Joseph v. State

Decision Date13 July 2001
Docket NumberNo. S-8518.,S-8518.
Citation26 P.3d 459
PartiesJoe JOSEPH and Judith Joseph, as Personal Representatives of the Estate of Rudolph Joseph, Appellants, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

C.R. Kennelly and Michael A. Stepovich, Stepovich, Kennelly & Stepovich, P.C., Anchorage, for Appellants.

Richard Keck, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.


EASTAUGH, Justice.


A jailer owes its prisoners the duty of reasonable care to protect them from reasonably foreseeable harm, including self-inflicted harm. Rudolph Joseph committed suicide while he was imprisoned in a state jail. Was it error to require the jury in the resulting wrongful death case to excuse the state from its duty of reasonable care if the jury found that Joseph's suicide was intentional? We hold that it was, because intentional suicide is not a complete defense to a claim that a jailer negligently failed to prevent a prisoner's reasonably foreseeable suicide. We therefore reverse the state's judgment and remand for retrial of claims that the state breached its duty of reasonable care and that any breach was a legal cause of harm to Rudolph Joseph's estate. We also hold that while it was error to dismiss prospective jurors for cause without examining them individually, the record does not demonstrate that this error caused the jury panel or the trial jury to be unrepresentative.


Rudolph Joseph was arrested in Nome on May 11, 1996, after he struck his cousin in the face with a 1.75-liter glass bottle one-third full of rum. He was charged with assault and taken at around 4:25 p.m. to Anvil Mountain Correctional Center, a State of Alaska facility, where he was searched and placed in a cell with a video camera. Joseph was intoxicated. The booking record stated that he was a thirty-one year old Alaska Native who was "too intox" to sign the booking sheet or to acknowledge that he had been given the opportunity to make telephone calls. The arresting officer, employed by the Nome Police Department, observed that Joseph walked without any noticeable impairment, spoke softly and clearly, had a moderate odor of alcohol on his breath, was cooperative, demonstrated no unusual behavior, and seemed remorseful about his cousin's condition after learning that she required stitches. Joseph never mentioned or alluded to suicide to the city and state officers.

Shortly after 7:00 p.m. the state correctional officer monitoring Joseph's cell by video noticed that the camera lens had been obscured. She took no responsive action. Ten to fifteen minutes later another state correctional officer found Joseph slumped on the floor of his cell with a nylon cord around his neck. The cord was suspended from a shelf support in Joseph's cell. Officers immediately called for an ambulance and tried to resuscitate Joseph, but he was pronounced dead shortly after his arrival at the hospital. The nylon cord was the drawstring from Joseph's sweat pants; it had not been discovered and taken from him when he arrived at the correctional facility.

Joe and Judith Joseph, Rudolph's parents, sued the state on behalf of Rudolph's estate for negligently failing to prevent his suicide. A jury returned a verdict for the state. The Josephs appeal, raising questions about how the jury was selected and instructed.

A. Was It Reversible Error to Exclude Prospective Jurors Without Examining Them Individually?

Several days before prospective trial jurors were to be summoned, the state indicated that it would invoke Alaska Civil Rule 47(c)(11)1 and challenge for cause anyone who had ever been charged criminally by the state or had been involved in litigation against the state. Two days later, the superior court informed the parties that it had instructed the clerk to remove from the jury list all persons who had been charged with criminal offenses. The court stated that it had relied on the state's assertion that it would exercise a "blanket preempt[ion]" to all such persons, and had acted to minimize inconvenience for those who would have been called to appear for possible selection, only to be disqualified. The court overruled the Josephs' objection to deleting prospective jurors from the list without an individual determination by the court that they could not be fair and impartial.

