Summary
affirming superior court's dismissal of untimely motion for new trial
Summary of this case from Larson v. Alaska Dep't of Corr.Opinion
Court of Appeals No. A-11281 Trial Court No. 4FA-96-3495 CR No. 5956
06-26-2013
LOREN J. LARSON JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Loren J. Larson Jr., in propria persona, Seward, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: Loren J. Larson Jr., in propria persona, Seward, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge .
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
Loren J. Larson Jr. appeals the superior court's dismissal of his motion for a new trial. Larson concedes that his motion was not filed within the time limits specified in Alaska Criminal Rule 33, but he argues that the superior court should have exercised its authority under Criminal Rule 53 to relax those time limits and allow Larson to pursue his motion. For the reasons explained in this opinion, we conclude that the superior court did not abuse its discretion when it refused to relax the time limits. Accordingly, we affirm the superior court's dismissal of Larson's motion for a new trial.
Larson's earlier application for post-conviction relief based on claims of jury misconduct; this Court's rejection of those claims in Larson v. State, 79 P.3d 650 (Alaska App. 2003)
Unless otherwise noted, the following description of Larson's previous litigation of the juror misconduct claim is taken from the Alaska Supreme Court's decision in Larson v. State, 254 P.3d 1073, 1075-76 (Alaska 2011):
In 1998, a jury convicted Larson of two counts of first-degree murder and one count of first-degree burglary. He was sentenced to two consecutive 99-year terms for the murder counts and a 10-year concurrent term for the burglary count.
In 2000, this Court affirmed Larson's convictions on direct appeal. See Larson v. State, unpublished, Alaska App. Memorandum Opinion No. 4171, 2000 WL 19199 (January 12, 2000) — "Larson I".
About a year later, Larson filed an application for post-conviction relief, relying on affidavits from jurors and alternate jurors which alleged that there had been juror misconduct prior to and during the deliberations in his trial.
Specifically, Larson asserted that several jurors violated the trial judge's instructions by (1) forming and announcing opinions about Larson's guilt before the case was submitted to the jury, (2) discussing the merits of the case with other jurors before the case was submitted to the jury, and (3) relying on their own personal knowledge (rather than evidence presented at trial) concerning how loud a shot from a .22 caliber rifle would be, and concerning the breakage characteristics of glass used in construction vehicles.
In addition, Larson asserted that several jurors improperly declared or apparently agreed with other jurors' statements (4) that Larson's wife's absence from the courtroom was an indication that she believed Larson was guilty, and (5) that Larson's decision not to testify was an indication that he was guilty.
See Larson v. State, 79 P.3d 650, 652 (Alaska App. 2003) — "Larson II".
The superior court dismissed Larson's petition for post-conviction relief because the court concluded that none of the jurors' affidavits were admissible — that all of them were barred by Alaska Evidence Rule 606(b). (Evidence Rule 606(b) generally prohibits parties from offering juror testimony or affidavits to impeach the jury's verdict.)
Larson appealed the dismissal of his petition for post-conviction relief, arguing (in relevant part) that the juror affidavits were, in fact, admissible under Evidence Rule 606(b). Larson argued that Rule 606(b) did not prohibit the introduction of juror affidavits if those affidavits described misconduct committed before the jury commenced its formal deliberations.
This Court rejected Larson's interpretation of Evidence Rule 606(b). We held that "the admissibility of juror affidavits under Rule 606(b) turns on the type of impropriety they describe, not the timing of that impropriety." Larson v. State, 79 P.3d 650, 653 (Alaska App. 2003) — "Larson II".
In addition to making this ruling concerning the proper interpretation of Evidence Rule 606(b), this Court also rejected Larson's related claim that the jurors, through their misconduct, forfeited their status as jurors and became, in effect, "outside influences" on the jury's deliberations. Larson II at 654 (explanation of Larson's claim) & 659 (rejection of that claim).
