Whiteaker v. State
| Decision Date | 22 March 1991 |
| Docket Number | No. A-2594,A-2594 |
| Citation | 808 P.2d 270 |
| Parties | Shelagh WHITEAKER, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Before BRYNER, C.J., COATS, J., and ANDREWS, District Court Judge. *
Shelagh Whiteaker appeals from her conviction of second-degree murder on grounds that her constitutional right to be free from double jeopardy was violated. We reverse her conviction.
Whiteaker was charged with first-degree murder in the shooting death of Jeff Ostergaard on September 10, 1984. She stood trial on that charge in May, 1986. The trial judge declared a mistrial over defense objection when the jury declared itself unable to reach a verdict. The judge refused to answer questions raised by a juror at the time of discharge and refused to poll the jury on the specific question of their unanimity on first-degree murder.
The case was retried in December, 1987. Whiteaker moved to preclude a second trial on the charge of first-degree murder, claiming no manifest necessity existed to declare the first mistrial, hence the second trial would put her in jeopardy twice for the same offense. The motion was summarily denied. At the conclusion of the second trial, the jury found Whiteaker guilty of murder in the second degree. It is from this verdict that Whiteaker appeals, claiming numerous legal errors. We address only the double jeopardy claim of error as it is dispositive of this case.
Whiteaker was charged with first-degree murder. Although the record is incomplete on the point, we glean that her defense to the charge, like her defense in the second trial, included alternative claims of self-defense, accident, suicide, or some form of non-intentional killing. In any case, it is undisputed that her claim of self-defense entitled her to jury instructions on all of the lesser offenses included within the first-degree murder charge. The jury was instructed on murder in the second degree, manslaughter, and criminally negligent homicide. In accord with Dresnek v. State, 697 P.2d 1059 (Alaska App.1985), aff'd 718 P.2d 156 (Alaska 1986), cert. denied, 479 U.S. 1021, 107 S.Ct. 679, 93 L.Ed.2d 729 (1986), the judge instructed the jury that it was required to return a verdict on the greatest charge before it returned a verdict on any lesser charge. This instruction also advised the jury that they could deliberate on the charges in any order. 1 The Dresnek instruction, i.e., no verdicts on lesser charges without first a verdict on the greater charge, was repeated in shortened form as part of the transitional instructions between each of the various degrees of homicide. 2
After several partial days of deliberation, the jury informed the court that they were hopelessly deadlocked. The judge polled the jury, asking in varied form the general question of whether there was any chance of a verdict. The individual answers amounted to a negative response. After the polling, defense counsel requested to approach the bench. At the bench, the following conference ensued:
Defense Counsel: I want to ask you to poll the jury to see if there are any charges within the packet ... among the ones that have been submitted to them on which they can reach a verdict.
Judge: You see, I instructed them ... they have to find a unanimous verdict as to the greater offense before they can find a verdict on the lesser offense.
[Simultaneous discussion].
Judge: I think, under the law ...
Defense Counsel: I agree, that's all I ask.
Judge: I'm not going to poll them on that issue. No, I don't think that's what I should do.
Defense Counsel: Well, okay, I guess if not, so we can argue the discharge.
Judge: I'm going to discharge.
Defense Counsel: Okay, we object.
