Court of Appeals of AlaskaJan 31, 2007
Court of Appeals No. A-9204 (Alaska Ct. App. Jan. 31, 2007)

Court of Appeals No. A-9204.

January 31, 2007.

Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-04-377 Cr.

John C. Pharr, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.



Terry E. Sudbury was convicted of first-degree robbery, second-degree theft, and three counts of third-degree assault stemming from his robbery of a Wasilla pharmacy. In this appeal, Sudbury argues that his statements to the police were involuntary, that two of the grand jurors who indicted him should have been dismissed for bias, and that inadmissible and prejudicial evidence was presented to the grand jury. For the reasons explained here, we reject each of these contentions and we therefore affirm Sudbury's convictions.

AS 11.41.500(a)(1), AS 11.46.130(a)(1), and AS 11.41.220(a)(1)(A), respectively.

Sudbury's claim that his statements to the troopers were involuntary

The Susitna Professional Pharmacy in Wasilla was robbed in September 2003. During the investigation of this crime, two pharmacy employees identified Sudbury as the robber when they were shown a photo lineup. This identification led to the issuance of a search warrant for Sudbury's residence. At the residence, the state troopers recovered clothing that matched the employees' descriptions of the robber's clothing, as well as empty medication bottles from the Susitna Professional Pharmacy.

Following the execution of this search warrant, the troopers arrested Sudbury and brought him to the Palmer trooper station. Sudbury was advised of his Miranda rights, and he was then interviewed by Trooper Leonard E. Wallner Jr.

This interview lasted two hours, including one cigarette break (requested by Sudbury) and another fifteen-minute break in which Sudbury was left alone. Toward the end of the two hours, Sudbury confessed that he had robbed the pharmacy. He asserted that he had committed the robbery under duress: that other people had threatened to inflict violence on his family if he did not commit this crime.

Following his indictment, Sudbury asked the superior court to suppress this confession on the ground that it was involuntary. Sudbury asserted that he had been hungry and under emotional stress when Trooper Wallner interviewed him, that he had also been fearful for the safety of his family, and that Wallner's questioning was unduly long and coercive.

Superior Court Judge Eric Smith conducted an evidentiary hearing into this allegation. Both Sudbury and Wallner testified at this hearing. In addition, Judge Smith reviewed the videotape of the interrogation.

On the basis of this evidence, Judge Smith found that the tone of the questioning was conversational and not overbearing. Judge Smith also concluded that Sudbury was fully aware of his situation, and that he was carefully gauging his answers to Wallner's questions. Judge Smith noted that Sudbury was a mature adult, and that he had had prior experiences with the criminal justice system. In addition, Judge Smith discounted Sudbury's assertion that he confessed because he feared for the safety of his family. The judge noted that, despite Sudbury's protestation that he decided to claim responsibility for the robbery in order to protect his family from violence by other people, Sudbury in fact named these other people to Trooper Wallner. For these reasons, Judge Smith concluded that Sudbury's statements were voluntary, and he denied Sudbury's suppression motion.

Given Judge Smith's findings, we conclude that the totality of the circumstances demonstrates that the troopers did not overbear Sudbury's will, and that Sudbury's confession was voluntary.

See Beavers v. State, 998 P.2d 1040, 1045 (Alaska 2000) (recognizing that the voluntariness of a confession is evaluated under the totality of the circumstances).

Sudbury's claim that two of the grand jurors should have been dismissed for bias

Sudbury asked the superior court to dismiss his indictment based on a claim of grand juror bias.

During the grand jury proceedings in this case, two grand jurors indicated that they were acquainted with different government witnesses. One grand juror stated that the pharmacist on duty at the Susitna Professional Pharmacy, William Altland, had been a client of his in Ketchikan. The other grand juror stated that Trooper Wallner had "rented [the grand juror's] house many years ago". However, both grand jurors declared that their acquaintance with these witnesses would not affect their deliberations in Sudbury's case or prevent them from being fair and impartial.

These are not the sort of acquaintanceships that would normally give rise to bias, and the record demonstrates no reason to distrust the grand jurors' assurances that they could remain fair and impartial. Judge Smith therefore properly rejected Sudbury's claim of grand juror bias.

See State v. McDonald, 872 P.2d 627, 638 (Alaska App. 1994) (holding that a defendant seeking dismissal of an indictment based on a claim of grand juror bias must show that the challenged grand juror was in fact prejudiced).

Sudbury's claim that the grand jury's decision was tainted by the presentation of inadmissible and prejudicial testimony

At grand jury, the prosecutor presented the testimony of Christopher Amoro. Amoro testified that, during a conversation with Sudbury that preceded the robbery, Sudbury pointed out the Susitna Professional Pharmacy to Amoro and told him that this was the pharmacy that he (Sudbury) planned to rob.

