Mallott v. State

RABINOWITZ, Chief Justice,

concurring and dissenting.

I disagree with the majority concerning two aspects of the opinion, namely, the prosecution’s use of peremptory challenges and the excessiveness of the sentence. But first I offer some observations regarding the superior court’s refusal to grant appellant’s motion for change of venue.

Concerning the issue of whether the pretrial publicity was sufficient to warrant a finding that Mallott was denied his constitutional right to a fair trial, I am in agreement with the majority that there was no reversible error. The United States Supreme Court in Murphy v. Florida, 421 U.S. *753 794, 800 , 95 S.Ct. 2031, 2036 , 44 L.Ed.2d 589, 595 (1975), made clear that defendant’s constitutional rights to a fair trial are violated only if the trial jury is shown to be partial. As the majority concludes, the heavy burden placed on the defendant in such cases has not been met in this one. Although the trial jury was not shown to reflect any partiality as a result of pre-trial prejudicial publicity, I conclude that Mallott’s motion for a change of venue should have been granted on October 4. At that time, sufficient evidence existed to warrant a change of venue. 1 Although the voir dire did not demonstrate this denial to be reversible error, under the standards stated in the majority opinion, I think inflammatory pre-trial publicity was so great by October 4 that it was sufficient to warrant a change of venue.

As the majority notes:

[Cjourts must always be sensitive to the impropriety of conducting a trial in an atmosphere hostile to a defendant, regardless of a defendant’s inability to show actual prejudice. In such cases it is important that the trial court give serious consideration to a pre-voir dire motion to transfer venue. 2

It is of significance that the court also voiced its approval of the following ABA standard:

His trial is set for Sept. 20.

A motion for change of venue or continuance shall be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. . A showing of actual prejudice shall not be required. 3

At the time the motion was denied, I think a substantial likelihood existed that a fair trial could not be had because of potentially prejudicial pre-trial publicity.

The publicity given this case was clearly inflammatory. Although the initial incident received little or no media coverage, the case did in fact begin to garner extensive media coverage starting with a July 3, 1976, Anchorage Times front page article under a bold face headline reading “Alleged Rapist Can Go Pishing.” 4 This article sparked a heated public debate over Mal-lott’s bail provisions. During voir dire, several of the prospective jurors recalled the substance of the headline. A majority of this court concludes that debate over Mal-lott’s admission to bail did little more than dangle his name before the public. 5 I cannot agree. In the public’s debate over proper bail procedures, outrage at the superior court was mixed with outrage and fear over *754 the release of Mallott. 6 The ensuing atmosphere of hostility towards Mallott’s release in all probability chilled Mallott’s ability to have the facts of his case dispassionately evaluated by an Anchorage trial jury.

Public outrage over Mallott’s release on bail became a front page news item and subsequent articles repeated the facts of the rape allegations on an almost daily basis in July. Further, the press reports also included prejudicial material in that they “inaccurately reported the presence of eyewitnesses three times, published a short paraphrase of one of Mallott’s incriminating statements, and disclosed somewhat misleadingly the existence of certain pieces of evidence.” 7 Further, one account disclosed a portion of Mallott’s prior criminal record 8 while another article detailed scientific examinations done of the evidence. 9 The ABA Standards on Fair Trial and Free Press note that attorneys should refrain from making statements to the press as to prior criminal record or any statements made by the defendant, evidence of examinations, and the identity and credibility of prospective witnesses because of their potential danger to a fair trial. 10 Such infor *755 mation was acquired by the press and reported. Given such reportage, coupled with the inaccuracies and general atmosphere of hostility, a situation existed in early October prior to trial that I think warranted a finding that a substantial likelihood that a fair trial could not be had. In view of the type of pre-trial publicity which was shown and the possibility of prejudice to Mallott’s right to receive a fair trial, I think that the preferred procedure was not to defer ruling upon the motion for change of venue until voir dire. Although postponing ruling on such motions may be appropriate in many cases, 11 1 think that in this case it was error not to grant the motion at that time. However, as I noted at the beginning, this error was harmless under the federal constitutional standard.

As noted at the outset, I disagree with the majority’s conclusion that this case is not an appropriate one in which to decide whether the rule announced by the California Supreme Court in People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978), and followed by the Massachusetts Supreme Judicial Court in Commonwealth v. Soares, — Mass. - — , 387 N.E.2d 499 (1979), should be adopted in Alaska. The majority speculates on possible reasons 12 the prosecutor might have preempted the two native venire persons 13 and concludes that “[tjhere would have been no occasion to require the state to justify the use of its peremptory challenges in this case even if the Wheeler rule were in effect.” 14 I disagree. I think that if Wheeler were adopted, the state would have to justify its use of peremptory challenges.

