolute.  



                                                                                                                                                                                                                                                  

Because it "impede[s] the normal truth-seeking function of court proceedings," the  



                                                                                                                                                                                                                                                

privilege is "strictly construed" and "accepted 'only to the very limited extent that  



                                                                                                                                                                                                                                            

permitting  a  refusal  to  testify  or  excluding  relevant  evidence  has  a  public  good  



                                                                                                                                                                                                                                                   

transcending  the normally predominant principle of utilizing  all rational means for  



                                                           4  

                                                               

                                     

ascertaining truth.'" 



          3         Alaska R. Evid. 505(b)(1).  



          4        Anderson v. State , 436 P.3d 1071, 1074 (Alaska App. 2018) (quoting Daniels v. State,  



681 P.2d 341, 344 (Alaska App. 1984), which in turn quotes Trammel v. United States, 445  

                                                                                                                                                                                                                       (continued...)  



                                                                                                                       -  5 -                                                                                                                   2688
  


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

                        The    rule    sets   out    multiple    exceptions    to    the    confidential    marital  



communications privilege, including the crime-fraud exception.                                                       Under this exception,                    



"There   is   no   privilege   [for   confidential   marital   communications]    .   .   .   [i]f   the  



communication was made, in whole or in part, to enable or aid anyone to commit or plan                                                               



                                                       5  

to commit a crime or a fraud."                            



                                                                                                                                            

                        On appeal, Williams disputes the trial court's finding that he was soliciting  



                                                                                                                                                        

his wife to commit the crime of hindering prosecution, and its further conclusion that his  



                                                                                                                                           

statements therefore fell within the crime-fraud exception to the privilege.  Williams  



                                                                                                                                                      

instead characterizes his actions as a request for his wife's "help in transporting her  



                                                                                                                                               

husband back to the family home."   But the record amply supports the trial court's  



                                                                                                                                                       

finding that Williams asked his wife to commit a crime.  In discussing with his wife his  



                                                                                                                                                   

request for a plane ticket, Williams emphasized that he had "shot [someone] in the face"  



                                                                                                                                                

and implied that he was the subject of a criminal investigation. And as Williams admits,  



                                                                                                                                                 

his request for a plane ticket did not involve discussion of a particular destination, simply  



                                                                               6  

                                                                

a desire to leave Alaska as soon as possible. 



                                                                                                                                                       

                        A  person  commits  the  crime  of  first-degree  hindering  prosecution  by  



                                                                                                                                               

"render[ing] assistance" to a person who has committed a felony with intent to "hinder  



      4     (...continued)  



U.S. 40, 50 (1980)).  



      5     Alaska R. Evid. 505(b)(2)(B); see also Commentary to Alaska R. Evid. 505(b)(2)(B)   



("This exception does not permit disclosure of communications that merely reveal a plan to                                         

commit a crime or fraud; it permits disclosure only of communications made to                                                         enable or aid  

anyone to commit or plan to commit a crime or fraud." (emphasis in original)).  



      6  

                                                    

            We note that Williams and his wife were estranged, and had been separated for more  

                                                                                      

than fifteen months.  Williams's wife had already filled out divorce papers, which Williams  

                            

had apparently signed at her request, long before he asked her to fund his flight out of  

Alaska.  



                                                                          -  6 -                                                                    2688
  


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

                                                                                                              7 

the apprehension, prosecution, conviction, or punishment of that person."   Rendering  



assistance includes "provid[ing] or aid[ing] in providing the other person with money,  

                                                                                                                      

transportation, . . . or other means of avoiding discovery or apprehension."8  

                                                                                                                   



                                                                                                                            

                    Here, Williams asked his estranged wife to purchase a plane ticket for him  



                                                                                                                             

for the stated reason that he had shot someone in the face, and as a result, had to "get out  



                                                                                                               

of here."  In other words, he told his wife that he had committed a felony offense, and  



                                                                                                                              

he solicited her to provide him with money or transportation to flee the jurisdiction to  



                              9  

avoid apprehension.                                                                                                    

                                  Under these circumstances, we find no error in the trial court's  



                                                                                                                           

conclusion that Williams's communication with his wife was made, in whole or in part,  



                                                                          

for the purpose of enabling the commission of a crime.  



