Russell P. SUNDBERG, Appellant, v. STATE of Alaska, Appellee.
No. 6018.
Court of Appeals of Alaska.
Aug. 12, 1983.
In the present case, Maloney‘s defense at trial and his argument in support of a new trial both depended to a large extent on his own credibility as a witness and on the credibility of the witnesses who were called by him to support his defense theory. Judge Moody had the opportunity to hear and see the testimony of Maloney and his witnesses. We think that Judge Moody was well within the scope of his discretion in deciding that Maloney and other defense witnesses lacked credibility and that the verdict returned by the jury was not contrary to the weight of the evidence. We thus find no error in Judge Moody‘s denial of Maloney‘s motion for a new trial.
VI. SENTENCE APPEAL
Maloney‘s final point on appeal concerns his sentence, which he contends is excessive. Despite the fact that Maloney was a first felony offender with a relatively minor record of misdemeanors, Judge Moody sentenced him to a maximum term of twenty years’ imprisonment; ten years of the sentence was suspended. Maloney argues that, given the provocation involved prior to his assault on N.P., his first-offender status, and his amenability to rehabilitation, the sentence he received is not justified.
Although Maloney‘s sentence is a severe one for a first felony offender, the appropriateness of the sentence must be evaluated not only in light of Maloney‘s background, but also in light of the facts involved in this particular case. Despite the existence of some provocation, Maloney‘s assault on N.P. must be ranked among the most vicious and brutal incidents of criminal violence. As shown by the extensive injuries to N.P.‘s breasts and pelvic region, Maloney‘s assault was in essence a sexual one, and it involved unmistakable elements of deliberate cruelty. Furthermore, Maloney‘s calculated and callous departure from his apartment after the assault, without summoning medical assistance, must be considered particularly egregious. Maloney literally abandoned N.P. to a slow and horrifying death.
Maloney‘s conduct is unquestionably among the most serious within the definition of the offense of manslaughter, a crime which, itself, is among the most serious crimes of violence. The high value placed on human life and dignity by our law mandates imposition of a sentence clearly reflecting society‘s condemnation of Maloney‘s act and adequately deterring Maloney and other potential offenders from committing similar acts of violence in the future. In a case such as this, we think that these sentencing goals may properly be given greater emphasis than the goal of rehabilitating the offender. We hold that the sentence imposed by Judge Moody is not clearly mistaken. See Notaro v. State, 608 P.2d 769 (Alaska 1980); Hughes v. State, 513 P.2d 1115 (Alaska 1973); Van Cleve v. State, 649 P.2d 972 (Alaska App.1982); Nelson v. State, 619 P.2d 480 (Alaska App. 1980).
The conviction and sentence are AFFIRMED.
Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before COATS and SINGLETON, JJ., and BUCKALEW, Superior Court Judge.*
OPINION ON REHEARING
PER CURIAM.
Russell P. Sundberg was convicted of burglary not in a dwelling, former
In our initial decision we recognized that the state had in part conceded error on this point and stated:
Nevertheless, the state concedes, and we hold, that it was under an obligation to present evidence that it needed a specific period of time for mobilization of its resources to try Sundberg in order to avail itself of this provision [Criminal Rule 45(d)(1) (excluding from consideration under the rule periods of delay resulting from other proceedings concerning the defendant)] and that it failed to do so. Despite prompting from the trial court, the prosecutor did not submit affidavits or otherwise establish that any specific period of time was necessary to gather its witnesses and proceed to trial. In the absence of such evidence, we hold that the period in question was improperly excluded.
Id. at 846. On reconsideration we have determined that our original holding was too inflexible when applied to the facts of this case. We note that Sundberg‘s case was pending from April 30, 1978, when he was arrested, until his trial on March 16, 1981, a period of almost three years, and that Sundberg concedes that at most only 176 days are properly chargeable to the state under Criminal Rule 45.
