Des Jardins v. State

• Citation: 551 P.2d 181
• Decision Date: 08 March 1976
• Docket Number: No. 2280,2280
• Parties: James Ernest DES JARDINS, Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 181

551 P.2d 181

James Ernest DES JARDINS, Appellant, v. STATE of Alaska, Appellee.

No. 2280.

Supreme Court of Alaska.

March 8, 1976.

On Rehearing June 11, 1976.

H. Bixler Whiting, Whiting & Blanton, Fairbanks, for appellant.

David Mannheimer, Asst. Dist. Atty., Harry L. Davis, Acting Dist. Atty., Fairbanks, Avrum Gross, Atty. Gen., Juneau, for appellee.

OPINION

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.

BURKE, Justice.

James Des Jardins was convicted of manslaughter ¹ and assault with a dangerous weapon ² after a trial by jury. This appeal followed.

On the night of December 10, 1973, Daniel Cucuroll was hitchhiking with a friend, John Zdepski, along College Road, near Fairbanks, Alaska. James Des Jardins, accompanied by Stanley Zaverl, was driving a pickup truck along the same roadway. Des Jardins passed the hitchhikers without stopping. As he did so, Cucuroll kicked the side of his vehicle. Angered by the actions of Cucuroll, Des Jardins stopped. His passenger, Zaverl, jumped out and pursued the hitchhikers onto a lawn where he tackled Cucuroll some twenty feet from the roadway. Zdepski, the other hitchhiker, fell on top of Zaverl; Des Jardins pulled him off striking

him on the arm with a long object. Des Jardins started to chase Zdepski and then returned to Cucuroll and Zaverl, lying in the snow

Zdepski, who was then standing in the street, and three people in a cab, who had stopped to watch the fight, all testified at trial that they saw a person standing and swinging a long object at the ground where Cucuroll lay. Zaverl, who lay next to Cucuroll throughout the fight, and Des Jardins testified that Des Jardins did not strike Cucuroll. Des Jardins and Zaverl got back in the pickup and drove away; they were apprehended a short time later.

Cucuroll subsequently died of a fractured skull and resulting brain damage. Zdepski suffered a bruise on his arm. The police discovered an iron rod with snow on it in the back of Des Jardins' truck, and Zdepski testified that it had been used by Des Jardins to strike him. Des Jardins admitted having something in his hand throughout the encounter, but stated that he thought it was his windshield scraper. He denied using the object to strike anyone.

Cucuroll had a laceration on his scalp over the skull fracture. F.B.I. laboratory tests of his parka and the iron rod were negative: no blood or hair was found on the rod; no rust was detected on the parka hood. The windshield scraper was not tested or introduced at trial. The owner of the lawn on which the incident occurred testified that there were no rocks or other hard objects in the area where Cucuroll had fallen.

Des Jardins has raised four points on appeal: that his motion for judgment of acquittal was erroneously denied; that a new trial should be granted because of the prosecutor's violation of Rule 16, Alaska Rules of Criminal Procedure, relating to discovery; that the instructions given to the jury were incomplete and erroneous; and that the judge erroneously failed to answer questions posed to him by the jury after it began its deliberations.

I. MOTION FOR JUDGMENT OF ACQUITTAL

Des Jardins moved for a judgment of acquittal at the close of the state's case in chief, and again at the conclusion of his case. Both motions were denied. He alleges that this was erroneous, because while the evidence against him was entirely circumstantial, there was direct evidence, consisting of his own and Zaverl's testimony, that he did not strike Cucuroll. Des Jardins relies here on the rule in Davis v. State, 369 P.2d 879, 882 (Alaska 1962), which permitted a conviction based on circumstantial evidence only where every other reasonable hypothesis had been excluded. However, as even Des Jardins recognizes, this aspect of Davis has been disapproved. ³

The standard which this court and the trial court must now use, instead of the Davis test, is as follows:

(T)he judge must take the view of the evidence and the inferences therefrom most favorable to the state. If the court determines that fair-minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt, then the case must be submitted to the jury. ⁴

This test applies in cases where the evidence is direct and in cases based on evidence which is wholly circumstantial. ⁵

In this case, the evidence is for the most part circumstantial: no one could positively identify Des Jardins as the person who hit Cucuroll, and no one could identify the iron rod as the object in the assailant's hand, or as the cause of Cucuroll's death. However, viewing the evidence in the light most favorable to the state, it can be reasonably inferred that Cucuroll died from a blow to the head, that the blows were inflicted by the person whom four witnesses saw hitting at the ground, that that person was Des Jardins, and that he had the iron rod in his hand. In view of such evidence and the reasonable inferences to be drawn therefrom we believe that fair-minded people could differ on the question of whether guilt had been established beyond a reasonable doubt. The superior court properly denied Des Jardins' motions for judgment of acquittal.

