DeSacia v. State

Appellant, DeSACIA, A. Herbert Alaska, Appellee.

STATE of No.

File

Supreme Court of Alaska.

May

OPINION BONEY, Chief Justice. Appellant, Herbert DeSacia, A. was con- by jury victed on October manslaughter Reynaldo E. Evangelista, charged count II aof two count in- was, He dictment. at the time, same found first count of the indict- ment, charged which the manslaughter of Eugene Hogan. E. After the rendered verdict, its DeSacia moved for judgment verdict, notwithstanding the arguing that the verdict of conviction in count II was with the acquittal in count I. The trial court denied motion judg- for ment notwithstanding the verdict and denial, basis appealed. DeSacia The facts relevant to this center about an automobile accident which oc- curred in Fairbanks September date, On that shortly midnight, ap- before pellant car, Ford, driving was his a 1959 along westward a stretch of First Avenue which is bordered by to the North Chena River. With in his car were passengers. two Ahead of the De- Sacia car was a Ranchero, red Ford vehicle in design truck, similar a pickup by Eugene driven Hogan. Accompany- E. Hogan front of Ranchero passengers, were three one whom was Reynaldo Evangelista; there were two ad- passengers ditional Hogan’s in the back of A Ranchero. short distance behind the De- car driven Sacia was Chevrolet Steve Weltz, accompanied by pas- who was senger. The three cars continued to drive along west First Avenue in order until they to a left-hand curve. At this came time, pulled car apparently, DeSacia attempt pass left in an out to the by Hogan; Steve Weltz Ranchero driven Fairbanks, Noyes, ap- Sherman A. in his car. remained some distance behind pellant. curve, around the lead cars went As Hoomissen, Atty., Van Dist. Gerald J. side, between 40-60 traveling at side Christian, Jr., Atty., Asst. William T. Dist. hour, lost control of per Hogan miles appellee. Fairbanks, for into the drove the road Ranchero and off Evangelista were Hogan and river. Both BONEY, DIMOND, Before J.,C. CONNOR, the Rancero trapped in the car of RABINOWITZ JJ. gence passengers theory2 theory The four other Such a killed. clearly within escape. purview managed Thus, car Hogan of AS 11.15.040. in order to sustain its burden proof, charged was later arrested prosecution needed to show that Ho 11.15.- with two counts of violation of AS gan’s car left the road as a direct result statute; 040,1 manslaughter the Alaska culpably DeSacia’s negligent handling of charged the first his own vehicle. There was no need for manslaughter Eugene Hogan, of the E. the prosecution the to that show in DeSacia Ranchero, of the while in the second driver tentionally forced Hogan the vehicle off charged Reynaldo he the death of of the road. September a Evangelista. E. On jury alleged trial on In reviewing the of the record violations AS the trial of pursuant below to allegation 11.15.040was commenced in Fairbanks. of insuf On evidence, ficiency the the jury October returned verdicts find- of the must view guilty manslaughter of evidence and the to the inferences be drawn I, charged light of E. therefrom in a Eugene Hogan as in count most favorable to the proper guilty manslaughter Reynaldo and of the of state.3 The is Evangelista charged guilt supported E. II. whether finding as the of is by “such relevant evidence which is ade The first contends that quate support by a reason conclusion a trial the evidence at the below was in mind that there was reasonable able conviction, sufficient to allow since appellant's guilt.” doubt as to Hogan’s he Ran- did not show that forced trial, testimony es- go chero lose and off of the At of witnesses control the at- At the automobile road. outset we must note it is tablished that DeSacia’s tempted the while on upon pass Hogan evident examination of the indictment vehicle curve; high a traveling a court’s in a both cars were reading and road, night. graveled a speed that the violations rate of structions support negli- testimony on a criminal would further charged were based provides: cautioned the 1. No. 11.15.040 In Ins. AS “culpable Except provided negligence” must as 10-S0 of §§ unlawfully ordinary negligence, person chapter, distinguished who from convict, guilty manslaughter, in order kills another is and that punishable by imprisonment beyond doubt reasonable and is find “must penitentiary cul- than constituted one defendant’s less acts ordinary negligence pable year years. negligence, than 20 nor more * n * Finally, Ins. No. 16 supplemented in our 11.15.040 