Opinion
Court of Appeals No. A-10934 Trial Court No. 3AN-97-7877 CR No. 5929
03-27-2013
CHRISTOPHER LINDEMAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, 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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge.
Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, 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 Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge COATS, Senior Judge.
Judge MANNHEIMER, concurring.
In Lindeman v. State, 244 P.3d 1151 (Alaska App. 2011), we upheld a trial court's decision that Christopher Lindeman received ineffective assistance of counsel from his appellate attorney because the appellate attorney failed to argue that a supplemental instruction given in Lindeman's murder trial constituted reversible error. We held that, as a remedy, Lindeman was entitled to renew his appeal and argue the issue of whether the supplemental instruction constituted reversible error.
In this renewed appeal, Lindeman contends that the supplemental instruction was erroneous because it allowed the jury to convict him on a theory that was not encompassed by the grand jury indictment and, in addition, that he was unfairly prejudiced by the supplemental instruction because the instruction allowed the jury to convict him on a theory of murder that he did not have a fair opportunity to defend against. We agree with Lindeman that the supplemental instruction permitted the trial jury to convict him of second-degree murder under a theory that Lindeman never had a fair opportunity to defend against. We accordingly reverse Lindeman's conviction.
Factual and procedural background
On September 25, 1997, shortly before midnight, Christopher Lindeman was found calling for help in an internal stairwell outside his apartment. When the police arrived, they found Lindeman's friend, Amos Gordon Rossman, dead in Lindeman's bathroom. Blood had pooled around Rossman's body in the bathroom and there were blood stains in Lindeman's living room. In the living room, the police also found a 17-pound dumbbell with drops of blood on it. Rossman had lacerations on his head and his body was covered with bruises. The State's pathologist testified that, based upon the shapes of the bruises, he concluded that at least some of them had been caused by the end of the dumbbell.
Lindeman gave two statements to the police in which he claimed that he had not assaulted Rossman. He alleged that he and Rossman had been drinking heavily, that they had both been beaten by skinheads, and that one of the skinheads had used a cane- like object to beat Rossman. Lindeman also claimed to have received a bloody nose during the altercation, but officers found no sign that Lindeman had recently had a bloody nose.
Lindeman told the police that, after the altercation, he helped Rossman walk back to the apartment, partially pulling Rossman because Rossman's feet were dragging behind him a little bit.
According to Lindeman, when they got back to the apartment, he put Rossman in a recliner, got a towel for his (Lindeman's) bloody nose, and blacked out for a while. When he came to, he saw that Rossman was bleeding badly. He tried to help Rossman to the bathroom but, when they reached the bathroom door, Rossman said that he could handle it and went in by himself. Lindeman heard Rossman fall and hit the tub. When Lindeman checked on him, he found Rossman lying on the floor. Rossman was still breathing at the time.
Lindeman said that he left the bathroom, fell, and blacked out. When he came to, he checked on Rossman again and saw that he was not breathing. Then he tried to get help.
The case, as it was presented to the trial jury
At grand jury, the district attorney presented evidence that, some time after Lindeman and Rossman returned to Lindeman's apartment, Lindeman beat Rossman to death "[i]n all probability ... with a 17-pound barbell, with weight plates on both ends, and a protruding spike on each end."
Based on this evidence, the grand jury indicted Lindeman for first-degree murder, alleging that "Christopher Lindeman, with intent to cause the death of another person[,] caused the death of Amos Gordon Rossman"; the grand jury also indicted Lindeman for tampering with evidence.
At trial, the State never wavered in its position that Lindeman had bludgeoned Rossman to death with the 17-pound dumbbell.
The defense denied that Lindeman had ever harmed Rossman. A defense expert testified that the bruises on Rossman's body came from a hollow object, like a pipe (which would have at least partially corroborated Lindeman's statements to the police). Another defense expert testified that Rossman could have received his head injuries by falling in the bathroom and that, if the dumbbell had been used to cause the head injuries, Rossman would have had a skull fracture (which he did not have). And a defense DNA expert testified that the blood found on the dumbbell was Lindeman's, not Rossman's.
Judge Card instructed the jury on murder in the first degree, murder in the second degree, and manslaughter. Judge Card indicated that it was appropriate to instruct on murder in the second degree and manslaughter as lesser-included offenses because of the evidence that Lindeman had been highly intoxicated. (To be convicted of murder in the first degree, the State must show that the defendant had the specific intent to kill. Voluntary intoxication can be used to show that a defendant lacked intent. But voluntary intoxication is not a defense to non-intentional offenses such as murder in the second degree or manslaughter.)