The California Supreme Court, in Wheeler , established an elaborate procedure for dealing with a claim of impermissible racially motivated peremption. In summary, the court stated that the defendant must raise the issue in timely fashion, make a prima facie showing of group bias, and make a complete record of the circumstances. 15

*756 Assuming arguendo that this court adopted the Wheeler rule, the first determination this court must make in applying such a rule is whether the defendant has made a prima facie case of discrimination based on group bias. The only two Native persons in the venire for this case were struck by peremptory challenge. Mallott is a Native. I would think, under the circumstances of this case, that this would be sufficient to establish a prima facie ease and shift the burden to the prosecutor since the total exclusion of all members of the race of the defendant is sufficient for a prima facie showing under Wheeler and rebuts any presumption that the prosecutor’s motives are permissible. 16

*757 Given that there is a prima facie showing of group bias, the burden then shifts to the prosecutor “to justify his challenges as predicated not on group affiliation, but on individual characteristics specific to each group member excluded.” 17 When the procedure is implemented and the initial prima facie showing has been made, it is for the trial court to then allow the prosecutor a chance to rebut the prima facie showing. Such a procedure is not possible in the context of the first case before an appellate court setting forth this new procedure.

The prosecution’s motives are a subject that does not lend itself to appellate speculation. Although sufficient justification for a finding of specific bias may exist as the majority suggests, a prosecutor’s decision to peremptorily challenge jurors of a particular class may still constitute group exclusion and any proffered rationale may be only a sham. Under Wheeler , such matters are to be judged by the trial court which has the opportunity to view the prosecutor and potential jurors during the totality of the jury selection process.

If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone. The showing need not rise to the level of a challenge for cause. But to sustain his burden of justification, the allegedly offending party must, satisfy the court that he exercised such peremptories on grounds that were reasonably rélevant to the particular case on trial or its parties or witnesses — i. e., for reasons of specific bms as defined herein. He, too, may support his showing by reference to the totality of the circumstances: for example, it will be relevant if he can demonstrate that in the course of this same voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds. And again we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination. 18

Such a judgment must be made by the trial court and consideration of the Wheeler rule should not be precluded by the majority’s speculations as to what rationales the prosecutor might give in support of the questioned challenges. These speculations are based only on the questions asked in voir dire. The state has argued that it was possible that a suggestion of specific bias might be supportable. But no affidavit was submitted by the prosecutor as to the reasons why he challenged these jurors, nor is there other evidence in the record to support these particular contentions made by the state on appeal. Under these circumstances, I think it inappropriate for this court to speculate as to the reasons the prosecutor might have given for employing peremptory challenges in the manner in which he did.

Both the California Supreme Court in Wheeler and the Massachusetts Supreme Judicial Court in Soares held that the appropriate remedy when a prima facie showing has been made in first impression cases is to grant the defendant a new trial. 19 The *758 court in Soares pointed out that the matter cannot be remedied by resort to an eviden-tiary hearing:

In reaching the conclusions that a new trial is required, we have considered carefully, and rejected, the alternative disposition of remanding the matter solely to determine the basis of the prosecutor’s exercise of the peremptory challenges in issue. We do not consider this to be a realistic alternative. The trial judge has retired. More significantly, the conditions of the empanelment in issue cannot be easily recreated. The prospective jurors as they appeared at the empanelment will not be before the judge based on the totality of the circumstances as they existed at the critical time, including the demeanor of the prospective black jurors as compared with those of white veniremen. Thus, a crucial factor necessary for the proper exercise of the judge’s responsibility to ‘distinguish bona fide reasons for such peremptories [sic] from sham excuses belatedly contrived to avoid admitting acts of group discrimination,’ People v. Wheeler, supra 22 Cal.3d at 282 , 148 Cal.Rptr. at 906 , 583 P.2d at 765 , would be missing. 20 ®

The California Supreme Court, in a later opinion, also clarified this point:

Although the People suggested at oral argument that the case should be remanded to the trial court to provide the prosecution with an additional opportunity to justify its use of peremptory challenges to exclude all the black jurors from the petit jury, under identical circumstances in Wheeler our court simply reversed the conviction and directed a new trial. (See id., at p. 283 & fn. 30, 148 Cal.Rptr. 890 , 583 P.2d 748 .) We believe the disposition directed in Wheeler is appropriate in light of the infeasibility of accurately probing and assessing the prosecutor’s prior motivation at this late date. 21

Thus, if the court adopted Wheeler , I think that it would require a new trial under the facts of this case, and that any speculation by this court as to what reasons the prosecutor could advance are immaterial. It is on these grounds that I disagree with the majority and conclude that we should address the question of whether the Wheeler rule should be adopted in Alaska.

