Opinion
Court of Appeals No. A-11120 No. 6214
07-29-2015
MOSES T. GEORGE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Christine Schleuss, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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. Trial Court No. 4BE-08-365 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney III, Judge. Appearances: Christine Schleuss, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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 Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
One evening in April 2008, Moses T. George shot and killed his domestic partner, and he then threatened several other people with a firearm. For this conduct, George was convicted of manslaughter and several counts of third- and fourth-degree assault. George now challenges his convictions on two bases.
First, George argues that the superior court should have suppressed all of the evidence gathered from his residence by two Alaska State Troopers who arrived a few hours after the shooting and entered George's house without a warrant to investigate the homicide.
Second, George argues that he is entitled to a new trial on his manslaughter conviction because, at the same time the jury returned its verdict of "guilty" on the charge of manslaughter, they also returned a verdict of "not guilty" on the lesser included charge of criminally negligent homicide. George contends that these two verdicts are irreconcilably inconsistent.
As we explain in this opinion, we conclude that the troopers' warrantless entry into George's residence was lawful. We further conclude (in the alternative) that any impropriety was cured when, a few hours later, the troopers obtained a search warrant for the house.
And with respect to the purportedly inconsistent verdicts, we conclude that even if the verdicts are inconsistent, George waived this claim of error when he agreed with the trial judge that the problem could be cured by simply polling the jurors to make sure that they had unanimously found George guilty of manslaughter.
Underlying facts relating to George's suppression motion
On April 24, 2008, in the village of Akiachak, Moses George shot and killed his domestic partner of some 20 years, Agnes Williams. Two children — George's and Agnes's daughter Alita, and George's granddaughter Makayla — witnessed the shooting.
Afew minutes after the shooting, another resident of the village, Alexandria George, arrived at the residence. When she came to the door, Alita and Makayla announced that Williams was dead. Alexandria discovered that Williams was still alive, but she was lying on the floor, wounded and moaning.
Alexandria told Alita to call the police; but after several calls went unanswered, Alexandria left the house to find the village police herself. She located two tribal officers, informed them of the shooting, and then she returned to the residence. When she got there, George was still at the house. When Alexandria asked him why he had shot Williams, George became angry. He told Alexandria that she and the children had to leave the house, or he would shoot them. Alexandria quickly gathered the children and fled the residence.
About a half-hour later, the tribal officers arrived at the residence; they entered the house, accompanied by two health aides. By the time the officers and health aides entered the house, Williams was dead. The officers found George kneeling next to Williams's body, and they took him into custody. After the state troopers were notified of the homicide, the tribal officers returned to the house and stood guard outside, to make sure that no one disturbed the scene.
Alaska State Trooper Michael Roberts (who was stationed in Bethel) received the call about the homicide, and he immediately arranged a flight to Akiachak. He arrived in the village about an hour later, shortly before midnight. Upon his arrival, Trooper Roberts first conducted interviews of the tribal officers and the health aides who had been inside the George home. He then interviewed Alexandria George.
By then, a second state trooper, Charles Taylor, had arrived in the village. The two troopers went to the George residence and went inside; this was shortly before 2:00 a.m.
Inside the house, the troopers found Williams's body. On the floor next to the body, they found a rifle and a shell casing. The troopers examined Williams's body, and they later placed it in a body bag. Trooper Roberts also walked around the residence, checking for other victims or other persons hiding in the house, and taking photographs and making a video recording to document the scene. All of this took about 20 minutes, after which the troopers left the house and went to the village school to get some sleep.
Later that morning, after the troopers had slept, they resumed interviewing witnesses, and they also were in and out of the George residence. At some point that morning, Trooper Roberts spoke to his supervisor in Bethel, who advised him that "it doesn't ever hurt to get a search warrant", so the troopers applied for a warrant to search the house. They conducted a few more interviews, and then they returned to the residence to wait for the warrant.
Magistrate Patty Burley issued the search warrant for the George residence at 1:47 p.m. (See court file number 4BE-08-026 SW.) The troopers received this warrant at 2:20 p.m. They then physically collected all the items they had earlier observed and photographed, and they shipped this evidence to Bethel.