                                                                                                               

                    Williams  also  argues  that  the  trial  court  misconstrued  the  crime-fraud  



                                                                                                                              

exception. He urges this Court to interpret the exception to require joint participation by  



                                                                                                                

both spouses in a criminal endeavor before permitting the introduction of a defendant's  



            

marital communications.  



                                                                                                                        

                    Williams's  argument  is  based  on  federal  case  law  recognizing,  under  



                                                                                                                      

common  law,  a  joint  participation  exception  to  the  federal  confidential  marital  



                                        10  

                                                                                                                      

communications privilege.                   But the plain language of Alaska Evidence Rule 505(b),  



     7    AS 11.56.770(a)(1).  



     8    AS 11.56.770(b)(3).  



     9    AS 11.31.110(a) ("A person commits the crime of  solicitation if, with intent to cause  



another to engage in conduct constituting a crime, the person solicits the other to engage in  

that conduct.").  



     10   See, e.g., United States v. Bey, 188 F.3d 1, 5 (1st Cir. 1999); United States v. Sims,  



755 F.2d 1239, 1243   (6th Cir. 1985);  United States v. Byrd, 750 F.2d 585, 594 (7th Cir.  

1984); United States v. Cooper, 85 F.Supp.2d 1, 31 (D.D.C. 2000).  



                                                             - 7 -                                                        2688
  


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

which defines the scope of the privilege in Alaska law, contains no express requirement                                                        

of joint participation.                  11  



                                                                                                                                                            

                          Moreover,  as  legal  commentators  have  recognized,  the  federal  joint  



                                                                                                                                    12  

                                                                                                                                                             

                                                                                                                                         While the joint  

participation exception "is not the same as a crime-fraud exception." 



                                                                                                                                                          

participation exception "requires that both spouses be criminally involved," the crime- 



                                                                                                              

fraud exception "requires only that one spouse be aware that the communication is for  



                                                                                                                                                      

some nefarious purpose; it makes no difference that the other spouse is totally ignorant  



                               13  

                                    

of the purpose." 



                                                                                                                                                          

                          This approach is consistent with how other states have interpreted crime- 



                                                                                                                                                                  

fraud  exceptions  in  their  own  jurisdictions  -  that  is,  without  any  requirement  of  



                                                                                                   14  

                                                                                     

complicity on the part of the non-defendant spouse. 



       11    See Alaska R. Evid. 505(b)(2)(B).  



       12    United States v. Davis, 61 M.J. 530, 534 (A. Ct. Crim. App. 2005) (quoting 2 Stephen   



A. Saltzburg et al., Federal Rules of Evidence Manual 743 (7th ed. 1998)); see 25 C. Wright  

&  A.  Miller, Federal  Practice  and  Procedure:    Evidence    5594  ("[I]t  is  necessary to   

distinguish at the outset the [crime-fraud exception from the] so-called 'partners-in-crime'  

exception  that  some  federal  courts  have  recently   created.    The  two   exceptions  are  so  

                     

hopelessly confused in the literature and the caselaw that it is doubtful that federal courts will  

ever get them straight, but it is essential that state courts and federal courts not yet committed   

to the error understand the differences between the two.") (footnotes omitted).  



       13    25 C. Wright & A. Miller, Federal Practice and Procedure:  Evidence   5594.   



       14    See, e.g., People v. Santos, 26 Cal.App.3d 397, 400, 402-03 (Cal. App. 1972) (holding  

                               

that a defendant's request for his wife to "get rid of" a murder weapon was admissible under  

            

California's crime-fraud exception, regardless of the fact that the defendant's wife did not  

                                                                                            

ultimately follow the defendant's directive to "get rid of" the weapon, and instead informed  

                                                                                                          

the police of its location); State v. Heistand, 708 S.W.2d 125, 126 (Mo. 1986) (en banc)  

                          

(holding that the crime-fraud exception applied when a husband sent his wife a letter asking  

her to suborn perjury on his behalf); People v. Naylor, 120 A.D.2d 940, 940 (N.Y. App. Div.  

                                        

 1986) (holding that the defendant's attempt to enlist his wife's assistance in a criminal  

                                                                                                                                             (continued...)  



