Elisovsky v. State, s. 3440
| Decision Date | 30 March 1979 |
| Docket Number | 3467,Nos. 3440,s. 3440 |
| Citation | 592 P.2d 1221 |
| Parties | Walter ELISOVSKY, Appellant v. STATE of Alaska, Appellee. In re John SUDDOCK. |
| Court | Alaska Supreme Court |
Sue Ellen Tatter, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant.
John A. Scukanec, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.
Walter Elisovsky appeals his conviction of the crime of assault with a dangerous weapon in violation of AS 11.15.220. Issues are raised pertaining to the failure of the trial court to give a lesser included offense instruction as to careless use of a firearm; the jurors making an unauthorized inspection of the scene of the offense; an instruction authorizing jurors to use their past experience in considering the evidence and the fact that jurors decided to consider prior bad conduct of the defendant which the court had excluded; the excessiveness of the sentence; 1 and the imposition of a fine of $100.00 on defense counsel for securing affidavits from jurors and not promptly notifying the court. 2
Subsequent to the trial of this case, we ruled that a requested lesser included offense instruction of careless use of a firearm is required under circumstances similar to those involved in this case. That rule, which we find applicable to this case, is dispositive of Elisovsky's appeal. The failure to give the instruction requires a reversal and remand. Since the other instruction issue may arise on retrial, it will be discussed, as will the separate appeal of attorney Suddock from the imposition of a sanction. We regard the remaining issues as moot. 3
On September 14, 1976, Walter and Jackie Elisovsky went out for the evening in Cordova to celebrate their wedding anniversary. After a period of celebration, the Elisovsky couple had an argument over the control of the car keys. 4 When Elisovsky refused to give the car keys to his wife, she telephoned the Cordova police. As the police arrived, Elisovsky was taking his rifle and gear out of the rear of the couple's station wagon. Both police officers testified that Walter pointed the rifle at them and that Jackie pushed the muzzle of the gun to the ground. Elisovsky testified that he was taking the rifle and other gear out of the car for the purpose of spending the night on a friend's boat and was merely planning to stand the rifle beside the car. Jackie testified that she had grabbed the barrel of the rifle to push it down, but believed that Elisovsky was only brandishing the gun and had not pointed it at anyone. Elisovsky was charged with assault with a dangerous weapon. 5
At trial, the court refused to give a requested instruction that careless use of a firearm 6 was a lesser included offense of the charged crime. The court also instructed, over defense objection, that:
When you think about the evidence in this case and discuss in in the jury room you do not have to set aside the things you have seen and experienced in the affairs of life but you do in fact have a right to consider all the evidence in the light of things you have seen and experienced.
Defense counsel had objected on the grounds that, in a small community such as Cordova, such an instruction authorized the use of extrinsic evidence. Elisovsky's prior convictions of possession of marijuana, driving while intoxicated and disorderly conduct were covered by a protective order; similarly, a prior suicide attempt on Elisovsky's part and an acquittal on a fishing violation were not to be used. No information on any of these incidents was presented to the jury during the trial.
The jury returned a verdict of guilty of assault with a dangerous weapon on December 10, 1976. The court after the verdict authorized the jurors to speak about their deliberations should they be approached by one of the attorneys. 7 Rodger James, one of the jurors, encountered defense counsel John Suddock at a Cordova hotel on Saturday the day after the verdict was received, and invited Suddock over to his table. The following day, Suddock contacted Arlot Hall, the jury foreman, and juror Dennis Bain. From these conversations, Suddock learned that the jurors had made an unauthorized trip to the scene of the incident and had also made a formal decision to discuss events in Walter's history which were not introduced into evidence.
Suddock prepared affidavits relating to this information 8 and submitted them on December 23, 1976, along with a motion for a new trial. A hearing was held on the motion for a new trial, and ten of the twelve jurors appeared at the request of the court. They were collectively asked a series of questions. 9 The motion for a new trial was denied.
On March 3, 1977, the state filed a motion to censure defense counsel for securing juror affidavits "for the purpose of impeaching the jury's verdict in this case." A hearing was held in Anchorage on May 4, 1977, at which the court told Suddock:
I find that your failure (to notify the court immediately upon finding information of apparently improper jury conduct) but to go ahead and secure affidavits and secure them in support of a motion for a new trial, and not to apply to the court for its assistance and its supervision in the jury-inquiry process is improper.
The court imposed a fine of $100.00, staying the execution pending appeal. Suddock objected that he had had no notice that he was "defending (his) pocketbook as well." He has appealed the imposition of the fine.
Elisovsky's attorney made a timely request for a lesser included offense instruction on careless use of a firearm, AS 11.15.200. The request was denied by the court.
The general common law definition of lesser included offenses was articulated in Giles v. United States, 144 F.2d 860, 861 (9th Cir. 1944):
Alaska's rule on lesser included offenses parallels the requirements of the common law. Criminal Rule 31(c) provides:
Conviction of Lesser Offense. The defendant may be found guilty of an offense necessarily included in the offense charged, or of an attempt to commit either the offense charged or the offense necessarily included therein if the attempt is an offense. When it appears that the defendant has committed a crime, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. 11
Two theories have developed defining when an offense is "necessarily included" in another offense. Under the "statutory elements" analysis, if it is possible to commit the greater offense under the statute without first having committed the lesser offense, an instruction on the lesser offense is not required. Under that theory, the offense of assault with a dangerous weapon could be committed with the use of weapons other than a firearm. Thus, the elements of careless use of a firearm would not necessarily be included in all of the means by which assault with a dangerous weapon could be committed. We note, however, that Criminal Rule 31(c) refers to "the offense charged," not the statute under which the offense is charged.
The judicial constructions which have attempted to remedy the defects of the statutory approach have come to be called the "cognate approach." 12 This approach focuses closely on the facts charged in the indictment to determine whether the defendant had actual notice of possible lesser included offenses. 13 At least one court has found the cognate approach "(a) more natural, realistic and sound interpretation of 'lesser included offense,' " 14 where the statutory analysis is found to be inadequate.
Of course, when the statutory offense necessarily includes all the elements of the lesser offense, the distinction does not arise. There has been some confusion in Alaska cases, however, as to which approach should apply. Of the three cases on the subject decided between 1964 and 1973, two employ the statutory approach, 15 and one adopts the test of sufficient notice in the indictment characteristic of the cognate approach. 16 Only in Mahle v. State, 392 P.2d 19 (Alaska 1964), was a lesser included offense instruction refused under the statutory approach and it was not followed in State v. Spencer, 514 P.2d 14 (Alaska 1973), which, in principle, seems to have used the cognate approach. In Christie v. State, 580 P.2d 310 (Alaska 1978), a case involving a similar issue to that presented by Elisovsky, we held that a defendant charged with shooting with intent to kill was entitled to an instruction not only on assault with a dangerous weapon, but also careless use of a firearm, when there was evidence presented from which a jury could have found him to be guilty of the latter offense. In fairness to the trial court, it must be pointed out that the decision in Christie was handed down subsequent to the time when Elisovsky's case went to the jury.
In the present case, there is a conflict in the testimony as to whether Elisovsky ever intentionally pointed the weapon at any person. The officers testified that he pointed the rifle directly at them. Elisovsky testified that he was taking the rifle, along with his other gear, out of the car in order to spend the night on a friend's boat, that he intended to point the gun at no one but merely wanted to stand it up alongside the car. Jackie's version was that the muzzle of the gun was raised slightly and that she pushed the muzzle to the ground. From this conflicting evidence the jury could have believed that the rifle was intentionally pointed at the troopers without malice.
Evidence was thus presented that the defendant committed only the lesser offense...
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