is AS length in de- court went considerable pro- by 11.15.080, statutes AS which “culpable fining negligence”: vides : something negligence Culpable by Every killing being of a human neg- degree slight than that more culpable negligence another, ligence necessary support civil killing not murder when negligence damages, and is action for justi- degree, or first or is not second gross degree, wan- and so such excusable, manslaughter, fiable punishment. deserving ton, as to punishable accordingly. and is implies negligence Culpable reckless consequences 2. disregard two indictment Counts and which charged killing doing might Eu DeSacia with the act of an ensue Hogan Reynaldo gene E. Evan- E. and reck- of such a and constitutes conduct gelista “by operating less, gross a motor vehicle so character and wanton * * * carelessly, heedlessly utter, with and indif- as heedless to indicate an caution, circumspection safety property, rights, due so out to the ference to force a 1966 red Ford Ranchero others. the lives and even * * * go [sic] loose control (Alaska P.2d Beck v. * * into the Chena River Ins. repeated No. 11 and 12 the substance of Id. the indictment. that, conclusion in attempting pass, argument De- rests on the assertion that the did Hogan Sacia not allow the vehicle elements of charged crimes enough curve; negotiate room to counts and II of the indictment are in all the DeSacia vehicle commenced to slide respects identical. Thus is contended on vehicle; Hogan the direction of the appeal that the verdict of on count result, Hogan aas was forced to indictment, II of the light of the verdict appel- swerve off of the road. While I, not guilty on count is not incon- attempted prosecution’s lant sistent, refute contradictory but is so as to ri- testimony theory by introducing at trial Appellant diculous. would have this court Hogan’s show that Ranchero went out reverse his conviction on grounds Hogan control and left when road this inconsistency. traction, gears thereby tes- shifted lost We are at the outset confronted two prosecution timony for the of witnesses arguments advanced state. not, fact, Hogan did tended to show state contends first that while the change gears or accelerate waived his right question consistency the where negotiating the corner cars were of failing timely verdicts to make a accident occurred. acquittal motion for before moving for a that, in order well aware areWe judgment notwithstanding the verdict.5 pur culpable negligence for to establish 29(a) Rule of the Alaska Rules of Criminal a de manslaughter provision, poses of our provides Procedure that a motion for ac- and wanton more reckless gree conduct of quittal be can made at junctures in the ordinary negli involved than would be course of (1) trial: at the close of the already have As we required. is gence state’s evidence or (2) at the close aware noted, was also trial court evidence of defense. this may From we crim ordinary and this distinction between conclude motion, that such a if made after instructed properly negligence, and inal case, close of the defense’s would not nev However, arewe to this effect. timely. Thus, be according to the state’s that, viewed opinion when ertheless of point view, question consistency state, the most favorable light in a case, this DeSacia should al is sufficient in the record evidence first required have been to move for ac- to stand. appellant’s conviction

low the quittal no later than at the close of his presentation of evidence. error, assignment In next convicting jury’s that verdict argues flaw the reasoning state’s on Reynaldo manslaughter of E. him the is all too obvious. If the state Evangelista irreconcilably is inconsistent way, effect, were to its would, we man- him the acquitting with its verdict requiring be a defendant to move for ac Appellant’s Eugene Hogan. E. slaughter of quittal on the basis of inconsistent ver- argument from state’s stems Su- argues The state that Rule 22 would pertinent preme Rule 22. The applicable make to the instant case Civil repromulgated of that rule as was 50(b), interpreted Rule which has been 1/1/70, provides: provide in civil eases a motion (b) Applicability of The rules Rules. judgment notwithstanding for the verdict practice procedure governing the predicated upon must be a motion for a including, in civil cases but not limited directed verdict. The state continues its to, governing preparation, rules argument that, with the assertion filing form and of the record and the matters, judgment criminal a motion for