                                                                              -  8 -                                                                         2688
  


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

                      This   approach   is   also   consistent   with   the   Alaska   Supreme   Court's  



                                                                                                                                          15  

interpretation of the analogous crime-fraud exception to the attorney-client privilege.                                                       



                                                                                                                                

The supreme court has held that the exception applies regardless of whether the attorney  



                                                                                                                                     

was aware of, or a joint participant in, the client's criminal conduct: "Although the fraud  



                                          

or crime must have been contemplated by the client at the time of the communication,  



                                                                                                                   16  

                                                                                                                        

it is irrelevant whether the attorney was aware of the client's purpose." 



                                                                                                                          

                      We also note that reading a joint participation element into the crime-fraud  



                                                                                                                                 

exception  would  be  contrary  to  the  policy  of  interpreting  the  confidential  marital  



                                                                                         17  

                                                                                                                                        

communications privilege "as narrow[ly] as possible."                                         Broadening the scope of the  



                                                                                  

privilege to protect the type of communication at issue here - an attempt to persuade  



                                                                                                                                        

an estranged spouse to fund a defendant's flight from criminal prosecution - would not  



      14   (...continued)  



scheme was made "in pursuit of a criminal enterprise" and therefore not entitled to the  

                                                      

protection of the confidential marital communications privilege); Henderson v. State, 2017  

                      

WL 4172591, at *18-19 (Tex. App. Sept. 21, 2017) (unpublished) (holding that Texas's  

        

crime-fraud exception applied to a defendant's attempt to induce his wife to participate in  

insurance  fraud);  State  v.  Smith,  726  P.2d  1232,  1236-37  (Utah  1986)  (holding  that  a  

                                                                                                                                           

defendant's  request  for  his  wife's  assistance  in  pawning  stolen  property,  without  her  

knowledge that it was stolen, was admissible under Utah's crime-fraud exception).  



      15   Alaska R. Evid. 503(b) and (d)(1).  



      16   Munn v. Bristol Bay Housing Authority , 777 P.2d 188, 195 (Alaska 1989) (citations  

                                                                           

omitted); see also Jorgens v. State, 2013 WL 6168561, at *4 (Alaska App. Nov. 20, 2013)  

(unpublished) (addressing, in the context of a criminal prosecution, the crime-fraud exception  

                                                                                   

to the attorney-client privilege).  



      17   Salazar v. State, 559 P.2d 66, 78 (Alaska 1976).  



                                                                  -  9 -                                                             2688
  


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

 advance "a public good transcending the normally predominant principle of utilizing all                                                                                             

rational means for ascertaining truth."                                           18  



                                                                                                                                                                           

                             We therefore reject Williams's claim of error and uphold the trial court's  



                                                                                                                                                                                            

ruling that the confidential marital communications privilege did not protect Williams's  



                                                   19  

                                                                                                                                                                  

                                                         We therefore uphold the trial court's denial of Williams's  

 statements to his wife. 



                                                                                        

motion to dismiss the indictment on this ground.  



                                                                                                                                  

               Williams's challenges to the prosecutor's grand jury presentment  



                                                             

                             Williams next argues that the prosecutor improperly instructed the grand  



                                                                                                                                                                                   

jury on the felony murder theory of second-degree murder and failed to present to the  



                                                                                                                                                                                   

 grand jury exculpatory evidence regarding Fulton's involvement in the drug trade.  



                                                                                                                                                                 

                             The State argues that any error with regard to the grand jury instructions  



                                                                                                                                                                      

 on the felony murder charge was necessarily harmless.  We agree.  Although Williams  



                                                                                                                                                                         

was indicted, and later found guilty by a jury, on two theories of second-degree murder,  



                                                                                                                                                                          

the court merged these counts into a single conviction for extreme indifference murder  



                                                                                                                                                                          

under AS 11.41.110(a)(2). Thus, Williams stands convicted of a single count of second- 



        18    Anderson v. State , 436 P.3d 1071, 1075 (Alaska App. 2018) (quoting Daniels v. State,  



 681 P.2d 341, 344 (Alaska App. 1984), which in turn quotes Trammel v. United States, 445  

U.S. 40, 50 (1980)).  



        19     Williams also challenges the trial court's alternative finding that Williams waived the   



privilege by knowingly making his statements in the presence of a third party on his end of                                                                     

the phone call.  Because we conclude that the statements were properly admitted under the   

 crime-fraud exception, we do not reach this alternative finding.  



