Opinion
Court of Appeals No. A-8572.
April 12, 2006.
Appeal from the Superior Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge. Trial Court No. 2BA-02-630 Cr.
Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Scott J. Nordstrand, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
On the night of September 8, 2002, police officers were called to the scene of a domestic dispute in Barrow. According to the officers' later account of this incident, the husband, Steven Leavitt Sr., was intoxicated, angry, and belligerent. As the officers were escorting Leavitt's wife from the residence, Leavitt — who was standing in the arctic entry to the house — told the officers, "I could shoot you right now." Less than a minute later, Leavitt turned and went into his house, then re-emerged with a long object in his hands. The officers, believing that this object was a firearm, drew their weapons and took defensive positions around their patrol vehicle. The confrontation ended when Leavitt went back inside the house.
Based on this incident, Leavitt was charged with third-degree assault (recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument) and fourth-degree weapons misconduct (possession of a firearm while intoxicated).
AS 11.41.220(a)(1)(A) and AS 11.61.210(a)(1), respectively.
At trial, Leavitt's wife took the stand in support of her husband. She declared that she had not seen her husband with a gun during this incident — that, in fact, there had been no firearms in the house.
Given this testimony, the jury was instructed on the lesser misdemeanor offense of fourth-degree assault under AS 11.41.230(a)(3) — recklessly placing another person in fear of imminent physical injury by words or other conduct. This lesser offense differs from third-degree assault in two particulars: (1) the threat need only be of imminent physical injury, as opposed to imminent serious physical injury; and (2) the threat need not be accomplished by means of a dangerous instrument.
The jury ultimately acquitted Leavitt of third-degree assault and fourth-degree weapons misconduct — the two offenses that required proof that Leavitt possessed a firearm. However, the jury convicted Leavitt of fourth-degree assault; in other words, the jury found that Leavitt had, by words or conduct, recklessly placed another person in fear of imminent injury.
In this appeal, Leavitt argues that the jury's three verdicts — not guilty of third-degree assault and fourth-degree weapons misconduct, but guilty of fourth-degree assault — are logically irreconcilable. Leavitt further argues that even if the verdicts are potentially reconcilable as a matter of logic, the evidence presented at Leavitt's trial is insufficient to support his conviction for fourth-degree assault.
In addition, Leavitt argues that the prosecutor engaged in two types of improper argument during the State's summation to the jury: (1) engaging in an ad hominem attack on the defense attorney, and (2) urging the jurors to decide the case by asking themselves whether they would want their own children to act as Leavitt had acted. Leavitt asserts that, because the jury's verdicts can not be reconciled on any rational basis, and because the fourth-degree assault conviction is not supported by the evidence, the jury's decision to convict him of this misdemeanor assault must be attributed to the prosecutor's improper arguments.
To begin with, we reject Leavitt's assertions that the jury's verdicts are irreconcilable and that the evidence fails to support Leavitt's conviction for fourth-degree assault. It is obvious that the jury had at least a reasonable doubt as to whether Leavitt was armed during his confrontation with the officers. But the jury could nevertheless have concluded that Leavitt told the officers that he "could shoot [them] right now", and that, immediately following this statement, Leavitt stepped inside his house and then re-emerged with an object in his hand that appeared to be a firearm.
Indeed, at Leavitt's sentencing hearing, his defense attorney told the court that this is precisely the theory that the jurors followed in reaching their verdict:
Defense Attorney: [T]his case is a little unusual, in that two jurors got in touch with me after the case [was over] to talk to me about it. . . . [B]oth Mr. Shults and another juror, Mr. George, talked to me about the case, and they [said] that they were persuaded by the fact that the officers had been exposed to [another] situation where a person had a gun right before [the incident involving Leavitt]. . . . And so they think that [the officers] well could have made a mistake, and that [Leavitt] could have been holding an oar or anything of that nature. They did believe that he was holding something. And [that is] what they described to me as their rationale for coming back with a guilty [verdict] on assault in the fourth-degree[.]
We need not decide whether the defense attorney was accurately reporting what these jurors said, or if these two jurors were accurately reporting their own thought processes or the thought processes of their fellow jurors. Rather, the defense attorney's statement at the sentencing hearing is important because it demonstrates that there is at least one rational view of the evidence that supports a verdict of guilty on the fourth-degree assault charge and, at the same time, a verdict of not guilty on the third-degree assault charge.