George's argument that the troopers acted illegally when they entered his house without a warrant
After George was indicted, he filed a motion seeking suppression of all the evidence that the State obtained as a result of the troopers' warrantless entry into his residence.
George conceded that the earlier entry into the home by the tribal officers and local health aides was justified under the emergency aid exception to the warrant requirement. But George argued that the emergency aid exception ceased to apply once the tribal officers and health aides discovered that Williams was dead, and once the tribal officers secured the residence so that unauthorized persons could not enter and disturb the crime scene. After that point, George contended, the troopers were not authorized to go into the house and conduct further investigation without a search warrant.
The superior court rejected this argument and ruled that the troopers' entry into the house was lawful under the emergency aid exception. In reaching this conclusion, the superior court relied on a decision of the Alaska Supreme Court, Stevens v. State, 443 P.2d 600 (Alaska 1968), and an unpublished decision of this Court, Nook v. State, 2004 WL 1336268 (Alaska App. 2004).
Both Stevens and Nook involved homicides committed in rural villages. In both cases, the initial entry into the house was made by local police officers, who verified that a homicide had occurred, and then the local officers summoned the state troopers, who were better trained to conduct a homicide investigation.
Stevens, 443 P.2d at 601; Nook, 2004 WL 1336268 at *7-8.
In both cases, it was many hours before the troopers arrived and entered the house. (In Stevens, it was ten hours later. In Nook, it was four hours later.) But even though these intervals were seemingly adequate to allow the troopers to obtain a warrant before they entered the homes, both Stevens and Nook upheld the troopers' entries under the emergency aid exception to the warrant requirement.
2004 WL 1336268 at *10.
Stevens, 443 P.2d at 602-03; Nook, 2004 WL 1336268 at *10.
The reasoning in both cases was the same: (1) The local officers' initial entry was lawful under the emergency aid exception to the warrant requirement. (2) If those local officers had been trained and equipped to conduct a proper homicide investigation, they would have been authorized to stay in the residence and do so. (3) The fact that these local officers decided to summon more experienced investigators to perform the crime-scene investigation did not negate their emergency aid authority — and, under this authority, the state troopers could lawfully enter the house to continue the investigation, as long as the troopers did so within a reasonable period of time. Stevens, 443 P.2d at 602-03; Nook, 2004 WL 1336268 at *9-10.
In his brief to this Court, George argues that recent developments in both technology and the law have undermined the holdings in Stevens and Nook.
First, George argues that it is now far easier to obtain a search warrant for a rural location. He points out that communications technology has advanced greatly since Stevens was decided (almost fifty years ago), and he further points out that the Alaska Legislature has now explicitly authorized magistrates to issue search warrants by telephone or fax; see AS 12.35.015(a).
But we do not interpret Stevens and Nook as hinging on any perceived difficulty in obtaining search warrants for remote locations. First, even though communications technology was more primitive fifty years ago when the Alaska Supreme Court decided Stevens, it was nevertheless possible, even then, to communicate with rural villages in Alaska. (This is demonstrated by the fact that, in Stevens, the Hoonah officials were able to reach the state troopers in Juneau and summon their assistance.) And the law has always allowed a law enforcement officer to apply for a search warrant based on information conveyed by another law enforcement officer. In Stevens, for example, the state troopers in Juneau could have applied for a search warrant in front of a Juneau magistrate, based on information they obtained from the Hoonah officials.
Second, as we have already explained, the wording of the Stevens decision shows that the supreme court concluded that the troopers' entry into the residence was, in the eyes of the law, simply a continuation of the earlier entry by local officers — an entry that was concededly legal under the emergency aid exception.
For these reasons, we reject George's argument that the decision in Stevens hinged on a perceived difficulty in obtaining a search warrant for a remote location.