Lastly, I disagree with the court’s conclusion that Mallott’s sentence was not excessive. Mallott received a sentence of thirty years’ imprisonment with fifteen years suspended for the crime of raping a three-year-old girl. This is undeniably a heinous crime against the person. Nevertheless, I would hold that the superior court was “clearly mistaken” 22 in entering this severe a sentence, although I am persuaded that a significant period of incarceration is warranted, namely, one well in excess of the ABA’s recommended five-year period of incarceration. 23 My reasons are as follows.

Mallott has no prior history of sexual offenses. He had a prior felony record only of property offenses. 24 His sexual assault of the three-year-old girl came during a *759 period of alcohol intoxication and seems to have been caused by Mallott’s severe alcohol addiction. Otherwise, as the majority notes, Mallott “at the time of sentencing was forty-six years old, articulate, intelligent, active in community service . . .”

The sentence rendered is one of the most severe ever appealed to this court for a sexual assault crime. In our only previous consideration of a sentence for statutory rape, we upheld a sentence of ten years. 25 As to the related crime of rape, rape convictions have been appealed in eleven cases and sentences from six to twenty years have been affirmed 26 while lesser terms have been held too lenient. 27 Of the four affirmances of the longest rape sentences, periods of fifteen and twenty years, a present or prior record of sexual offenses was present. 28

. At the conclusion of extensive argument on the pre-trial motion to change venue, the superior court stated:

I cannot say at this time that there’s any reasonable likelihood that he cannot receive a fair trial, and I think the proof is when we attempt to get a jury, and I’ll withhold any ruling on the matter, and submit the matter to the trial judge to make a decision at the time of the trial, and he will have freedom to change the venue if it appears to him you cannot get a fair trial,

. Majority opinion at 746-747.

. ABA Standards on Fair Trial and Free Press, Standard 8-3.2(d) (2nd ed. tentative draft 1978) quoted in majority opinion at 748 (emphasis added).

. The text of the article read:

A man charged with raping a three-year-old Anchorage girl has been released by the courts to go fishing.

Jay Byron Mallott, 44, is to return July 19 for a pre-trial hearing in Anchorage Superior Court.

Court records show his bail was reduced from $75,000 to $2,500 so he could afford to post bond and fish the Naknek salmon run.

The bail reduction order was signed by Anchorage Superior Court Presiding Judge Ralph Moody June 10.

An additional charge of lewd and lascivious acts toward a child was dropped May 14, court records show.

Police reports say Mallot spent the night of May 12 at the East Anchorage home of the three-year-old’s mother. He allegedly raped the girl at 6 a. m. in front of her three brothers as the mother slept in another room.

One of the boys called police from a neighborhood grocery store, police said.

The girl was taken to Providence Hospital May 13 where she underwent surgery.

.Majority opinion at 747 n. 25.

. For example, letters to the editor in the Anchorage Times, July 10, 1976, included the following statements:

When a three-year-old is raped and her life maybe ruined, why should the man charged with the crime be allowed reduced bail so he can go fishing.

We have just read of Judge Moody’s bail reduction. At first, we encountered a feeling of unbelievable horror. My God! We have a two-year-old daughter. Shall we lock her in her room until the trial.

What is wrong with this judge and the court system? Can they be responsible for the safety of every little girl?

A letter to the editor in the Anchorage Times on July 11, 1976, stated:

It really makes me do a slow burn reading the big headline in the July 3 Issue of the Times, “Alleged Rapist Can Go Fishing,” and I imagine lots more folks who have baby girls are feeling the same as I.

What do the little brothers feel after watching the episode that took place in front of their eyes, not to mention what the baby went through, and no doubt will leave a mental scar on her for life.

Another letter printed by the Anchorage Daily News stated:

A middle-aged man sends a girl nearing four years of age to surgery on her sex organs; a nether-netherland “psychiatrist” adjudges him safe; two attorneys and a judge release him on trifling bail; .

. Majority opinion at 745.