Judge: Alright. Counsel, I am persuaded this jury has made every effort to resolve the issue. I am persuaded they are not going to reach a verdict. I don't think I've got sufficient basis to send this jury out and tell them to work until nine o'clock or you've got to work til ten o'clock. I just think that would be non-productive. I am as disappointed as counsel that this jury was unable to reach a verdict. But sometimes you get cases that twelve people can't agree on. This apparently is that case. Alright ladies and gentlemen, I know that you've worked hard and I appreciate your diligence. I'm disappointed you didn't reach a verdict, but these things happen and I'm ever mindful of the fact that in my instruction I made it clear that the verdict had to be the individual judgment call of each juror. All twelve of you pretty much said it would be impossible for the twelve jurors to reach a unanimous verdict. Okay. I'm going to discharge the jury.... 3
Immediately thereafter, a member of the jury asked: The court replied: "I have discharged the jury." Defense counsel asked to approach the bench. The court replied: "This jury doesn't exist anymore." Counsel inquired: "Could you undo that for a second, so we can talk to you?" The court replied: The judge refused to answer the question. Thereafter, the trial was concluded. 4
This appeal arises from Whiteaker's claim that she was only subject to retrial for negligent homicide, the least serious of the included offenses. Her argument that the second trial should have encompassed only negligent homicide is premised on the conclusion that she had the right to a partial verdict and the judge abused his discretion in refusing to poll the jury, upon request, on the question of whether the jury was unanimous on the most serious charge. Whiteaker challenges the trial court's conclusion that it was manifestly necessary to declare a mistrial when there was a possibility that a jury could have returned a unanimous verdict on one or more of the most serious degrees of homicide. If Whiteaker had no right to a partial verdict then her claim must fail. Thus, we begin our analysis of this issue.
The analysis must begin with a definition of the term, "partial verdict", as the term is susceptible to several interpretations.
In a case involving several defendants, a partial verdict may mean that the jury is able to return a final verdict against one or more of the accused but not as against all of them. Such partial verdicts are clearly permitted under Alaska Criminal Rule 31(b). The Federal courts follow the same practice. See Fed.R.Crim.P. 31(b).
In a case involving a single defendant facing a multiple-count indictment, a partial verdict may mean that the jury is able to return a final verdict as to one or more of the counts but not as to all the counts. Such a partial verdict has been approved implicitly by the supreme court decision in Koehler v. State, 519 P.2d 442, at 449 (Alaska 1974) (). Federal decisions are in accord. See, e.g., Wallace v. Havener, 552 F.2d 721, 724 (6th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 433, 54 L.Ed.2d 300 (1977).
In a case involving a single-count indictment, which includes, by definition, lesser offenses, a partial verdict may mean a final verdict on some, but not all of the greater degrees of the offense included within the charge. Additionally, although we describe as separate scenarios a case in which a defendant faces several separate counts and a case in which the defendant...
To continue reading
Request your trial
-
State v. Tate
...verdict bars retrial on acquitted greater offense but not on lesser offenses on which jury deadlocked); see also Whiteaker v. State, 808 P.2d 270, 274 (Alaska 1991) ("where the jury has unanimously decided [on a verdict on the greater] charge but is deadlocked on the lesser included offense......
-
State v. Sawyer, 14650
... ... See, e.g., Lindsey v. State, 456 So.2d 383, 387 (Ala.Crim.App.1983), aff'd, 456 So.2d 393 (Ala.1984), cert. denied, 470 U.S. 1023, 105 S.Ct. 1384, 84 L.Ed.2d 403 (1985); Whiteaker v. State, 808 P.2d 270, 274 (Alaska App.1991); State v. Hernandez, 167 Ariz. 236, 240-41, 805 P.2d 1057 (1990); People v. Padilla, 638 P.2d 15, 17 (Colo.1981); Lamar v. State, 243 Ga. 401, 403, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S.Ct. 23, 62 L.Ed.2d 16 (1979); Middlebrooks v ... ...
-
State v. Sawyer
...Among the decisions that have followed the acquittal first instruction in either its pure or hybrid forms are: Whiteaker v. State, 808 P.2d 270, 274 (Alaska Ct.App.1991); Dresnek v. State, 697 P.2d 1059, 1064 (Alaska Ct.App.1986); State v. Hernandez, 167 Ariz. 236, 240-41, 805 P.2d 1057 (19......
-
Blueford v. Arkansas
...Courts in acquittal-first jurisdictions have so held. See, e.g., Tate, 256 Conn., at 285–287, 773 A.2d, at 324–325; Whiteaker v. State, 808 P.2d 270, 274 (Alaska App.1991) ; Stone, 31 Cal.3d, at 519, 183 Cal.Rptr. 647, 646 P.2d, at 820; State v. Pugliese, 120 N.H. 728, 730, 422 A.2d 1319, 1......