                                                                                       -  10 -                                                                                  2688
  


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

                                20  

degree murder.                        Even if we reversed Williams's conviction under the felony murder                                                                 



                                                                                                                                                                      21  

theory, he would remain convicted of a single count of second-degree murder.                                                                                                



                                                                                                                                                               

                            We also  reject Williams's claim that the  grand  jury heard  insufficient  



                                                                                                                                                              

evidence of Fulton's involvement with controlled substances to satisfy the prosecutor's  



                                                                               22  

                                                                                                                                                                     

                                                                                     The grand jurors heard evidence that Williams  

duty to present exculpatory evidence. 



                                                                                                                                                                           

and Herbert went to Fulton's apartment to steal money and drugs, and that the police  



                                                                                                                                                                     

later found illegal drugs in the apartment.  As the trial court noted, additional evidence  



                                                                                                                                                                                   

of Fulton's involvement in the distribution of controlled substances did not tend to  



                                                                                             23  

                                                                                                                                                                               

negate  Williams's  guilt  "in  and  of  itself."                                                    Indeed,  at  trial,  the  State  argued  that  



                                                                                                                                                                

Williams's knowledge of Fulton's access to heroin was inculpatory and established  



                                                         

Williams's motive for the robbery.  



                                                                                                                                                                  

                            Under these circumstances, we agree with the trial court that the prosecutor  



                                                                                                                                                   

did not violate his duty to present exculpatory evidence to the grand jury.  



                                                                                                                                                                     

               Williams's argument that the trial court erred in denying his motion to  

                                                             

              suppress Pritchard's identification  



                                                                                                                                                                                     

                            As we explained earlier, Pritchard initially misidentified the shooter as a  



                                                                                                                                                                      

man named Derrick Hall. But Pritchard subsequently informed the police that, although  



       20     See Garhart v. State, 147 P.3d 746, 752-53 (Alaska App. 2006).  



       21     See Lawson v. State                    , 264 P.3d 590, 596 (Alaska App. 2011) (concluding that any error                                                         



with regard to the felony murder charge was harmless where a second count of second-                                                                                    

degree murder under alternative theories ultimately merged with the felony murder count).                                                                 



       22     See Frink v. State, 597 P.2d 154, 165 (Alaska 1979) (recognizing a prosecutor's  



affirmative duty to present exculpatory evidence to the grand jury).  

                                                                                 



       23  

                                                               

              See State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994) (defining exculpatory  

                                                                                         

evidence as evidence that "tends, in and of itself, to negate the defendant's guilt").  



                                                                                      -  11 -                                                                                 2688
  


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

the person she had identified in the photo lineup had "look[ed] the most like" the shooter,                                                                                                                                                                                                                                                                                                                              



 she did not believe she had correctly identified Fulton's killer.                                                                                                                                                                                                                                                                              The police, who had                                                                          



independently verified that Derrick Hall was not in Alaska at the time of Fulton's death,                                                                                                                                                                                                                                                                                                                                         



ultimately prepared asecond                                                                                                                        photo lineup, which nowincluded                                                                                                                                                Williams. Upon                                                                        viewing  



this lineup, Pritchard "instantly" recognized and identified Williams as the person who                                                                                                                                                                                                                                                                                                                                                    



had killed Fulton.                                                                             



                                                                      Prior to trial, Williams filed a motion to suppress both Pritchard's pretrial                                                                                                                                                                                                                                                                         



identification and any subsequent in-court identification.                                                                                                                                                                                                                                                After holding an evidentiary                                                                



hearing, the trial court denied Williams's motion. The court noted that the second lineup                                                                                                                                                                                                                                                                                                                                        



was "double blind" -                                                                                                  i.e., neither Pritchard nor the officer presenting the lineup knew                                                                                                                                                                                                                                             



whether the photo array included Williams. The lineup was constructed so that Williams                                                                                                                                                                                                                                                                                                                             



did not stand out from the other five potential suspects, and the officer gave Pritchard                                                                                                                                                                                                                                                                                             



 appropriate   cautionary   instructions   before   showing   her   the   lineup.     In   contrast   to  