George also argues that the holding in Stevens must be re-examined in light of the United States Supreme Court's 1978 decision in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
In Mincey, the Supreme Court unanimously invalidated a warrantless search of a residence where a homicide occurred. The search was conducted over a period of four days, and it involved intrusions into essentially every nook and cranny in the house. The Arizona Supreme Court upheld this series of warrantless searches under the theory that the constitution allows the police to search the scene of a homicide without a warrant, but the United States Supreme Court repudiated this reading of the constitution.
Mincey, 437 U.S. at 388-89, 98 S.Ct. at 2411.
Id., 437 U.S. at 389, 98 S.Ct. at 2412.
The Supreme Court noted that the Arizona court had not attempted to justify the search of Mincey's apartment under any of the recognized exceptions to the warrant requirement. Instead, the Arizona court relied on a purported new exception for police searches of homicide scenes. This was error, the Supreme Court declared: "[T]he warrantless search of [a residence is] not constitutionally permissible simply because a homicide [has] recently occurred there." 437 U.S. at 395, 98 S.Ct. at 2415.
Id., 437 U.S. at 390, 98 S.Ct. at 2412.
Ibid.
George argues that the Supreme Court's decision in Mincey v. Arizona has undermined the legal foundation of the decisions in Stevens and Nook. But George reads too much into Mincey.
As we have already explained, Mincey did not involve the emergency aid exception to the warrant requirement — or any other recognized exception to the warrant requirement. The government relied solely on the idea that a warrant exception should be created for homicide scenes — and the Supreme Court held in Mincey that no such exception should be recognized.
There is little to suggest that Mincey made any other change in the law of search and seizure. As Professor LaFave explains in his treatise on search and seizure:
[T]he post-Mincey cases have not found the police to be totally lacking in any authority to conduct warrantless investigations of homicides occurring within private premises. For one thing, the courts rather readily recognize that the police may make a warrantless entry into premises where they reasonably believe a dead body will be found. [And] [w]hen an entry has been made for that purpose[,] or for the purpose of rendering aid to a person believed to be in need of medical assistance and a body is found, it has not been assumed that Mincey requires that the police do nothing more until a warrant has been obtained. An examination of the body is permissible, and the police need not close their eyes to objects of evidentiary value in the immediate vicinity of the body. In addition, it is quite proper for an officer at a homicide scene to make a prompt warrantless search of the area for other victims or the presence of the killer, as was acknowledged in both Mincey and Thompson [v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984)], and evidence found during such an exploration is also subject to seizure. ... Moreover, securing the residence by making certain all doors and windows are locked and closed is permissible when no occupants remain at the time the policeWayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012), § 6.5(e), Vol. 3, pp. 590-93 (footnotes and internal quotations and alterations omitted).
are ready to depart, and evidence seen in plain view during the securing may likewise be seized.
And perhaps more importantly, Professor LaFave notes that several post-Mincey cases have reached the same conclusion that the Alaska Supreme Court reached in Stevens: the conclusion "that a second entry not too long thereafter, during which the police do no more than what was or could have been lawfully done during the first entry, is permissible without first obtaining a search warrant." Id. at 593.
For these reasons, we reject George's argument that the decision in Mincey has undermined the legal foundation of our supreme court's decision in Stevens. And we accordingly hold that the state troopers acted lawfully when they entered George's residence, examined Agnes Williams's body and the rifle and shell casing lying next to her, and conducted a preliminary examination of the rest of the house.
We note that there is an additional, alternative ground for upholding the superior court's denial of George's suppression motion. Even if we assume that the troopers' warrantless entries into the residence were unlawful, the fact remains that the magistrate issued a search warrant about twelve hours after the troopers first entered the house, and this search warrant authorized the troopers to gather all the evidence that is at issue in this case. The issuance of this warrant cured any illegality in the troopers' earlier entries.
We acknowledge that this search warrant would be attackable if (1) the troopers' initial warrantless entries into the house were illegal, and if (2) the magistrate's decision to issue this warrant hinged on information that the troopers gleaned while they were inside the residence. But we have examined the search warrant application, file number 4BE-08-026 SW, and we conclude that the magistrate's decision to issue this warrant was not tainted by any illegality in the troopers' initial entries into the home.
