Summary
noting that the jury instructions correctly stated that "substantial risk of death" meant that "[t]he ultimate injuries need not have made death probable, but the manner in which the injuries were inflicted had to present an actual, substantial risk of death"
Summary of this case from Foy v. StateOpinion
Court of Appeals No. A-9607.
October 8, 2008.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-04-1017 CR.
Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Lyle N. Brown was convicted of assault in the first degree for causing serious physical injury to his wife. Brown appeals, arguing that Superior Court Judge Patricia A. Collins erred in instructing the jury on the definition of serious physical injury. We conclude that the jury instruction was proper, and that any ambiguity in the instruction was cured by the final arguments of the parties. We therefore affirm Brown's conviction.
AS 11.41.200(a).
Factual and procedural background
In March of 2004, T.B. and Brown were married but separated. T.B. had obtained a domestic violence protective order against Brown.
On July 26, 2004, T.B. was stepping out of the shower when she heard someone enter her residence. Brown then entered her bathroom. According to T.B.'s testimony, she concluded that Brown was there to hurt her and began to scream. Brown told her, "Well, you can scream all you want, but you'll be dead before they get here." Brown then began to hit T.B. in the face with his fist and choke her.
Brown then told T.B. to go into the bedroom so they could talk. As T.B. exited the bathroom, she attempted to escape by running down the stairs to the front door. Brown stopped her, knocked her down, and began to hit and strangle her. T.B. testified that Brown went "on and on about my boyfriend and how I'd ruined the kids and ruined my life and how I was dead — or, ruined his life and how I was dead and not to make any noise or I'd be dead before the police got there." T.B. also testified that she lost consciousness: "At one point while he was strangling me, I blacked out. I lost consciousness. He was strangling me with his hands around my throat and by putting his thumbs in my mouth and pressing back and down to where I couldn't breathe. And hitting me." Eventually Brown locked the front door, told T.B. that he wanted to talk, and led her back upstairs. But then he shoved T.B. down on the bed, sat on her, and started to choke her again.
T.B. estimated that Brown held her in her home for about half an hour before two of her sons arrived to take her to the airport. The younger son had a key to the house, so they let themselves in and located Brown and T.B. in a bedroom. Brown told the older son that he and T.B. had just been talking. The boys left but immediately called the police. A short time later the police arrived and arrested Brown.
The State charged Brown with assault in the first degree, burglary in the first degree, two counts of assault in the fourth degree, violating his conditions of release, and violating a domestic violence protective order. In a jury trial conducted by Judge Collins, Brown was acquitted of burglary and one count of assault in the fourth degree. He was convicted of criminal trespass in the first degree (a lesser included offense of burglary) and of the other misdemeanor charges. The jury w as unable to reach a verdict on the charge of assault in the first degree.
AS 11.41.200(a).
AS 11.46.300(a)(1).
AS 11.41.230(a)(1).
AS 11.56.757.
AS 11.56.740.
Brown was retried on a charge of assault in the first degree. He defended on the ground that, although he assaulted T.B., he had not caused serious physical injury. The jury convicted Brown and he now appeals.
Why we conclude that Judge Collins did not err in instructing the jury on serious physical injury
Alaska Statute 11.41.200(a) defines the crime of assault in the first degree, in pertinent part:
A person commits the crime of assault in the first degree if
(1) that person recklessly causes serious physical injury to another by means of a dangerous instrument;
(2) with intent to cause serious physical injury to another, the person causes serious physical injury to any person; [or]
(3) the person knowingly engages in conduct that results in serious physical injury to another under circumstances manifesting extreme indifference to the value of human life.
This appeal turns on the definition of "serious physical injury." "Serious physical injury" is defined in AS 11.81.900(b)(56). Only one of the definitions set forth in that statute is relevant to this appeal — "physical injury caused by an act performed under circumstances that create a substantial risk of death."
At Brown's first trial, during jury deliberations, the jury requested a definition of the term "substantial." The trial judge informed the jurors that this term was not defined by the Alaska Statutes, but she instructed the jury that substantial meant "being of considerable importance, value, degree, amount[,] or extent."
At the second trial, Brown requested a similar instruction indicating that "substantial" meant "great." The State objected and the court denied this motion, instructing the jury as follows:
"Serious physical injury" is defined elsewhere in these instructions. However, in order to prove "serious physical injury," the state must prove beyond a reasonable doubt that the manner in which the physical injury occurred posed an actual and substantial risk of death, rather than a risk that was merely hypothetical or abstract. It is the actual circumstances of this case that must be considered, not abstract possibilities in hypothetical cases. The issue is not one to be resolved in the abstract. There must have been an actual physical injury; a possible injury is not sufficient. The circumstances must have actually created a substantial risk of death. The ultimate injuries need not have made death probable, but the manner in which the injuries were inflicted had to present an actual, substantial risk of death.
