State v. James

• Decision Date: 19 April 1985
• Docket Number: No. S-186,S-186
• Citation: 698 P.2d 1161
• Parties: STATE of Alaska, Petitioner, v. Richard R. JAMES, Respondent.
• Court: Alaska Supreme Court

Page 1161

698 P.2d 1161

STATE of Alaska, Petitioner, v. Richard R. JAMES, Respondent.

No. S-186.

Supreme Court of Alaska.

April 19, 1985.

Cynthia M. Hora, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for petitioner.

Charles R. Pengilly, Asst. Public Defender, Fairbanks, Dana Fabe, Public Defender, Anchorage, for respondent.

Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

MOORE, Justice.

The state seeks to reinstate a criminal conviction reversed by the court of appeals. The issue is whether a defendant is entitled to a unanimous jury verdict on a particular theory of the crime charged. In this instance the defendant was convicted of first degree assault.

I. STATEMENT OF THE CASE

On January 10, 1982 at Fort Yukon, Alaska, Chester Druck was found lying unconscious with a knife wound in his stomach. Druck had recently left the home of Marilyn Horace and Richard James where the three had spent the previous evening together. He was taken to the Fort Yukon health clinic and then flown to Fairbanks where surgery was performed. Dr. Borden, the physician who examined him in the Fairbanks emergency room, described Druck's wound as having been inflicted by an 8-to-10-inch knife that pierced the abdomen and punctured the inferior vena cava near the spine. Dr. Borden stated that very few who suffer similar wounds survive. ¹

Richard James was charged with first degree assault after Druck accused him of the stabbing. According to Druck, at around 8:00 a.m. he was standing at a counter when he heard James approaching from a back room. Druck turned to face James, and James stabbed him in the abdomen with a knife. Druck testified that he "guessed" that James had stabbed him out of jealousy over Marilyn Horace, but Druck was not aware of anything that might have provoked James to jealousy.

At trial Druck identified James as his assailant. Horace testified that Druck was unhurt when he left the house. Although James did not testify, his counsel argued that either Druck had left the house unhurt or Horace had stabbed him. Defense counsel also argued that because James had been intoxicated, he had lacked the specific intent to cause serious physical injury, and that Druck's wound had not been "serious physical injury" because Druck had never been close to death.

The jury was instructed that it could find James guilty if it unanimously agreed that he had committed first degree assault as described in either AS 11.41.200(a)(1) or AS 11.41.200(a)(3). ² The jury was not required to reach unanimity as to one or the other theory, only as to the defendant's guilt of the offense. The jury returned a general verdict of guilty.

The court of appeals reversed James' conviction, concluding that the jury should have been required to reach unanimity as to either AS 11.41.200(a)(1) or (3). The court reasoned:

It is possible that the jury unanimously agreed only that James stabbed Druck under circumstances manifesting an extreme indifference to human life and that he inflicted some physical injury. Yet these findings would suffice to constitute no more than an assault in the third degree, a class A misdemeanor.

Given the significant differences between the essential elements of the two alternative statutory theories, we must conclude that the trial court's failure to require a separate verdict for each theory created an impermissible risk that the jury's verdict would not reflect unanimous agreement as to all material elements of either AS 11.41.200(a)(1) or AS 11.41.200(a)(3).

671 P.2d 885 at 891, 892 (1983) (footnotes omitted).

Since we reverse the appellate court on the issue of jury unanimity, we must consider a second contention James made in that court. In the appellate court James argued that the trial court had erred by excluding the testimony of a Fort Yukon police dispatcher who he claims would have given exculpatory testimony about a phone call she received from Marilyn Horace on January 10, 1982. The appellate court agreed with James, but did not determine whether the trial court's error was harmless. We remand to the appellate court for a determination whether the trial court's exclusion of the dispatcher's testimony was harmless error.