Pritchard's equivocal identification from the first lineup, the court found that Pritchard                                                                                                                                                                                                                                                                                                                       



was "exceptionally confident" in her identification of Williams.                                                                                                                                                                                                                                                                                  The court also found                                                            



that, at the time of the charged offense, Pritchard had a relatively lengthy opportunity to                                                                                                                                                                                                                                                                                                                                                             



 observe Williams in "extremely strong" environmental conditions -                                                                                                                                                                                                                                                                                                                 i.e., indoors in                                                   



Pritchard's own home with favorable lighting - and that Pritchard had "at least a                                                                                                                                                                                                                                                                                                                                                                         



passing familiarity" with Williams from previous social encounters.                                                                                                                                                                                                                                                                                                After considering   



these and other factors, the court concluded that the second photo lineup was not unduly                                                                                                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                                                            24  

 suggestive and that suppression was not warranted.                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                                                                                                                                                              

                                                                      Onappeal,WilliamsrenewshisargumentthatPritchard'sidentification was  



                                                                                                                                                                                                                                                                                                                                                                                                        

unreliable and should have been suppressed.  But as the State points out, Williams's  



                  24               See Young v. State, 374 P.3d 395, 417-26 (Alaska 2016) (identifying six "system"                                                                                                                                                                                                                                                                              



variables  and  nine  "estimator"  variables  that  a  court  must  consider   when  determining  

whether to suppress an identification as unreliable).  



                                                                                                                                                                                                                  -  12 -                                                                                                                                                                                                                   2688
  


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

 identity was not a contested issue at trial.                                                                                               Williams himself admitted going to Fulton's                                                                                



 apartment, struggling with Fulton over the gun, and having his hands on the gun at the                                                                                                                                                                                                 



momentit    discharged. Substantial                                                                               additional evidence corroborated Williams's identity,  



 including:  Williams's admission to his estranged wife shortly after the murder that he                                                                                                                                                                                                   



had "shot [someone] in the face"; Williams's similar admission to Herbert's uncle that                                                                                                                                                                                                



 it was "either me or [Fulton]"; testimony from Fulton and Pritchard's roommate, who                                                                                                                                                                                                



 identified the people responsible for Fulton's death as Samantha Herbert and Herbert's                                                                                                                                                                            



boyfriend, and who saw Williams brandish a gun immediately before the shooting; and                                                                                                                                                                                                    



testimony fromHerbert, who pleaded guilty to criminally negligent homicide for her role                                                                                                                                                                                               



 in the events leading to Fulton's death, and confirmed her relationship with Williams and                                                                                                                                                                                             



their reliance on Fulton as a regular source of heroin.                                                                                                    



                                             Given    this    testimony,    we    conclude    that    even    without    Pritchard's  



                                                                                                                                                                                                                                                                        25  

 identification, conclusive independent evidence established Williams's identity.                                                                                                                                                                                              Thus,  



                                                                                                                                                                                                                                                                                              

 any error in declining to suppress Pritchard's identification was harmless beyond a  



                                      

reasonable doubt.  



                                                                                                                                                                                                                                                                      

                        Williams's argument that the trial court improperly restricted his ability to  

                                                                                                                                                                                                             

                       cross-examine Pritchard about an unrelated criminal prosecution  



                                                                                                                                                                                                                                                                      

                                             At  trial,  Williams  sought  to  cross-examine  Pritchard  about  a  pending  



                                                                                                                                                                                                                                                               

petition to revoke probation that the State had filed against her following her conviction  



                                                                                                                                                                                                                                                                                            

 for misconduct involving a controlled substance.  The trial court allowed Williams to  



                                                                                                                                                                                                                                                                                      

 question Pritchard about the petition to revoke probation and about any deal she had  



            25         See id.  at 410 (holding that any error in admitting an unreliable identification was                                      



harmless beyond a reasonable doubt where "'conclusive independent evidence, apart from  

the  [unreliable]  identification  testimony,'"  established  the  defendant's   identity (quoting   

McCracken v. State , 521 P.2d 499, 504-05 (Alaska 1974)) (edit in Young)).  



                                                                                                                                        -  13 -                                                                                                                                     2688
  


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

made or offers she had received from the State, but precluded any questions about the                                                                                                     



facts that led to her underlying conviction.                          



