McCLAIN v. STATE, A-9814 (Alaska App. 9-24-2008)

JERRY D. McCLAIN, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9814.Court of Appeals of Alaska.
September 24, 2008.

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-03-4320 CR.

Marcia E. Holland, Contract Attorney, Public Defender Agency, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

COATS, Chief Judge.

Alaska Statute 12.55.125(a)(3) provides that a “defendant convicted of murder in the first degree shall be sentenced to a mandatory term of imprisonment of 99 years when the court finds by clear and convincing evidence that the defendant subjected the murder victim to substantial physical torture.” Jerry D. McClain entered a no contestPage 2
plea to murder in the first degree. Superior Court Judge Michael L. Wolverton found beyond a reasonable doubt that McClain had subjected his victim, K.F., to substantial physical torture.[fn1] Judge Wolverton was therefore required to sentence McClain to a mandatory term of 99 years of imprisonment under AS 12.55.125(a)(3). McClain is not eligible for parole or a good time deduction during this sentence.[fn2]

On appeal, McClain argues that the term “substantial physical torture” is unconstitutionally vague. He also argues that Judge Wolverton erred in finding that he subjected K.F. to “substantial physical torture.” We conclude that AS 12.55.125(a)(3) is not unconstitutionally vague and that Judge Wolverton did not err in concluding that McClain subjected K.F. to “substantial physical torture.”

Factual background

On April 26, 2003, McClain called 911 and told the operator that he had killed his girlfriend by beating her with a baseball bat; he stated that he beat her because he was jealous.

Judge Wolverton held a four-day evidentiary hearing to determine whether McClain had subjected K.F. to substantial physical torture. A number of witnesses testified at the evidentiary hearing, including Dr. Franc Fallico, the chief medical examiner for the State of Alaska who conducted the autopsy on K.F.; Harold Strahle, an Anchorage Police Department detective who investigated the crime scene; and Tara Beth Henry, a forensic nurse who examined K.F.’s body. All of them testified to the extreme brutality to which K.F. had been subjected.Page 3

In addition, Judge Wolverton heard testimony from two court-appointed psychologists, Dr. Lawrence Maile and Dr. David Sperbeck. A defense expert, Dr. Frederick Wise, also testified. They testified about McClain’s mental state at the time of the attack. After the hearing, Judge Wolverton made the following findings:

Defendant engaged in massive, brutal, and heinous beating of [K.F.] Defendant inflicted at least 128 separate wounds. Defendant beat [K.F.] with a baseball bat at least 29 times. Defendant violently raped [K.F.] both anally and vaginally. Defendant used a [sic] pliers or similar object to brutally pinch [K.F.]’s breasts. Defendant stuffed a sock in [K.F.]’s mouth and then placed a gag around her head and over her mouth. Defendant bound [K.F.] with cord as well as sheetrock tape. Defendant cut [K.F.]’s hair and shaved her head and pubic area. As Dr. Sperbeck and Ms. Henry testified, defendant engaged in those acts with the intent to humiliate, degrade, and depersonalize [K.F.] As Ms. Henry further explained, the essence of defendant’s acts was to take away [K.F.]’s identity. After cutting [K.F.]’s hair and shaving her head, defendant took a mirror off the wall and showed [K.F.] her image in order to [force] her acknowledgment that no man would want her any longer. Defendant himself told Dr. Sperbeck that his intent was to humiliate [K.F.]

Judge W olverton found that AS 12.55.125(a)(3) w as not unconstitutionally vague and that the evidence established beyond a reasonable doubt that McClain had subjected K.F. to substantial physical torture. He therefore imposed the mandatory 99-year term of imprisonment.

Alaska Statute 12.55.125(a)(3) is not unconstitutionally vague

McClain argues that the phrase “substantial physical torture” is unconstitutionally vague. He argues that this vagueness allows courts and prosecutors to interpret the statute differently, leading to arbitrary and therefore unconstitutionalPage 4
enforcement, and that the statute does not provide adequate notice as to what conduct it prohibits.

In the leading case of Stock v. State, [fn3] the A laska Supreme Cou rt set ou t three considerations for determining whether a statute is unconstitutionally vague.[fn4] The first consideration is whether the statute “is overbroad so that it may be construed in a manner to restrict the exercise of first amendment rights.”[fn5] The second consideration is that the “statute must give adequate notice to the ordinary citizen of what is prohibited.”[fn6] The third consideration is “whether the statute gives undue discretion to prosecuting authorities in determining what constitutes the crime.”[fn7]

As to the first consideration, McClain concedes that “no first amendment rights are involved in this case.” So the question before us is whether the phrase “substantial physical torture” gives “adequate notice to the ordinary citizen of what is prohibited” and “whether the statute gives undue discretion to prosecuting authorities in determining what constitutes the crime.”

