Opinion
Court of Appeals No. A-10023.
October 14, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Trial Court No. 4FA-05-03370 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
While driving north on the Steese Highway near Fairbanks, Michael G. Bolton attempted to maneuver his car between two vehicles that were traveling side by side just ahead of him in the two northbound lanes of the highway. A collision resulted.
One of the other two vehicles, a Ford Excursion, went out of control, rolled across the median, and struck a southbound car driven by Leslie Greenfield. As a result of this second collision, Greenfield and the two passengers in the Excursion, Tracy Walters and Taylor Bayless, were injured, and the driver of the Excursion, Jimmy Walters, was killed.
Bolton was indicted for the murder of Jimmy Walters, for assault upon Greenfield, Tracy Walters, Taylor Bayless, and also for assault upon the driver of the other northbound vehicle, Crystal Danico. The jury acquitted Bolton of all charges relating to Jimmy Walters, but the jury convicted Bolton of third-degree assault with respect to the other four victims. (Bolton was also convicted of failing to stop and render assistance at the scene of an injury accident, and of tampering with evidence.)
Bolton's claim that the State failed to present exculpatory evidence to the grand jury
Bolton first contends that Superior Court Judge Robert B. Downes erred in denying his motion to dismiss the indictment. Bolton's motion to dismiss was based upon his claim that the State failed to present the statement that one of the passengers in Bolton's car, Jason Lee Bryson, had made to the police. Bolton claims that Bryson's statements were exculpatory evidence because they would have demonstrated that Jimmy Walters, the driver of the Excursion, caused the collision.
Alaska Criminal Rule 6(q) states that "[w]hen the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced. . . ." In Frink v. State, the Alaska Supreme Court held that Rule 6(q) requires the prosecutor to present exculpatory evidence to the grand jury. Nevertheless, the court emphasized that this requirement "does not turn the prosecutor into a defense attorney; the prosecutor does not have to develop evidence for the defendant and present every lead possibly favorable to the defendant." In other words, the fact that evidence might be discoverable, and a defense attorney could use it to create reasonable doubt in the minds of the jury, does not make that evidence exculpatory.
597 P.2d 154 (Alaska 1979).
Id. at 164.
Id. at 166.
The portion of Bryson's statement that Bolton contends is exculpatory is Bryson's general account of the collision. But Lambert, the other passenger in Bolton's car, testified at the grand jury, and she stated that the "big truck" (the Excursion) was the aggressor and hit them. Later in the grand jury proceeding, Trooper Edward Nichols testified about his investigation of the collision. In his testimony, he referred to the fact that he had taken statements from Bolton, Bryson, and Lambert, and that all three had stated that the Excursion had tried to pass them. In light of this evidence, the absence of Bryson's statements did not taint the grand jury proceeding.
Bolton's argument that the verdicts are inconsistent
Bolton argues that the jury's decision to convict him of third-degree assault with respect to Crystal Danico, Tracy Walters, and Taylor Bayless is logically inconsistent with the jury's decision to convict him of third-degree assault with respect to Leslie Greenfield (the driver of the southbound car).
As we explained in Brown v. Anchorage, a jury's verdicts must be logically consistent with each other; verdicts must be reversed if they are "irreconcilably in conflict" in the sense that they are "necessarily or strictly inconsistent."
915 P.2d 654 (Alaska App. 1996).
Id. at 660.
Bolton was originally indicted for the more serious offense of first-degree assault upon Greenfield under the theory that he recklessly caused serious physical injury to Greenfield by means of a dangerous instrument (a motor vehicle), AS 11.41.200(a)(1). The jury acquitted Bolton of this charge and instead convicted him of third-degree assault under AS 11.41.220(a)(4) — that is, under the theory that, acting with criminal negligence, Bolton caused serious physical injury to Greenfield by means of a dangerous instrument.
In other words, the jury rejected the State's allegation that Bolton acted "recklessly" with respect to the possibility that his actions might cause serious physical injury to Greenfield; instead, the jury found that Bolton acted with a lesser culpable mental state — criminal negligence — with respect to Greenfield.
On the other hand, the jury found that Bolton acted recklessly with respect to the possibility that his actions would cause injury to Danico, Walters, and Bayless. Bolton's convictions for third-degree assault upon these three victims were all based on the theory that he recklessly caused physical injury to them by means of a dangerous instrument, AS 11.41.220(a)(1)(B).
Bolton argues that the jury's verdicts are logically inconsistent — that no reasonable jury could have found that Bolton acted recklessly with respect to Danico, Walters, and Bayless, but that Bolton acted only negligently with respect to Greenfield. We disagree.
