Opinion
Court of Appeals No. A-10992 Trial Court No. 3AN-07-11824 CR No. 5988
11-27-2013
ELMER SEETOT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood. Mary Gilson, 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
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge.
Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood. Mary Gilson, 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).
Senior Judge COATS.
Elmer Seetot was convicted of murder in the second degree for killing Terry Jackson. He was also convicted of tampering with physical evidence for cutting up Jackson's body after the homicide, putting it in a freezer, and cleaning up evidence of the murder.
Seetot argues on appeal that there was insufficient evidence to establish that he committed an act that caused Jackson's death. He also argues that there was insufficient evidence that he had the requisite mental state for murder in the second degree. He further contends that the trial judge improperly instructed the jury. The court had instructed the jury that it had to unanimously agree "as to the act which caused the death of the victim." The jury asked the court to define the term "act." Seetot argues that the court's response to the jury's question was improper.
We conclude that there was sufficient evidence for the jury to find beyond a reasonable doubt that Seetot committed an act that caused Jackson's death and to find that he had the requisite mental state for murder in the second degree. We also conclude that the trial court did not commit reversible error in giving the instruction which it did in response to the jury's question about what "act" meant.
The facts as presented at Seetot's trial
At trial, Seetot conceded that the facts of the case were mostly not in dispute. In the late night hours of October 19, 2007, Seetot and Terry Jackson were highly intoxicated. They were at the residence of Seetot's grandmother, Ruth Seetot. The State's theory at trial was that Seetot killed Jackson by forcefully striking him in the forehead, probably with a frying pan which was found at the scene of the homicide. According to the pathologist who testified at trial, a blow to Jackson's forehead caused a "huge fracture" to Jackson's skull, resulting in Jackson's death. The pathologist testified that Jackson's death was a homicide — death at the hands of another individual. The pathologist testified that the frying pan which was found at the scene of the homicide could have caused the blow to Jackson's head. Seetot did not contest that, following the homicide, he committed the offense of tampering with evidence by dismembering Jackson's body, putting it in the freezer, and cleaning up the residence.
According to a statement which Seetot made to the police after the homicide, he had no recollection of the homicide.
At Seetot's trial, in argument to the jury, Seetot's attorney conceded "that there was a strike to Terry Jackson's forehead, and that strike to his forehead fractured his skull, caused bleeding, and he died." Seetot's attorney did not dispute causation, but he argued that the evidence only established that Seetot had acted recklessly, not knowingly or intentionally, and therefore the jury should find Seetot guilty only of manslaughter, not murder. The jury convicted Seetot of murder in the second degree and tampering with evidence.
The evidence was sufficient to support the jury's verdict that Seetot was guilty of murder in the second degree
Seetot argues that the evidence presented at trial was insufficient to support the jury's verdict of murder in the second degree. In determining whether the evidence presented at trial was sufficient to support the jury's verdict, we review the record and the inferences arising therefrom in the light most favorable to supporting the jury's verdict. The evidence is sufficient if reasonable jurors could find the defendant's guilt established beyond a reasonable doubt.
Hoekzema v. State, 193 P.3d 765, 767 (Alaska App. 2008).
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Seetot first argues that the evidence was insufficient to establish that he caused Jackson's fatal injury. This argument is inconsistent with Seetot's litigation strategy at trial, where Seetot conceded that he was guilty of manslaughter. Seetot never argued that the jury should acquit him completely of the homicide.
But even when we review the evidence independently of Seetot's concession of causation, we find that the evidence is sufficient to support the jury's finding that Seetot killed Jackson. The evidence presented at trial supported the conclusion that Seetot and his grandmother were the only two people at the apartment with Jackson at the time of the homicide. The grandmother was an elderly woman who testified at trial. She apparently slept through the incident and was sufficiently frail that she needed help to the bathroom at night. The medical examiner testified that the cause of Jackson's death was a "huge fracture" to his forehead. The evidence was over-whelming, as Seetot conceded, that he had dismembered Jackson's body and put it in the freezer. When Seetot knew that the crime had been reported and the police were coming to investigate, he fled from the apartment. Later, in a statement which he made to the police, Seetot admitted that he thought he killed someone. The fact that Seetot destroyed evidence of the crime, fled, and later admitted that he thought he killed someone, demonstrates his consciousness of his guilt in causing Jackson's death.
Seetot also contends that the evidence presented at trial was insufficient to establish the culpable mental state for murder in the second degree under AS 11.41.-110(a) — that there was inadequate proof that he either intended to cause serious physical injury or knew that his conduct was substantially certain to cause death or serious physical injury. But the evidence presented at trial was sufficient for the jury to conclude that Seetot obtained a heavy frying pan or similar object and struck Jackson with considerable force on his forehead. This evidence, combined with the other evidence which we have previously discussed, was sufficient for the jury to find, beyond a reasonable doubt, that Seetot acted with the requisite culpable mental state.
The trial court did not err in responding to the jury's question asking the court to define the meaning of "act"
In instruction 14, the court instructed the jury that the prosecution could prove murder in the second degree in three different ways: (1) that Seetot intended to cause serious physical injury to Terry Jackson and that Seetot caused his death; (2) that Seetot knew that his conduct was substantially certain to cause death or serious physical injury to Terry Jackson, and that Seetot caused his death; (3) or that Seetot caused the death of Terry Jackson, that Seetot knowingly engaged in conduct, and that the conduct was performed under circumstances manifesting an extreme indifference to the value of human life.
In instruction 15, the court instructed the jury that to convict Seetot it did not have to unanimously agree on the theory of second-degree murder as set out in instruction number 14. But the jury had to unanimously agree "as to the act which caused the death of the victim ... ."
During jury deliberations, the jury submitted a question to the court asking the court what the term "act" meant in instruction number 15.
After considerable discussion with the parties, and over the defendant's objection, the court gave the jury the following supplemental instruction:
Instruction 15 refers to any act of the defendant which caused the death of Terry Jackson. An act which caused blunt force trauma to Terry Jackson's forehead.
A voluntary act is defined as a bodily movement performed consciously as a result of effort and determination. Voluntary intoxication is not a defense to knowing or reckless conduct (See Instructions 28 & 29). But it may be a defense to intentional conduct (See Instructions 27 & 34).
The State has the burden of proving each and every element of each charge beyond a reasonable doubt.
On appeal, Seetot contends that the court erred in giving the supplemental instruction. Seetot's contention is that the court's response essentially told the jury that Seetot committed the act that caused the blunt force trauma that killed Jackson.
This is not a plausible reading of the court's instructions. Instruction 14 set out the three theories under which the jury could convict Seetot of murder in the second degree. Instruction 15 told the jury that it did not have to unanimously agree on one of these theories. But in order to convict Seetot of murder in the second degree, the jury did have to be unanimous "as to the act which caused the death of the victim." All the supplemental instruction did was repeat what the court told the jury in instruction number 15 — that in order to convict Seetot the jury had to unanimously agree "as to the act which caused the death [of Terry Jackson]." The court's supplemental instruction did not tell the jury that Seetot performed the act which caused Jackson's death.
Seetot also contends that the trial court erred when it defined "voluntary act" and gave instructions regarding voluntary intoxication in response to the jury's question. Seetot does not argue that the court's instructions misstated the law. They do not. And there was substantial evidence that Seetot was highly intoxicated when he killed Jackson. Under these circumstances, the trial court could reasonably conclude that it was necessary to instruct the jury on "voluntary act" and to repeat the instructions which it had formerly given concerning voluntary intoxication.
The judgment of the superior court is AFFIRMED.