State v. Graham, Supreme Court No. S-17411

CourtSupreme Court of Alaska (US)
Writing for the CourtMAASSEN, Justice.
Citation513 P.3d 1046
Parties STATE of Alaska, Petitioner, v. Stacey GRAHAM, Respondent.
Docket NumberSupreme Court No. S-17411
Decision Date22 July 2022

513 P.3d 1046

STATE of Alaska, Petitioner,
Stacey GRAHAM, Respondent.

Supreme Court No. S-17411

Supreme Court of Alaska.

July 22, 2022

Nancy R. Simel, Assistant Attorney General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Petitioner.

Renee McFarland, Assistant Public Defender, Anchorage, and Samantha Cherot, Public Defender, Anchorage, for Respondent.

Before: Bolger, Chief Justice, Winfree, Maassen, Carney, and Borghesan, Justices.


MAASSEN, Justice.


A drunk driver lost control of his truck on a wet roadway and struck and killed two teenage girls. The driver pleaded guilty to two counts of second-degree murder with a sentencing range of 13 to 20 years for each count. At the sentencing hearing, members of both victims’ families and two local law enforcement officers spoke, and the sentencing court viewed tribute videos for the two young victims. The court imposed a term of 20 years in prison with 4 years suspended on each count, for a composite sentence of 32 years to serve, noting that it was the highest sentence imposed in Alaska for an unintentional vehicular homicide.

The court of appeals vacated the sentence based on several perceived errors in the sentencing court's calculation of the appropriate sentence; it also identified evidentiary errors which it believed contributed to the emotionally charged sentencing hearing and improperly influenced the judge's decision. The court of appeals directed that a different judge preside over resentencing.

The State filed a petition for hearing, which we granted. We conclude that the superior court properly began its sentencing analysis in the benchmark range for second-degree murder and appropriately considered an aggravator. We cannot conclude, as the court of appeals did, that the superior court gave too much weight to the sentencing goals of general deterrence and community condemnation. We do decide, however, that it was an abuse of discretion to allow the testimony of two police officers as victim impact evidence and to admit victim tribute videos without first reviewing them for relevance and unfair prejudice. We cannot say that the unusually severe sentence was untainted by these errors, but we do not believe that the superior court's admission of the challenged evidence requires recusal on remand. We therefore vacate the sentence and remand for re-sentencing by the same judge.

513 P.3d 1051


A. Facts

August 9, 2013, was the day of a golf1051 tournament and barbecue hosted by Stacey Graham's employer. Graham began drinking early that morning, brought a fifth of vodka and orange juice to the tournament (where drinks were served to participants), and continued drinking throughout the day. He and a friend bought another fifth of vodka after the tournament, and Graham had at least one more drink at the friend's house before leaving in his pickup truck.

Around 6:45 p.m. other motorists saw Graham's truck "barreling down" Dimond Boulevard in Anchorage with its tires squealing. One motorist reported that the truck was hydroplaning. Another driver and his wife saw Graham's truck speed by, swerve to avoid another vehicle exiting a parking lot, and then fishtail. Other witnesses reported that Graham honked at the vehicle in front of him at a traffic light, sped past when the light turned green, and changed lanes repeatedly to pass other cars, causing his truck to fishtail again. Another motorist reported that Graham cut in front of him, passed a second vehicle at high speed, and cut off an SUV. The driver thought Graham had "road rage" and was driving drunk. Graham's speed was estimated to be between 40 to 65 miles per hour; the witnesses agreed that Graham was going too fast for the wet road conditions.

At one point, when Graham swerved into the right lane, his truck slid sideways on the wet pavement, regained some traction, then veered right and jumped the curb. The truck struck Jordyn Durr and Brooke McPheters, two fifteen-year-old girls who were walking together on the sidewalk. The truck then hit a sign and came to rest on its side.

