Opinion
Court of Appeals No. A-12813 No. 6749
01-02-2019
VICTOR PAUL JIM WEST JR., Petitioner, v. STATE OF ALASKA, Respondent.
Appearances: Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Petitioner. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Respondent.
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. 3UN-15-229 CR
MEMORANDUM OPINION
Petition for review from the Superior Court, Third Judicial District, Unalaska, Steve W. Cole, Judge. Appearances: Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Petitioner. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Respondent. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Victor Paul Jim West Jr. was indicted for second-degree assault (assault with a dangerous instrument), based on allegations that he hit another man in the face with a metal pipe. Following the conclusion of approximately thirteen hours of evidence, the jury began deliberating. After deliberating for more than thirty hours over the span of several days, and declaring themselves deadlocked multiple times, the jurors still had not reached a verdict. On the fourth day of deliberations, the jurors told the trial judge that they thought further deliberations would be pointless. Superior Court Judge Steve W. Cole then declared a mistrial over the defense attorney's objection.
When the State prepared to bring West to trial a second time, West filed a motion to dismiss the case on double jeopardy grounds — arguing that there had been no manifest necessity for the judge to declare a mistrial. The superior court denied West's motion to dismiss the case, and West now petitions us to review and reverse the superior court's decision. For the reasons explained here, we affirm the superior court's decision.
See Tritt v. State, 134 P.3d 364, 365-66 (Alaska App. 2006) (recognizing that, under Alaska law, we must grant a petition for review in these circumstances and reach the merits of the defendant's argument that there was no necessity for a mistrial).
The procedural history of this case
West's jury heard approximately thirteen hours of testimony during his trial for second-degree assault. (Under AS 11.41.210(a)(1), a person commits the crime of assault in the second degree if "with intent to cause physical injury to another person, that person causes physical injury to another person by means of a dangerous instrument.")
At the close of the evidence in West's trial, there were two main issues in contention. First, West argued that he should be acquitted because he acted in self-defense. Second, West asserted that he should be acquitted because he claimed that he struck the victim only with his fist rather than with a pipe (the alleged dangerous instrument).
The jury was not instructed on any lesser-included charges. Therefore, if the jury found that the State had not proved the charged offense beyond a reasonable doubt, it was required to acquit West.
In an attempt to resolve these issues, the jurors deliberated for more than thirty hours over the span of several days. During this time, the jury sent eight notes to the judge stating that it could not reach a unanimous decision. In its very first note, the jury informed the judge that the jurors were split on the question of whether West used a dangerous instrument.
In response to these jury notes, the judge repeatedly polled the jurors to see if they thought that further deliberations might be fruitful. The judge also reminded the jurors of their two contrasting duties: to deliberate with a view to reaching agreement, but also not to sacrifice their personal convictions and individual judgments simply to reach a verdict.
On the third day of deliberations, the jurors reiterated that they were still deadlocked. (The vote was eleven to one.) But when the judge polled the jurors, two of them said that they thought further deliberations still might be useful, so the judge instructed the jurors to keep deliberating — even though the judge admitted to the parties that he was "running out of things to say to [the] jury."
On the fourth day of deliberations, the jury sent a note to the judge which read: "We the jury feel that juror [H.H.] is basing their verdict on emotions and will not reexamine the evidence or be open-minded and feels very pressured from the deliberations to change. Can the alternates come in?"
West's attorney argued that the judge should question H.H. individually to determine whether it was true that she refused to "re-examine the evidence or be open- minded." The defense attorney argued that, if these things were true, the judge should remove H.H. from the panel, and then have the jury recommence deliberations — either with one of the alternate jurors who had previously been excused, or as an eleven-person jury.
The judge rejected the defense attorney's suggestion. The judge concluded that it would be inappropriate to remove a juror simply because, after several days of deliberation, the other jurors did not agree with the juror and were no longer getting along with her. The judge also noted that proceeding with an eleven-person jury was not an option unless the State was willing to consent, which the State was not. So instead, the judge simply instructed the jurors to continue deliberating.