Words that have a plain, ordinary, and common meaning do not need further definition.[fn8] The word “torture” appears to have a plain, ordinary, and common meaning. According to Black’s Law Dictionary, “torture” is defined as “[t]he infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtainPage 5
sadistic pleasure.”[fn9] Several courts have held that the term “torture,” as defined by its common and ordinary meaning, is not unconstitutionally vague.[fn10]

Similarly, the word “substantial” has a plain, ordinary, and common meaning. In addressing whether the trial judge had adequately instructed the jury on the phrase “substantial risk of death,” we recently observed in Brown v. State that “other courts have concluded that the phrase `substantial risk of death’ does not req uire further definition.”[fn11]
As used in the statute, the word “substantial” serves to narrow the conduct covered by AS 12.55.125(a)(3).

The word “physical” also has a plain, common, and ordinary meaning. Webster’s New World College Dictionary definitions of “physical” include “of the body as opposed to the mind.”[fn12] And, like the word “substantial,” the word “physical” serves to narrow the type of conduct that comes within the purview of the statute — it excludes psychological torture.

We certainly recognize that there might be some cases where there is a dispute about w hether the d efendant’s conduct constituted “substantial physical torture.” But as the supreme court observed in Stock, “[c]ourts have often recognized that thePage 6
possibility of difficult or borderline cases will not invalidate a statute where there is a hard core of cases to which the ordinary person would doubtlessly know the statute unquestionably applies.”[fn13] Judge Wolverton’s findings, which are supported by the record, establish that McClain’s actions fell within the hard core of cases where the term “substantial physical torture” unquestionably applied.

Judge Wolverton did not err in finding that McClain subjected K.F. to”substantial physical torture”

McClain argues on appeal that both the State (in arguing for a finding of substantial physical torture) and Judge Wolverton (in making this finding) improperly focused on the fact that McClain shaved K.F.’s hair and then made her look in the mirror. McClain argues that these actions proved, at best, that McClain subjected his victim to psychological torture, while the statute requires proof of physical torture.

But as w e have already explained, the definition of torture has two elements: (1) the infliction of intense pain and (2) an accompanying intent “to punish . . . or to obtain sadistic pleasure.”[fn14] Although McClain’s actions of shaving K.F.’s hair and then forcing her to look in the mirror may not have qualified as the infliction of intense pain, these actions are pertinent to proving McClain’s state of mind — his intention to punish or to obtain sadistic pleasure — when he engaged in other aspects of the assault that presumably did inflict intense pain (such as McClain’s use of the baseball bat to repeatedly beat K.F.).

In this context, it was proper for Judge Wolverton to consider and rely on McClain’s acts of shaving K.F. and forcing her to look in the mirror.Page 7

The judgement of the superior court is AFFIRMED.

[fn1] Despite Judge Wolverton’s application of the “beyond a reasonable doubt” standard, AS 12.55.125(a)(3) only requires a finding of “clear and convincing evidence” that the defendant subjected the murder victim to substantial physical torture.

[fn2] AS 33.16.090(a)(1) and AS 33.20.010(a)(1), respectively.

[fn3] 526 P.2d 3 (Alaska 1974).

[fn4] Id. at 7-13.

[fn5] Id. at 7.

[fn6] Id. at 8.

[fn7] Id.

[fn8] Brown v. State, ___ P.3d ___, Alaska App. Opinion No. (Sept. 2008), 2008 WL ___; State v. Cornell, 741 P.2d 501, 503 (Or. 1987).

[fn9] BLACK’S LAW DICTIONARY 1528 (8th ed. 2004).

[fn10] See, e.g., Cham bers v. State, 364 So. 2d 416, 418
(Ala.Crim.App. 1978) (holding that the word “torture” is not so vague or indefinite as to render a statute void because it has “a commonly understood meaning which does not leave a person of ordinary intelligence in doubt as to its purport”); State v. Fahy, 440 P.2d 566, 569-70 (Kan. 1968) (holding that the word “torture” in a statute provides reasonable definite standards that one can understand); Cornell, 741 P.2d at 504 (holding that the term “torture” is not so vague as to offend the Oregon Constitution).

[fn11] Brown, _____ P.3d at _____, Opinion No. _____ at 5-6, 2008 WL _____ at * _____.

[fn12] WEBSTER’S NEW WORLDD ICTIONARY 1074 (David B. Guralnik ed., Simon and Schuster, 2d college ed. 1980).

[fn13] Stock, 526 P.2d at 9; see also Summers v. Anchorage,589 P.2d 863, 868 (Alaska 1979).

[fn14] AS 12.55.125(a)(3).