Adam Charles Dere v. State of Alaska
444 P.3d 204
| Alaska Ct. App. | 2019Background
- Defendant Adam Dere was charged with 1st‑degree robbery, 4th‑degree assault, and 3rd‑degree theft after taking a man’s phone and using a knuckle‑shaped stun device; jury at first trial deadlocked on robbery but convicted on assault and theft.
- Trial judge declared a mistrial on the robbery count but allowed the jury to continue deliberating and return verdicts on assault and theft; judge deferred entry of judgment pending retrial of robbery.
- State retried Dere on robbery; defense sought to have the second jury also decide assault and theft (or be instructed on them as lesser included offenses); trial court refused; jury convicted Dere of 1st‑degree robbery at retrial and judge merged counts.
- Dere appealed, raising: (1) error in permitting the first jury to convict on lesser offenses after hung on the greater offense; (2) error in denying instructions/relitigation of lesser counts at retrial; (3) discovery violation re: late police‑interview recording; and (4) two probation conditions (mental‑health assessment and mandated medication).
- Court affirmed convictions except it vacated the probation condition requiring involuntary ingestion of prescribed medication as plain error.
Issues
| Issue | Plaintiff's Argument (Dere) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether, after a jury is hung on the greater offense (robbery), the court may let the jury continue and return verdicts on lesser included offenses | Jurors should not be allowed to convict on lesser included offenses once they are deadlocked on the greater charge; judge should have declared mistrial on all counts | Trial court may declare mistrial on the greater charge and allow jurors to continue on lesser counts; verdicts may be accepted if judgment is deferred | Allowed. Court follows Hughes — judge properly declared mistrial on robbery and permitted jury to decide assault/theft; verdicts accepted but judgment deferred pending retrial of robbery |
| Whether retrial on robbery after conviction of lesser included offenses violates double jeopardy or required the second jury be instructed on lesser offenses | Retrial on robbery violated double jeopardy or, at minimum, second jury should be allowed/instructed to decide assault and theft as well | Retrial did not violate double jeopardy because first trial ended with mistrial on robbery; second jury need not relitigate counts already decided; defense could argue robbery elements | Denied. Retrial on robbery was permissible; trial court did not abuse discretion in refusing to instruct jury on assault/theft at retrial and Dere was not prejudiced because robbery instruction adequately explained the required nexus between force and the taking |
| Whether theft is a lesser included offense of robbery | Theft is necessarily included in robbery | Theft is not a lesser included offense under Alaska law | Held for State. Theft is not a lesser included offense of robbery (Alaska precedent) |
| Whether late disclosure of audio recording of police interview requires new trial | Late disclosure and mid‑trial admission prejudiced Dere | Any error was harmless because defense had conceded assault/theft and later had full access to recording at retrial | Harmless. No reversible error; any defect was cured and did not affect outcome |
| Whether probation conditions (mental‑health assessment and mandatory medication) were permissible | Both conditions are improper (especially compelled medication) | Assessment condition proper; medication condition acceptable | Mixed. Mental‑health assessment condition affirmed; mandatory medication condition vacated as plain error per Kozevnikoff |
Key Cases Cited
- Hughes v. State, 668 P.2d 842 (Alaska App. 1983) (approves declaring mistrial on greater offense while accepting guilty verdicts on lesser offenses with judgment deferred pending retrial)
- Staael v. State, 697 P.2d 1050 (Alaska App. 1985) (reaffirms that a hung jury does not terminate jeopardy and retrial is permissible)
- Dresnek v. State, 697 P.2d 1059 (Alaska App. 1985) (rejects allowing a jury to end prosecution by returning a lesser‑offense verdict without unanimous acquittal of the greater offense)
- Whiteaker v. State, 808 P.2d 270 (Alaska App. 1991) (reverses where court discharged jury without determining whether jurors had reached unanimous verdicts on lesser offenses)
- Woods v. State, 667 P.2d 184 (Alaska 1983) (analysis indicating physical injury is not a necessary element where mere threat suffices, relevant to whether assault is necessarily included in robbery)
- Brown v. Ohio, 432 U.S. 161 (U.S. 1977) (double jeopardy principle barring successive prosecutions for same offense or necessarily included offenses)
- Green v. United States, 355 U.S. 184 (U.S. 1957) (explains manifest necessity and entitlement to have the initial jury decide the case)
- Minano v. State, 710 P.2d 1013 (Alaska 1985) (holds theft is not a lesser included offense of robbery)
- Kozevnikoff v. State, 433 P.3d 546 (Alaska App. 2018) (disapproves probation condition forcing psychotropic medication absent findings; supports vacating compulsory‑medication condition)