                              On appeal, Williams argues that the trial court's restriction of his ability to                                                                                



question Pritchard about the facts underlying her original charge violated his right to                                                                                                     



cross-examination.  



                              In general, a defendant is entitled to "broad latitude" in cross-examining a                                                                                     



                                                              26  

witness about potential bias.                                                                                                                                               

                                                                   When an inference of bias arises fromfavorable treatment  



                                                                                                                                                                             

in  a separate prosecution,  this Court has recognized that,  "The  test  is  the witness'  



                                                                                                                                                                     27  

                                                                                                                                                                           

expectation or hope of a reward, not the actuality of a promise by the State."                                                                                            However,  



                                                                                                                    

the trial court retains discretion to limit the specific questions allowed and the specific  



                                                                                                                                                                                            

evidence admitted, as long as the jury receives "information adequate to allow it to  



                                                                                              28  

                                                                                                                                                                                           

                                                                                                    We have previously upheld restrictions on  

evaluate the bias and motives of a witness." 



                                                                                                                                                                       

cross-examination related to the underlying facts of a witness's criminal conviction,  



                                                                                                                                                                                             

where the defendant was able to elicit sufficient information to argue, and for the jury to  



                                                                                                                        29  

                                                                                                             

infer, that the witness was biased in favor of the State. 



                                                                                                                                                                               

                              We reach the same conclusion in Williams's case.  The trial court allowed  



                                                                                                                                                                                          

Williams to fully develop the fact that Pritchard had an open criminal case and that she  



       26      Stumpf v. State, 749 P.2d 880, 901 (Alaska App. 1988).  



       27      Wood v. State, 837 P.2d 743, 747 (Alaska App. 1992) (quoting State v. Little, 350 P.2d  



756, 760 (Ariz. 1960)) (additional citation omitted); see also Braund v. State, 12 P.3d 187,  

                                                                                                      

 191 (Alaska App. 2000) (holding that even if there was no formal agreement between a  

                                                                                                                 

witness and the State, the trial court impermissibly infringed on the defendant's right to  

                                                                                                                                                                                

cross-examine the witness about her subjective belief that her willingness to testify resulted  

in dismissal of an unrelated criminal charge).  



       28      Stumpf, 749 P.2d at 901; Beltz v. State, 895 P.2d 513, 518 (Alaska App. 1995).  



       29      See Mustafoski v. State, 954 P.2d 1042, 1047 (Alaska App. 1998).  



                                                                                          -  14 -                                                                                      2688
  


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

faced nearly a year in jail if she did not comply with the terms of her probation - as well                                                                                                                                             



as the fact that she had arguably attempted to capitalize on her status as a prosecution                                                                                                                        



witness to curry favor in her probation proceedings.                                                                                                  Although the trial court's ruling                                           



also allowed Williams to inquire about whether Pritchard had received, or believed she                                                                                                                                                    



had received, "any sort of deal [from] the state," Williams chose not to inquire about                                                                                                                                              



Pritchard's understanding of any favorable treatment.                                                                                                     



                                      This was not a case where "the jury did not otherwise receive information                                                                                                    



                                                                                                                                                                                                 30  

adequate to allow it to evaluate the bias and motives of a witness."                                                                                                                                                               

                                                                                                                                                                                                          We thus reject  



                                                                                                                                                                                                                                           

Williams's claim that the restriction on his ability to cross-examine Pritchard about the  



                                                                                                                                                          

facts of her underlying conviction violated his right to cross-examination.  



                                                                                                 

                    Williams's challenge to his sentence  



                                                                                                                                                                                                                                          

                                      At the time of sentencing, Williams was twenty-eight years old, and he had  



                                                                                                                                                                                                                                        

two prior felony convictions - a third-degree assault conviction for shooting at his then  



                                                                                                                                                                                                                                             

girlfriend  and  a  third-degree  weapons  misconduct  conviction  for  being  a  felon  in  



                                                                                                                                                                                                                                             

possession of a concealable firearm.   Williams also had multiple prior violations of  



probation.  



                                                                                                                                                                                                           

                                      Williams faced a sentencing range of 10 to 99 years for his second-degree  



                                                      31  

                                                                                                                                                                                                                      

murder conviction.                                           And as a third felony offender, he faced a presumptive sentencing  



                                                                                                                                                                                                                                 32  

                                                                                                                                                                                                              

range of 13 to 20 years for his first-degree robbery conviction, a class A felony. 