Common sense leads us to conclude that a trial court cannot immediately plug a case into its trial calendar after a remand. Some time is needed to ensure that the remanded case is worked into the trial calendar; the calendar may already contain a number of criminal cases equally entitled to consideration under Criminal Rule 45. In addition, the prosecution will need a reasonable time to marshall its witnesses, whether local or out of state, and adjust the remanded case to its own calendar of criminal cases, some of which may have Criminal Rule 45 claims. We adhere to our original decision that the 120-day period allowed by Criminal Rule 45 does not begin to run anew after remand following a petition for review. Id. at 846-47. Nevertheless, a reasonable time should be allowed the court and prosecution to get the case back on the calendar before Criminal Rule 45 begins to run again after remand from the appellate court.
We therefore affirm Judge Carlson‘s decision denying Sundberg‘s motion to dismiss for noncompliance with Criminal Rule 45 for the reasons set forth in Judge Coats’ dissent to our original opinion, id. at 848-49, which we now adopt as the opinion of this court. Any language to the contrary in our prior opinion is expressly disapproved. We therefore hold:
Given the fact that this case was in the supreme court for a year and one-half on the first petition for review, it seems to [us] that a thirty-day period of delay in addition to the time the case was actually pending in the supreme court would be a reasonable period of additional delay to attribute to that petition for review. [We] conclude that the trial judge could assume this period of delay resulted from the first petition for review without any additional proof from the state.
Similarly, it seems clear that at least an additional thirty-day period of time should be allowed to restart the proceedings after the second petition for review. This is particularly clear when the confusion created by Sundberg trying to discharge his counsel is considered along
with the problems of trying to reset a trial which involves several out-of-state witnesses and which has been delayed for one reason or another for nearly three years.
Since we have granted the state‘s petition for rehearing and modified in part our original decision rejecting Sundberg‘s arguments based upon Criminal Rule 45, it is necessary to address Sundberg‘s second issue. He contends that the trial court erred in refusing to allow an evidentiary hearing on police misconduct after remand from the supreme court. He relies on language in the supreme court‘s opinion in State v. Sundberg, 611 P.2d 44 (Alaska 1980), where the court rejected Sundberg‘s argument that alleged excessive force—being shot by a police officer acting to capture him for the burglary under consideration—required suppression of all evidence seized incident to that arrest. The court commented:
On the other hand, we think it appropriate to caution that our holding is not immutable. In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned in the situation where evidence is obtained as a result of an arrest which is effectuated by excessive force.
Id. at 52 (footnote omitted).
Sundberg argues that this dicta required the trial court on remand to hold an evidentiary hearing at which Sundberg could proffer evidence to support a finding that the police had in fact established patterns of excessive force arrests antedating his arrest. The state counters in effect that the facts in question would be “legislative facts”1 which are primarily for an appellate court rather than a trial court to determine. See State v. Erickson, 574 P.2d 1, 4-7 (Alaska 1978). Consequently, the state contends Sundberg should have initially made a record before the trial court or, alternatively, either presented those facts to the supreme court in the form of a “Brandeis Brief,” see id. at 5 n. 21, or in a petition for rehearing when the supreme court reached its decision, if, as Sundberg contends, the supreme court had not considered all of the relevant “legislative facts” in reaching that decision. In the absence of one of these alternatives, the state argues that Sundberg has effectively forfeited the right to present legislative facts. Judge Carlson agreed and so do we. We find that the supreme court was looking to the future and did not intend to give Sundberg another opportunity in the trial court to establish a justification for applying an exclusionary rule in his case.
The judgment of the superior court is AFFIRMED.
SINGLETON, J., concurring and dissenting.
BRYNER, C.J., not participating.
SINGLETON, Judge, concurring and dissenting.
For the reasons set out in our original opinion in Sundberg v. State, 657 P.2d 843, 845-46 (Alaska App.1982), I dissent. I agree with the court‘s disposition of the excessive force issue.