Hensel v. State
| Citation | 604 P.2d 222 |
| Decision Date | 07 December 1979 |
| Docket Number | No. 2432,2432 |
| Parties | Thomas P. HENSEL, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Max F. Gruenberg, Jr., Anchorage, for appellant.
John A. Scukanec, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C. J., CONNOR, BOOCHEVER, and MATTHEWS, JJ., and DIMOND, Senior Justice.
Thomas P. Hensel appeals from his conviction of burglary, the denial of his motion for post-conviction relief, and the cumulative sentences imposed for burglary and malicious destruction of property. We shall first detail the facts giving rise to this case.
The usual tranquillity of the early morning hours in the area of Eagle River was destroyed on December 7, 1973 by a violent explosion. The explosion originated in a dynamite-filled storage bunker located on federal land and leased to E. I. du Pont de Nemours and Company. The blast, which resulted from the detonation of some 80,000 pounds of explosives, damaged dwellings and other buildings within a two-mile radius of the bunker. 1
The explosion was not an accident. On two occasions during the two days prior to the explosion, various members of a group who were charged as co-defendants with Hensel 2 had broken into the storage bunkers and other buildings and had stolen a large quantity of explosives, plus incidentals such as blasting caps. The burglary was apparently motivated by the co-defendants' need for money. 3 The night of December 6, the co-defendants took the dynamite in two cars to a location in Wasilla where they planned to negotiate a sale. 4 The location, known as the "bus barn," was a two-story structure which served as a bus repair facility and as a residence for Thomas Hensel, appellant, and his family. 5 The co-defendants testified that they arrived about midnight. Dave Charon, alone, went upstairs and inside to speak with Hensel, 6 while the others waited outside by the cars, some of them smoking marijuana. 7
According to the testimony of the co-defendants, 8 Charon remained upstairs with Hensel for fifteen to twenty minutes. The contents of any conversation between the two are not known. Hensel testified that there was never any discussion about purchasing the explosives. Charon, who was too " stoned" to remember much of the evening's events, was unable to recall any of the conversation with Hensel. Although the other co-defendants were not present, they assumed that Charon discussed with Hensel how they came to possess the dynamite and what might be done with it. 9
Charon eventually returned to the cars with Hensel. The car trunks were opened, Hensel inspected the explosives, and stated that he could "handle it all." 10 One of the co-defendants then stated that there was "more where that came from" and that it was stacked "9 cases high and 20 cases wide." Hensel testified that he asked where the explosives came from, but that the co-defendants gave him no response. After the co-defendants loaded the explosives into Hensel's Jeep, Charon asked Hensel if he had any fusing. Hensel stated that he had some out at his cabin. Apparently, these comments were the first overt indication to some of the defendants that they would blow up the bunkers they had burglarized. 11 Hensel then asked if he could come along. 12 The co-defendants said no, to which Hensel responded, "(w)ell, I can see . . . Eagle River from my balcony and I'll be watching."
Charon, Cloud, and Hensel drove out to Hensel's cabin and unloaded the dynamite, storing it in the attic. At this time, according to the co-defendants' testimony, the subject of "bunkers" was mentioned. Charon and Cloud said they needed six sticks for six bunkers. Hensel brought down seven sticks from the attic, the extra stick being reserved for purposes of a demonstration. The defendants stated that they wanted fifteen minute fuses. Hensel said, "(f)ine, I can give you enough where you have more than enough time; with time to spare." Hensel then capped and fused each stick, explaining how to place the charges in each of the bunkers so that the concussion of the one stick would explode the entire bunker. Accompanied by Cloud and Charon, Hensel took the seventh stick of dynamite to a nearby field, where he exploded it as a demonstration.
Cloud and Charon left Hensel and picked up the other co-defendants. On their way to the bunkers, they discovered that Hensel had fitted the charges with only six minute fuses. 13 They agreed that this would not allow them enough time to blow up all six bunkers, so they decided to blow up only one. The co-defendants returned to Eagle River by car, placed the stick of dynamite in one of the bunkers as Hensel had directed, lit it, and fled. Approximately three minutes after they had returned to the car and began driving away, the dynamite blew up in a fiery holocaust that registered 1.8 on the Richter Scale at the Earthquake Observation Center in Palmer, thirty miles away. The co-defendants barely escaped with their lives. At the time of the explosion, Hensel was asleep.