briefs, preparation, filing form and directly analogous is to a apply appeals shall in criminal motion for a directed verdict in a civil cases, except provided in suit, as otherwise and that therefore a criminal de- rules, except these required where such fendant must be to move for obviously judgment rule is or inconsistent with before a motion adaptable reasonably appeals judgment notwithstanding for the verdict criminal cases. can be heard. returned, be returned verdict to were those verdicts before diets certainly specifically did not inconsistency Such direct existed. and before anomalous, a finding acceptable.7 such would be Even be indeed a result would feel, proposition if we accept appel- approved by court. We cannot objected lant should have moreover, in- to Instruction requirement in this No. necessarily follow that we acquittal would does of a motion for stance cannot expressed consider we inconsisten- the views consistent with cy State, appeal. pro- Criminal Rule 47(b) 467-468 456 P.2d in Shafer : vides (Alaska Plain or affecting errors defects sub- next contends even The state may rights although stantial noticed inconsistent, were De- the verdicts below if they not brought were to the attention raising the issue foreclosed Sacia of the court. object to the instruc he failed because provision interpreted in the above permitted the the trial court which tions of case Hammonds v. P.2d arise. Even states inconsistencies meaning of (Alaska 1968): “The Crim.R. ground inconsistency is held be a where 47(b) may questions that we consider convictions, argues, state reversal of the first neces- raised for time if per objection to trial court instructions sary justice prevent effect substantial required before an mitting rights.” the denial of fundamental 442 P.2d cited appeal will be The cases allowed. Accordingly, at 43. hold support this contention are the state now, circumstances of before us case are persuasive.6 Insofar as these cases permits us to 47(b) Criminal Rule consider only proposi for the pertinent, they stand question inconsistency of on appeal.8 defendant has been

tion where a overwhelming question to be of shown turn next to the evidence, a trial or where weight of the whether the on count II conviction specifically permits incon necessarily instruction with court indictment inconsistent is verdicts, the basis Upon on sistent on count I. a close heard, absent a scrutiny underlying will not of the circumstances indictment, in objection to the trial court’s timely ines conclusion seems are, fact, we are con In the instant case capable structions. the two that First, we situation. with neither first irreconcilably fronted note conflict. We overwhelming weight say cannot charged indict the crime the trial adduced at below same evidence in each instance on the ments based Second, guilt. DeSacia, namely pointed DeSacia’s his alleged conduct of question, here in al trial court instruction criminally operation of a motor negligent sufficient latitude for an though allowing Eugene Hogan both vehicle. Since point: way charged 6. The four cases state cites on influ- in no crimes should Kugzruk State, (Alaska your v. 436 P.2d 962 with re- ence or control verdict 1968); State, Ga.App. charged. spect Evans v. 46 other crime to the (1932); Axley, 166 S.E. v. 449 State (1926); 8. For other decisions 121 Kan. 284 Peo- P. State, “plain Kugzruk error’, ple Steffens, see: v. 12 A.D.2d 211 N.Y. v. (Alaska 1968); Tracey v. 436 P.2d 962 S.2d 249 1964); (Alaska State, P.2d (Alaska 7. The state contends should P.2d 18 Thomas State. objected 1964); Gilley City Anchorage, have 10: Instruction No. separate State, (Alaska 1962); You will note that P.2d Rank v. 4S4 charged (Alaska 1962); distinct crime is in each Count 373 P.2d Bowker 1962); State, (Alaska the Indictment. crime P.2d Each (Alaska applicable the evidence thereto should McBride v. 368 P.2d 925 separately. 