Appeal
from the Superior Court, Third Judicial District, Anchorage,
Philip R. Volland, Judge. Trial Court No. 3AN-13-10287 CR
Brooke
Berens, Assistant Public Advocate, and Richard Allen, Public
Advocate, Anchorage, for the Appellant.
A.
James Klugman, Assistant District Attorney, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge.[*]
OPINION
MANNHEIMER, JUDGE
Adam
Charles Dere was charged with first-degree robbery,
fourth-degree assault, and third-degree theft, [1] based on
allegations that Dere borrowed another man's mobile phone
and then, when the man asked Dere to return his phone, Dere
assaulted the man with an electrical stun device and ran off
with the phone.
The
primary issues in this appeal arise from the fact that the
jury at Dere's first trial was unable to reach a verdict
on the robbery charge, and the judge ultimately declared a
mistrial on that count. Then, over defense objection, the
judge allowed the jury to continue deliberating on the lesser
charges of assault and theft - and the jury returned guilty
verdicts on those two counts.
Dere's
first major argument on appeal is that the jury at his first
trial should not have been allowed to return verdicts on the
charges of assault and theft.
Dere
contends that, given the State's theory of prosecution,
and given the evidence presented at Dere's trial, both
the charge of fourth-degree assault and the charge of
third-degree theft were lesser included offenses of the
robbery charge. And because (according to Dere) these lesser
offenses were necessarily included in the robbery charge,
Dere argues that the trial judge committed error when the
judge allowed the jurors to continue deliberating on the
assault and theft charges after the jurors could not reach
unanimous agreement on the robbery charge. Dere contends that
the judge should have declared a mistrial as to all three
charges: robbery, assault, and theft.
Dere's
second major argument on appeal arises from the fact that,
after the mistrial on the robbery charge, the State brought
Dere to trial a second time for robbery. At this second
trial, Dere's attorney asked the judge to allow the jury
to deliberate on the assault and the theft charges, even
though Dere had already been found guilty of those charges.
The judge refused to instruct the jury on the charges of
assault and theft - concluding that it would be improper to
allow Dere to use the second trial as a means of relitigating
the two guilty verdicts from the first trial. On appeal, Dere
contends that the judge's decision was error.
Both of
Dere's appellate claims require us to revisit the law
that governs situations where a jury is instructed on a
charged offense and, in addition, one or more lesser included
offenses.
This
Court has issued several decisions in this area, and one of
them - Hughes v. State, 668 P.2d 842 (Alaska App.
1983) - deals with the precise situation presented at
Dere's first trial, where the jury deadlocked on the
charged offense but was later able to reach a verdict on a
lesser included offense.
In
Hughes, we upheld the trial judge's decision to
declare a mistrial on the charged offense, to allow the
jurors to continue deliberating on the lesser offense, and
ultimately to accept the jury's verdict on the lesser
offense - but to delay entering judgement and imposing
sentence until after the charged offense was retried and
resolved. Thus, Hughes approves the procedure that
was adopted by the judge at Dere's first trial.
On
appeal, Dere argues that Hughes was wrongly decided,
and that our decision in Hughes is inconsistent with
things that this Court has said in other cases dealing with
this area of the law. As we explain in this opinion, the
holdings of our other cases are all consistent with
Hughes, but one of these cases contains
dictum that is potentially contrary to our holding
in Hughes. We therefore take this opportunity to
further explain and clarify the law that governs these
situations.
Dere
raises other issues on appeal: he claims that the prosecutor
at his first trial violated the State's duty of pre-trial
discovery by providing tardy disclosure of a recording of
Dere's police interview, and Dere also challenges two
conditions of his probation. For the reasons explained in
this opinion, we reject these claims with one exception: we
conclude that one of the challenged conditions of Dere's
probation amounts to plain error, and we therefore vacate it.
Background
facts
On
September 21, 2013, Johnny Grafft finished his shift at an
Anchorage restaurant. Grafft was about to walk home when Dere
approached him outside the restaurant and asked to borrow his
mobile phone. Grafft obliged him.
After
Dere unsuccessfully attempted to place a call, he briefly
gave the phone back to Grafft, but then he snatched it from
Grafft's hand. After grabbing the phone, Dere circled
behind Grafft and shocked him twice with an electrical stun
device. Then Dere ran off with the phone into some adjoining
woods.
Grafft
returned to the restaurant and alerted his co-workers that a
man had "tased" him and stolen his mobile phone.
Several of the restaurant employees went looking for Dere.
