DeSacia v. State
| Decision Date | 15 May 1970 |
| Docket Number | No. 1071,1071 |
| Citation | 469 P.2d 369 |
| Parties | Herbert A. DeSACIA, Appellant, v. STATE of Alaska, Appellee. File |
| Court | Alaska Supreme Court |
Sherman A. Noyes, Fairbanks, for appellant.
Gerald J. Van Hoomissen, Dist. Atty., William T. Christian, Jr., Asst. Dist. Atty., Fairbanks, for appellee.
Before BONEY, C. J., and DIMOND, RABINOWITZ and CONNOR, JJ.
Appellant, Herbert A. DeSacia, was convicted by a jury on October 4, 1968, of the manslaughter of Reynaldo E. Evangelista, as charged in count II of a two count indictment. He was, at the same time, found not guilty on the first count of the indictment, which charged the manslaughter of Eugene E. Hogan. After the jury rendered its verdict, DeSacia moved for judgment notwithstanding the verdict, arguing that the verdict of conviction in count II was inconsistent with the acquittal in count I. The trial court denied the motion for judgment notwithstanding the verdict and on the basis of this denial, DeSacia appealed.
The facts relevant to this appeal center about an automobile accident which occurred in Fairbanks on September 1, 1967. On that date, shortly before midnight, appellant was driving his car, a 1959 Ford, westward along a stretch of First Avenue which is bordered to the North by the Chena River. With appellant in his car were two passengers. Ahead of the DeSacia car was a red Ford Ranchero, a vehicle similar in design to a pickup truck, driven by Eugene E. Hogan. Accompanying Hogan in the front of the Ranchero were three passengers, one of whom was Reynaldo Evangelista; there were two additional passengers in the back of Hogan's Ranchero. A short distance behind the DeSacia car was a Chevrolet driven by Steve Weltz, who was accompanied by one passenger. The three cars continued to drive west along First Avenue in this order until they came to a left-hand curve. At this time, apparently, DeSacia pulled his car out to the left in an attempt to pass the Ranchero driven by Hogan; Steve Weltz remained some distance behind in his car. As the two lead cars went around the curve, side by side, traveling at between 40-60 miles per hour, Hogan lost control of the Ranchero and drove off the road into the river. Both Hogan and Evangelista were trapped in the car of the Rancero and killed. The four other passengers in the Hogan car managed to escape.
DeSacia was later arrested and charged with two counts of violation of AS 11.15.040, 1 the Alaska manslaughter statute; in the first count appellant was charged with the manslaughter of Eugene E. Hogan, the driver of the Ranchero, while in the second he was charged with the death of Reynaldo E. Evangelista. On September 30, 1968, a jury trial on the alleged violations of AS 11.15.040 was commenced in Fairbanks. On October 4, the jury returned verdicts finding DeSacia not guilty of the manslaughter of Eugene E. Hogan as charged in count I, and guilty of the manslaughter of Reynaldo E. Evangelista as charged in count II.
The appellant first contends that the evidence at the trial below was insufficient to allow his conviction, since it did not show that he forced Hogan's Ranchero to lose control and go off of the road. At the outset we must note that it is evident upon examination of the indictment and upon a reading of the trial court's instructions to the jury that the violations charged were based on a criminal negligence theory. 2 Such a theory is clearly within the purview of AS 11.15.040. Thus, in order to sustain its burden of proof, the prosecution needed only to show that Hogan's car left the road as a direct result of DeSacia's culpably negligent handling of his own vehicle. There was no need for the prosecution to show that DeSacia intentionally forced the Hogan vehicle off of the road.
In reviewing the record of the trial below pursuant to an allegation of insufficiency of the evidence, we must view the evidence and the inferences to be drawn therefrom in a light most favorable to the state. 3 The proper question on appeal is whether the finding of guilt is supported by 'such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt.' 4
At the trial, testimony of witnesses established that DeSacia's automobile attempted to pass the Hogan vehicle while on a curve; both cars were traveling at a high rate of speed on a graveled road, at night. The testimony would further support the conclusion that, in attempting to pass, DeSacia did not allow the Hogan vehicle enough room to negotiate the curve; that the DeSacia vehicle commenced to slide in the direction of the Hogan vehicle; and that, as a result, Hogan was forced to swerve off of the road. While the appellant attempted to refute the prosecution's theory at trial by introducing testimony to show that Hogan's Ranchero went out of control and left the road when Hogan shifted gears and thereby lost traction, testimony of witnesses for the prosecution tended to show that Hogan did not, in fact, change gears or accelerate while the two cars were negotiating the corner where the accident occurred.