Under sections AS 11.81.900(a)(3) — (4) of the Alaska criminal code, the primary element that distinguishes recklessness from criminal negligence is the defendant's subjective awareness of the risk. To prove recklessness, the State must prove that the defendant was subjectively aware of, and consciously disregarded, a substantial and unjustifiable risk posed by his conduct (or, alternatively, that the defendant would have been aware of this risk but for his intoxication). Criminal negligence, on the other hand, merely requires proof that a reasonable person in the defendant's situation would have perceived the risk.
In Bolton's case, reasonable jurors could conclude (1) that a reasonable person in Bolton's position would have been aware of a substantial and unjustifiable risk that motorists on both sides of the Steese Highway might be injured as a result of Bolton's conduct, and (2) that Bolton was subjectively aware of, and consciously disregarded, the risk that his conduct posed to the people riding in the two cars directly ahead of him, but (3) that Bolton may not have been consciously thinking about the risk that his conduct posed to the safety of people riding in cars on the other side of the highway (the southbound lanes).
Thus, it was logically consistent for the jurors to find that Bolton acted recklessly with respect to Danico, Walters, and Bayless (the three victims who were riding in the two cars directly ahead of Bolton in the northbound lanes of the highway) but that Bolton acted only negligently with respect to Greenfield (who was in the southbound lanes). Bolton's argument that evidence of his intoxication after the collision was unfairly prejudicial
Bolton also argues that Judge Downes erred in allowing the testimony of Kathleen Wallace. Wallace testified at trial that she had known Bolton since the 1980s and would see him around town, especially at the Arctic Bar. Wallace testified that around 1:30 a.m. on September 25, 2005, she saw Bolton at the Arctic Bar and observed that he was "highly intoxicated." (The collision in question had occurred approximately three and a half hours before this.) She and Bolton later went to her house, where Bolton told her that he thought "the feds" were "trying to take him out." Wallace testified that when Bolton began to sober up, he told her that he had been in an collision, and that he had sideswiped a white van. He also told her that she would read about it in the paper on Sunday or Monday.
Bolton argues that evidence of his intoxication after the collision was not probative with respect to the issues of whether he caused the collision, his mental state at the time of the collision, or whether he failed to stop and render aid. Bolton contends that this evidence simply invited the jury to speculate as to whether, because he was intoxicated after the collision, Bolton was intoxicated at the time of the collision. He argues that the probative value of the evidence was outweighed by the danger of unfair prejudice.
See Alaska R. Evid. 403.
Bolton conceded at trial that his statement about sideswiping another vehicle was relevant. In his ruling admitting the evidence, Judge Downes attempted to limit any unfair prejudice by preventing the State from introducing evidence that, besides drinking after the collision, Bolton had used cocaine. We conclude that Judge Downes did not abuse his discretion in admitting Wallace's testimony. Bolton's statements, which were made shortly after the collision, are arguably important as an admission that he sideswiped another car. The statements also appear to be important to establish that he was aware that he had been involved in a collision when he left the scene and support the inference that he was hiding evidence of the collision. The fact that Bolton had been drinking and the other facts surrounding the statement provided context for the statement and gave the jury information from which to gauge Wallace's credibility and to assess Bolton's state of mind when he made the statement.
Bolton's claim that the written judgment contains a more severe punishment than was originally imposed at the sentencing hearing
At trial, Judge Downes outlined the special conditions of probation, including a requirement that Bolton "not enter any liquor store or bar or into any business establishment whose primary business is the sale of alcohol." In the written judgment, however, there were two conditions relating to access to alcohol, one of which was considerably broader than Judge Downes's articulation.
Special condition three of the written judgment states that the "[d]efendant shall not enter any bar, store, restaurant or other business that sells or dispenses alcoholic beverages." Condition four states that the "[d]efendant shall not enter any business establishment whose primary business is the sale of alcohol." Thus, while the verbal articulation prevented Bolton only from entering establishments whose primary function is the sale of alcohol, the written restrictions would prevent him from entering any establishment that sells alcohol at all.
Bolton argues that because the written judgment contained a probation restriction that was more restrictive than the condition that Judge Downes announced at his sentencing, this court should remand so that conditions can be modified to conform with Judge Downes's oral articulation of the restriction. The State agrees, and we agree with the State's concession. On remand, the superior court should modify the conditions of probation to reflect what Judge Downes stated in his oral sentencing remarks.
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that when the government concedes error in a criminal appeal, the appellate court has an obligation to "independently review the proceedings . . . to insure that [the concession of] error . . . is supported by the record on appeal and has legal foundation").
Conclusion
The judgment of the superior court is AFFIRMED. The case is REMANDED for further proceedings consistent with this decision.