Summary
concluding that no factual unanimity instruction was required when the jury might have convicted a defendant either on the defendant's own act of kicking the victim or his co-defendant's act of hitting the victim with a hammer, under an accomplice liability theory, because the State presented the events as a "single unitary criminal episode" and did not argue that the defendant or any of the other participants had "committed multiple assaults 'at clearly separate times and in clearly separate incidents.'"
Summary of this case from Vierra v. Municipality of AnchorageOpinion
Court of Appeals No. A-12402 Court of Appeals No. A-12545 No. 6681
08-15-2018
RICHARD ARLEN ERDMANN, Appellant, v. STATE OF ALASKA, Appellee. TAYLOR ROSS SMITH, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael L. Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for Appellant Erdmann, and KeriAnn Brady, Brady Law Office, San Diego, California, for Appellant Smith. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-13-642 CR
MEMORANDUM OPINION
Trial Court No. 3AN-13-643 CR Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Michael L. Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for Appellant Erdmann, and KeriAnn Brady, Brady Law Office, San Diego, California, for Appellant Smith. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
The State charged Richard Arlen Erdmann and Taylor Ross Smith with first-degree robbery, first-degree burglary, second-degree assault, and second-degree theft in connection with a break-in at the home of Benjamin Gall and Amanda Swafford. A jury found Erdmann and Smith (and another co-defendant) guilty of all four charges. After the jury returned its verdicts, Erdmann and Smith each asked the superior court to order a new trial under Alaska Criminal Rule 33, on the ground that the verdicts were against the weight of the evidence. The court denied the motions. We have consolidated Erdmann's and Smith's separate appeals for decision.
The court later merged the theft verdict into the robbery conviction for each defendant.
On appeal, Erdmann and Smith argue that the testimony of Gall and Swafford was so unreliable that the trial court should have ordered a new trial. When deciding whether a jury's verdict is against the weight of the evidence for purposes of Criminal Rule 33, a trial court is required to independently assess the credibility of witnesses and the weight of the evidence without deference to the jury's views of these matters. The ultimate question is whether the evidence supporting the verdict is "so slight and unconvincing as to make the verdict plainly unreasonable and unjust."
Taylor v. State, 262 P.3d 232, 233 (Alaska App. 2011).
Id. at 234 (quoting Howell v. State, 917 P.2d 1202, 1212 (Alaska App. 1996)); see also White v. State, 298 P.3d 884, 885 (Alaska App. 2013).
But when an appellate court reviews a trial court's denial of a motion for a new trial on the ground that the jury's verdict is against the weight of the evidence, we ask whether there is any evidentiary basis in the record for the jury's decision. Particularly when the credibility of witnesses is at issue, this Court "must give broad deference to the trial judge's ability to observe the demeanor of witnesses, to form a firsthand impression of their credibility, and to decide the weight that should be given to their testimony."
White, 298 P.3d at 886.
Maloney v. State, 667 P.2d 1258, 1267-68 (Alaska App. 1983).
While there were certainly bases for impeaching the testimony of Gall and Swafford at trial, Gall and Swafford consistently identified Erdmann, Smith, and a third co-defendant — people Gall considered friends and family — as participants in the burglary and robbery. The evidence showed that the door to Gall and Swafford's apartment was kicked in, and there was no dispute at trial that Gall was seriously injured during the events that followed. When the responding officer apprehended the suspects' vehicle near the apartment, the vehicle was full of property belonging to Gall and Swafford, and the officer recognized and positively identified Erdmann and Smith as they ran from the vehicle.
Having reviewed the evidence presented at trial, we conclude that the trial court did not abuse its discretion in denying Erdmann and Smith's motions for a new trial.
Id. at 1267 (noting that our review of a trial court's ruling on a motion for a new trial is limited to deciding whether the trial court abused its discretion).
Smith raises one other contention on appeal. He argues that the trial court erred by declining to instruct the jury on the need for factual unanimity with respect to the second-degree assault charge. To understand Smith's claim, we must provide additional factual background.
The evidence at trial showed that a group of four men — Smith, Erdmann, a third co-defendant, and a fourth man allegedly named "Hugo" — broke into Gall and Swafford's apartment while they were sleeping. Gall knew all of the men except for Hugo. (The police never located or charged Hugo.)
Gall encountered Hugo at the top of the stairs; Gall lunged at Hugo, and the two tumbled down the stairs and over the banister. Once Gall landed at the bottom of the stairs, all four men began kicking Gall in the face and head. Hugo then held Gall down while the other three men took items from the apartment and put them in a vehicle outside. At one point when Gall tried to get up, Hugo hit Gall in the face with a hammer.
Smith was convicted of second-degree assault under the theory that Smith, as a principal or as an accomplice, and with intent to cause physical injury, caused physical injury to Gall by means of a dangerous instrument.
See AS 11.41.210 (a)(1).
On appeal, Smith argues that his conviction for second-degree assault is flawed because, in the absence of a factual unanimity instruction, the jurors may have disagreed on the act that formed the basis for his conviction. Smith argues that some members of the jury may have convicted him based on his act of kicking Gall, while other members of the jury may have convicted him based on Hugo's subsequent act of hitting Gall with a hammer.
We reject Smith's claim for two reasons. First, the State presented the events as a single unitary criminal episode; the prosecutor did not argue that Smith (or any other participant) committed multiple assaults "at clearly separate times and in clearly separate incidents."
S.R.D. v. State, 820 P.2d 1088, 1092-93 (Alaska App. 1991); see also Mill v. State, 585 P.2d 546, 551-52 (Alaska 1978).
Second, even assuming a factual unanimity instruction was required, it is clear from the special verdict forms returned by the jury that the jury unanimously found Smith guilty under a complicity theory. In these special verdicts, the jury unanimously agreed that none of the three co-defendants personally used a dangerous instrument. Thus, taken together, the verdicts indicate that the jury found that it was Hugo (the fourth, uncharged participant) who personally used a dangerous instrument, and that Smith and his two co-defendants were complicit in Hugo's conduct. Thus, to the extent the court erred in failing to give a factual unanimity instruction as to the purportedly separate acts of assault, this error was harmless.
See our description of the special verdict forms in this case in Smith v. State, ___ P.3d ___, Op. No. 2608, 2018 WL 3597804, *5-6 (Alaska App. July 27, 2018). --------
For these reasons, we AFFIRM the judgments of the superior court.