During deliberations, the jury sent a note to the court asking if it could "consider the possibility that other objects observed in the photographic evidence could have been used as assault weapons." Judge Card answered affirmatively. Six days later, the jury reported that it was "unable to reach a unanimous verdict on the charge of murder in the first degree [and] ... tampering with physical evidence." Judge Card summoned the jury and discussed the issue. He sent the jurors back to the jury room to clarify their status. The jury then sent a note requesting the proper procedure for considering lesser charges. Judge Card informed the jury of the proper procedure, which required the jury to reach a unanimous verdict finding the defendant not guilty of murder in the first degree before it could return a verdict on lesser charges.
The jury then asked: "Does the phrase 'Knowingly engaged in conduct' in the fifth paragraph of instruction #17 include failing to take action?" This question referred to the second-degree murder instruction, which permitted the jury to convict Lindeman for "knowingly engag[ing] in conduct under circumstances manifesting an extreme indifference to the value of human life." When the jury asked this question, Judge Card, who had presided over the trial, had become unavailable, and Judge Brian Shortell substituted for him.
The prosecutor's position was that the court should instruct on a possible scenario that Lindeman beat Rossman unconscious, then did nothing to aid him. Lindeman's attorney explained the defense's theory to Judge Shortell and suggested that the proper answer to the jury's question was "no." He argued that the jury was probably concerned about Lindeman's failure to obtain assistance for his friend, irrespective of whether the jury thought that Lindeman had caused his friend's injuries. Lindeman's attorney also proposed an instruction emphasizing that the jury had to find that Lindeman had committed an act which caused Rossman's death and that Lindeman's failure to act could only be considered in determining whether Lindeman had a culpable state of mind.
But in the end, Judge Shortell gave the following supplemental instruction:
"Conduct" means an act or omission and its accompanying mental state.
For purposes of "knowingly engaging in conduct under circumstances manifesting extreme indifference to the value of human life" the law requires that a criminal defendant knowingly perform an act and that the defendant be reckless as to the surrounding circumstances ("under circumstances manifesting extreme indifference to the value of human life") and the result (the death of another). The
definitions of knowingly and recklessly are contained in [your] prior instructions.
In general, the law imposes no affirmative duty on a defendant to protect a victim from danger. Thus, the failure to take action generally cannot give rise to criminal liability. However, if a defendant performs an act or acts that endanger a person or create a situation of danger to another person, you may consider a defendant's "failure to take action" to prevent harm to the victim in determining whether the defendant's conduct gives rise to criminal liability.
The jury ultimately acquitted Lindeman of murder in the first degree and hung on the evidence-tampering charge, but it convicted him of murder in the second degree.
Why we reverse Lindeman's conviction
Lindeman argues that the supplemental instruction was erroneous because it allowed the jury to convict him on a theory that was not encompassed by the grand jury indictment. In addition, he argues that he was unfairly prejudiced by the timing of the supplemental instruction because the instruction allowed the jury to convict him on a theory that he did not have a fair opportunity to defend against. He argues that the supplemental instruction permitted the jury to convict him for failing to aid the seriously injured Rossman, even if Lindeman had not caused Rossman's injuries — a theory of culpability that was entirely different from the theory that the State had presented to the jury.
The State agrees with Lindeman that the prosecutor consistently argued to the jury that Lindeman inflicted Rossman's injuries. But the State argues that, looking at the supplemental instruction in context, the jury would have convicted Lindeman only if it found that Lindeman had personally inflicted Rossman's injuries. According to the State, the supplemental jury instruction merely permitted the jury to consider Lindeman's failure to act as evidence of Lindeman's culpable mental state.
In context, it appears to us that there was a reasonable possibility that, based upon the supplemental jury instruction, the jury could have found that Lindeman committed murder in the second degree by failing to obtain aid for the seriously injured Rossman, even if Lindeman had not inflicted Rossman's injuries.
Given the length of the jury's deliberations, and the jury's verdict acquitting Lindeman of murder in the first degree, it appears that the jury was having considerable difficulty in reaching a verdict. And it appears that the jury had trouble accepting the State's theory — that Lindeman had beaten Rossman with the dumbbell — because the jury asked if it could consider whether other objects had been used in the beating. The jury's difficulty might have been compounded by the fact that, as the State conceded at trial, Lindeman had no motive to kill Rossman.
After lengthy deliberations, the jury asked a question that seemed to ask whether it could convict Lindeman for Lindeman's failure to take action. As Lindeman's attorney pointed out at the time, there was a risk that the supplemental instruction would permit the jury to find Lindeman guilty of murder in the second degree even if the jury concluded that Lindeman had not inflicted the injuries that caused Rossman's death.