Because the law requires us to view the evidence in the light most favorable to upholding the jury's verdicts, this possible explanation of the verdicts is sufficient to support them against Leavitt's current arguments (1) that the verdicts are logically irreconcilable, and (2) that the evidence does not support Leavitt's fourth-degree assault conviction.
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Clark v. Anchorage, 112 P.3d 676, 680 (Alaska App. 2005).
We now turn to Leavitt's assertion that the prosecutor improperly engaged in ad hominem attacks on the defense attorney during the State's summation to the jury. We agree with Leavitt that the prosecutor exceeded the bounds of proper argument on at least one occasion:
Prosecutor: [T]he State doesn't have to prove [the allegations to an] absolute certainty. . . . [We] simply have to prove [those allegations] beyond a reasonable doubt. And, again, that indicates that you can have some doubt; but remember, [it must be] doubt based on reason and common sense.
Defense Attorney: Your Honor, that's flipping the burden of proof. If there's a reasonable doubt, then [the verdict must be] not guilty.
Prosecutor: I'm quoting the [jury] instruction, Your Honor.
The Court: Proceed.
Prosecutor: Thank you, Your Honor. [To the jurors:] That means [the defense attorney is] wrong.
Defense Attorney: No, Your Honor, . . .
The Court: Well, let's . . .
Prosecutor: There's been no mention of flipping a burden of proof, Your Honor.
Defense Attorney: Your Honor, the district attorney just told the jury that if they had a doubt, it was okay, and they could find a person guilty. And that's how he's flipping it.
The Court: No, the standard . . . is beyond a reasonable doubt, [and not] beyond all possible doubt.
Prosecutor: And ladies and gentlemen, you heard exactly what I said, so you know who's telling you the truth and [who is] being honest with you here. "Beyond a reasonable doubt". The law doesn't say [that we] have to prove it beyond all doubt. . . . The law doesn't say that. The judge has given you the instruction: [the test is] beyond a reasonable doubt.
In the italicized language quoted above, the prosecutor gratuitously attacked the defense attorney's honesty. The prosecutor implied that the defense attorney was presenting arguments in bad faith — that the defense attorney was knowingly trying to mislead the jury concerning the law. Only the most extreme facts could justify this type of advocacy. Certainly, there is nothing in the excerpt quoted here that could explain or justify the prosecutor's comments.
We caution Leavitt's trial prosecutor — and all advocates — that this kind of personal attack on opposing counsel is improper; it can lead to monetary sanctions and, potentially, professional discipline. In Gregoire v. National Bank of Alaska, 413 P.2d 27, 43-44 (Alaska 1966), the supreme court reprimanded an appellate attorney who "employed abusive and intemperate language in his brief and . . . accused the trial court and opposing counsel of unethical and underhanded conduct". Again, in In re Vollintine, 673 P.2d 755, 756 (Alaska 1983), the supreme court publicly reprimanded an attorney who accused a government official of perjury and who accused opposing counsel of "cheating and lying". And in Cathey v. State, 60 P.3d 192, 196-97 (Alaska App. 2002), this Court reprimanded an attorney for baselessly accusing a prosecutor of attempting to deceive a grand jury.
In his brief to this Court, Leavitt argues that he is entitled to reversal of his conviction because of this improper argument. But when this misconduct occurred, Leavitt's trial attorney did not seek a mistrial, nor did she ask the trial judge to admonish the jurors to ignore the prosecutor's personal attack. Rather, the defense attorney merely asked the trial judge to give the jurors an instruction clarifying the concept of "beyond a reasonable doubt". Because of this, Leavitt must now show that the trial judge's failure to take further action sua sponte constituted plain error. That is, Leavitt must show that no competent judge would have allowed the trial to continue, or at least that no competent judge would have allowed the trial to continue without sua sponte admonishing the jurors to ignore the prosecutor's remarks.
We have repeatedly warned trial judges to be very cautious before ordering a mistrial in a criminal case when the defendant has not requested a mistrial — for, under the double jeopardy clauses of the federal and state constitutions, if a trial judge declares a mistrial sua sponte when there is no manifest necessity for it, the charges against the defendant must be dismissed. In the circumstances presented here, there was no manifest necessity to terminate Leavitt's trial, and thus the trial judge did not commit plain error by failing to declare a mistrial.