1962), denied, considered Your cert. verdict respect either one of 10 L.Ed.2d 1035 Reynaldo Evangelista riding were victims, of each of the it must be noted that allegedly same car when that car death, was the medical cause of under these cir- - cumstances, forced off ve- road no bearing whatsoever on hicle, way is no there conceivable which the elements charged. crime There Eugene Hogan appellant’s conduct toward can be no doubt here that both victims died conduct proximate differ from his could be found to as result of the automobile ac- Moreover, Evangelista. Reynaldo they toward cident which were involved. It fol- lows, possible to distin- might then, while it been difference medical to- of the accused cause guish the intent legal significance. between death is had the victims or the other of ward one It obvious that the two counts charged based intentional the crime been indictment in this case charged DeSacia conduct, De- which because the crime of with identical conduct and with the same his al- accused Sacia was stemmed element of negligence. They differed leged negligence toward vehicle in that a person different was named as the riding, it of the victims were which both victim in each instance. Under these cir- virtually impossible maintain that De- cumstances, the verdict convicting DeSacia one or negligent more toward Sacia was necessity must be construed to be incon- the victims. other of sistent with acquitting the verdict him. however, insists, that the two Appellee of whether inconsistent, since verdicts are in fact verdicts of kind with which we are presented at trial evidence different today confronted should considered suf- bp Appel- prove each of the two counts. ficiently prejudicial to rights of the ac- Raymond testimony to the of Dr. points lee cused to grounds constitute for reversal is tes- support its claim. Dr. Evans Evans to entirely another matter. This is an issue performed he had tified at the upon which courts of jurisdictions accident. autopsies both victims of the split.9 Although are are there numerous Reynaldo Evangelista, while He stated cases, federal, both state dealing with Ranchero, trapped inside the cab presented the issues by inconsistent jury injuries (apparently vomited result of verdicts,10very actually few cases deal with as- and abdomen), suffered to thorax circumstances similar to those of the instant pired asphyxiated. Evans the vomit Dr. case, appellant where the was charged skull ren- in further testified that a fracture while Eugene Hogan dered unconscious both counts of the indictment with crimes causing submerged, him to drown. involving identical elements of conduct and short, volition. In very few cases deal with Although asserting the state is correct in verdicts as presented that evidence was effect inconsistent as those before us that the cause of death differed in the case now. year 1960, ing

9. As of the inconsistency states were such would re- apparently split following quire in the manner reversal. on the issue of whether inconsistent For an extensive of the treatment divi- jury . in verdicts among question multi-count indictments sion the states on the required states, inconsistency, Comments, reversal: Fifteen includ- see Incon- Colorado, Florida, Kansas, Indiana, in sistent a Verdicts Federal Criminal Massachusetts, Maryland, Montana, Trial, 1002-1004, Ne- 60 Colum.L.Rev. braska, Ohio, Jersey, Mexico, New New n. 18 Pennsylvania, Dakota, Wisconsin, South Wyoming, held reviewing that such inconsisten- An exhaustive annotation cy grounds reversal; not involving was ten state and federal eases incon- states, including Arizona, California, sistencies between verdicts on different Georgia, Illinois, Michigan, Maine, recently Mis- counts one indictment souri, York, Washington published. See, New Inconsistency Texas and been required held that reversal. as Criminal Verdict Between Different above, states, In addition two Ha- Information, Counts of Indictment or 18 Mississippi, waii and leaned toward hold- A.L.R.3d 259 rule an Certainly, if we the federal invalidate followed otherwise valid convic- States, split in tion. among set out Dunn United In 1932 v. the federal as (1932), by L.Ed. 356 courts was case, ended the Dunn today,11 courts which applied Supreme Court, it the federal the United States in- by Holmes, hold that an compelled opinion we would be such written Mr. Justice a re- provide do basis for “Consistency consistencies held: the verdict necessary. is one first im- versal. But Each count an indictment Alaska; pression regarded hence if it separate State of as awas indict- the federal whether follow must decide ment.” 284 U.S. at rule, hold, minority of with a whether to L.Ed. 358-359. states, truly our sister rule stated in supported Dunn was verdict will necessitate jury reversal. propositions. Primary importance argu- understanding proper A given was argument had each rule on incon- supporting federal ments the counts sep- involved been charged on necessary pre- sistent verdicts is indictments, arate an to one issue; requisite our decision of such given would not have rise to a plea valid gained understanding an can be judicata res as to the other. From this fed- through origins recourse unjust concluded that it would be Initially it eral rule in Dtmn. should greater rights simply allow defendant be- Dtmn, prior noted federal courts charges joined cause him were inconsistency. split on the matter single Despite possi- ain indictment. the 8th 3rd Circuit12 followed Circuit13 bility may per- that this rationale have been that inconsistent decided, at the time Dunn was sub- suasive an

