Gilbert v. State

• Decision Date: 03 August 1979
• Docket Number: No. 3406,3406
• Citation: 598 P.2d 87
• Parties: David A. GILBERT, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 87

598 P.2d 87

David A. GILBERT, Appellant, v. STATE of Alaska, Appellee.

No. 3406.

Supreme Court of Alaska.

Aug. 3, 1979.

Walter Carpeneti, Sue Ellen Tatter, Asst. Public Defenders, 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 BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

OPINION

CONNOR, Justice.

At 2:30 a. m. on November 6, 1976, a man armed with a gun attempted to rob the Sheffield House Hotel in Anchorage. Michael Bradley, one of the night clerks, called for help, and the bandit fled. Clifton Williams, the other clerk on duty, came out of a back office and ran after the robber. Bradley did not tell Williams that the man was armed. Williams saw a man in the alley behind the hotel, and scuffled with him until the man escaped. When the man was some 15 to 20 yards ahead of him, Williams saw him reach down, as if to draw a gun. Williams hit the ground, saw a flash from the man's hand, and heard what sounded like a shot. Williams gave up the chase and returned to the hotel.

At about the same time, a cab driver was driving along F Street between 5th and 6th when he heard a shot. He saw a man, waving a gun, run behind his cab. The driver called his dispatcher, and the dispatcher called the police.

Shortly thereafter, the police brought a suspect to the hotel for identification, but Bradley and Williams stated that this was not the right man.

At about 3:00 a. m. that same morning, a resident of the Y.M.C.A., which is located at 6th and F Streets, was conducting a routine bed check. He found David Gilbert, who was not a registered guest, in one of the upstairs rooms. Gilbert was asked to leave, but then it occurred to people at the Y that Gilbert matched a description of the Sheffield House holdup man which they had been given by the police. Therefore, they asked Gilbert to return to the Y.

At approximately 3:30 a. m., the police brought Williams and Bradley over to the Y. Gilbert was at the desk, facing away from the witnesses. There were a few other men in the Y lobby, Bradley testified that "the police officer asked me if anybody in that lobby was the man who attempted to rob me . . ." Williams testified that "the officer asked us, was this the guy that we saw, and I said, yes . . ." Both Williams and Bradley identified David Gilbert as being the person who had committed the attempted robbery and the assault, although Bradley's identification came after some hesitation. The cab driver was not brought to the Y.M.C.A. to make an identification. He identified Gilbert for the first time at trial.

Gilbert was searched by the police at the Y, but no weapon was found. Police searched the area around the Sheffield House and the Y.M.C.A. early the next morning. The fire department brought in a ladder so that the rooftops of nearby buildings could be searched. No gun was ever found. The police did find footprints in the snow on the Y.M.C.A. roof, however. The prints led from a fire escape to one of the Y's windows.

Gilbert was indicted for attempted robbery, assault with a dangerous weapon, and use of a firearm during the commission of an assault. Following a trial by jury, Gilbert was found guilty on all three counts. Gilbert was sentenced to two years on the attempted robbery count, four years for assault with a dangerous weapon, and ten years for use of a firearm during an assault, with the sentences to run concurrently. Six years of the sentence on the last count were suspended.

Gilbert appeals from the judgment and sentences, raising the following issues:

(1) Did the trial court err in failing to dismiss Counts II and III of the indictment owing to the manner in which the prosecutor defined "assault" for the grand jury?

(2) Should the prosecution have been required to elect between the two assault counts on the ground that they were multiplicious?

(3) Was the identification procedure violative of defendant's due process rights?

(4) Did the partially consecutive sentences imposed for assault with a dangerous weapon and assault while armed violate double jeopardy? ¹

I

Appellant argues that "(i)f the prosecutor omits or misstates elements of a crime to the grand jury contemplating an indictment so that the grand jury has an improper conception of the crime, the resulting indictment must be dismissed on due process grounds." Appellant then cites In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970), and Henderson v. Kibbe, 431 U.S. 145, 153, 97 S.Ct. 1730, 1735, 52 L.Ed.2d 203, 211 (1977), as authority for the propositions that the trial judge may not misdefine the crime in his instructions to the jury, and that every element of the crime must be proved beyond a reasonable doubt.