They found him in the woods and subdued him. An electrical
stun device shaped like brass knuckles was discovered in
Dere's pocket, but Dere no longer had the mobile phone.
The employees took Dere back to the restaurant's parking
lot, and Grafft identified Dere as the man who had assaulted
him and stolen his phone.
Three
Anchorage police officers were dispatched to the scene. One
of them searched the nearby woods and located Grafft's
mobile phone. Another officer interviewed Dere for about 30
minutes. In this recorded interview, Dere acknowledged being
present when Grafft's phone was taken, but Dere claimed
that "a friend of his named Billy" was the one who
tased and robbed Grafft.
According
to the interviewing officer, Dere "couldn't really
tell me anything about Billy - couldn't tell me his last
name, where he lived, what his phone number was, [or]
anything like that."
As we
explained at the beginning of this opinion, Dere was charged
with three crimes - first-degree robbery, fourth-degree
assault, and third-degree theft - based on these events.
Dere
was brought to trial twice in connection with these charges.
At Dere's first trial, Dere's attorney conceded that
Dere was guilty of the two lesser charges - i.e.,
the assault and the theft - but the defense attorney argued
to the jury that the State had overreached when it charged
Dere with first-degree robbery.
According
to the defense attorney, the State's evidence failed to
establish some of the necessary elements of first-degree
robbery. Although Dere's attorney conceded that Dere had
struck Grafft with the knuckle-shaped device, the defense
attorney argued that this device did not qualify as a
"stun device" in the eyes of the law - and that, in
any event, there had been no battery in the device when Dere
used it to strike Grafft. Thus, the attorney argued, even if
Dere committed robbery, Dere was not guilty of
first-degree robbery - a charge which required the State
to prove that Dere used or attempted to use a dangerous
instrument or a defensive weapon in aid of the
taking.[2]
The
defense attorney also argued that, even though Dere struck
Grafft, Dere did not commit this assault for the purpose of
taking or retaining possession of Grafft's mobile phone.
According to the defense attorney, Dere's crimes of
assault and theft were completely independent of each other,
and Dere was therefore not guilty of robbery at all - not
even in the second degree.
During
the jury's deliberations, the foreman sent a note to the
judge indicating that the jury was deadlocked on the charge
of first-degree robbery. In response to this note, the judge
summoned the jury to the courtroom and asked each juror
whether they believed that further deliberations would be
helpful. Each juror confirmed that the jury was in fact
deadlocked on the charge of first-degree robbery. The jury
foreman told the judge that the jurors had not reached
verdicts on the remaining counts of theft and assault, but
the foreman also stated that he believed the jury could reach
verdicts on those counts.
Dere's
attorney objected to any continued jury deliberations on the
assault and theft charges. He asserted that, under the
State's theory of the case, the assault and the theft
charges were lesser included offenses of the robbery charge.
(As we have already explained, the defense attorney was
partially correct: the assault charge was a lesser included
offense, but the theft charge was not.)
Based
on his assertion that both of the lesser offenses were
included in the robbery charge, the defense attorney argued
that if the jurors could not reach a verdict on the robbery
charge, they should be told to stop deliberating altogether -
without returning any verdict on the assault and theft
charges.
In
response, the prosecutor noted that the crimes of assault and
theft were charged independently, as separate counts of the
charging document. Because of this, the prosecutor argued
that even if the assault and the theft might qualify as
lesser included offenses of the robbery, the jury should
nevertheless continue deliberating on these two remaining
charges.
After
hearing the attorneys' positions, the judge declared a
mistrial on the first-degree robbery count, but he allowed
the jury to continue deliberating on the assault and theft
counts.
The
judge stated that, given the way Dere's case was being
litigated, he was unsure whether the assault and the theft
were actually lesser included offenses of the robbery. But
the judge ultimately concluded that there was no manifest
necessity to declare a mistrial on the assault and theft
charges, so he instructed the jury to continue deliberating
on those charges. After resuming deliberations, the jury
found Dere guilty of the assault and theft charges.
The
State elected to try Dere again on the first-degree robbery
charge. Prior to this retrial, Dere's attorney filed a
series of motions arguing that, because Dere had already been
tried and convicted of assault and theft, and because these
two crimes constituted lesser included offenses of robbery,
any retrial of the robbery count would violate the guarantee
against double jeopardy. The judge denied these motions.
