A judge has denied a motion to grant the man convicted of murdering two Hoonah police officers a new trial on one of the jury’s factual findings that exacerbates his sentence.
Sitka Superior Court Judge David George issued a ruling Thursday denying the motion from John Nick Marvin Jr.’s attorney Assistant Public Defender Eric Hedland.
Hedland argued that the jury should not have made the factual finding that Sgt. Anthony Wallace was engaged in the performance of official police duties when he was killed.
That’s a finding that enhances Marvin’s prospective sentence from a range of 20 to 99 years in prison to a flat sentence of 99 years.
The jury did not make that finding for the second slain policeman, Officer Matthew Tokuoka.
The jury was asked to make those findings in addition to the primary issue of whether Marvin committed first-degree murder. The jury convicted him in November on both counts of first-degree murder for fatally shooting the two officers in August 2010.
The factual findings deal with whether the two officers were uniformed or otherwise clearly identified as police officers when they were shot, and if they were engaged in the performance of official duties.
According to testimony during the trial at the time they were shot, Wallace was on-duty in a police uniform driving a marked police vehicle, whereas Tokuoka was in off-duty, in plainclothes driving a personal vehicle. Wallace was driving back into the center of town with his mother who was doing a ride-along, when he stopped to greet Tokuoka and his family who were taking out the trash in the parking lot at a liquor store. Prosecutors showed Marvin shot them from the second-story window of his nearby house as the two were exchanging pleasantries in the parking lot.
Hedland had argued in his motion it was undisputed at trial that Wallace was socializing with the Tokuoka’s at the time he was shot, and not engaged in official duties. District Attorney David Brower argued in response that an officer, especially a traditional “beat” officer patrolling an area, can be performing official duties without being actively engaged in police work.
“A uniformed police officer on duty walking down the street on a traditional ‘beat’ might stop and talk to a store owner for 10 minutes,” Brower wrote. “Someone might take that opportunity to shoot the officer.”
The judge agreed with Brower, writing in his ruling, “The undisputed evidence was that Officer Wallace was on duty, in uniform and on patrol at the time he was shot. The fact that while on patrol he stopped to exchange pleasantries with a fellow officer does not, in this court’s opinion, change his status as performing official duties. As the state points out, defendant’s argument would limit an officer’s “official duties” to an unspecified, but limited number of patrol functions determined by unknown factors. Defendant’s contention would doom an officer to constantly fading in and out of official duties, even though in uniform and on patrol the entire time. Defendant now urges the court to require a jury to determine an officer’s official status second by second, by each particular interaction or activity in which the officer engages during the course of his patrol.”
George continued on to write that vacating the jury’s finding for Wallace would impose “untenable and impractical” limitations upon police authority and undermines their interaction with the public.
“Is a uniformed officer stopped at a stoplight in his cruiser on official duty since he is not at that moment actively enforcing the law? What is the duty status of a uniformed officer who during the course of foot patrol speaks with a passing city assembly person, a child at a playground or a local merchant on the sidewalk outside his shop? The distinctions urged by defendant defy both reason and common sense, and would reduce the public’s ability to appreciate police authority to no more than divination.”
Marvin is still scheduled to be sentenced in Juneau on April 5. Marvin faces a flat sentence of 99 years for murdering Wallace, and a range from 20 to 99 years for murdering Tokuoka.
• Contact reporter Emily Russo Miller at 523-2263 or at email@example.com.