Massey v. State

Citations: 771 P.2d 448; 1989 Alas. App. LEXIS 27; 1989 WL 23463Docket: A-1817, A-1899

Court: Court of Appeals of Alaska; March 17, 1989; Alaska; State Appellate Court

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Randall W. Massey was convicted of two counts of first-degree robbery and two counts of kidnapping related to the armed robbery of the Willow Trading Post on January 28, 1985, and one count of first-degree robbery for his involvement in the armed robbery of Blackie's Bar on January 13, 1985. Following a jury trial, Massey received a combined sentence of thirty-five years, with five years suspended, from Superior Court Judge Beverly W. Cutler, during a single sentencing hearing. Massey initiated the Blackie's Bar robbery by discharging a firearm and threatening patrons, ultimately stealing nearly $3,000. He was linked to the crime through fingerprints found on Band-Aid wrappers in the restroom.

In the Willow Trading Post robbery, Massey threatened the owners, Helen Tucker and Stella Hughton, at gunpoint, forcing them to comply with his demands for money. He and his accomplices tied the women up, with the women remaining bound for approximately nine hours, resulting in temporary loss of feeling in their hands. The robbers stole about $1,800 and personal items. The victims identified the robbers based on their descriptions, leading to the arrest of Massey and his accomplices. Massey now appeals both his convictions and the sentence, but the court affirms the lower court's rulings.

Tucker initially described the gunman as blond but was uncertain about the hair length. Later, she indicated that the gunman had long blond hair and she had not seen a short-haired blond during the robbery. At trial, she could not recall the hair length but was confident that the gunman was the short-haired blond, noting his well-groomed appearance compared to a long-haired blond who appeared "sloppy and dirty." Tucker identified Massey as the gunman in court. Conversely, Hughton initially described the gunman as having long hair but later identified Massey in court, attributing her recognition to his hair. Both women were shown photo lineups; Tucker identified Massey, while Hughton could not make a positive identification. Fingerprints belonging to Massey were found on a receipt at the crime scene, which had been associated with the cashbox where the money was kept.

Massey sought to dismiss the indictments for the Willow and Wasilla robberies, arguing that presenting them simultaneously to the grand jury violated his due process rights. Judge Cutler denied this motion, noting that Alaska Criminal Rule 8(a) allows for the joinder of similar offenses. Massey did not provide authority to dispute this rule's constitutionality and failed to demonstrate any prejudice resulting from the simultaneous presentation. The evidence against Massey was substantial, including eyewitness testimony and fingerprint evidence linking him to both robberies. Consequently, any potential effect on the grand jury's deliberations was deemed immaterial. Additionally, Massey contended that the trial court erred by admitting evidence regarding the involvement of two other individuals in the Willow robbery.

During the trial, the prosecutor introduced witnesses Harlan Olhausen and Christopher Van Bebber, both of whom had been convicted of a related crime but granted immunity. The prosecutor indicated they were compelled to testify due to their convictions. Evidence of Van Bebber's conviction was presented through Alaska State Trooper Huntsman, and this information was reiterated in the prosecutor's closing argument. Olhausen testified against Massey, admitting his involvement in the robbery and confirming his conviction status.

Van Bebber's attorney informed the court that he would refuse to testify, to which Massey's counsel expressed no objection. Despite being sworn in, Van Bebber did not answer the prosecutor’s leading questions and was declared unavailable as a witness by Judge Cutler. Consequently, the state was allowed to introduce portions of Van Bebber's prior confession, redacted to remove references to Massey, under the theory of a statement against penal interest.

Massey raised four claims of error on appeal: 1) the introduction of evidence regarding Van Bebber's conviction was erroneous; 2) the jury was not instructed that Olhausen's conviction could only assess his credibility; 3) his Sixth Amendment right to confrontation was violated during Van Bebber's questioning; and 4) his right to confrontation was violated by the introduction of Van Bebber's confession. Most of these claims were raised for the first time on appeal, as Massey's counsel did not object to the references to Van Bebber’s conviction at trial, nor did they request specific jury instructions regarding Olhausen's conviction. The appellate court considered these claims under the plain error standard, which applies only when an error is so obvious that it would be apparent to a competent attorney without objection. The record suggests that Massey's counsel actively supported the introduction of the evidence in question, implying that their actions were tactical in light of the overwhelming evidence against Massey.