Then,
at the beginning of the second trial, Dere's defense
attorney argued that the jury should be instructed to
deliberate and return verdicts, not just on the robbery
charge, but also on the crimes of assault and theft, even
though the first jury had already found Dere guilty of those
crimes. The defense attorney argued that this procedure was
necessary so that the jury at the second trial would have the
same opportunity as the first jury to consider whether the
assault and the theft were truly independent crimes, rather
than components of a robbery. The judge denied the defense
attorney's request.
When
the parties discussed jury instructions toward the end of
Dere's second trial, neither the prosecutor nor the
defense attorney requested an instruction on the lesser
offense of second-degree robbery - even though one of the
defense attorney's primary themes at Dere's first
trial was that the stun device contained no battery, and thus
Dere could be guilty of no more than second-degree robbery.
However,
the defense attorney again requested to have the jury
instructed on the lesser crimes of assault and theft. The
judge denied this request.
The
jury deliberated and found Dere guilty of first-degree
robbery.
At
Dere's sentencing, the judge merged the assault and theft
verdicts from Dere's first trial with the robbery verdict
from his second trial. Based on these verdicts, the judge
entered a single conviction and sentence for first-degree
robbery.
(As we
explain in the next section of this opinion, theft is not a
lesser included offense of robbery, and thus the superior
court should not have merged the robbery and theft verdicts
into a single conviction. However, the State does not
challenge this irregularity on appeal.)
The
double jeopardy principles that govern this case
In this
appeal, Dere renews his assertion that his crimes of assault
and theft were lesser offenses that were necessarily included
in the robbery charge. And based on his assertion that the
assault and the theft were lesser included offenses of the
robbery, Dere argues that the State violated his rights under
the double jeopardy clause by bringing him to trial a second
time on the robbery charge - or, at least, by bringing him to
trial a second time for robbery without also allowing the
second jury to re-decide whether Dere was guilty of assault
and theft.
There
are four principles of double jeopardy law that apply to
Dere's case - principles that apply generally whenever a
defendant is brought to trial on a charged offense that
necessarily includes one or more lesser offenses.
The
first principle is that, once jeopardy has attached at a
criminal jury trial (/.e., once the jury has been sworn),
[3]
the defendant is entitled to have that jury decide the case
unless (1) the defendant consents to ending the trial
prematurely, or (2) there is a manifest necessity for
declaring a mistrial - i.e., a necessity for ending
the trial before the jury has resolved the issues before
it.[4] If the jury is discharged without the
defendant's consent before it has returned a verdict, and
if there was no manifest necessity for discharging the jury,
then the defendant cannot be retried for that
offense.[5]
The
second principle is that, even though there are lesser
offenses that are necessarily included in the charged
offense, and even though the jury may be able to reach a
verdict on a lesser offense, the government is still entitled
to have the jury decide the charged offense.[6]
The
third principle is that, if a mistrial is declared on one or
more charges, and if the defendant consented to the mistrial,
or if there was a manifest necessity for declaring a mistrial
on those charges, then the ensuing retrial of the charges
does not constitute a second jeopardy. Rather, the retrial is
a continuation of the defendant's earlier
jeopardy.[7]
The
fourth principle is that, once a defendant has faced jeopardy
for an offense and that offense has been resolved with either
a conviction or an acquittal, the government is thereafter
barred from initiating a successive prosecution against the
defendant (1) for a lesser offense that was necessarily
included in the original offense, or (2) for a greater
offense which necessarily includes the original offense for
which the defendant was convicted or acquitted.[8]
Even
before the United States Supreme Court articulated this
fourth principle as a component of federal double jeopardy
law in Brown v. Ohio in 1977, this principle had
been a feature of Alaska's statutory law for decades. It
was codified in the Carter Code of 1900, [9] and it is currently
found in Alaska Statute 12.20.040:
When the defendant is convicted or acquitted of a crime
consisting of different degrees, the conviction or acquittal
is a bar to another prosecution for the crime charged in the
former or for any inferior degree of that crime, or for an
attempt to commit that crime, or for an offense necessarily
included in the crime of which the defendant might have been
convicted under the information, indictment, or complaint.
(Because this statute predates the Alaska Supreme Court's
adoption of the "cognate" approach to lesser
included offenses, there is a question as to whether this
statute applies only to offenses that are necessarily
included under the federal "statutory elements"
test, or whether this statute now incorporates the cognate
approach to lesser included offenses that our supreme court
adopted in Elisovsky v. State.[10] The facts of
Dere's case do not require us to answer this question.)
