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Dere v. State

Court of Appeals of Alaska

May 17, 2019

ADAM CHARLES DERE, Appellant,
v.
STATE OF ALASKA, Appellee.

          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 ...


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