II. DISCUSSION

The issue on appeal is whether the trial court erred in permitting a general verdict in this case when James had been charged with first degree assault under two theories. James contends that Alaska Rule of Criminal Procedure 31(a) requires unanimity on one or the other theory of assault under which he was charged. He argues that the federal constitution compels this interpretation of Rule 31(a). James relies primarily upon United States v. Gipson, 553 F.2d 453 (5th Cir.1977).

The state contends that, historically, jurors in state courts have had to agree only on the defendant's guilt or innocence of the crime charged, not on a particular theory of that crime. The state relies on a long line of cases in asking us to adopt the rule accepted in most other states, i.e., that juries need not unanimously agree upon a particular statutory theory of the crime charged if there is sufficient evidence in the record to support either theory.

The landmark case on jury unanimity is People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (N.Y.1903). In Sullivan the defendant was charged with first degree murder under two theories of the crime. The case was submitted to the jury with an instruction permitting it to convict if it found that Sullivan had committed either premeditated murder or felony murder. Sullivan appealed his conviction, claiming that the instruction violated his right to a unanimous verdict. The court responded:

There was but a single crime charged in the indictment against the defendant,--that of murder in the first degree; and the only issue to be determined by the jury was whether the defendant had been guilty of that crime. Under our statute (section 183, Pen.Code), so far as applicable to the case before us, proof either that the defendant killed the deceased with a deliberate and premeditated design to effect his death, or while the defendant was engaged in the commission of a felony, or an attempt to commit a felony, though without any design to take life, established his guilt of the crime charged. "It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other." ... So, in this case, it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one. It was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute.

65 N.E. at 989-90 (citation omitted; emphasis added).

The Sullivan rule has been applied in first degree assault cases. In Wells v. Commonwealth, 561 S.W.2d 85 (Ky.1978), the jury was given an instruction similar to that given the James jury. ³ Wells asserted that the instruction, by creating the possibility of a verdict that was not unanimous, violated his due process right because proof beyond a reasonable doubt was not assured on each element of the offense charged. The Wells court stated:

The 6th and 14th amendments of the United States Constitution do not require a unanimous verdict in criminal cases tried in state courts, and lack of unanimity among jurors does not violate the requirement of proof beyond a reasonable doubt. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 151 (1972).

* * *

We are convinced that the logic of People v. Sullivan, is sound and applicable here. [The statute at issue here] brings together two distinct culpable mental states (intent and wantonness manifesting extreme indifference to the value of human life) and punishes them equally under specified circumstances.

Id. at 86-87 (emphasis added).

The Sullivan rationale has also been adopted in most other jurisdictions that have considered the issue. See e.g., State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976); State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982); State v. Duncan, 312 N.W.2d 519, 524 (Iowa 1981); Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288 (1979), cert. denied, 445 U.S. 981, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); State v. Wilson, 220 Kan. 341, 552 P.2d 931 (1976); People v. Fullwood, 51 Mich.App. 476, 215 N.W.2d 594 (1974); State v. Hazelett, 8 Or.App. 44, 492 P.2d 501 (1972); People v. Nye, 63 Cal.2d 166, 45 Cal.Rptr. 328, 403 P.2d 736 (Cal.1965); State v. Flathers, 57 S.D. 320, 232 N.W. 51 (1930).

In State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328, the defendant was convicted of grand larceny for violating a welfare fraud statute. ⁴ The trial court instructed the jury that it could find the defendant guilty of grand larceny if it found that she:

either made a false statement or representation of material facts, conditions or circumstances affecting her eligibility of [sic] need for assistance, or that the defendant failed to reveal any material facts, conditions or circumstances affecting her eligibility of [sic] need for assistance, or that the defendant failed to promptly notify the county office in writing as required by law of any change in status with respect to resources or income or money contributions from whatever source derived ...

553 P.2d at 1329. After concluding that the statutory provision describes a single offense, the Washington Supreme Court relied on Sullivan to hold...