Both girls were pronounced dead at the scene. Graham was trapped inside his truck; he had to be extricated by the fire department before being taken to the hospital with serious injuries. A test taken three hours after the crash showed a blood-alcohol content of .180, more than twice the legal limit. The sample also contained marijuana metabolites.

A grand jury indicted Graham on two counts of second-degree murder under AS 11.41.110(a)(2) and two counts of manslaughter under AS 11.41.120(a)(1) ; a charge of driving under the influence under AS 28.35.030(a)(1) was later added by information. Graham's criminal history was negligible; he had one speeding ticket, no prior arrests, and no significant issues with alcohol abuse. He was 31 years old at the time and had a family and a steady job.

Graham agreed to plead guilty to both counts of second-degree murder and to a sentencing range of 13 to 20 years on each count, to be served consecutively, for a total range of 26 to 40 years. The superior court accepted the plea.

B. Proceedings

1. Statements and presentations

Superior Court Judge Kevin Saxby presided over a sentencing hearing. In addition to members of the girls’ families, the State sought to present the testimony of two police officers. The court allowed the testimony over a defense objection, reasoning that "[v]ictims are permitted to designate people to speak on their behalf" and that "[t]wo of the victims can't speak." Sergeant John McKinnon testified about his experience at the accident scene and breaking the news to the girls’ parents. Chief Mark Mew testified about the impact of drunk-driving deaths on the community generally and asked the court to impose a sentence severe enough to deter even the worst possible offenders.

The State then asked to play two tribute videos that the victims’ families wanted the court to see; the court allowed them to be played over a defense objection. The videos were 14 and 17 minutes long, respectively. They were both in slide-show format, displaying a stream of photographs from the victims’ lives beginning in infancy and accompanied by popular and sentimental music.1

513 P.3d 1052

One of the videos began with a voice mail message one of the victims had left for her parents shortly before her death.

Members of the girls’ families spoke next. They described the two girls killed in "the prime of teenage life" and the grief of knowing they would never experience the many milestones their families had looked forward to sharing with them. The family members asked that Graham "be held accountable for his actions" and called for him to be given the plea agreement's maximum sentence of 40 years to serve.

A representative from the Office of Victim's Rights spoke on behalf of other family members. She emphasized that drunk driving is "a stranger crime," tragically entangling the lives of people who had never met before. She testified that it was also a "highly preventable" crime that called for a "clear message" from the court that the community "will not tolerate it."

Graham's father and stepmother spoke on his behalf, describing Graham as "a good man, a good kid, a good father [who] made an awful, terrible, ugly decision to drive." Graham also spoke; he asked the girls’ families to accept that he was "completely broken, knowing the pain [he had] caused them." He testified that he was committed to speaking out against drunk driving: he would warn others that "it only takes once. It can, it will, it did."

2. The parties’ sentencing arguments

The State acknowledged that Graham was remorseful, had a favorable background, and had "high prospects for rehabilitation." Its sentencing argument focused on the issues of general deterrence and community condemnation. It also highlighted several past cases that could be read for the proposition that 13 years to serve is a common punishment for drunk drivers whose conduct is not extreme — i.e., who "merely" drive drunk as opposed to driving drunk and aggressively like Graham — and whose conduct results in a single fatality.

The State discussed the letters the court had received from the victims’ friends and families and recognized that "there would not be a dry eye in the courtroom" following the day's presentations. The State asked the court to impose the agreement's maximum sentence of 40 years to serve, which would be "the lengthiest sentence ever imposed in a DUI death."

Graham began his sentencing argument by asserting that — as reflected in reported Alaska cases — the highest penalty for a drunk-driving homicide that did not involve intentionally assaultive conduct was 20 years to serve. Graham emphasized the difference between retribution and justice, urging the court not to allow emotion to hold sway over reason and the law. He argued that a severe sentence would have a limited deterrent effect and that his age, lack of criminal record, and lack of a history of alcohol abuse all favored a lenient sentence....

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