We conclude that the supplemental instruction contains the flaw that Lindeman's attorney pointed out. Although the supplemental instruction pointed out that, in general, the law does not place an affirmative duty on a defendant to aid a victim, the instruction did provide that "if a defendant performs an act or acts that endanger a person or create a situation of danger to another person, you may consider a defendant's 'failure to take action' to prevent harm to the victim in determining whether the defendant's conduct gives rise to criminal liability." The jury could have concluded that Lindeman, by helping the seriously injured Rossman into the apartment, had placed Rossman in a "situation of danger," and that Lindeman then failed to provide aid that might have saved Rossman's life. The supplemental instruction permitted the jury to convict Lindeman of second-degree murder under this scenario. Thus, the instruction raised the possibility that the jury would convict Lindeman for his failure to aid Rossman even if it believed Lindeman's version of the events.
The State's theory of the case was consistently that Lindeman had killed Rossman by striking him on the head with a weapon. This is the theory of the case that Lindeman defended against. The supplemental instruction, which the trial court gave during jury deliberations, raised a reasonable possibility that the jury convicted Lindeman on a theory that was entirely different from the one he had defended against. We conclude that Lindeman was prejudiced by the injection of this new theory of criminal culpability when Lindeman had no opportunity to combat it. See Bowers v. State, 2 P.3d 1215, 1219-22 (Alaska 2000).
Because we are reversing Lindeman's conviction on this ground, we do not need to decide whether this theory of culpability constituted a fatal variance from the theory contained in the original indictment. See Michael v. State, 805 P.2d 371, 373 (Alaska 1991). Regardless of whether the theory was a material variance from the indictment, it seems clear to us that Lindeman was prejudiced by the timing of the instruction because he was unable to defend against this different theory.
The judgment of the superior court is REVERSED. Judge MANNHEIMER, concurring.
The primary issue in this case is whether, because of the supplemental jury instruction, there is a significant possibility that the jury convicted Lindeman of murder, not under the State's theory of the case (i.e., that Lindeman beat his friend to death), but instead under the theory that Lindeman failed to take action to help his friend after other people beat him up and injured him.
The State contends that the supplemental jury instruction did not tell the jurors that Lindeman could be convicted of criminal homicide for failing to help his friend. Rather, the State argues, the jurors still understood that Lindeman could be convicted only if the jurors concluded that Lindeman beat and injured his friend, and the supplemental instruction merely allowed the jurors to take account of Lindeman's failure to help his friend when the jurors assessed Lindeman's culpable mental state - that is, when the jurors assessed whether Lindeman acted with intent to kill (which would make his crime first-degree murder), or with manifest indifference to the value of human life (which would make his crime second-degree murder), or merely with recklessness (which would make his crime manslaughter).
But the wording of the supplemental instruction is simply inconsistent with the State's proposed interpretation. The supplemental instruction does not focus on the element of Lindeman's culpable mental state; instead, the instruction focuses on the issue that the jurors raised in their question to the judge: what type of conduct might constitute the actus reus of the crime.
Specifically, the jurors asked for clarification of the meaning of a clause of the definition of second-degree murder: whether the phrase "knowingly engaged in conduct" could include a failure to take action. In this context, the judge told the jurors that, normally, "the law imposes no affirmative duty on a defendant to protect a victim from danger" — and thus, normally, "the failure to take action cannot give rise to criminal liability". In other words, a defendant's failure to take action to protect or save another person normally can not be the "conduct" that authorizes the government to inflict criminal penalties on the defendant. Up to this point, the supplemental instruction was consistent with the State's theory of the case — that Lindeman committed a criminal homicide by beating his friend to death.
But the supplemental instruction then continued: "However, if a defendant performs ... acts that endanger [another] person or [that] create a situation of danger to another person, you may consider a defendant's 'failure to take action' to prevent harm to the victim [when] determining whether the defendant's conduct gives rise to criminal liability".
This language does not speak to the issue of how a defendant's culpable mental state affects the defendant's level of criminal liability. Rather, it speaks to the separate issue of whether the defendant has performed the type of conduct that makes the defendant criminally liable at all. The jurors were told that if Lindeman did anything to "endanger" his friend, or to "create a situation of danger" to his friend, then Lindeman could properly be convicted of criminal homicide if he "fail[ed] to take action to prevent harm" to his friend.
This instruction allowed the jurors to convict Lindeman of murder even if they believed Lindeman's account of events — that other people attacked and injured his friend, and that Lindeman then dragged his friend home but drunkenly failed to seek medical attention for his friend.
I do not say that it would be improper to convict Lindeman of murder under this theory if Lindeman had been given proper notice and a fair opportunity to defend himself. But I agree with my colleagues that the supplemental instruction gave rise to a significant possibility that the jurors convicted Lindeman of murder under this new theory of criminal culpability when Lindeman had no opportunity to answer it.