Dere
's argument that the judge at his first trial should not
have allowed the jury to return verdicts on the assault and
theft charges
Dere
argues that it was unlawful for the judge at his first trial
to allow the jury to continue deliberating on the charges of
assault and theft after the judge declared the jury to be
hung on the robbery charge (i.e., after the judge
found that there was no probability that the jury could reach
a unanimous decision regarding the robbery charge).
[11] Dere's argument has two
components.
First,
Dere asserts that the assault and theft charges were
necessarily included in the charge of robbery. Second, Dere
asserts that whenever a lesser crime is necessarily included
in a greater crime, it is unlawful for the jurors to return a
verdict on the lesser crime if they are unable to reach
unanimous agreement on the greater crime.
The
relationship between the charge of first-degree robbery and
the separate charges of theft and assault
Dere is
mistaken when he asserts that his theft charge was
necessarily included in his robbery charge.
Colloquially,
one might describe the crime of robbery as the combined act
of assaulting someone and taking their property. Thus,
seemingly, a defendant who commits a robbery has necessarily
committed a theft. But as a legal matter, this is not the
case.
As
defined in AS 11.41.510(a), the crime of robbery consists of
taking or attempting to take property from the immediate
presence and control of another person if, during the course
of the taking or attempted taking, the defendant "uses
[force] or threatens the immediate use of force upon any
person with [the] intent to ... prevent or overcome
resistance to the taking of the property or the retention of
the property after [the] taking."
For
purposes of analyzing the relationship between a charge of
robbery and a charge of theft, the important aspects of this
definition are that a charge of robbery does not require the
State to prove (1) that the defendant actually succeeded in
taking the property, nor does a robbery charge require the
State to prove (2) that the defendant took the property with
the intent to permanently deprive the victim of the property.
See
Nell v. State, 642 P.2d 1361, 1365-66 (Alaska App.
1982), where this Court expressly rejected the contention
that a charge of robbery requires the State to prove that the
defendant intended to permanently deprive the victim of the
property.
Because
a charge of theft requires the State to prove that the
defendant acted with the intent to permanently deprive the
victim of the property, [12] and because a charge of robbery
does not require proof of this intent, one may commit robbery
without committing theft. For this reason, the Alaska Supreme
Court held in State v. Minano, 710 P.2d 1013, 1016
(Alaska 1985), that theft is not a lesser included offense of
robbery.
(In
Dere's case, for instance, Dere no longer had
Grafft's mobile phone in his possession when he was
apprehended. Rather, the police found Grafft's phone when
they searched the woods. This evidence was at least
consistent with the theory that Dere only wanted the phone
for a short time, and that he discarded it in the woods when
he was done with it. This view of the evidence would suggest
that Dere was guilty of robbery but not theft.)
In sum,
under Alaska law, theft is not a lesser included offense of
robbery. Dere's theft of the mobile phone had to be
charged separately, and the jury had to resolve that charge
separately, regardless of its verdict - or its inability to
reach a verdict - on the robbery charge.
Turning
to Dere's fourth-degree assault charge, the Alaska
Supreme Court has not definitively resolved the issue of
whether assault is a lesser included offense of robbery.
However, the supreme court's decision in Woods v.
State, 667 P.2d 184, 187-88 (Alaska 1983), strongly
suggests that a charge of fourth-degree assault under AS
11.41.230(a)(1) is not a lesser included offense of robbery.
The
defendant in Woods was convicted of first-degree
sexual assault, and a question arose as to whether the
superior court could impose an aggravated sentence based on
the fact that Woods inflicted physical injury on his victim.
Under
AS 12.55.155(c)(1), a felony defendant who is subject to
presumptive sentencing can receive an aggravated sentence if
"a person, other than an accomplice, sustained physical
injury as a direct result of the defendant's
conduct". However, another section of the same statute -
AS 12.55.155(e) - declares that "if a factor in
aggravation is a necessary element of the [defendant's]
offense, ... that factor may not be used to impose [an
aggravated] sentence".
Woods
pointed out that the charge of first-degree sexual assault
required the State to prove that Woods used force or threat
of force to coerce his victim to engage in sexual
penetration.[13] Based on this requirement of
forcible coercion, Woods argued that the infliction of
physical injury was a necessary element of his charge of
first-degree sexual assault-and thus, under AS 12.55.155(e),
the superior court would be forbidden from aggravating
Woods's sentence based on the fact that he injured his
victim.