Even assuming Arguendo that the prosecutor misdefined the crime of assault in his remarks to the grand jury, the relationship of the Winship and Kibbe holdings to this problem is tenuous, at best. In this case, there is no allegation that the trial jury was improperly instructed regarding the elements of the crime of assault, or that the state failed to prove every element of the crime beyond a reasonable doubt. Apparently appellant wants us to reverse, in spite of the proper proceedings at trial, because of a slip of the prosecutor's tongue before the grand jury.

This argument becomes even more tenuous when one reads the full text of the prosecutor's remarks. At the grand jury the prosecutor read the two relevant assault statutes to the grand jury. He then explained that "an assault in the eyes of the law is either the use of violence or the offer of violence by somebody who's in a position to deliver that violence." Appellant objects to this on the ground that "the offer of violence" language improperly refers to a tort concept of assault, in which the victim's apprehension of possible injury is controlling. He also urges that a specific intent to injure the victim should be an element of assault with a dangerous weapon.

In Menard v. State, 578 P.2d 966, 971 (Alaska 1978), we quoted approvingly from an 1889 Oregon case which defined assault as follows:

" 'to constitute an assault there must be an intentional attempt to do injury to the person of another by violence, and that such attempt must be coupled with a present ability to do the injury attempted.' "

State v. Godfrey, 17 Or. 300, 20 P. 625, 628 (1889). The use of the word "violence" in the definition of assault is obviously one acceptable way in which to describe the crime. Menard also lays to rest appellant's other arguments, as we there held that "(t)he jury did not have to find any specific intent to do any particular kind or degree of harm to the victim in order to find Menard guilty of assault with a dangerous weapon. See Thompson v. State, 444 P.2d 171, 174 (Alaska 1968); Burke v. United States, 282 F.2d 763, 768 (9th Cir. 1960)." Menard, supra, at 970.

Appellant's contention that an impermissible amendment of the indictment occurred is equally without merit. "An Amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them." (footnotes omitted) Gaither v. United States, 134 U.S.App.D.C. 154, 164, 413 F.2d 1061, 1071 (1969). Here, the terms of the indictment are correct. None of the charging terms were altered, either literally or in effect, after the grand jury returned the indictment.

We conclude that appellant's first claim of error has no merit.

II

Appellant asserts that the prosecution should have been required to elect between proceeding on Counts II and III, because these counts are multiplicious.

Gilbert was charged with both assault with a dangerous weapon and use of a firearm during the commission of an assault. The charges arose out of a single act, firing one shot at Clifton Williams. Appellant argues that since both charges arose out of the same act, the prosecution ought to have been precluded from submitting both counts to the jury, as such "prolix pleading" could lead to jury prejudice.

In Whitton v. State, 479 P.2d 302 (Alaska 1970), the appellant challenged on double jeopardy grounds his conviction for robbery and for use of a firearm during the commission of the same robbery. In Whitton, we concluded that it was unclear whether the legislature intended the use of a firearm statute to be merely a penalty enhancing provision, or a distinct offense. 479 P.2d at 305. After reviewing tests traditionally applied to double jeopardy problems, we concluded that "the two separate statutory crimes constitute the 'same offense' for purposes of double jeopardy. A single sentence was all that could properly be imposed under the double jeopardy provision of our constitution." 479 P.2d at 314.

The Whitton opinion did not, however, address the problem of multiplicious charging. That issue was resolved the next year in Robinson v. State, 487 P.2d 681 (Alaska 1971):

"Appellant was indicted on two counts: Count I, robbery; and Count II, use of a firearm in the commission of a felony. At the close of all the evidence at the trial, but before the case went to the jury, appellant moved to dismiss the second count on the basis that Whitton v. State (sic), 479 P.2d 302 (Alaska 1970), required dismissal. Whitton provides specifically that only one sentence may constitutionally be imposed on the two counts charged herein, but says nothing about the submission of both counts to the jury. We find no error in this case in submitting both counts to the jury for their consideration."

487 P.2d at 682.

We are not persuaded by appellant's argument that prejudice was inflicted upon him because an election between these counts was not required. Robinson is dispositive, and we find no error.

III

We must now consider whether Gilbert's...