Dresnek v. State, A-19

• Decision Date: 12 April 1985
• Docket Number: No. A-19,A-19
• Parties: Stephan J. DRESNEK, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1059

697 P.2d 1059

Stephan J. DRESNEK, Appellant, v. STATE of Alaska, Appellee.

No. A-19.

Court of Appeals of Alaska.

April 12, 1985.

Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.

Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

Stephan J. Dresnek was convicted of one count of manslaughter, AS 11.41.120(a)(1), and two counts of assault in the second degree, former AS 11.41.210(a)(3). Dresnek's offenses resulted from an automobile accident. A two-ton pickup truck driven by Dresnek collided with a smaller vehicle driven by Belinda Reed. Reed died and her passenger, James M. Dunaway, was injured. In addition, one of Dresnek's passengers, Michelle Barrett, suffered serious injuries. Reed's death was the basis for the manslaughter conviction while the injuries to Barrett and Dunaway accounted for the assault convictions. The accident occurred when Dresnek exited a side road without stopping at a stop sign and entered Tudor Road, a major thoroughfare, at approximately forty mph, crossing three lanes and colliding with the Reed vehicle. A blood sample taken two hours after the accident established that Dresnek had a blood-alcohol level of .124%. Dresnek received a sentence of eight years with three years suspended on the manslaughter conviction and concurrent sentences of three years in prison for each assault charge.

Dresnek appeals, making three arguments. First, he contends that the trial court erred in instructing the jury that it had to unanimously acquit Dresnek of manslaughter before it could consider a lesser-included offense--negligent homicide. Second, he contends that the trial court erred in instructing the jury that if it found that there was .10% or more alcohol in Dresnek's blood at the time of the accident, it could infer that he was under the influence of intoxicating liquor. AS 28.35.033-(a)(4). Finally, Dresnek contends that his sentence is excessive. We affirm.

I. TRANSITION INSTRUCTIONS

The transition instructions given in the present case read as follows:

If you unanimously find that the state has not proved beyond a reasonable doubt the crime of __________, then you should consider the lesser included offense of __________, about which I will instruct you. ¹

The defendant objected that the word "unanimously" should be stricken. The defendant's alternate proposal would appear to be the Alaska pattern instruction, although he did not so identify it on the record. ²

In Nell v. State, 642 P.2d 1361, 1367 (Alaska App.1982), we approved a transition instruction similar to the instruction given in this case. ³ Dresnek concedes this but contends that Nell was wrongly decided and should be overruled. Dresnek reasons that this court misunderstood the authorities upon which it relied in Nell and reached a conclusion inconsistent with the rationale for giving lesser-included offense instructions at a defendant's request. Dresnek relies primarily on United States v. Tsanas, 572 F.2d 340 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978), for the proposition that a defendant should be permitted an election between a transitional instruction similar to the one given here ⁴ and one which would permit a jury to return a verdict on a lesser-included offense if it is unable to agree on the greater offense. See also United States v. Jackson, 726 F.2d 1466, 1469-70 (9th Cir.1984). An instruction of the latter form was adopted by the Seventh Circuit as Federal Criminal Jury Instructions of the Seventh Circuit 2.03. It reads:

2.03 LESSER INCLUDED OFFENSE

The crime of __________ with which the defendant is charged in the indictment includes the lesser offense of __________.

If you find the defendant not guilty of the crime of __________ charged in the indictment [or if you cannot unanimously agree that the defendant is guilty of that crime], then you must proceed to determine whether the defendant is guilty or not guilty of the lesser offense of __________.

This instruction is set out in Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir.1980). The Pharr court specifically refers to the bracketed material as a way of conforming with Tsanas.