During his testimony, Amoro also told the grand jurors that he considered Sudbury "the lead suspect" in a prior criminal episode in which Amoro's vehicles had been burned and their tires slashed.

Because Amoro's testimony mentioned this other crime, Sudbury argued that the grand jurors' deliberations had been prejudiced by this testimony. The State responded that Amoro's testimony about the burning of his vehicles was offered, not to show that Sudbury was the culprit, but rather to show that Amoro was potentially biased against Sudbury — and, thus, that there was a potential reason to distrust Amoro's testimony that Sudbury told him that he was planning to rob the pharmacy. The State pointed out that when the prosecutor questioned Amoro about the vehicle-burning incident, Amoro conceded to the grand jurors that there was no evidence to support his suspicion that Sudbury was the one who burned his vehicles and slashed their tires.

Judge Smith agreed with Sudbury that Amoro's testimony on this point was more prejudicial than probative. However, the judge noted that the other evidence presented to the grand jury raised a strong inference of Sudbury's guilt — in particular, the fact that two witnesses identified Sudbury as the robber from a photographic lineup, and the fact that Sudbury confessed when he was interviewed by the troopers. Thus, Judge Smith concluded, Amoro's challenged testimony made no difference to the grand jury's decision.

The prosecutor at Sudbury's grand jury faced a delicate problem: Amoro clearly had important testimony to give (Sudbury's statement that he was planning to rob the Susitna Professional Pharmacy), but the prosecutor could reasonably conclude that the State had a duty to apprise the grand jury that Amoro had a potentially strong reason to fabricate evidence against Sudbury.

However, even assuming that the prosecutor should not have apprised the grand jurors of the particular reason why Amoro might be biased against Sudbury, the next step was for Judge Smith to evaluate the prejudicial effect of the challenged evidence under the test we announced in Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992). Under that test, a court must ask (1) whether the remaining evidence is sufficient to support the grand jury's decision and, if so, (2) whether the challenged evidence is nevertheless too prejudicial (in the context of the entire grand jury presentation) to allow the indictment to stand — whether "the probative force of [the] admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict." Stern, 827 P.2d at 446.

Applying the Stern test, we agree with Judge Smith that even if the grand jury should not have heard Amoro express his suspicion that Sudbury was the one who burned his vehicles, the remaining grand jury evidence was sufficient to support the indictment and was so strong that the challenged testimony could not have been the decisive factor in the grand jury's decision. Accordingly, Judge Smith properly denied Sudbury's motion to dismiss the indictment.

Sudbury's challenge to his sentence

As explained at the beginning of this opinion, Sudbury was convicted of first-degree robbery, second-degree theft, and three counts of third-degree assault. As a first felony offender, and because Sudbury carried a gun during the robbery, Sudbury faced a 7-year presumptive term of imprisonment for the robbery.

See AS 11.41.500(b) (classifying first-degree robbery as a class A felony); former AS 12.55.125(c)(2)(A) (pre-March 2005 version) (providing a 7-year presumptive term for a first felony offender convicted of a class A felony if the defendant possessed a firearm during the commission of the offense).

Second-degree theft and third-degree assault are both class C felonies. Because Sudbury was a first felony offender, he faced a sentence of up to 5 years' imprisonment on each of these convictions, although any portion of these sentences above 2 years had to be suspended unless the State proved aggravating factors under AS 12.55.155(c).

See AS 11.46.130(c) and AS 11.41.220(d), respectively.

See AS 12.55.125(e) (establishing 5 years as the maximum term of imprisonment for class C felonies); former AS 12.55.125(e)(1) (pre-March 2005 version) (establishing a presumptive term of 2 years' imprisonment for second felony offenders convicted of a class C felony); and former AS 12.55.125(k)(2) (pre-March 2005 version) (stating that when first felony offenders are not subject to presumptive sentencing, the "time to serve" component of their sentence can not exceed the presumptive term that would govern the sentencing of a second felony offender convicted of the same crime unless the State proves aggravating factors or extraordinary circumstances).

Judge Smith sentenced Sudbury to the 7-year presumptive term for the robbery, and he imposed an additional 1 1/2; years of suspended jail time, consecutive, for each of the four other felonies — i.e., a total of 6 suspended years of imprisonment. Thus, Sudbury's composite sentence is 13 years with 6 suspended.

On appeal, Sudbury argues that when Judge Smith imposed the suspended terms of imprisonment for the four other felonies, he should have made them concurrent rather than consecutive. Sudbury points out that the four other felonies — the theft and the three assaults — were all part of a single continuous episode that included the robbery.