Because Larson's offer of proof included affidavits from alternate jurors as well as affidavits from some of the jurors who ended up deciding his case, this Court addressed the additional question of whether Evidence Rule 606(b) applied to evidence offered by alternate jurors. In their briefs, both Larson and the State assumed that Rule 606(b) applied to alternate jurors, but this Court adopted a more cautious approach. We stated:
Because Larson relies in part on the affidavits of two alternate jurors, one additional question is potentially raised by Larson's case: whether Evidence Rule 606(b) applies to evidence offered by alternate jurors as well as evidence offered by the jurors who ultimately decide the case. Both Larson and the State assume that Rule 606(b) applies to alternate jurors, and our limited research on this issue supports the parties' position. See State v. Reiner, 731 N.E.2d 662, 670-73 (Ohio 2000). We therefore assume, for purposes of this case, that Evidence Rule 606(b) governs testimony or affidavits supplied by alternate jurors.Larson II, 79 P.3d at 655.
Following this Court's decision in Larson II, Larson filed a petition for hearing in the supreme court. Larson asked the supreme court to review this Court's decision that Evidence Rule 606(b) precluded the admission of juror affidavits or other evidence tending to show that jurors engaged in misconduct before the jury commenced its formal deliberations. But Larson did not ask the supreme court to review this Court's decision (or assumption) that Evidence Rule 606(b) applied to alternate jurors as well as regular jurors.
The supreme court denied Larson's petition for hearing.
The Alaska Supreme Court's later ruling, in Larson III, that Larson's claim of jury misconduct was res judicata
In January 2010, several years after this Court decided Larson II, Larson filed a civil complaint which named the Alaska Court of Appeals as the defendant. Larson alleged that this Court violated its "duties to establish rules of law and declare what legal rights a citizen has according to that rule" when this Court assumed, without formally deciding, that Evidence Rule 606(b) applied to testimony and affidavits from alternate jurors.
The superior court dismissed Larson's civil complaint. The superior court concluded that, to the extent Larson was asserting a claim against the State based on the conduct of judges, that claim was barred by judicial immunity. The superior court further concluded that, to the extent Larson was seeking a re-examination or reversal of this Court's treatment of the Evidence Rule 606(b) issue, Larson's claim was res judicata.
Larson then appealed the superior court's dismissal of his civil complaint, leading to the Alaska Supreme Court's decision in Larson v. State, 254 P.3d 1073 (Alaska 2011) — "Larson III".
In Larson III, 254 P.3d at 1077, the supreme court agreed with the superior court that, "[t]o the extent Larson seeks [to re-litigate the scope of Evidence Rule 606(b)] as an indirect attack on his original conviction or [an indirect attack on the] denial of his subsequent post-conviction-relief petition, ... the doctrine of res judicata applies ... [because a] prior judgment extinguishes [any right] of the plaintiff to remedies against the defendant with respect to all or any part of the transaction ... out of which the action arose."
Quoting Weber v. State, 166 P.3d 899, 902 (Alaska 2007), and Nelson v. Jones, 787 P.2d 1031, 1033-34 (Alaska 1990).
The supreme court noted that this Court had jurisdiction over Larson's earlier appeal under AS 22.07.020(a)(2), which grants this Court appellate jurisdiction over appeals arising from post-conviction relief actions. The supreme court then noted that the doctrine of res judicata "precludes relitigation by the same parties, not only of claims [that were] raised in the [earlier] proceeding, but also [any] relevant claims that could have been raised." Larson III, 254 P.3d at 1077.
Quoting DeNardo v. State, 740 P.2d 453, 456 (Alaska 1987).
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The supreme court pointed out that Larson's underlying claim in his civil action — the alleged juror misconduct in his underlying criminal trial, and the admissibility of juror affidavits under Evidence Rule 606(b) to prove this claim — arose out of the same transaction as the claim he presented in the post-conviction relief litigation that was decided by this Court in Larson II. And the proceeding between Larson and the State resulted in a final judgement on the merits — i.e., this Court's decision in Larson II, holding that Larson's juror and alternate juror affidavits were not admissible under Evidence Rule 606(b) to show juror misconduct in order to attack the jury's verdict. See Larson II, 79 P.3d at 653.