II. VIOLATION OF RULE 16

Des Jardins next urges reversal because of the prosecutor's refusal to disclose certain evidence and the identity of witnesses which are required by Rule 16, Alaska Rules of Criminal Procedure. ⁶ We agree

with Des Jardins that the prosecutor's conduct was violative of Rule 16; however, we are unable to find sufficient prejudice to require reversal on such grounds. On the other hand, the lack of prejudice here was purely fortuitous. In future cases we will continue to scrutinize prosecutorial conduct in this area, and will not hesitate to reverse where it appears that the defendant has been prejudiced by such action

We note at the outset that Des Jardins does not contend that there was any violation of his express constitutional rights, such as his right to effective counsel, or his right to cross-examine witnesses, nor does it appear that they were in fact compromised. Under the standard of U. S. v. Augenblick, ⁷ adopted for Alaska in Torres v. State, ⁸ we are unable to say that Des Jardins had a constitutionally unfair trial. In cases where there is error not of constitutional dimensions, we look to the 'harmless error' test set out in Love v. State, 457 P.2d 622 (Alaska 1969):

The pivotal question is what the error might have meant to the jury. Our function is to consider not how the error might have affected us if we had tried the case, but how it might have affected a jury of reasonable laymen. It is the impact on their minds which is critical in determining whether an error impaired or affected the substantial interest of the defendant in having a fair trial. ⁹

The trial in this case was set for April 15, 1974. At the omnibus hearing on March 22, 1974, Des Jardins' attorney informed the court that he had had some difficulty with police disclosure of the names of witnesses. The court ordered the District Attorney to provide, by March 29, the names of all persons contacted, the names of all the investigators who had worked on the case, the F.B.I. laboratory reports on the iron rod and parka, and the records of conviction of the state's witnesses. The District Attorney promised compliance with the court's order, and admitted that he had received the laboratory report. ¹⁰ However, by April 8, none of the requested material had been given to the defense, and Des Jardins moved for dismissal, or in the alternative for a continuance because of such nondisclosure. This motion was denied; later that day the defense was given the statement of Walter Ansaknok, an eye witness from Fort Yukon, and that of Joseph Cheek, who had come to the scene shortly after the incident, together with the F.B.I. laboratory report, which as mentioned, was negative. On April 10, the defense

was given photographs of Cucuroll's head injury, and the criminal record information on the state's listed witnesses; it appears that the check of these records was not begun until April 8. On April 11, defense counsel renewed his motion; the court declined to grant him a continuance in order to work on the new evidence, although trial was scheduled to begin four days later

The prosecution not only delayed disclosure of evidence until just before trial, but it also used four witnesses at trial who were not even on the witness list given to defense counsel. One witness testified that the lawn on which the incident had occurred was free of hard objects; this testimony was elicited in the prosecution's legitimate rebuttal to the defense contention that Cucuroll had struck his head on a rock, and, therefore, he need not have been on the required witness list. The other three witnesses were Elva Ansaknok, an eye witness, Albert Cheek, who had accompanied his father Joseph to the scene after the incident, and Dr. Joseph K. Johnson, who had treated Zdepski and Cucuroll in the hospital emergency room after the incident. Defense counsel was not informed that these three witnesses would be called by the state until April 23, in the midst of trial. Elva Ansaknok and Albert Cheek testified on April 24; Dr. Johnson testified on April 23 concerning Zdepski's injury, and on the 29th in rebuttal concerning Cucuroll's laceration. Although the prosecutor had asked his investigator to make contact with Dr. Johnson, as a potential witness, on the 10th or 11th of April, he did not inform the defense about Dr. Johnson until the morning of the 23rd, when he delivered Dr. Johnson's formal statement. Dr. Johnson's statement did not mention the laceration on Cucuroll's scalp, but discussed his treatment of Zdepski.

No statements from Ansaknok or Cheek were ever given to the defense, and their testimony at trial had to be delayed while a check was made to see if they had criminal...