This is true, but Alaska law allows separate convictions and sentences for different offenses that occur within a single episode. The supreme court has held that a defendant can properly receive separate assault convictions and consecutive sentences for the act of menacing three different victims with a firearm during a single episode. See Cooper v. State, 595 P.2d 648, 649 (Alaska 1979). The supreme court has likewise held that a defendant can be convicted and sentenced both for robbing one person and for assaulting another person during the same robbery — because "the robbery of each of several victims constitutes a separate and distinct criminal offense". Todd v. State, 917 P.2d 674, 683 (Alaska 1996). Finally, because robbery does not require proof of a completed theft, but rather only an assault with intent to take property from the immediate presence of another person (or to retain property so taken), Sudbury's completed act of theft can be separately punished. See Mead v. State, 489 P.2d 738, 742 (Alaska 1971) (allowing separate convictions for both burglary and the theft of the property for which the burglary was committed).

We do, however, agree with Sudbury that one of his third-degree assault convictions should be merged with his robbery conviction.

In committing the robbery of the pharmacy, Sudbury threatened three people with a gun. As we just noted, the supreme court held in Todd that a defendant can properly receive separate convictions for robbing one person and assaulting another person during the same robbery. But we do not read Todd as allowing separate robbery and third-degree assault convictions for the single act of robbing one person — at least when the assault does not involve the infliction of injury, but rather is prosecuted under AS 11.41.220(a)(1)(A) (the subsection of the statute that prohibits recklessly placing another person in fear of imminent serious injury by means of a dangerous instrument).

Under AS 11.41.510(a), the offense of robbery is defined as the use of force, or the threat of the immediate use of force, upon any person with intent to prevent or overcome resistance to the taking of property from the immediate presence or control of another person, or to compel any person to surrender the property. As we clarified in McGrew v. State, 872 P.2d 625, 626 (Alaska App. 1994), this definition includes situations in which the defendant threatens to inflict harm on one person so that another person will surrender the property.

The defendant in McGrew induced a husband to surrender property by threatening his wife with a knife. We declared that, under Alaska law,

the crime of robbery is committed, not only when a defendant uses force upon the person who possesses the property, but whenever a defendant uses force upon any person with the intent to prevent or overcome anyone's resistance to the taking, or to compel any person to engage in conduct that might facilitate the taking. Thus, if McGrew used force or threatened to use force against [the wife] with the intent of preventing or overcoming resistance to the taking of property from [the husband], he committed robbery.

McGrew, 872 P.2d at 626.

In McGrew, we did not reach the issue of whether, under these circumstances, the defendant could also be separately convicted of an assault on the wife. But the supreme court's decision in Todd answers that question in the affirmative.

Nevertheless, there is a problem with the number of convictions imposed on Sudbury. Sudbury committed an armed robbery in which he used the threat of deadly force to compel three people to surrender property that they possessed jointly (pharmaceuticals belonging to the business for which they worked). Sudbury inflicted no injury on any of the three victims; rather, he was charged only with the type of third-degree assault defined in AS 11.41.220(a)(1)(A) — i.e., recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument. We conclude that, under these circumstances, Alaska law does not allow the robber to be separately punished both for the armed robbery and for a separate assault upon each of the three victims. The number of assault convictions must be reduced by one — because, with respect to the victim who was actually forced to relinquish the property, the allegation of first-degree robbery subsumes the allegation of third-degree assault.

The extra assault charge need not be reversed or dismissed; rather, we direct Judge Smith to modify the judgement by merging one of the assault convictions with the robbery conviction. This means, however, that Sudbury should not receive a separate sentence for this assault.

Although one of Sudbury's sentences for third-degree assault must be vacated, the superior court retains the authority to re-impose the same composite sentence when the court re-sentences Sudbury. Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991). For this reason, we must next address Sudbury's claim that his composite sentence of 13 years with 6 years suspended is excessive.

The short answer to this claim is that, although Sudbury faced a 7-year presumptive term of imprisonment for his single most serious offense ( i.e., first-degree robbery), Sudbury was being sentenced for four separate crimes (one count of robbery, two other counts of assault, and one count of theft). In these circumstances, Judge Smith was authorized to impose a composite sentence exceeding the 7-year presumptive term for any good reason. See Farmer v. State, 746 P.2d 1300, 1301-02 (Alaska App. 1987).

As we noted above, Alaska law allows consecutive sentences for separate assaults committed in a single criminal episode, and it also allows a separate sentence for a completed theft committed in conjunction with a robbery. Thus, Judge Smith could properly conclude that there was good reason for imposing consecutive sentences of imprisonment (in this case, suspended sentences of imprisonment) for these other crimes. His sentencing decision is not clearly mistaken. Conclusion

See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).

The judgement of the superior court must be modified to reflect the merger of the first-degree robbery conviction with one of Sudbury's convictions for third-degree assault. And, because we are vacating one of Sudbury's sentences for third-degree assault, the superior court must re-sentence Sudbury. In all other respects, however, the judgement of the superior court is AFFIRMED.