The supreme court held that if Larson wished to argue that the prohibition codified in Evidence Rule 606(b) did not apply to alternate jurors, he was required to raise that claim in the original post-conviction relief proceeding. Because Larson did not raise this claim — even when he petitioned the supreme court to review this Court's decision in Larson II — Larson was now precluded from further litigation of his juror misconduct claims. "Accordingly," the supreme court declared, "the superior court correctly applied the doctrine of res judicata as a ground to dismiss Larson's [civil] suit." Larson III, 254 P.3d at 1078.
The litigation of Larson's current motion for a new trial in the superior court
In October 2011, Larson filed his current motion for a new trial, arguing that he should receive a new trial because two of his jurors engaged in willful deceit when they answered questions during jury selection. Specifically, Larson alleged that these two jurors "held a deeply rooted bias against [a defendant who] did not testify in his own defen[s]e," but these two jurors "were able to conceal their bias [during] voir dire, by lying to Larson's attorney when they were [questioned about] this issue."
This assertion is essentially the same as one of the claims of jury misconduct that Larson raised in his earlier petition for post-conviction relief (the litigation that led to this Court's decision in Larson II) — except that, in his motion for a new trial, Larson rephrased the claim so that the two jurors' misconduct was not their alleged act of drawing an adverse inference against Larson when he chose not to take the stand, but rather their alleged act of lying when, during voir dire, they were asked whether they would hold it against Larson if he chose not to take the stand.
As evidence that the two jurors lied during voir dire, Larson relied again on the post-trial affidavits submitted by four of the jurors (three members of the jury panel, plus one of the alternate jurors). According to these affidavits, some of the jurors engaged in pre-deliberation discussions as to whether Larson was going to take the stand at his trial, and (during these discussions) the two jurors in question stated that if Larson did not take the stand, this was a demonstration of his guilt.
These were the same juror affidavits that this Court held to be inadmissible in Larson II.
In his motion for a new trial, Larson not only claimed that the two jurors lied during voir dire, but he also made a broader claim: Larson asserted that, because the two jurors lied during voir dire, they actually became disqualified to sit as jurors. Thus, according to Larson, he was never tried by a valid jury of twelve, so "[t]he judgment against [him] is void."
Again, this assertion mirrors one of the claims that Larson raised in his earlier petition for post-conviction relief — the claim that, because the jurors held his failure to testify against him, the jurors "forfeited their status as 'jurors' and became, in effect, 'outside influences'." As we have already noted, this Court rejected Larson's "forfeiture of juror status" claim in Larson II, 79 P.3d at 659.
Larson's motion for a new trial was filed substantially outside the time limits set forth in Alaska Criminal Rule 33(c). Rule 33(c) specifies that a motion for a new trial based on newly discovered evidence must be filed within 180 days of the issuance of the final judgement, and that any other motion for a new trial must be filed within 5 days of the verdict or finding of guilt. Larson acknowledged that his motion for a new trial was untimely under Rule 33. Larson's motion was filed in October 2011 — more than 13½ years after he was convicted, and almost 12 years after this Court affirmed his conviction on direct appeal. See Larson I, which was issued on January 12, 2000.
However, Larson asked the superior court to employ Criminal Rule 53 to relax the time limits specified in Criminal Rule 33.
The superior court concluded that the time limits of Criminal Rule 33 should not be relaxed in Larson's case because Larson had already had a full opportunity to litigate his claim of juror misconduct. As the superior court noted in its decision, Larson raised his claim of jury misconduct in an earlier petition for post-conviction relief, and that claim was rejected by this Court in Larson II. The superior court therefore denied Larson's motion for a new trial on the ground that the motion was untimely.
Larson's current appeal
The issue before this Court is whether the superior court acted within its proper discretion when it refused to relax the time limits of Criminal Rule 33 and, instead, dismissed Larson's motion for a new trial. The superior court's decision is supportable on two different grounds.
First, Larson's motion for a new trial was substantially untimely. Larson was convicted in March 1998, and he did not file the motion until October 2011. The superior court concluded that justice did not require a relaxation of the Rule 33 time limits because Larson had already had a full opportunity to litigate his claim of juror misconduct when he pursued his earlier petition for post-conviction relief.
In the present appeal, Larson argues that he did not have a full opportunity to litigate his juror misconduct claim in the earlier post-conviction relief litigation. Essentially all of Larson's opening brief to this Court is devoted to various claims of procedural error in the superior court's handling of Larson's post-conviction relief litigation — arguments as to why the superior court erred when it dismissed Larson's earlier petition for post-conviction relief more than a decade ago.