multiple indictments could furnish sequent development judi- res the law of adequate overturning a basis for convic- Dunn can amply cata clear that has made Circuit,14 hand, the 2nd tion. On of such longer supported on the basis Circuit,15 all 6th the 7th Circuit16 argument.17 an held that such inconsistent verdicts would issued g., Carbone, States See, the United e. United v. States opinion doubt that cast substantial 1967); (2d 378 F.2d Cir. United judicata validity the res King, (2d F.2d 813 States Cir. argument the Dunn case. Seal- made in 1967); Tri-Angle Club, Inc. United fon a situation which States, 1959); involved (8th 265 F.2d 829 Cir. acquitted had been tried States, F.2d 341 Grant v. United charge conspiring (6th Cir.), denied, 358 U.S. cert. Government. the United States (1958); defraud 48, 3 L.Ed.2d 68 Wil acquittal, was re- After the (4th liams F.2d 303 indicted, charged with the sub- time Cir. appeal, Sealfon ob- On stantive offense. States, Speiller 12. F.2d v. United 31 682 jected to at the second the introduction (3d 1929). Cir. that been adduced had trial evidence Boyle States, trial. The him at the first 13. 22 v. United F.2d 547 Court, 1927); Murphy (8th Justice States v. United United Cir. States, 1927); (8th writing opinion, Douglas 509 that in 18 F.2d Cir. held (8th States, 881 Peru v. 4 F.2d United determining a was res matter whether 1925). Cir. appeal judicata, proper jury’s verdict States, first trial was whether the F.2d 14. Seiden v. 16 197 United (2d 1926) ; neces- v. United the issues Cir. Steckler was determinative of 1925). States, (2d F.2d 59 Cir. sary 7 of- substantive convict on the only evidence Since Sealfon fense. States, 15. 9 F.2d 603 Gozner United conspiracy trial had been at the first (6th 1925). Cir. of the sub- the commission evidence of States, Carrigan F. 189 United offense, it was held stantive (7th Cir. interpreted must be earlier verdict adjudicated necessary States, to con- issues have 17. In U.S. Sealfon v. United (1948), 237, offense. on the substantive vict 92 L.Ed. 180 sup- juries power, have had argument right, The second advanced if not port irrationally. case is dis- the Dunn to act In of in- the context verdicts, jury Mr. Holmes’ reference cernible consistent the traditional Justice States, essential, power irrationality F.2d Steckler v. United since it permits jury (2d 1925): express Cir. its desire to act leniently by toward certain defendants con- was said in Steckler v. United As victing on one of several counts. With- (citation omitted): power, out such a jury would have no as- in such ‘The most that can be said surance that a desire part on its have that either cases is verdict shows accused treated leniently would be heeded acquittal jury in the or the conviction by the court. conclusions, speak but did their real must be stressed that this ar- they that does not were not show gument, the basis for the federal rule on in- guilt. convinced the defendant’s jury verdicts, consistent relies its stat- interpret as more no than assumption ed that an inconsistent verdict assumption power which they their certainly jury’s almost reflect vyill exercise, dis- right no had but to which position to favor acting the accused le- by they disposed lenity.’ zvere through (Em- assumption in his niently behalf. The has phasis supplied.) recently most been restated in States 52 S.Ct. at 76 L.Ed. Carbone, (2d 1967): 378 F.2d 420 Cir. argument subsequently This been explained by very jury clarified the Second Cir- fact that the may have ac- Appeals quitted cuit United States v. of one or more counts in a multi- Maybury, F.2d in- (2d 1960); Cir. count indictment because of a belief deed, the Maybury case makes clear that the counts on which it [has, con- sic] jury provide the federal rule on inconsistent ver- will victed punishment sufficient supported only be by allowing dicts this second upset can forbids Briefly rationale advanced in Dunn.18 stat- even to affect the convic- simultaneous * * * ed, argument may paraphrased true, tion. It Judge as both following very