Although the warrant application includes information about the troopers' observations inside the home, the warrant application also includes information obtained from interviewing Alita George (George's daughter). According to the warrant application, Alita stated that George was being "verbally abusive" to family members, that he waved a knife at Agnes Williams, and that he then "retrieved a .22 rifle and shot Agnes Williams in the chest." The warrant application also includes information obtained from interviewing Alexandria George (who is referred to as "Alexandria Moses" in the affidavit). Alexandria reported that she confronted George about shooting Williams, that George responded by threatening to shoot her and the two children, that Alexandria and the two children then "fled the residence because they were afraid for their lives", and that George chased after them and fired his rifle.
"Affidavit for Search Warrant" in case number 4BE-08-026 SW, page 3.
Ibid. --------
Any magistrate would have issued a warrant to search the residence based on this information, completely leaving aside the information that the troopers gleaned from their initial warrantless entries into the home. We thus conclude that even if the troopers' initial warrantless entries were illegal, that illegality did not taint the warrant, and thus the evidence collected from the house was admissible against George.
George's contention that the jury's verdicts were inconsistent
At George's trial, he admitted that he shot Agnes Williams, but he argued that he was so drunk at the time that he should be found guilty of a lesser degree of homicide. The jurors were therefore instructed on all four levels of criminal homicide recognized under Alaska law: first-degree murder, second-degree murder, manslaughter, and criminally negligent homicide.
The jury returned four verdicts: (1) "not guilty" of first-degree murder, (2) "not guilty" of second-degree murder, (3) "guilty" of manslaughter, and (4) "not guilty" of criminally negligent homicide.
The fact that the jury returned verdicts on both manslaughter and criminally negligent homicide was inconsistent with the court's instructions to the jury — because, at the top of the verdict form for criminally negligent homicide, the jurors were told: "Do Not Complete This Form Unless You Have Reached Verdicts of Not Guilty on the Offenses of Murder in the First Degree, Murder in the Second Degree, and Manslaughter."
This obvious discrepancy was noted by the trial judge while he was reading the verdicts. After reading the jury's verdict of "guilty" on the charge of manslaughter, the judge announced that, "for some reason, the jury went on to [the offense of] criminally negligent homicide", and the judge informed the attorneys that the jury's verdict on this lesser offense was "not guilty". The judge then invited the attorneys to approach the bench to discuss "where we're at here".
The defense attorney seemingly did not perceive the problem: his first remark at the bench conference was that he needed to talk to his client about potentially waiving his right to trial on aggravating factors. But the trial judge then clarified the reason for the bench conference: "I'm a little confused about the "not guilty" [verdict] on the criminally negligent homicide [charge]. ... That's what I'm calling you up about."
The prosecutor said that his main concern was for the judge to "poll the jury as to the manslaughter [verdict]." The defense attorney's responses to the prosecutor's suggestion consisted of: "Yeah, okay."; "Right, I think that's ..."; "Right."; and "Yeah, I think that's (indiscernible)."
The bench conference then ended, and the judge proceeded to individually poll the jurors regarding their manslaughter verdict. All twelve jurors affirmed that they found George guilty of this offense. The judge then announced:
The Court: All right. I think, then, by agreement of the parties and the operation of law, the court will just disregard the "not guilty" verdict on the negligent homicide [charge].George's attorney made no objection (nor any other comment) to the judge's announcement.
Now, on appeal, George contends that the jury's verdicts of "guilty" on manslaughter and "not guilty" on criminally negligent homicide were irreconcilably inconsistent, and that the trial judge committed plain error by accepting those verdicts.
The verdicts would not be irreconcilably inconsistent if the jurors misunderstood or mistakenly ignored the text at the top of the verdict form for criminally negligent homicide — for example, if the jurors erroneously believed that, having found George guilty of manslaughter, they should then find him "not guilty" of all remaining charges.
We do not know if this is what happened, because the defense attorney never asked the judge to inquire into this matter. Instead, the defense attorney openly agreed with the prosecutor's suggestion that the main thing to be done was to poll the jurors on their manslaughter verdict (to make sure that the jurors had unanimously found George guilty of that offense).