. The Anchorage Daily News reported on July 7, 1976:

MERRINER SAID Mallott was a married man with several children who ‘has been a responsible citizen.’ There was no reason to believe he would not appear at his trial, now scheduled for Sept. 20, or the preliminary hearing, July 19, he said. Because Mallott had no prior record of such assaults, Merri-ner did not think there were grounds for considering him a danger to the community. The Daily News has learned, however, that the accused rapist was arrested here in 1966 for drunkenness; and in 1959 in Nevada for disturbing the peace. In 1955, he was convicted of second-degree burglary in California.

. This article from the Anchorage Times of July 29, 1976, stated:

In a recent hearing Moody ruled that the state obtained pubic hair clippings and a penis swab from the accused constitutionally, since there was no time to get a search warrant and the evidence could have been destroyed easily. Rigos had attempted to get that physical evidence suppressed at the trial.

. ABA Standards on Fair Trial and Free Press, Standard 8-1.1 (2nd ed. tentative draft 1978) provides, in part:

Extrajudicial Statements By Attorneys

(a) A lawyer shall not- release or authorize the release of information or opinion for dissemination by any means of public communication if such dissemination would pose a clear and present danger to the fairness of the trial.

(b) Subject to paragraph (a), from the commencement of the investigation of a criminal matter until the completion of trial or disposition without trial, a lawyer may be subject to disciplinary action with respect to extrajudicial statements concerning the following matters:

(i) the prior criminal record (including arrests, indictment, or other charges of crime), the character or reputation of the accused, or any opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case;

(ii) the existence or contents of statement given by the accused, or the refusal or failure of the accused to make any statements;

(iii) the performance of any examinations or tests, or the accused’s refusal or failure to submit to an examination or test;

*755 (iv) the identity, testimony, or credibility of prospective witnesses;

(v) the possibility of a plea of guilty to the offense charged, or other disposition; and

(vi) information which the lawyer knows or has reason to know would be inadmissible as evidence in a trial.

.ABA Standards on Fair Trial and Free Press, Standard 8-3.3(d) (2nd ed. tentative draft 1978) provides, in part:

If a motion for change of venue or continuance is made prior to the impaneling of the jury, the court may defer ruling until the completion of voir dire.

The commentary noted some dissatisfaction with this position:

Paragraph (d) abandons the recommendation of the first edition that motions for change of venue or continuance be disposed of before the impaneling of the jury. The practice in many jurisdictions is to delay ruling on such motions until after voir dire. This presupposes that voir dire will be an accurate barometer of public sentiment. It also assumes that the failure by the defense to take full advantage of peremptory challenges and challenges for cause reflects the fact that public sentiment is not hostilely aligned against the accused. Neither assumption is self-evident. Thus, it seems undesirable to use voir dire as the primary method of determining the character of thé threat to trial fairness and at the same time make it the principal safeguard against such a threat if it exists. The value of resolving change of venue and continuance motions prior to voir dire, as recommended in the first edition, lies in the preservation of the distinctive advantages of each remedy. Despite the persuasiveness of this reasoning, paragraph (d) has been amended to conform to current practice.

Id. at 18. 1 think that trial courts should not defer ruling automatically but should only in cases of questionable prejudice. When, as in this case, the publicity was substantial and elements of potential prejudicial content clear, deferring a ruling is not appropriate.

. The majority notes that one prospective jur- or was previously unsuccessfully challenged for cause because of her acquaintance with the defendant and his relations, and the other could have been but was not challenged for cause under Alaska R.Crim.P. 24(c)(ll) for his misdemeanor conviction. Majority opinion at 751.

. The prosecutor also struck David Williams whose wife is an Alaska Native.

. Majority opinion at 751-752.

. The opinion reads in pertinent part:

If a party believes his opponent is using peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima *756 facie case of such discrimination to the satisfaction of the court. First, as in the case at bar, he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the respective cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.

We shall not attempt a compendium of all the ways in which a party may seek to make such a showing. For illustration, however, we mention certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic — their membership in the group — and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, under Peters [v. Kiff (1972) 407 U.S. 493 , 92 S.Ct. 2163 , 33 L.Ed.2d 83 ] and Taylor [v. Louisiana (1975) 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 ] the defendant need not be a member of the excluded group in order to complain of a violation of the respective cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.

Upon presentation of this and similar evidence — in the absence, of course, of the jury — the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone. We recognize that such a ruling ‘requires trial judges to make difficult and often close judgments. They are in good position to make such determinations, how-( ever, on the basis of their knowledge of local conditions and of local prosecutors.’ (Kuhn, op. cit. supra, fn. 5, at p. 295.) They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience. We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges from a spurious claim interposed simply for purposes of harassment or delay.