origins, manner. their Since Hand and recog- Mr. Holmes clearly indictment, The Sealfon case shows count of a two count premise argu- underlying basic the first and a conviction on the other count. The person by ment Dunn —that confront- inconsistent verdicts were rendered by charging judge, having ed successive indictments been waived. arising Friendly Judge conduct crimes from the same On was held. writing opinion, under would successfully no be able to circumstances in- the rule on judicata consistency claim res in- in the Dunn had its ease —to proponents power juries correct. Even of the federal historic roots admitted, irrationally; irrationality rule on as act could early part tendency the federal rule can be attributed on the longer supported type juries to feel that conviction on one judicata argument res in Dunn. made of several counts would be sufficient Bickel, See, Judge Jury punishment. Judge words, In —Inconsist- Courts, Friendly ent Verdicts the Federal stated that Dunn for the stood proposition Harv.L.Rev. that an ver- Moreover, opinions although irrational, merely dict, in recent cases de indicated disposition cided federal bear out on the courts proposition that, light Sealfon, leniently Judge act toward the accused. Friendly first rationale advanced in no Dunn can went on to ra- hold that longer persuasive. See, applicable only jury be considered tionale to a trial example, Carbone, Accordingly for situation. since the incon- States v. (2d 1968); 378 F.2d sistency Maybury Unit product Cir. was the Maybury, ed States 274 F.2d judge jury, rather a than a convic- the (2d 1960).’ 902-903 Cir. tion was reversed. Maybury 18. The case an involved incon- sistency between a verdict of

S77 nized, jury ticular time allowing disposed inconsistent verdicts the was that six to five, undecided, an the risk that with one as the first in criminal trials runs to count; may the have been recent had conviction consideration occasional even advantage given the been compromise. But to the second The jury result count. its leaving jury again p. m., free to exercise was sent out. At about 11:30 lenity has cor- power again historic been called the jury once back to danger. thought outweigh progress rectly any to determine whether was being omitted.) reaching a (Citations made verdict. theWith ex- ception single person jurors all of the F.2d at 422-423.19 progress felt had been that no made toward assumption are unable to we With this a solution.21 juries agree. the assertion that Although judge The hour late and was was required not to ren traditionally been have obviously perplexed. He stated that be- subject to der consistent verdicts itself there cause were several conventions in doubt,20 disagreement with the some our time, town at the no accommodations could logic in underlying federal rule on jury for the particular be made on that jury consistent verdicts is not of a histor course, it night. was, He said that also Rather, ical nature. can basis we see no allow the jurors out to assume, Dunn, as was assumed in return to their homes for the It night. was product inconsistent verdicts are the of a decided, finally after a conference with disposition jury’s treating toward the ac anteroom, jury in the to let the counsel vote leniently; cused can basis for nor we see a whether it wanted continue as to delib- that, assuming jury in allowing inconsistent longer. for while A vote erations was stand, verdicts criminal trials run we jury taken and ten members of the voted only “the risk that an occasional conviction night; through the to continue may have been compromise.” the result of willing apparently to accede to two were know, simply truth is do that we majority. The court the wishes of do nor way telling, how again and sent out agreed, jury was many inconsistent are verdicts attributable continued deliberate jury deliberate. leniency, compromise, or, to feelings of length night for undetermined into the matter, pn outright confusion guilty verdicts of Sealed of time. jury. ren- as to count II were count An excellent illustration of this can m., following morn- dered 10:00 a. be found in the study instant A case. ing. that, record of DeSacia’s trial below reveals set of particular some time after that this jury' had been It manifest charged possibility that deliberate, suggests sent out the court circumstances period of below, prolonged jurors called the back after a to determine what the jury through position com- stress, their was at that time. It is not its conclusions reached possible