Hensel was indicted and charged with burglary not in a dwelling, malicious destruction of property, and receiving stolen property. 14 At the close of the prosecution's case, Hensel moved for judgments of acquittal on all charges based on insufficient corroboration of accomplice testimony. The superior court denied the motion. Hensel also argued that there was insufficient evidence of his having aided and abetted the burglary to hold him liable as an accomplice to the particular crime. It does not appear that the superior court ever ruled squarely on this issue. A jury convicted Hensel of all counts. After the guilty verdicts were returned, Judge Hanson ordered that the defendant undergo a psychiatric examination as part of the pre-sentence investigation, stating:
The--I'm very disturbed--this case disturbs me greatly, the acts of the defendant that the jury convicted (him) of seemed terribly incongruous with everything I can see about him and his family and it strikes me then that there must be some mental disability that I'm worried about.
Hensel's trial attorney thereafter moved for a new trial on the basis of newly discovered evidence which suggested that, at the time of his criminal conduct as a result of mental disease or defect, Hensel lacked the substantial capacity either to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of law. 15 The superior court denied the motion. The court sentenced Hensel to five years on the burglary count; three years, with two suspended, on the malicious destruction count to run consecutively to the burglary sentence; and three years, with two suspended, on the receiving and concealing count to run concurrently with the malicious destruction sentence. Hensel timely filed a notice of appeal.
Hensel retained new counsel who promptly filed a motion for post-conviction relief based on newly discovered evidence pursuant to Criminal Rule 35(b)(4). Relying on essentially the same psychiatric evidence presented in his motion for new trial, Hensel argued that he was suffering from a mental disease or defect which prevented him from having the state of mind which was required as an element of certain of the offenses of which he was convicted. In short, Hensel raised the issue of diminished capacity.
The superior court conducted an extensive evidentiary hearing on Hensel's application for post-conviction relief. Testimony concerning Hensel's background indicated that for some period of time prior to the Eagle River incident, Hensel had been depressed and concerned about his future. He had been burdened by misfortunes. 16 Financial difficulties plagued the family. Hensel had trouble finding and keeping employment. 17 His wife went to work and provided the majority of the family income. Marital friction developed between Hensel and his wife, and communication between them broke down. Hensel began drinking. Things started to improve, however, when Hensel secured his job at the bus barn in October of 1973.
Extensive psychiatric testimony was also elicited at the post-conviction hearing. The evidence, which is critical to the issue of Hensel's alleged diminished capacity, is summarized later in this opinion. 18
The superior court denied Hensel's motion for post-conviction relief.
Hensel appeals, raising three arguments. First, he contends that an improper allocation of burden of proof caused the superior court to judge improperly his evidence of diminished capacity and to deny erroneously his motion for post-conviction relief based on such evidence. Second, Hensel urges as error the superior court's denial of his motion for acquittal on the charge of burglary. Finally, Hensel argues that consecutive sentences for burglary and malicious destruction of property are unconstitutional under Whitton v. State, 479 P.2d 302 (Alaska 1970).
The superior court denied Hensel's application for post-conviction relief finding that he had failed to present sufficient facts to support his argument that he suffered from diminished capacity at the time he committed the offenses. The superior court's denial of relief turned, in part, upon a ruling which placed upon Hensel the burden of proving his allegations of diminished capacity by a preponderance of the evidence. In arriving at this conclusion, the superior court: (1) rejected Hensel's contention that diminished capacity should be treated like insanity, 19 because it is a form of "partial insanity;" and (2) distinguished allocation of the burden of proof at trial from allocation of the burden in post-conviction relief proceedings.
For purposes of this case, we accept, without deciding, the state's concession that a defense based on diminished capacity is sufficiently similar to a...
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