The defense strategy aimed to convince the jury that Olhausen and Van Bebber were the robbers identified by victims Hughton and Tucker, who had seen only two men during the robbery. Both victims identified Olhausen as the one who tied them up and, during the trial, identified Massey as the gunman, although their identifications were subject to challenge. Facing strong evidence against Massey and lacking a solid defense, trial counsel may have strategically emphasized that two men had already been convicted, potentially to foster reasonable doubt regarding a third robber's involvement. Counsel also sought to highlight Van Bebber's refusal to implicate Massey despite being an immunized witness. 

The court noted that failure to object to potentially prejudicial evidence could constitute plain error if based on a clearly unsound tactic. Massey did not claim ineffective assistance of counsel, and the record did not provide clarity on counsel's decisions, suggesting they might have been based on reasonable tactical considerations. Consequently, a strong presumption of sound strategy applied, and no plain error was found.

Massey objected to the admission of Van Bebber's confession, which the trial court allowed under A.R.E. 804 (b)(3) as a statement against penal interest, provided it was redacted to exclude Massey's involvement. While there was a strong argument that the admission was improper, the court concluded that its prejudicial impact was negligible given the overwhelming evidence of Massey's guilt, including eyewitness identifications and physical evidence. Thus, any error was deemed harmless beyond a reasonable doubt.

Regarding sentencing, Massey, a third felony offender due to prior convictions for theft and burglary, received consecutive fifteen-year sentences for two robbery convictions and twenty years (with five years suspended) for two kidnapping convictions. The kidnapping sentences were ordered to run consecutively to each other but concurrently with the robbery sentences, resulting in a total sentence of thirty-five years with five years suspended.

Judge Cutler ordered that Massey's sentences for three robberies—Willow, Wasilla, and Kenai—run consecutively to a prior robbery sentence in Kenai, which was issued by Superior Court Judge Charles K. Cranston. The Kenai robbery resulted in a twenty-year maximum sentence for robbery and a thirty-five-year concurrent sentence for kidnapping, with thirty years suspended. Massey's total sentence for the three robberies amounts to seventy years, with twenty years suspended. On appeal, Massey does not contest the individual sentences but claims the court was mistaken in imposing consecutive presumptive terms for the robberies, arguing that the record does not justify isolating him for fifty years, the total unsuspended incarceration he received. Kidnapping, an unclassified felony with a maximum sentence of ninety-nine years, does not have a statutory presumptive term, but Massey was convicted of three counts related to two incidents.

Massey faced presumptive terms of fifteen years for his robbery convictions, and Judge Cutler found three aggravating factors: Massey was on parole during the offenses, had a history of similar crimes, and his actions in the Wasilla robbery posed a risk of imminent injury to multiple victims. Despite being only thirty years old at sentencing, Massey's extensive criminal history, including five prior felony convictions and the violent nature of the current offenses, warranted a severe sentence. The victims of the Willow robbery suffered injuries close to serious physical harm. Judge Cutler determined consecutive sentences were necessary for public protection, a finding supported by the sentencing record and comparable to the precedent set in Wortham v. State, which upheld a composite sentence exceeding fifty years. The court affirmed the imposed sentences, finding no clear mistake. Additionally, Massey's appeal on the issue was preserved only for the Willow robbery, as his plea in the Wasilla case waived any related claims.

The state argues that Massey is barred from raising an appeal related to the Willow robbery because he did not address the issue during earlier proceedings. However, Massey sought to dismiss the Willow indictment on different grounds, and both indictments were addressed in a combined hearing, with the joinder issue relevant to both offenses. Judge Cutler ruled on this matter for both cases, suggesting that Massey should not be precluded from appealing the Willow indictment.

Judge Cutler emphasized the need for consecutive sentences to ensure public safety, stating that a straight 15-year sentence would not adequately protect the public. He expressed doubt about Massey's potential for rehabilitation, asserting that isolation beyond 15 years is necessary. Ultimately, he imposed a total sentence of 30 years, exceeding the maximum for either offense, and justified consecutive sentences as essential for public protection, indicating that isolation for longer than 20 years may be required.