The Josephs argue on appeal that it was an abuse of discretion to fail to examine prospective jurors individually before excluding them on the ground they had previously been prosecuted for criminal offenses by the state.2

We will overturn a trial court's grant or denial of juror challenges for cause "only in exceptional circumstances and to prevent a miscarriage of justice."3 Selection of jurors by a method which fails to substantially comply with statutory requirements is reversible error only if the failure prejudices a party.4 We exercise our independent judgment when interpreting the Alaska Rules of Civil Procedure.5

Alaska Civil Rule 47(c) provides:

Challenges for Cause. After the examination of prospective jurors is completed and before any juror is sworn, the parties may challenge any juror for cause. A juror challenged for cause may be directed to answer every question pertinent to the inquiry. Every challenge for cause shall be determined by the court....

The rule's text makes no provision for preemptive exclusion of prospective jurors; a challenge for cause may be granted only after the prospective juror has been examined.6 The rule implicitly requires the court to examine a prospective juror individually before deciding whether to grant a challenge.

Individual examinations were essential to permit the court to determine whether the state had indeed previously charged each challenged prospective juror with a crime. Relying exclusively on records potentially caused errors that only individual examinations could have avoided. These included errors in identifying the person charged (caused by similar or identical names and residential addresses), errors in identifying the charging entity (caused by attributing local government charges to the state), and substantive informational errors.

We cannot say that these potential errors were so unlikely that preemptive exclusion was consistent with the rule. The appellate record does not establish what "records" were used to cull out prospective jurors. The state's brief asserts that the court relied on computer-generated "criminal history printouts." The transcript implies that they were the state's APSIN computer records.7 Regardless, the appellate record does not establish either the data's accuracy in general, or their accuracy as to each excluded prospective juror.

The state argues that Civil Rule 47(c)(11) made exclusion mandatory. In support, it cites Malvo v. J.C. Penney Co.8 We need not decide whether exclusion was mandatory, because reliance on potentially inaccurate information was a superseding flaw in the selection process.

The procedure followed here may have excluded persons who would not have been disqualified had they been individually examined. Does this error require reversal? The Josephs argue that it does because it resulted in a jury which was not representative of the community. They claim the selection process risked excluding a disproportionate percentage of Alaska Natives because, they argue, that group has a relatively high incidence of criminal involvement.

Selection of jurors by a method which does not substantially comply with statutory requirements is reversible error only if the failure prejudices a party.9 In Calantas v. State,10 a court clerk disqualified prospective jurors living outside Kodiak proper and then summoned only those jurors she could reach by telephone.11 We reasoned that errors in assembling a jury panel constitute "substantial failure to comply" only when they affect the random nature or objectivity of the selection process.12 We then held that the clerk's technical violations of the statutes governing jury selection did not prejudice the plaintiff's case.13

The same reasoning applies here. Prematurely excluding some prospective jurors did not jeopardize the random selection of the remaining jurors.

Moreover, the appellate record does not reflect the jury's makeup or even whether any given prospective juror was excluded in error. The Josephs' appellate brief argues that an internet website and a journal article support their claim that the error harmed them, because they claim that those sources establish that the population of Nome, the trial site, is fifty-four percent Native, and that "Alaska Natives have a higher inciden[ce] of criminal involvement or involvement with the State." This information was not submitted to the trial court and, as the state argues, non-record information not subject to judicial notice should not be used to support factual assertions on appeal.14 But more importantly, these general statistics do not demonstrate that any particular person was excluded in error from the jury panel, or that the disqualifications caused the jury panel to be unrepresentative of a cross-section of the community.

Because the record fails to show that the selection errors altered the random nature or objectivity of the selection process,15 we decline to reverse on this point.

B. Was the Jury Correctly Instructed About the Effect of a Prisoner's Intentional Suicide?

The Josephs' complaint claimed that the state, as Rudolph Joseph's custodian, negligently breached its duty to protect him from injuring himself because it did not take the nylon cord from his sweat pants, provide him a safe cell, or adequately monitor him in his cell. The state denied liability and affirmatively asserted that Rudolph Joseph "died as a result of his own intentional actions."

On appeal, the...

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