The
Alaska Supreme Court rejected this argument. The court noted
that the element of "without consent" can be
established by "mere threat of imminent physical
injury", and that "no actual physical injury need
occur".[14] Because of this, the supreme court
declared that "physical injury is not a necessary
element of the crime of sexual assault in the first
degree" - and, thus, "the superior court could
properly consider [the victim's] physical injuries as an
aggravating factor in sentencing Woods." [15]
Although
the decision in Woods is not necessarily dispositive
of Dere's claim that assault is a lesser included offense
of robbery, the supreme court's analysis in
Woods strongly suggests that Dere's charge of
fourth-degree assault under AS 11.41.-230(a)(1) was
not included in his charge of robbery.
Under
AS 11.41.230(a)(1), a charge of fourth-degree assault
requires the State to prove that the defendant
"recklessly caus[ed] physical injury to another
person". (In this context, "physical injury"
means "physical pain or an impairment of physical
condition".[16]) In contrast, a charge of robbery
requires the State to prove only that the defendant used
force, or threatened the immediate use of force, for the
purpose of obtaining possession (or retaining possession) of
property. A robbery charge does not require the State to
prove that the defendant inflicted physical injury on anyone.
Under
the reasoning in Woods, it would appear that a
charge of robbery does not necessarily include a charge of
fourth-degree assault under AS 11.41.230(a)(1). However,
there is no appellate decision directly resolving this point,
and the parties do not discuss the Woods decision.
For this reason, we will analyze Dere's case under the
debatable assumption that his fourth-degree assault charge
was a lesser included offense of his robbery charge.
To
summarize our discussion thus far: Dere argues that it is
unlawful to allow a jury to return a verdict on a lesser
included offense if the jury is deadlocked on the greater
offense. But this argument is not relevant to Dere's
theft charge, because our supreme court has held that theft
is not a lesser included offense of robbery, and Dere's
argument is only debatably relevant to his assault charge,
because the supreme court's decision in Woods
suggests that assault may not be a lesser included offense of
robbery either.
After
Dere's trial judge declared the jury to be hung on the
robbery charge, the judge properly allowed the jury to
continue deliberating on the fourth-degree assault
charge
We now
turn to the legal merits of Dere's contention that, when
a defendant faces a greater charged offense and one or more
lesser included offenses, and when the trial judge declares
the jury to be hung on the charged offense, it is unlawful
for the judge to allow the jury to continue deliberating and
return a verdict on a lesser included offense.
This
Court has, in fact, already rejected this argument: see
Hughes v. State, 668 P.2d 842 (Alaska App. 1983). We
discuss the Hughes decision in the next section of
this opinion.
(a)
This Court's decision in Hughes v. State
Hughes
v. State involved a situation like Dere's case: the
defendant in Hughes was charged in separate counts
with crimes that stood in the relation of greater offense and
lesser included offense. After the case was submitted to the
jury, the jurors informed the trial judge that they were
deadlocked with respect to the greater charge, but they were
able to reach a verdict on the lesser charge.[17]
Like
the trial judge in Dere's case, the trial judge in
Hughes ultimately declared a mistrial on the greater
charge, but he accepted the jury's verdict on the lesser
charge. And, like the judge in Dere's case, the judge in
Hughes did not immediately enter judgement against
the defendant and sentence him for the lesser crime. Instead,
the judge simply received the jury's verdict, allowed the
State to retry the defendant on the greater charge, and then
- after all of the charges were finally resolved - the judge
entered judgement and sentenced the defendant.[18]
On
appeal, Hughes argued that it was a violation of the double
jeopardy clause for the State to retry him on the greater
charge, given that Hughes had already been found guilty of a
lesser included charge. But this Court rejected Hughes's
double jeopardy argument, and we upheld the result of
Hughes's second trial - that is, we upheld Hughes's
conviction for the greater offense.[19]
The
wording of the Hughes opinion is a little nebulous
regarding our reasons for rejecting Hughes's double
jeopardy argument, but our decision in Hughes
ultimately rested on one of the tenets of double jeopardy law
that we have already discussed: the rule that when the jury
is hung, or when there is some other manifest necessity for
ending a criminal trial before the jury has reached a
verdict, a retrial does not subject the defendant to a
"second" jeopardy. Rather, the retrial is a
continuation of the defendant's initial jeopardy. The
retrial is not a "successive
prosecution".[20]
Even
though the jury at Hughes's first trial found him guilty
of the lesser included offense, Hughes's retrial on the
greater offense did not violate either the double jeopardy
clause or the analogous statutory rule codified in AS
12.20.040 - because both of these ...