Roussel v. State, 115 P.3d 581, 584 (Alaska App. 2005); Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001); Riney v. State, 935 P.2d 828, 838-39 (Alaska App. 1997); Nelson v. State, 874 P.2d 298, 308 (Alaska App. 1994); March v. State, 859 P.2d 714, 717 (Alaska App. 1993).
It is a closer question whether the trial judge should have taken some lesser step in response to the prosecutor's misconduct. The trial judge might properly have admonished the prosecutor. But we again note that the defense attorney apparently concluded that no remedy was required — or, at least, no remedy that directly addressed the prosecutor's ad hominem attack on the defense attorney.
Another component of the plain error test is that the proponent of the error must show that failure to correct the error would perpetuate injustice. Here, the jury's verdicts strongly suggest that they were unswayed by the prosecutor's improper remarks. As explained above, the jury voted to acquit Leavitt of third-degree assault and fourth-degree weapons misconduct. This indicates that the jurors were unaffected by the prosecutor's personal attack on Leavitt's attorney — or, if they were affected, that they held the attack against the prosecutor. Under these circumstances, Leavitt has not shown that affirmance of his misdemeanor assault conviction would perpetuate an injustice.
See Hosier v. State, 1 P.3d 107, 112 (Alaska App. 2000); Potts v. State, 712 P.2d 385, 390 (Alaska App. 1986); Roberts v. State, 680 P.2d 503, 507 (Alaska App. 1984).
For these reasons, even though we agree that the prosecutor engaged in an improper personal attack on the defense attorney, this does not require reversal of Leavitt's conviction.
Leavitt raises a second challenge to the prosecutor's summation to the jury. In one portion of that summation, the prosecutor suggested to the jurors that, when they evaluated whether Leavitt had acted reasonably or (alternatively) recklessly, they should ask themselves whether they would wish their own children to act as Leavitt had done:
Prosecutor: If you find [that] the defendant's conduct [on] that day was reasonable, that he didn't act recklessly, . . . then you're telling me [that] you're . . . willing to go home and tell your children . . ., "I want you to be a reasonable child when you grow up, so it's okay [to do what Leavitt did], because we found that it was reasonable. . . ." But . . . when a person gets really intoxicated, threatens an officer to shoot him, and then pulls a gun, it's not reasonable; it's reckless. You recognize that, and you wouldn't want your children to do that. That's how you know [that Leavitt] was not a reasonable person that day.
Leavitt asserts that, by asking the jurors to consider whether they would want their own children to act in this fashion, the prosecutor engaged in argument that was "calculated to divert the jury from its duty to decide the case on the evidence".
We agree with Leavitt that this portion of the prosecutor's argument invited the jurors to decide the case on improper grounds. The question for the jurors to decide was whether Leavitt had acted "recklessly" as that term is defined in AS 11.81.-900(a)(3) — and not whether the jurors would want their children to act as Leavitt had acted.
Under AS 11.81.900(a)(3), a person acts "recklessly" with respect to a result (in Leavitt's case, the result that his conduct would place another person in fear of imminent injury) if the person "is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur". Under this statute, "the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation". The statute further provides that "a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to that risk".
However, even though the prosecutor engaged in improper argument by asking the jurors to consider what conduct they would expect from their children, this problem is raised for the first time on appeal. At trial, Leavitt's attorney did not object to this argument or ask the trial judge for relief. Thus, Leavitt must show plain error.
Under the facts of this case, we find no plain error. Even though the challenged portion of the prosecutor's argument was improper, the prosecutor's argument as a whole focused on the correct test: whether Leavitt's conduct conformed to the conduct that one would expect of a reasonable person. Further, as we have already noted, the jury's verdicts strongly suggest that the jurors were unaffected by this improper argument; the jury acquitted Leavitt of third-degree assault and fourth-degree weapons misconduct. Because of these two factors, we conclude that Leavitt has not shown that affirmance of his misdemeanor assault conviction would perpetuate an injustice.
The judgement of the superior court is AFFIRMED.