Larson argues that, because of these alleged procedural errors in the earlier post-conviction relief litigation, he never received a full opportunity to litigate his juror misconduct claims in that earlier litigation. Thus, Larson concludes, the superior court should have relaxed the Criminal Rule 33 time limits and should have allowed Larson to re-litigate his juror misconduct claims in the motion for a new trial.
But Larson is not allowed to use his motion for a new trial as a vehicle for collaterally attacking the earlier post-conviction relief proceedings. If Larson believed that the superior court committed procedural errors in its handling of that earlier post-conviction relief litigation, Larson was required to raise those alleged procedural errors as points on appeal in Larson II, when he asked this Court to review the superior court's decision. Because Larson had the opportunity to raise these issues in the appellate litigation that led to this Court's decision in Larson II, he is foreclosed from raising these issues in a later motion for a new trial.
To the extent that Larson did raise these same claims of error in Larson II, those claims are now res judicata. But even if Larson failed to raise these claims of error in Larson II, the claims are likewise res judicata — because Larson could have raised these claims in that earlier appeal. As the supreme court noted in Larson III, the doctrine of res judicata "precludes relitigation ... not only of claims [that were] raised in the [earlier] proceeding, but also [any] relevant claims that could have been raised." Larson III, 254 P.3d at 1077.
Thus, Larson is not entitled to use his new trial motion as a means of attacking the validity of the superior court's dismissal of his earlier petition for post-conviction relief. Because this is so, and because this Court affirmed the dismissal of Larson's petition for post-conviction relief in Larson II, the superior court could properly conclude that Larson received a full opportunity to litigate his juror misconduct claims in that earlier post-conviction relief litigation — and that, accordingly, justice did not require a relaxation of the time limits in Criminal Rule 33 to allow Larson to again litigate a claim of juror misconduct.
The superior court's decision not to relax the time limits of Rule 33 is also supportable because Larson was seeking to litigate a claim that was precluded by the doctrine of res judicata.
The Alaska Supreme Court held in Larson III that the doctrine of res judicata barred Larson from pursuing his claims of juror misconduct in his previous civil litigation against this Court (i.e., the civil litigation that was resolved by the supreme court in Larson III). It follows that the doctrine of res judicata likewise bars Larson from pursuing his claim of juror misconduct in the current motion for a new trial.
It is true that Larson's current motion for a new trial was filed in his underlying criminal case, and that the opposing party in that criminal case is the State of Alaska rather than this Court (whom Larson named as the defendant in his civil action). However, as the supreme court explained in Alaska Wildlife Alliance v. State, 74 P.3d 201, 208 (Alaska 2003), "Res judicata is not defeated by substituting one state entity for another when the claim is based on the same conduct, and ... the same defense of non-justiciability applies regardless of which specific state entity is named as a defendant."
See also Mathis v. Laird, 457 F.2d 926, 927 (5th Cir. 1972) (holding that res judicata barred a former soldier's suit against the Secretary of Defense even though the soldier's prior suit named the United States as the defendant); Tabman v. United States Department of Justice, 722 F.Supp.2d 113, 116 & n. 2 (D. D.C. 2010) (holding that the Federal Bureau of Investigation and the Department of Justice were the same party, or were in privity, for claim preclusion purposes — and noting that the plaintiff's claim would also be barred if the plaintiff had named the United States as a defendant).
Larson's claim of juror misconduct ultimately rests on the assertion that the post-trial juror affidavits are admissible to prove that the two jurors in question lied during voir dire. This assertion was directly rejected in Larson II.
In Larson II, this Court also rejected Larson's related claim that jurors who violate their oath somehow forfeit their status as jurors. When Larson petitioned the Alaska Supreme Court to review our decision in Larson II, he did not challenge this aspect of our decision. Thus, the doctrine of res judicata prevents Larson from arguing now that, because of the alleged juror misconduct, he was never tried by a valid panel of twelve jurors, and that the judgement against him is void for this reason.
Conclusion
For the reasons explained here, the judgement of the superior court is AFFIRMED.