If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone. The showing need not rise to the level of a challenge for cause. But to sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses — i. e., for reasons of specific bias as defined herein. He, too, may support his showing by reference to the totality of the circumstances: for example, it will be relevant if he can demonstrate that in the course of this same voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds. And again we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.

If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted. Accordingly, the court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it must dismiss the jurors thus far selected. So too it must quash any remaining venire, since the complaining party is entitled to a random draw from an entire venire — not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges. Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew.

People v. Wheeler, 148 Cal.Rptr. 890, 905-906 , 583 P.2d 748, 764-65 (1978) (footnotes omitted).

. In Wheeler , the court found a prima facie showing that the prosecutor was exercising *757 peremptory challenges against black jurors on the ground of group bias, id. 148 Cal.Rptr. 890 , 583 P.2d at 766 , when the prosecutor had excused all black prospective jurors, id. 148 Cal. Rptr. 890 , 583 P.2d at 752-53 , and the case involved an alleged murder of a white by two black defendants was tried before an all-white jury. In Commonwealth v. Soares, -Mass. -,-, 387 N.E.2d 499, 517-18 (Mass.1979), again involved the alleged murder of a white by black defendants, a prima facie showing was made from the peremptory challenge of twelve of thirteen black jurors.

. Commonwealth v. Soares, - Mass. -, -, 387 N.E.2d 499, 518 (1979).

. People v. Wheeler, 148 Cal.Rptr. 890, 906 , 583 P.2d 748, 764-65 (1978) (footnote omitted). See also Commonwealth v. Soares, -Mass. -,-, 387 N.E.2d 499, 517 (1979).

. People v. Wheeler, 148 Cal.Rptr. 890 , 583 P.2d 748, 768 (1978); Commonwealth v. Soares,-Mass.-,-, 387 N.E.2d 499, 517-18 (1979).

. Commonwealth v. Soares, - Mass. -, -n.37, 387 N.E.2d 499 , 518 n.37 (1979).

. People v. Allen, 23 Cal.3d 286, n.4 , 152 Cal.Rptr. 459, n.4 , 590 P.2d 30 , 35 n.4 (Cal.1979).

. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

. ABA Standards Relating To Sentencing Alternatives and Procedures, Standard 2.1(d) (Approved draft, 1968) provides, in part:

Except for a very few particularly serious offenses, . . the maximum authorized prison term ought to be five years and only rarely ten.

.Mallot had three prior felony convictions: attempted burglary in 1954, second degree burglary in 1955 and 1963. Mallott had three misdemeanor convictions: disturbing the peace in 1959, and drunkenness and petty larceny in 1966.

. Wagner v. State, 598 P.2d 936 (Alaska 1979) (ten years imprisonment for a continuing sexual relations over a period of several months with an eleven-year-old female in which Wagner had a prior felony record and had suborned the victim’s two brothers to participate).

. See Torres v. State, 521 P.2d 386 (Alaska 1974) (20 years concurrent with existing 10-year sentence); Newsom v. State, 533 P.2d 904 (Alaska 1975) (15 years); Newsom v. State, 512 P.2d 557 (Alaska 1973) (15 years); Moore v. State, 597 P.2d 975 (Alaska 1979) (15 years); Morrell v. State, 575 P.2d 1200 (Alaska 1978) (eight concurrent 10-year sentence on eight counts); Coleman v. State, 553 P.2d 40 (Alaska 1976) (two concurrent 10-year sentences on two counts); Gordon v. State, 501 P.2d 772 (Alaska 1972) (10 years); Ames v. State, 533 P.2d 246 (Alaska 1975) (eight years); Nukapigak v. State, 562 P.2d 697 (Alaska 1977) (six years).

. See State v. Lancaster, 550 P.2d 1257 (Alaska 1976) (on two counts of forcible rape sentenced to two concurrent seven-year sentences with five years suspended; thus, an effective sentence of two years’ jail time); State v. Chaney, 477 P.2d 441 (Alaska 1970) (two counts of forcible rape and one count of robbery resulting in three concurrent one-year sentences.)

. See Torres v. State, 521 P.2d 386 (Alaska 1974) (previous conviction for lewd and lascivious acts to an eight-year-old and present offense committed while on appeal bond from a 10-year sentence); Moore v. State, 597 P.2d 975 (Alaska 1979) (two incidents three days apart each involving abduction of victim in car, rape, and robbery at gunpoint); Newsom v. State, 533 P.2d 904 (Alaska 1975) (previous conviction for attempted rape of a young girl); Newsom v. State, 512 P.2d 557 (Alaska 1973) (prior history of sexual offenses).