The Tsanas and Jackson courts ⁵ are ambiguous regarding the precise defect they find in a Nell -type transition instruction. On the one hand they may be reasoning that a defendant has a right to a partial verdict convicting him of a lesser-included offense if a jury is able to reach it, even though the jury is unable to agree on the greater offense. The Tsanas court might then conclude that such a verdict would operate as a final determination of the defendant's guilt on the greater offense. See United States v. Tsanas, 572 F.2d at 345, 346 n. 7; United States v. Jackson, 726 F.2d at 1469. If this is the explanation we rejected its premises in Staael v. State, 697 P.2d 1050 (Alaska App.1985), where we held that the trial court may find manifest necessity and declare a mistrial permitting retrial on a greater offense even if a jury which is deadlocked on the greater offense might be able to return a unanimous verdict convicting the defendant of a lesser-included offense. See also Hughes v. State, 668 P.2d 842 (Alaska App.1983). ⁶

Alternatively, these cases may be reasoning that a Nell -type transition instruction is coercive in that it prevents the jury from even considering lesser-included offenses until they have reached final agreement on the greater offense. Thus a juror convinced that a defendant was innocent of a greater offense but guilty of the lesser offense might convict of the greater offense rather than vote his conscience if he did not understand that conviction of the lesser offense was a possible outcome. This seems to be Dresnek's primary contention. In a sense this is a difficult proposition to prove since a lesser-included offense by definition is included in the greater offense. Consequently, a jury cannot consider the elements of the greater offense without simultaneously considering the elements of the lesser-included offense. All of the instructions are read to the jury at once prior to the beginning of deliberations. In most cases it is difficult to see how a juror would be unaware that a unanimous conviction on the lesser was an alternative to an acquittal on all charges. ⁷

We recognize, however, that Alaska has adopted the cognate approach to lesser-included offenses and that cases could arise in which the relationship between the greater offense and the lesser-included offenses might be less clear. Marker v. State, 692 P.2d 977 (Alaska App., 1984); Minano v. State, 690 P.2d 28 (Alaska App.1984). In the instant case, we find nothing obscure or potentially confusing in the relationship between the various offenses and no circumstances to indicate that the instructions misled the jury. We therefore conclude that there was no abuse of discretion in using the Nell instruction. Nevertheless, in order to ensure that juries are aware that they are free to discuss the evidence and the law in any order which they find convenient, we hold that trial courts instructing juries after publication of this opinion should make this clear.

Trial judges should choose appropriate instructions for this purpose. One approach is suggested by CALJIC 17.10 and 17.12. ⁸

We are concerned that a jury might read the Seventh Circuit Tsanas -type instruction to require a jury that was unanimously convinced of the defendant's guilt on a lesser-included offense to return a verdict convicting him of that offense even though the jury was deadlocked on the greater offense.

As the commentary to the California instructions points out, the jury is free to deliberate on the charged offense (the greater offense) and the lesser-included offenses in any order it wishes. The jury is merely precluded from returning a verdict on a lesser offense without also returning a verdict on the greater offense. California Jury Instructions at 175 (Supp.1984).

The California instructions distinguish between the jury's right to deliberate about the elements of a lesser-included offense before deciding the greater offense and the preclusion on returning a verdict on the lesser-included offense without deciding the greater offense. In this regard they are preferable to the Nell instruction and the transition instruction approved in Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir.1980), which do not make this distinction.

II. INTOXICATION PRESUMPTIONS

Over defense objection, the judge instructed the jury in accordance with the presumptions concerning intoxication contained in AS 28.35.033(a). ⁹ It appears that this section became effective after the present offense was committed but prior to Dresnek's trial. Dresnek does not object on this ground. Rather, he contends that the presumptions only apply to drunk driving prosecutions and not to prosecutions for manslaughter or negligent homicide where recklessness and negligence are predicated on intoxication. We believe that our decision in Pena v. State, 664 P.2d 169 (Alaska App.1983), rev'd on other grounds, 684 P.2d 864 (Alaska 1984), weighs strongly against such a reading of the statute. In Pena, we held that the "implied consent" to a blood test provided in AS 28.35.031 applied without distinction to both prosecutions for drunk driving and prosecutions for other crimes arising out of driving while intoxicated. 664 P.2d at 172. In any event, we are satisfied that the presumptions established in AS 28.35.033(a) reflect a legislative judgment regarding the interrelationship between blood-alcohol levels and competence to drive. We believe that a jury considering drunk driving, assault (involving motor vehicles), manslaughter, and negligent homicide cases should be made aware of this legislative...