We are well aware that, in order to establish culpable negligence for the purposes of our manslaughter provision, a degree of conduct more reckless and wanton than would be involved in ordinary negligence is required. As we have already noted, the trial court was also aware of this distinction between ordinary and criminal negligence, and properly instructed the jury to this effect. However, we are nevertheless of the opinion that, when viewed in a light most favorable to the state, the evidence in the record is sufficient to allow the appellant's conviction to stand.
In his next assignment of error, DeSacia argues that the jury's verdict convicting him of the manslaughter of Reynaldo E. Evangelista is irreconcilably inconsistent with its verdict acquitting him of the manslaughter of Eugene E. Hogan. Appellant's argument rests on the assertion that the elements of the crimes charged in counts I and II of the indictment are in all respects identical. Thus it is contended on appeal that the verdict of guilty on count II of the indictment, in light of the verdict of not guilty on count I, is not only inconsistent, but is so contradictory as to be ridiculous. Appellant would have this court reverse his conviction on the grounds of this inconsistency.
We are at the outset confronted by two arguments advanced by the state. The state contends first that the appellant has waived his right to question the consistency of the verdicts by failing to make a timely motion for acquittal before moving for a judgment notwithstanding the verdict. 5 Rule 29(a) of the Alaska Rules of Criminal Procedure provides that a motion for acquittal can be made at two junctures in the course of trial: (1) at the close of the state's evidence or (2) at the close of the evidence of defense. From this we may conclude that such a moton, if made after the close of the defense's case, would not be timely. Thus, according to the state's point of view, to question the consistency of the verdicts in this case, DeSacia should first have been required to move for acquittal no later than at the close of his presentation of evidence.
The flaw in the state's reasoning on this point is all too obvious. If the state were to have its way, we would, in effect, be requiring a defendant to move for acquittal on the basis of inconsistent jury verdicts before those verdicts were returned and before the inconsistency existed. Such a result would indeed be anomalous, and cannot be approved by this court. We feel, moreover, that a requirement in this instance of a motion for acquittal would not be consistent with the views we expressed in Shafer v. State, 456 P.2d 466, 467-468 (Alaska 1969).
The state next contends that even if the verdicts below were inconsistent, DeSacia is foreclosed from raising the issue because he failed to object to the instructions of the trial court which permitted the inconsistencies to arise. Even in states where inconsistency is held to be a ground for reversal of convictions, the state argues, an objection to trial court instructions permitting inconsistency is required before an appeal will be allowed. The cases cited by the state in support of this contention are not persuasive. 6 Insofar as these cases are pertinent, they stand only for the proposition that, where a defendant has been shown to be guilty by the overwhelming weight of the evidence, or where a trial court instruction specifically permits inconsistent verdicts, an appeal on the basis of inconsistency will not be heard, absent a timely objection to the trial court's instructions. In the instant case we are confronted with neither situation. First, we cannot say that the overwhelming weight of the evidence adduced at the trial below pointed to DeSacia's guilt. Second, the trial court instruction here in question, although allowing sufficient latitude for an inconsistent jury verdict to be returned, certainly did not specifically direct that such a finding would be acciptable. 7 Even if we accept the proposition that the appellant should have objected to Instruction No. 10, it does not necessarily follow that we cannot consider the question of inconsistency on appeal. Criminal Rule 47(b) provides:
Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
We interpreted the above provision in the case of Hammonds v. State, 442 P.2d 39 (Alaska 1968): 'The meaning of Crim.R. 47(b) is that we may consider questions raised for the first time on appeal if necessary to effect substantial justice or prevent the denial of fundamental rights.' 442 P.2d at 43. Accordingly, we hold that, in the circumstances of the case before us now, Criminal Rule 47(b) permits us to consider the question of inconsistency on appeal. 8
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Williams v. State
...has prohibited factually inconsistent verdicts in criminal jury trials—the fifty-two-year-old Alaska case of DeSacia v. State, 469 P.2d 369, 377 (Alaska 1970). In McNeal, citing DeSacia, we observed that "Alaska, as it turns out, is the sole state to take a position rejecting both factually......
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...between "inconsistency" and "repugnancy" has been characterized as one which confuses substance with semantics (see DeSacia v. State, 469 P.2d 369, 378 (Alaska)), "repugnant" remains the term most frequently applied to verdicts whose inconsistency is of such dimension as to warrant The conc......
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State v. Davis
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