KRUKOFF v. STATE

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Docket Number

No. A-183.

Attorney(S)

Tina Kobayashi and Susan Orlansky, Asst. Public Defenders, and Dana Fabe, Public Defender, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

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Smart Summary

Factual and Procedural Background

Condrat Krukoff was convicted on two counts of first-degree murder for the deaths of his brothers, John and Maxim Krukoff. On December 27, 1982, Constable Jerry Covill was called to the Krukoff residence on St. Paul Island, where he discovered the bodies of the deceased brothers. Concerned that Condrat Krukoff, who was absent at the time, might be armed, Covill conducted a warrantless search of the house, locating several firearms, including a rifle in Krukoff's bedroom closet. The weapons were moved to the living room, and the following day, a search warrant was obtained to seize the firearms. Krukoff moved to suppress the rifle found in his closet, arguing it was illegally seized. The Superior Court denied the motion, and Krukoff was subsequently convicted and sentenced to two consecutive ninety-nine year terms. Krukoff appealed both the admission of the rifle and the length of his sentence.

Legal Issues Presented

Whether the warrantless search and seizure of Krukoff's rifle was unlawful and whether the rifle should have been suppressed as evidence.
Whether the imposition of consecutive ninety-nine year sentences was excessive and whether the sentencing court erred by failing to make an explicit finding that consecutive sentences were necessary to protect the public.
Whether the trial court erred in instructing the jury that it must unanimously acquit Krukoff of first-degree murder before considering the lesser-included offense of second-degree murder.

Arguments of the Parties

Appellant's Arguments

The rifle was illegally seized through a warrantless search and should have been suppressed as evidence.
The consecutive ninety-nine year sentences imposed were excessive and not supported by an explicit finding of necessity to protect the public.
The jury instruction requiring unanimous acquittal of first-degree murder before considering second-degree murder was erroneous.

Appellee's Arguments

The warrantless search was justified under the emergency aid doctrine due to the discovery of a double homicide and the concern that Krukoff might be armed.
The consecutive sentences were justified based on Krukoff’s dangerousness and criminal history, even if an explicit finding was not made on the record.
The jury instruction on unanimity had been previously upheld in prior Alaska appellate decisions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Michigan v. Tyler, 436 U.S. 499 (1978)	Warrantless entry may be legal when there is a compelling need for official action and no time to secure a warrant.	The court applied this principle to justify the warrantless search due to the emergency situation of a double homicide and the need to ensure safety.
Gallmeyer v. State, 640 P.2d 837 (Alaska App. 1982)	Three elements necessary to justify a warrantless search under the emergency aid doctrine.	The court found these elements present, supporting the legality of the warrantless search.
People v. Mitchell, 39 N.Y.2d 173 (1976)	Standard for warrantless searches under exigent circumstances/emergency aid.	Referenced as the basis for the three-fold standard applied in Alaska cases.
Nix v. Williams, 104 S.Ct. 2501 (1984)	Illegally obtained evidence is admissible if it would have inevitably been discovered by lawful means.	The court noted the rifle would have been found during the subsequent warrant search, supporting admission under inevitable discovery.
State v. Butler, 676 S.W.2d 809 (Mo. 1984)	Inevitable discovery as a basis for admission of evidence seized following a warrantless search.	Used to support the rationale that the rifle’s admission was proper despite initial warrantless discovery.
Lacquement v. State, 644 P.2d 856 (Alaska App. 1982)	Requirement for affirmative findings to justify consecutive sentences.	Krukoff argued the sentencing court failed to meet this standard; the court analyzed the record to determine if the need for public protection was clear.
Neal v. State, 628 P.2d 19 (Alaska 1981)	Reversal not required if the need to isolate the accused for public protection is clear from the record despite lack of formal finding.	The court found the record supported an implicit finding that Krukoff posed a serious risk to public safety.
Nukapigak v. State, 663 P.2d 943 (Alaska 1983)	Upholding of consecutive ninety-nine year sentences for first-degree murder where release would threaten public safety.	The court found Krukoff’s case analogous and upheld the consecutive sentences as not clearly mistaken.
McClain v. State, 519 P.2d 811 (Alaska 1974)	Standards for reviewing sentencing decisions.	Referenced to support the reasonableness of the sentence imposed on Krukoff.
Dresnek v. State, 697 P.2d 1059 (Alaska App. 1985)	Jury instruction requiring unanimous acquittal before considering lesser-included offenses is proper.	The court cited this precedent to reject Krukoff’s challenge to the jury instruction.
Nell v. State, 642 P.2d 1361 (Alaska App. 1982)	Same as Dresnek regarding jury instructions on lesser-included offenses.	Also cited to uphold the jury instruction challenged by Krukoff.

Court's Reasoning and Analysis

The court first addressed the legality of the warrantless search conducted by Constable Covill. It applied the emergency aid doctrine, which permits warrantless entry when there is a compelling need and no time to secure a warrant. The discovery of a double homicide created an emergency situation, and the officer's search was motivated by concern for safety rather than evidence gathering. The three elements justifying such a search, as established in prior Alaska case law and the New York standard from People v. Mitchell, were satisfied. The court further noted that the rifle was seized the following day pursuant to a valid search warrant, invoking the inevitable discovery doctrine to affirm admissibility.

Regarding sentencing, the court examined whether the imposition of consecutive ninety-nine year sentences was excessive and whether the sentencing judge erred by failing to make an explicit finding justifying consecutive terms. The court relied on Neal v. State, which permits affirmance if the record clearly shows the necessity of protecting the public. The judge’s findings on Krukoff’s dangerousness, criminal history, and failure to reform despite treatment and incarceration supported the conclusion that substantial confinement was necessary. The court found the sentence reasonable and consistent with prior cases such as Nukapigak v. State.