See Alaska R. Crim. P. 23(b); Lestenkof v. State, 229 P.3d 182, 188 (Alaska App. 2010).
A short time later, the jurors sent the judge another note, stating again that they were still deadlocked eleven to one. In response, the trial judge conducted his fourth poll of the jurors. In response to the judge's questions, every member of the jury declared that further deliberations would be futile.
At that point, over defense objection, the judge found that a mistrial was manifestly necessary and that "continued deliberations would create ... a tension that might result in ... coercing a verdict."
Three months later, West filed a motion to dismiss this case with prejudice. In his motion, West argued that there had been no manifest necessity for a mistrial, and that therefore any new trial would violate West's constitutional protection against double jeopardy. The judge denied this motion, leading West to petition this Court for review.
See Tritt, 134 P.3d at 365-66.
Why we affirm the superior court's declaration of a mistrial
Although, as a general matter, a court should not declare a mistrial over the defendant's objection except in "extraordinary and striking circumstances," a jury's inability to reach a verdict is a "classic example" of a circumstance where a mistrial is appropriate. A mistrial is manifestly necessary if there is no probability that further deliberations will result in a unanimous verdict.
Cross v. State, 813 P.2d 691, 694 (Alaska App. 1991) (quoting Browning v. State, 707 P.2d 266, 268 (Alaska App. 1985)).
Lewis v. State, 452 P.2d 892, 895 (Alaska 1969).
See, e.g., Artemie v. State, 158 P.3d 860, 863 (Alaska App. 2007) (holding that it was not an abuse of discretion for judge to declare a mistrial after jury reported for the third time that it was unable to reach a verdict).
West argues that, in his case, there was no manifest necessity for a mistrial because a less drastic alternative was available. Specifically, West asserts that instead of declaring a mistrial, the judge could have removed the holdout juror from the panel and directed the jury to continue deliberations. West contends that H.H.'s dismissal would have been justified if H.H. was willfully refusing to deliberate, and that the jury's note about H.H. raised a substantial possibility that this was the case. West further argues that the trial judge should have granted his defense attorney's request to investigate the matter further through individual questioning of H.H.
We disagree. These decisions were entrusted to the trial judge's discretion, and the record provides ample support for the trial judge's decision not to exert additional pressure on H.H. The record shows that the jurors had been deliberating for several days. The first three times that the judge polled the jurors, a majority of them said that further deliberations would be of no use. Despite this, the judge kept sending the jurors back for further deliberations, because at least two of the jurors thought that a verdict might still be reached.
After the jurors were sent back three times to continue deliberating, H.H. apparently reached her limit and was no longer expressing openness to further debate about the case. But given the circumstances, there was a substantial risk that exerting further pressure on this dissenting juror would (in the trial judge's words) "result in ... coercing a verdict" from a juror who did not appear to be committing misconduct, but instead appeared to be simply following the court's instruction not to "sacrifice [her] individual judgment." As the California Supreme Court explained in People v. Cleveland:
The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.
People v. Cleveland, 21 P.3d 1225, 1238 (Cal. 2001).
This Court, too, has recognized that when a trial judge "requir[es] a jury to continue deliberations despite genuine and irreconcilable disagreement," the judge's action "more often than not defeats the ends of public justice" in that it "may coerce erroneous verdicts."
Artemie, 158 P.3d at 863 (quoting United States v. Goldstein, 479 F.2d 1061, 1068 (2d Cir. 1973)).
Here, West's trial judge made repeated efforts to procure a unanimous decision from jurors who remained divided over the course of four days. Given the situation, other judges might reasonably have ended their efforts earlier. But in any event, Judge Cole did not abuse his discretion when he finally concluded that there was no probability that further deliberations would result in a verdict.
Conclusion
The decision of the superior court is AFFIRMED. The State can lawfully bring West to trial a second time.