          30       Stumpf, 749 P.2d at 901.
  



          31       See former AS 12.55.125(b) (2014).
  



          32       See AS 11.41.500(b); former AS 12.55.125(c)(4) (2017). 
 



                                                                                                                  -  15 -                                                                                                              2688
  


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

                     At    sentencing,    the    court    discussed    the    Chaney    criteria    at    length,  



                                                                                                                              33  

emphasizing the seriousness of Williams's conduct and the need for isolation.                                                     The  



court noted in particular that Williams was a third felony offender and that both of his  



                                                                                                                              

prior felony convictions involved firearms. Before imposing sentence, the court referred  



                                                                                                                    

to the parties' sentencing memoranda as particularly helpful to the court's determination  



                                                                                                                                       

of an appropriate sentence.  The court then imposed a composite sentence of 65 years to  



                                                                                                                                    

serve:  65 years with 10 years suspended for the second-degree murder conviction, and  



                                                                                                                                       

15 years for the first-degree robbery conviction, with 10 years running consecutively to  



                   

the murder sentence.  



                                                                                                                             

                     Williams now challenges his sentence as excessive.  Williams's primary  



                                                                                                                           

contention is that the trial court's failure to conduct an on-the-record review of sentences  



                                                                                                                                       

imposed in similar second-degree murder cases requires a remand for resentencing.  



                                                                                                                               

                     We have previously recognized the importance of a sentencing court's  



                                                                                                                         

consideration of comparable cases when imposing sentence to ensure against unjustified  



                                 34  

                                                                                                                                    

sentencing disparity.                  But at its core, sentencing is an individualized process, and  



                                                                                                                                      

comparing  one  sentence  with  another  is  therefore  not  necessarily  determinative  of  



                                                     35  

                                                                                                                    

whether a sentence is excessive.                          Rather, the absence of an explicit, on-the-record  



     33    State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005.  



     34    See Graham v. State           , 440 P.3d 309, 313 (Alaska App. 2019); Pusich v. State, 907 P.2d   



29, 35 (Alaska App. 1995).  



     35   Long v. State , 772 P.2d 1099, 1102 (Alaska App. 1989). Indeed, appellate sentencing  

                                                                                                

decisions represent only a small subset of sentencing decisions in Alaska - typically, only  

                                                                 

those  longer  sentences  that  defendants  have  elected  to  challenge.    And  our  deferential  

standard of review means that when we conclude that a sentence is not excessive, we have  

                   

simply concluded that the sentence is not "clearly mistaken" - i.e., that it is does not fall  

                                                                                                   

outside "a permissible range of reasonable sentences."  Erickson v. State, 950 P.2d 580, 586  

                                                                                    

(Alaska App. 1997) (internal quotations and citations omitted).   A more comprehensive  

                                                                                                      

                                                                                                                     (continued...)  



                                                                -  16 -                                                           2688
  


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

comparison of sentences imposed in similar cases is most problematic when we are                                                                                                                         



unable to discern the basis for the trial court's sentencing decision - that is, when the                                                                                                                 



record is so lacking in detail as to preclude meaningful appellate review, or when the                                                                                                                    



                                                                                                                                                                                                             36  

sentenceitselfappears                                 arbitrary ordisproportionatewhenexamined against                                                                            other cases.                      



                                This is not one of those situations.  Here, the State cited extensively to  

                                                                                                                                                                                                            



comparable cases in its sentencing memorandum, and the sentencing judge referred to  

                                                                                                                          



the parties' memoranda during his sentencing remarks. The court engaged in a thorough  

                                                                                                                                                                                          



review of the Chaney criteria.  The composite sentence that the court imposed was well  

                                                                                                                                                                                                       



within both thesentencing ranges Williams faced, given his two prior felony convictions,  

                                                                                                                                                                                     

as well as the range of sentences previously upheld by this Court for similar offenses.37  

                                                                                                                                                                                                                    



        35      (...continued)  



comparison would include other trial court sentencing decisions, whether or not appealed.  



