563 P.3d 86
Alaska Ct. App.2025Background
- Early morning shooting into a darkened basement apartment on April 1, 2014 killed 15‑year‑old P.A.; six rounds were fired through a window; another minor was wounded.
- Lammar Burney and Jamal Townsend were jointly charged (principal/accomplice theories) for first‑ and second‑degree murder, related assault and weapons counts; Townsend also convicted separately for an earlier March 21 weapons offense.
- Key disputed fact at trial: surveillance showed one person exited the car and fired; West (the driver) initially said both exited, later testified only Burney exited; defendants gave conflicting stories and each blamed the other at trial.
- Both defense teams presented mutually antagonistic theories (each argued the other was the sole shooter); the trial court repeatedly denied multiple pretrial and midtrial severance motions.
- After verdicts, the jury foreperson reported an off‑trial encounter in which a man he believed to be a relative of a defendant lifted his waistband in a manner the foreperson perceived as an attempted intimidation; the trial court denied a new trial motion.
- Court of Appeals: held trial court abused its discretion by denying severance (but found actual prejudice only as to first‑degree murder), vacated first‑degree murder convictions, and vacated the denial of a new trial — remanded for a Remmer (jury‑tampering) proceeding to determine whether the contact was prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the joint trial should have been severed because defenses were mutually antagonistic | State: defenses not truly exclusive; evidence supported that both participated or aided/abetted, so joinder was proper and not unfairly prejudicial | Burney/Townsend: defenses were irreconcilable — acquittal of one requires belief that the other was sole shooter — mandating severance | Court: trial court should have granted severance; but actual prejudice shown only as to first‑degree murder — vacate 1st‑degree convictions and remand for retrial on 1st‑degree or entry of 2nd‑degree judgment and resentencing (state may retry) |
| Whether the trial court erred in denying a new trial after juror reported an off‑jury contact that he perceived as attempted intimidation | State: the contact was innocuous (adjusting jacket/pants) and posed no credible risk to verdict, so no Remmer presumption applies | Defendants: foreperson believed the man was a defendant’s relative displaying a waistband to intimidate jurors; Remmer presumption of prejudice was triggered and the State must rebut it | Court: trial court erred — juror’s subjective belief that the contact was an intimidation attempt meets the low threshold for Remmer; remand for further proceedings so State can try to rebut presumption; if unrebutted, convictions (other than 1st‑degree already vacated) must be set aside |
Key Cases Cited
- Zafiro v. United States, 506 U.S. 534 (1993) (antagonistic defenses not prejudicial per se; severance required only if joint trial risks compromising a specific trial right or reliable verdict)
- Remmer v. United States, 347 U.S. 227 (1954) (established rebuttable presumption of prejudice for unauthorized third‑party contacts with jurors)
- Remmer v. United States, 350 U.S. 377 (1956) (Remmer II) (harmlessness inquiry requires probing factual inquiry into whether contact could have influenced verdict)
- United States v. Tootick, 952 F.2d 1078 (9th Cir. 1991) (mutually exclusive defenses may require severance but joint trial reversal requires showing of clear, manifest prejudice)
- Miller v. State, 778 P.2d 593 (Alaska App. 1989) (articulated two tests for irreconcilable defenses: necessary disbelief of one to believe the other; conflict so great jury may infer both are lying)
- Larson v. State, 79 P.3d 650 (Alaska App. 2003) (Alaska Evid. R. 606(b) bars juror testimony about effect on deliberations but permits inquiry into extraneous contacts and outside influences)
- United States v. Henley, 238 F.3d 1111 (9th Cir. 2001) (distinguishes inadmissible juror testimony about deliberative mental processes from admissible testimony about juror fear/anxiety after tampering)
- United States v. Dutkel, 192 F.3d 893 (9th Cir. 1999) (jury tampering cuts to the heart of the Sixth Amendment and ordinarily triggers a presumption of prejudice)
- United States v. Rutherford, 371 F.3d 634 (9th Cir. 2004) (juror testimony about general fear or concerns after extraneous contact is admissible for prejudice assessment)