Emphasis added.
Brown argues that "without the addition of a phrase such as `the risk of death must have been great,' the court's instruction was an inadequate description of the relevant points of law and was potentially misleading." Specifically, Brown argues that the grammatical structure of the italicized portion of the jury instruction erroneously implied that actual and substantial were synonyms — in other words, the risk could not be hypothetical or abstract, but any amount of risk would be adequate to support a conviction.
We are not convinced that the italicized language complained of by Brown indicated that any amount of risk could be sufficient. To the extent the language is misleading, the instruction provides clarification in a subsequent sentence: "The ultimate injuries need not have made death probable, but the manner in which the injuries were inflicted had to present an actual, substantial risk of death." Judge Collins utilized the language from our unpublished opinion in Redman v. State to craft this portion of the jury instruction. In Redman, we rejected the appellant's assertion that substantial risk of death meant that death had to have been probable.
Alaska App. Memorandum Opinion and Judgment No. 3592 (April 16, 1997), 1997 WL 184774.
Id. at 10, 1997 WL 184774 at *4.
We observe that other courts have concluded that the phrase "substantial risk of death" does not require further definition. The Missouri Court of Appeals concluded that the phrase substantial risk of death "is one of those terms which has already been reduced to its lowest common denominator." The Montana Supreme Court stated in State v. Crisp : "[T]he jury need not be instructed on words or phrases of common understanding or meaning[;] . . . substantial risk of death is composed of commonly understood words."
State v. Ellis, 639 S.W.2d 420, 422 (Mo.App. 1982).
814 P.2d 981, 984 (Mont. 1991).
Id. at 984 (citations omitted).
We have examined the closing arguments of the parties to determine if Brown might have been prejudiced by the jury instruction. To the extent that there was any ambiguity in the court's instructions, our review of the closing arguments convinces us that the parties clarified that the State had to prove that Brown's actions in strangling T.B. created a substantial risk of death.
See O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991)
In its final argument, the State emphasized that the evidence showed that, at the time he was strangling T.B., Brown was acting out of extreme anger and rage. The State summarized the testimony of its expert witness, Dr. Dean Hawley, as testifying that in his opinion the strangulation was "a very, very serious, nearly fatal incident." This appears to be a fair and accurate summation of Dr. Hawley's testimony. The jurors heard testimony from Dr. Hawley that this was a "very violent assault," that T.B.'s injuries were "representative of a nearly lethal force," and that the doctor had "a very hard time understanding why this victim survived . . . [because] [t]hese are typical injuries that [he] would see in a homicide."
In his closing argument, Brown pointed out that the jury instruction required the State to show that Brown "actually created a substantial risk of death." Brown also summarized Dr. Hawley's testimony in closing: "[T.B.] sustained . . . serious and life threatening bodily injury by manual strangulation to the point of unconsciousness resulting in serious, nearly lethal internal injury to the vessels of her neck and asphyxiation of her brain." Brown argued that Dr. Hawley's conclusions were "an outrageous oversimplification" and not based on any "objective evidence."
The State's position, supported by expert testimony, was that the evidence showed that Brown's actions in strangling T.B. constituted a very serious, nearly fatal incident. Thus, the State's position was not that any assault that involved strangulation created a substantial risk of death, but that the specific facts of this case supported the conclusion that Brown had created a substantial risk of death to T.B. Brown's argument was that the jurors should discredit the State's expert because his conclusions were not founded in "objective evidence." We conclude that the jury was sufficiently informed that the risk of death had to be substantial in order to find Brown guilty of assault in the first degree.
The judgment of the superior court is AFFIRMED.
I believe that Brown raised a valid objection to the jury instruction defining "serious physical injury".
Under the Alaska Criminal Code, the term "serious physical injury" is a technical one. As defined in AS 11.81.900(b)(56)(B), this term includes injuries that people would normally consider "serious" — for example, an injury that causes "serious and protracted disfigurement" (clause 1) or "protracted impairment of . . . health" (clause 2) or "protracted loss or impairment of the function of a body member or organ" (clause 3).
The term "serious physical injury" also encompasses any injury — even an injury that, in itself, would not normally be considered "serious" — if the injury ultimately causes the unlawful termination of a pregnancy. (Subsection (B), clause 4).
Finally, under subsection (A) of the statute, the term "serious physical injury" includes any injury (no matter how slight) if the injury was "caused by an act performed under circumstances that create[d] a substantial risk of death". This is the theory that the State relied on in Brown's case.