        36      See, e.g.,  Ross v. State, 836 P.2d 378, 384-85 (Alaska App. 1992) (remanding for   



resentencing where "the sentencing court's failure to make express findings concerning the  

seriousness of Ross' offenses in relation to other similar cases and the court's consequent   

failure to explain the apparent disparity of the sentence it elected to impose preclude[d]             

meaningful appellate review");  West v. State, 727 P.2d 1, 5 (Alaska App. 1986) (recognizing  

the importance of comparing the sentences imposed in similar cases and concluding, only                                                                                                                

after conducting that review, that the sentence imposed by the trial court was excessive);                                                                                                                see  

also  State  v.  Bumpus,  820  P.2d  298,  305  (Alaska  1991)  ("A  reviewing  court  cannot  

determine the appropriateness of a sentence where the sentencing court has failed to make   

adequate findings[.]").  



        37      See, e.g., Smith v. State, 2009 WL 1039834, at *1, *4 (Alaska App. Apr. 15, 2009)  



(unpublished) (affirming a composite sentence of 85 years' imprisonment for a defendant  

                                                                                                                     

with two prior felony convictions who was found guilty of second-degree murder, first- 

                                                                                                                                              

degree robbery, and first-degree assault); Morrell v. State , 216 P.3d 574, 579 (Alaska App.  

2009) (affirming a sentence of 60 years with 10 years suspended for a defendant convicted  

                                                                        

of second-degree murder for stabbing the victim following a minor traffic accident); Allen  

                                                                                                                  

v. State, 51 P.3d 949, 961 (Alaska App. 2002) (affirming a sentence of 66 years to serve for  

                                                                                                                                                                   

second-degree murder where the defendant had three prior convictions for assault, including  

                                                                                                                                                                                  (continued...)  



                                                                                                  -  17 -                                                                                              2688
  


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

                                        Williams has not established that his sentence is clearly mistaken, or that                                                                                            



he suffered any prejudice from the absence of an on-the-record recitation of sentences                                                                                                                                              



imposed in comparable cases.                                                               



                     Williams's argument that his judgment should be amended to reflect a                                                                                                                                               

                    single conviction for second-degree murder                                                                  



                                        Williams's   final   argument   on   appeal  is  that   the   trial   court   erred   in  



characterizing the two second-degree murder counts as merging only "for sentencing"                                                                                                             



purposes.  



                                        The State concedes that Williams's convictions for two counts of second-                                                                                                                         



degree murder, based on two different legal theories of the same offense, must merge                                                                                                                                                          



                                                                       38  

into a single conviction.                                                                                                                                                                                                                             

                                                                              Having independently reviewed the record, we conclude that  



                                                                                                                 39  

                                                                                                                                                                                                                                             

the State's concession is well-founded.                                                                                 We therefore direct the superior court to amend  



                                                                                                                                                                                                                           

the judgment to reflect the entry of a single conviction for second-degree murder.  



          37        (...continued)  



two felony convictions);  Gustafson  v. State, 854 P.2d 751, 763-67 (Alaska App. 1993)  

                                                                                                         

(affirming a 65-year sentence for a defendant convicted of second-degree murder for firing  

                                                                                                                                                                      

a rifle at an unsuspecting car on the highway).  



          38        See Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017) ("Alaska law does not  

                                                                                                                                      

recognize the existence of a merger 'for sentencing purposes only.' . . . [W]hen a defendant  

                                                                           

is found guilty of counts that must merge, the merger results in a single conviction of record  

                                                                                                                                                                                                                                               

(and thus a single sentence)." (emphasis in original)); see also Wagner v. State, 2018 WL  

                                                                                                                                                                                    

5840510, at *5 (Alaska App. Nov. 7, 2018) (unpublished) (accepting the State's concession  

that the trial court erred in  denoting  on the judgment that two counts of second-degree  

                                                                                                                                                                                                                       

murder "merged for sentencing").  



          39        See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court  



must independently assess whether a concession of error "is supported by the record on                                                                                                                                    

appeal and has legal foundation").  



                                                                                                                        -  18 -                                                                                                                     2688
  


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

          Conclusion  



                   WeREMAND Williams's case to thesuperior court to amend thejudgment  

                                                                                                                



to properly reflect the merger of the two counts of second-degree murder into a single  

                                                                                                            



conviction.  In all other respects, the judgment of the superior court is AFFIRMED.  

                                                                                                      



                                                          -  19 -                                                     2688
  

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