clear it is still long jury record how Yet promise. I of acquitted had been out before was first called back. any rate, it felt that because par- At indictment is certain that at that attempted argument (1932), con- show For a full on the no based majority trary tion taken to the view verdicts are consistency product disposition jury’s opinion, had of a to be leni ent, Judge required. Bickel, y long a similar his- For see been Jur —Incon argument, see, Comments, Courts, Incon- sistent Verdicts the Federal torical also, Federal Criminal Harv.L.Rev. See sistent Verdicts Trial, Maybury, 60 Colum.L.Rev. United States v. F.2d (2d 902-903 Cir. time, expressed juror, 21.One hung did Butler, lengthy 20. Mr. dis- in a view would senting opinion situation Dunn, know whether change. 394-407, 359- L.Ed. Butler, be words conviction on count would dissenting II sufficient of in punishment. might a matter of fact it As Dunn: possible speculate indefinitely as to be in One accused counts of an different reaching paths jury followed in what crime, indictment the same being of there is in this case. The its conclusions no in alleged difference means way reliable discover we no employed,may adjudged have been not be really ver- inconsistent what lies behind guilty on a verdict of conviction on assump- dicts; any any conclusions— acquittal (Ci- count and of on the other. not be warranted. on our tions —would omitted.) tations 402, 194, L.Ed. at know, however, U.S. we What do is argues, regard, The state convicting verdict of asking ju- much of that we would be too inconsistent, II of count the indictment by requiring ries in matters so, criminal necessarily acquittal with the cases, they render, strictly in all consistent count I. result In our This is irrational. holding reply To this we verdicts. system procedure, of criminal at trial both require only that today, as we do we ver- appeal, and on the entire focus of the fact- strictly Appel- dicts inconsistent. not be finding upon solu- effort reasonable conviction is reversed. lant’s Accordingly, the tion of factual issues. language of cases centers the ele- our con Having appellant’s reversed example For will ment reason. viction, ques are next with the we faced person not be to convict accused allowed proper disposition of the case tion of guilt in a criminal matter unless finds First, appellant. jury’s A beyond established a reasonable doubt. acquital on count I of the indict verdict of judge judgment must enter below, a retrial ment we conclude that if determines fair-minded he precluded by jeopardy the double clause reasonably ques- cannot differ men on the fifth amendment the United States tion whether there is a reasonable doubt Constitution,23 by the clause of similar guilt.22 as to the defendant’s We can con- . In the recent Alaska Constitution.24 why, ceive of reason under circum- these 784, Maryland, case of Benton v. 395 U.S. stances, least, require we very cannot at the 2056, (1969), the 23 L.Ed.2d 707 a minimal degree reasonableness its United overruled States rendering verdicts. Connecticut, previous Palko v. 58 S.Ct. 82 L.Ed. could, course, seek to dis states, applicable to the (1937), and made tinguish the Dunn case from the case now amendment, through the fourteenth before us. A recent of a case York New fifth amend court, jeopardy double clause People Bullís, 30 A.D.2d Accordingly, the ment. case of Green 294 N.Y.S.2d 331 (N.Y.1968), involving a United very situation close to’that of the instant speaks directly to the L.Ed.2d 199 (1957), case, reversed grounds a conviction which we are issue with confronted to, that was repugnant merely rather than hand, re necessarily precludes a case at with, simultaneous trial of I. approach, another Such an count. how ever, tends to confuse substance with se might be Certainly the argument conclusion, mantics. In reaching our DeSacia, by seeking a reversal made that find it necessary only agree incon- of his basis conviction See, Jennings put jeopardy life P.2d to be twice fenee * * * (Alaska 1965). or limb jeopardy 23. The double clause of the Alaska Constitution the fifth 24.Article 9§ put provides: person amendment to the Constitution “No shall provides: jeopardy States offense.” “[N]or same shall twice person subject for the same of- whether must next decide only upon not sistency, doubt casts the reversed conviction. may be retried on upon the conviction, also but validity of his here is one which we must face The issue could be Thus it acquittal. his validity of estoppel.27 The doctrine