In other words, the State did not allege that the victim, T.B., suffered an injury that would constitute "serious physical injury" based on the nature of the injury itself. Rather, the State relied solely on the theory codified in subsection (A) of the statute — i.e., that the manner in which the injury was inflicted posed an actual and substantial risk of death.
This Court has already declared that when the State prosecutes a defendant under this clause of the statute, the State must prove that the risk of death created by the defendant's conduct was "actual" as opposed to merely hypothetical or abstract.
See Hutchings v. State, 53 P.3d 1132, 1137-38 (Alaska App. 2002); Willett v. State, 836 P.2d 955, 959-960 (Alaska App. 1992); Konrad v. State, 763 P.2d 1369, 1373 (Alaska App. 1988).
For example, one can imagine circumstances in which a particular manner of striking another person with a baseball bat, or a particular manner of striking another person with one's hands or feet, would create a great risk of death. But the question is not whether it is theoretically possible to cause another's death using the same instrument or weapon that the defendant used. Rather, the question is whether the defendant's specific conduct in the case being litigated created an actual risk of death.
Moreover, proof that the defendant's conduct created an "actual" risk of death is not sufficient. In addition to proving that the defendant's conduct created an "actual", non-hypothetical risk of death, the State must prove that the risk of death created by the defendant's conduct was "substantial".
The jury instruction in Brown's case provided the jurors with an adequate definition of what "actual" risk means, but it offered no definition of what a "substantial" risk means.
The jury instruction did declare that a defendant's actions can create a substantial risk of death even though the victim's "ultimate injuries [did] not . . . [make] death probable" ( i.e., did not make death more likely than not). That is a correct statement of the law — for, as explained above, a prosecution under subsection (A) of the statute does not hinge on the nature of the injury inflicted, but rather on the manner in which the defendant inflicted the injury.
But this statement of law, although correct, was only tangentially relevant to the issue that the jury had to decide: whether Brown's conduct — i.e., the manner in which the assault was committed — created a substantial risk of death. An assault may be committed in a manner that creates a substantial risk of death even though, through good fortune, the victim's ultimate injuries are slight. Konrad v. State, 763 P.2d 1369, 1376 (Alaska App. 1988); James v. State, 671 P.2d 885, 888-89 (Alaska App. 1983). In such cases, the State can prove "serious physical injury" under the definition in subsection (A) of the statute even though the victim suffers only minimal physical injury. On the other hand, an assault may be committed in a manner that would normally create little or no chance of death, and yet, through misadventure, the result may be the infliction of life-threatening or even nearly fatal injuries. In such cases, the State could not prove "serious physical injury" under subsection (A) of the statute.
My point is this: Even though the jury instruction in this case clarified that the State did not have to prove that T.B.'s injuries made death probable, this clarification did not aid the jurors in resolving the real question before them: whether the risk of death created by the nature of Brown's conduct was "substantial". On this question, the jury instruction was silent — except to repeat that the risk must have been "actual" and "substantial".
When, during deliberations, the jurors asked the judge to clarify the meaning of "substantial", the judge told them that this word was generally defined as meaning "of considerable importance, value, degree, amount, or extent".
There are several words that function as synonyms for "substantial" in this context — "considerable", "significant", "non-trivial", "real", and "large". See Webster's New World Dictionary, Third College Edition (1988), p. 13 36; Webster's New World College Dictionary, Fourth Edition (2004), p. 1428; and Merriam-Webster Collegiate Dictionary (10th ed. 1999), p. 1174. The problem is that these words are not synonyms of each other, nor do they convey (at least, without additional explanation) the concept at work in the statutory definition of "serious physical injury".
For example, driving a car, piloting a small plane, shoveling snow, or getting a flu shot pose "real" and "non-trivial" risks of death. The risk of death inherent in these activities is an "actual" risk; it is not an "abstract" or "hypothetical" risk.
Moreover, car and airplane manufacturers, as well doctors and drug companies, would probably categorize this risk as "significant", even though it is small — "significant" in the sense that car and plane manufacturers feel obliged to modify their designs to lessen the risk, and doctors feel that it is their duty to warn patients about the dangers of shoveling snow and the risk of adverse reaction to a flu shot. But most people would agree that these risks of death are not substantial enough to deter them from these activities.