Finally, the court rejected Krukoff’s argument regarding jury instructions on lesser-included offenses, citing recent precedents that upheld such instructions.

Holding and Implications

The conviction and sentence are AFFIRMED.

The court upheld the denial of the motion to suppress the rifle, finding the warrantless search justified under the emergency aid doctrine and the subsequent warrant supported inevitable discovery. The court also affirmed the consecutive ninety-nine year sentences, determining that the sentencing judge’s implicit findings and the record sufficiently demonstrated the necessity to protect the public. The jury instruction challenged by Krukoff was upheld based on controlling precedent. This decision directly affirms Krukoff’s convictions and sentence without establishing new legal precedent.

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CONDRAT KRUKOFF, APPELLANT, v. STATE OF ALASKA, APPELLEE.

OPINION

BRYNER, Chief Judge.

Condrat Krukoff appeals his convictions on two counts of murder in the first degree. AS 11.41.100(a)(1). Krukoff argues that his rifle was illegally seized and should not have been admitted into evidence against him. He also appeals as excessive the consecutive ninety-nine year terms imposed by Superior Court Judge Seaborn J. Buckalew, Jr. We affirm.

In addition Krukoff contends that the trial court erred in instructing the jury that it must unanimously acquit him of first-degree murder before considering the lesser-included offense of second-degree murder. We have already rejected this argument in Dresnek v. State, 697 P.2d 1059 (Alaska App. 1985) and Nell v. State, 642 P.2d 1361 (Alaska App. 1982).

On December 27, 1982, Constable Jerry Covill was called to a house on St. Paul Island in which Condrat Krukoff resided with John Krukoff, Maxim Krukoff, and Patsy Melovidov. Covill observed the bodies of Maxim and John Krukoff in the upstairs bedrooms; both were dead. A bullet wound was visible in John Krukoff's head. When Covill entered, Patsy Melovidov was sitting at the kitchen table; Condrat Krukoff was not in the house.

Covill knew of at least three guns owned by the Krukoff brothers. Afraid that Condrat Krukoff might be armed, Covill searched the residence for the weapons, finding a rifle and a shotgun in the washroom and a sporting rifle in Condrat Krukoff's bedroom closet. Covill moved the weapons to the living room and left the house in search of Krukoff, who was arrested shortly thereafter. The weapons were seized the next day pursuant to a search warrant.

Krukoff was subsequently charged with the first-degree murder of his brothers. He moved to suppress the rifle that Covill found in his bedroom closet. Superior Court Judge Ralph E. Moody denied the motion, finding that Covill's search was not unreasonable under the circumstances. We agree. "[A] warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486, 498 (1978).

The three elements necessary to justify a warrantless search under the emergency aid doctrine are present here. See Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App. 1982) (applying the three-fold standard set forth in People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, 609, cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 (1976)). The discovery of a double homicide presented an emergency situation. Covill's search of the immediate premises for the Krukoff weapons was motivated by a concern for the safety of himself and others — it was not an attempt to gather evidence but rather an attempt to determine whether Krukoff, the absent brother, was armed. The guns were located and moved to the living room. No evidence was seized as a consequence of the warrantless search. Judge Moody did not err in denying Krukoff's pre-trial motion to suppress.

Krukoff's gun was seized the following day, after issuance of a warrant to search the house. This second search would doubtless have turned up Krukoff's gun, even if it had not been previously moved from the bedroom closet to the living room by Covill. Cf. Nix v. Williams, ___ U.S. ___, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (illegally obtained evidence admissible if it would have inevitably been discovered by lawful means); State v. Butler, 676 S.W.2d 809 (Mo. 1984) (inevitable discovery as second legitimate basis, in addition to exigent circumstances, for admission of evidence seized following a warrantless search of bedroom where fatal shooting took place).

Krukoff was convicted of two counts of murder in the first degree. Judge Buckalew sentenced Krukoff to two consecutive terms of ninety-nine years. Krukoff appeals his aggregate sentence as excessive, contending that the sentencing court failed to make an affirmative finding that imposition of consecutive sentences was necessary to protect the public, Lacquement v. State, 644 P.2d 856 (Alaska App. 1982), and that his sentence does not comport with approved sentences in comparable cases.

Judge Buckalew found that Krukoff was a most dangerous offender in that when Krukoff drank, he was extremely dangerous and totally unpredictable. Judge Buckalew concluded that no program could protect the community other than substantial confinement.

Where the sentencing judge fails to make a formal finding of necessity to justify the imposition of consecutive sentences exceeding the maximum for a single count, reversal will not be required, provided that the need to isolate the accused for the protection of the public is clear from the record. Neal v. State, 628 P.2d 19, 21 (Alaska 1981). The record in this case supports Judge Buckalew's implicit conclusion that Krukoff "presents a risk of continued criminal conduct which would seriously threaten the public safety." Id. at 21. Krukoff was thirty-five years old at the time of sentencing and had a substantial criminal record, which included numerous felony and misdemeanor assaults. While all of Krukoff's criminal offenses appear to have been alcohol related, his drinking continued despite participation in an alcohol treatment program and five years' incarceration.

There is little to distinguish this case from Nukapigak v. State, 663 P.2d 943 (Alaska 1983), where the Alaska Supreme Court upheld a sentence of three consecutive ninety-nine year terms on first-degree murder convictions, stating: "there was no way of assuming that society would ever be safe if he were released from prison." Id. at 945-46. Given the circumstances of this case, we cannot say that a sentence of consecutive ninety-nine year terms is clearly mistaken. Nukapigak, 663 P.2d at 946; McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

The conviction and sentence are AFFIRMED.