And when this polling was accomplished, and the judge announced his intention — "by agreement of the parties" — to disregard the jury's "not guilty" verdict on the charge of criminally negligent homicide, the defense attorney made no objection.
Given this record, there are two reasons why George can not claim that the discrepancy in the verdicts constituted plain error.
First, this is not a case where the judge and the attorneys failed to notice the discrepancy in the verdicts. As soon as the judge read the verdicts, he immediately informed the attorneys that the jury had returned a "guilty" verdict on the manslaughter charge but a "not guilty" verdict on the negligent homicide charge — and the judge then called a bench conference for the very purpose of exploring this discrepancy.
At this bench conference, the prosecutor said that the important thing was to poll the jurors regarding their manslaughter verdict. The defense attorney agreed with the prosecutor — and the defense attorney did not ask the court to take any other steps.
Thus, if any error occurred here, it was not a failure to discern the discrepancy in the verdicts. Rather, the error (if any) was the failure to take additional steps to more fully ascertain the jury's intentions with regard to the verdicts they had just returned.
Given the defense attorney's apparent complacency regarding the jury's "not guilty" verdict on the charge of negligent homicide, we can not say that the trial judge committed obvious error when he decided to resolve the situation by simply polling the jurors to make sure that they had unanimously found George guilty of manslaughter.
Second, this Court held in Miller v. State, 312 P.3d 1112 (Alaska App. 2013), that parties are barred from raising claims of plain error based on alleged inconsistencies in jury verdicts — because, under Alaska law, "a defense attorney who believes that the jury's verdicts may be inconsistent has a powerful tactical reason to withhold any objection until the trial judge accepts the verdicts and discharges the jury." Id. at 1115. As we explained in Miller,
If the attorney alerts the trial judge to the problem, the trial judge would normally advise the jurors that their verdicts are inconsistent and can not be accepted, and the judge would then direct the jurors to return to their deliberations — leaving open the possibility that the jurors would resolve the inconsistency in the State's favor. Or, in a case like Miller's, a timely objection might prompt the trial judge to ask the jury to clarify the basis of its decision by means of a special verdict.Miller, 312 P.3d at 1115.
Instead, by withholding an objection until the jury is discharged and the matter is beyond remedy, a defense attorney gains a new trial on any charges of which the defendant was convicted, while at the same time precluding a new trial on any charges of which the defendant was acquitted (because of Alaska's guarantee against double jeopardy).
In his brief on appeal, George argues that Miller was wrongly decided — that it is fatally inconsistent with the Alaska Supreme Court's decision in DeSacia v. State, 469 P.2d 369, 373-74 (Alaska 1970), where the court allowed a defendant to attack verdicts for inconsistency on appeal, even though no objection was made in the trial court.
This is a plausible argument, but it ignores the rationale behind our decision in Miller. It is precisely because of the decision in DeSacia that defense attorneys have an obvious tactical reason for withholding an objection. If a defense attorney understands Alaska law relating to inconsistent verdicts, there is everything to gain — an outright acquittal on one charge, and a reversal and retrial on the other — and essentially nothing to lose if the defense attorney remains silent about the apparent inconsistency in the verdicts until after the jury is discharged.
We further note that, in civil litigation, our supreme court has repeatedly declined to hear claims of plain error based on alleged inconsistencies in jury verdicts. The court has instead applied the rule that a party must object to the alleged inconsistency before the jury is discharged. See Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994); Grow v. Ruggles, 860 P.2d 1225, 1226 (Alaska 1993); Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 446 n. 7 (Alaska 1989) ("Challenges to the consistency of a verdict are deemed waived unless made prior to the discharge of the jury."); State v. Haley, 687 P.2d 305, 321 (Alaska 1984) ("[I]f counsel does not ask to poll the jury, or object to excusing the jury or to the filing of the verdict, the right to challenge the consistency of the verdict is waived.").
For these two reasons, we reject George's attack on the jury's verdict.
Conclusion
The judgement of the superior court is AFFIRMED.