We dealt with a similar problem in Willis v. State, 57 P.3d 688 (Alaska App. 2002), where we had to define the level of culpable neglect that would subject a parent or guardian to criminal liability for failing to protect a child from injuries inflicted by another person. We held that the State was obliged to prove that the parent or guardian acted "recklessly", and we explained our conclusion this way:
[C]hildren often engage in sports and other activities that hold some degree of physical peril. Even though a parent understands that their child might be injured while engaging in these activities, the parent's knowing failure to intervene does not constitute a crime unless the government also proves that the parent acted (or, more precisely, failed to act) with a culpable mental state regarding the potential injury — a culpable mental state that will vary according to the crime charged.
For example, even though a child might conceivably suffer serious physical injury while skiing or while driving a motor vehicle, the child's parent could not be convicted of second-degree assault under AS 11.41.210(a)(2) (recklessly causing serious physical injury) for failing to take protective action unless the government proved that the parent acted "recklessly" with regard to this result — i.e., proved that the parent was "aware of and consciously disregard[ed] a substantial and unjustifiable risk" that serious physical injury would occur if the parent failed to intervene. See AS 11.81.900(a)(3), the statutory definition of "recklessly".
Under this statutory definition, the government would have to show that the risk of serious physical injury was "of such a nature and degree that [the parent's] disregard of it constitute[d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation". This, in a nutshell, is the difference between letting a toddler play with a firearm and letting an adolescent go on a hunting trip.
Willis, 57 P.3d at 694-95
In other words, there are some very real, non-trivial risks that do not qualify as "substantial" and "unjustifiable" — at least, for purposes of determining a person's recklessness or criminal negligence under AS 11.81.900(a)(3) or (4) of the Alaska Criminal Code.
Because of this, an assault might be committed in a manner that poses a "non-trivial" or "significant" risk of death — in the sense that emergency room doctors and nurses would feel obliged to closely examine the victim, and perhaps order tests to eliminate various possibilities — but the victim's injury would not qualify as a "serious physical injury" under subsection (A) of the statute because the risk of death posed by the assaultive conduct was not substantial.
It is pretty obvious that, in drafting subsection (A) of AS 11.81.900(b)(56), the legislature was envisioning cases where the defendant shoots a firearm at the victim and, by lucky chance, the bullet merely creases the victim's skin. But what about a case where the defendant forces the victim into a car and then, through no fault of the defendant, another driver hits the car and slightly injures the victim?
One might conceivably argue that, because (statistically speaking) automobile travel is known to pose a "significant", "non-trivial", "real" risk of death, the defendant should be held accountable for causing "serious physical injury" to the victim under subsection (A) of the statute if the victim suffers any injury at all as a result of the car crash — because the defendant forced the victim into the car, and driving is known to be a potentially life-endangering activity. But I do not think the legislature intended such a broad definition of felony assault. And, because ambiguous penal statutes are to be construed against the government, any reasonable doubt as to the legislature's intent suggests that we are obliged to adopt a more restrictive interpretation of "serious physical injury ".
Having rejected "significant", "non-trivial", and "real" as adequate synonyms for "substantial" in this particular context, we are left with "considerable" and "large". This leads me to conclude that the trial judge probably committed error when she initially rejected Brown's proposed wording for the jury instruction in this case. Brown asked the judge to instruct the jury that a "substantial" risk was a "great" risk. In other words, Brown asked the judge to tell the jurors that the State was obliged to prove that the manner in which Brown assaulted T.B. created a "great" risk of death. For the reasons explained here, I think that this is close to what the legislature intended.
However, I also conclude that this error was cured when the judge issued her supplemental instruction on this issue during jury deliberations. In that supplemental instruction, the judge told the jurors that "substantial" meant "considerable". This, too, is close to what I believe the legislature intended.
I believe that, in this context, conduct creates a "substantial" risk of death if it creates the kind of risk that would support a finding of recklessness or criminal negligence under AS 11.81.900(a)(3) or (4). Both of these statutes require proof of "a substantial and unjustifiable risk that the [prohibited] result will occur".
In other words, a defendant's conduct creates a "substantial" risk of death for purposes of AS 11.81.900(b)(56)(A) only if that conduct gives rise to a serious enough risk of death that, given the circumstances, if a reasonable person perceived the risk, they would alter their conduct to avoid or mitigate it. This risk need not be so great that death is a "probable" result of the defendant's conduct (in the sense of "more likely than not"). However, the risk of death has to be greater than simply "real" or "significant" (in the sense of "non-trivial").
I note that the pertinent portion of the first-degree assault statute, AS 11.41.200(a)(1), also requires proof that the defendant acted "recklessly". Thus, in addition to proving "serious physical injury" — i.e., proving that the risk of death created by the defendant's conduct was "substantial" under the definition offered in the preceding two paragraphs — the State would also have to prove that the defendant subjectively perceived the risk and disregarded it.