right collateral waived his that DeSacia contended estoppel must be considered be- collateral clause jeopardy double by the protection to unique situation which would but also cause of only his conviction as to inevitably on a retrial of DeSacia’s argu- arise very It was this acquittal.25 his however, reversed conviction. ment, confronted which was opinion an case. In in the Green resolved stated, previously the ele- As we have Black, the Court by Mr. written charged in ments of and intent conduct appeal- person any finding noted of the indictment below were both counts right ato must waive his conviction ing a Thus, in to secure a con- identical. order ac- on a count of jeopardy plea of former retrial, the state would have viction necessarily person forces quittal essentially the same evidence which adduce accepting his conviction between choose acquit- was ruled when DeSacia was incurring an addi- risk of appealing at the situation, this ted count Because of I. further stat- punishment. Court tional estoppel argued it that collateral could ed: precludes retrial the conviction we have not, judg- in should our The law reversed. The that arises is wheth- not, in defendant place the ment does estoppel plea er of collateral would such Condition- such an incredible dilemma. be valid. on a coerced appeal offense jeop- plea valid surrender There can be little doubt that the of former exacts a ardy on another estoppel applies for- doctrine of collateral offense with the consti- plain in conflict feiture in the criminal as well as the law civil jeopardy. bar double tutional State, Dapcevich In Alaska. 360 P.2d (Emphasis added.) 1961), (Alaska 792-793 we held that 193-194, acts, 227, 2 estoppel by precluding L.Ed. collateral U.S. DeSacia, ap Certainly prior to 2d at 208. previously litigating state from matters conviction, plea had a valid pealing his upon by jury, prevent ruled harassment as to his jeopardy former by prosecution in criminal successive case must, case, as we Following I.26 Green s.28 by appealing his con we cannot hold that law, estoppel In the federal collateral was forced surrender viction DeSacia his long applicable been held to criminal cases protected retrial on ac right by Supreme Court. In quittal. United States ap- importance defendant mendous here. 25. It is well settled that a right interchange- pealing frequently his conviction terms are waives his used protection jeopardy ably law; under the double the criminal to avoid con- amendment, consistently fusion, speak fifth Ball will clause of the States, 662, 672, estoppel. See Com- terms of collateral (1948). ment, 41 L.Ed. Tex.L.Rev. 232-33 appeal his 26. Had DeSacia chosen Dapcevich, 28.In our we relied conviction, matter of Vaughn on the case of certainly could been raised Ga.App. 124, 62 S.E.2d 573 Rule 6 the state. Alaska Vaughn case shows some fac- While regard: provides “[T]he state case, similarity present tual to the right have a in criminal shall noted that vital must be differs sufficiency test of the cases respect the basis for reversal ground indictment or on the Vaughn insuf- initial conviction sentence is too lenient.” evidence, ficiency of the and not incon- sistency es- verdicts. 27. The distinction between “collateral judicata” toppel” tre- is not of and “res making In Sealfon v. United determination we are guided (1948), it was held: 92 L.Ed. 180 admonition of the Court Ashe: estoppel] applies to criminal [Collateral The federal decisions have made clear as well proceedings operates as civil and the rule of estoppel collateral in to conclude those matters in issue which applied criminal cases not to be though verdict determined [earlier] hypertechnical approach archaic (Citations offenses be different. book, century pleading of a 19th but with omitted) rationality. realism and 578, 239, 332 at at U.S. 68 92 at S.Ct. L.Ed. 444, 397 at U.S. 90 S.Ct. 1194. Accord- - recently, 184.29 Most the United States ingly, we are well aware óur decision Supreme light Court has held in of acquittal as to whether consti- DeSacia’s Maryland, supra, Benton v. the rule col of meaningful adjudication any tutes a of ulti- estoppel lateral is embodied in fifth mate upon issues of fact must an be based adjunct an the constitu amendment as record, upon examination of the entire guarantee jeopardy. tional of double Ashe a consideration all other circumstances Swenson, v. 436, 397 U.S. 1189, 90 S.Ct. 25 relevant appeal.31 to the Here we feel that L.Ed.2d 6, 469 (April 1970). In consider logical inconsistency of acquittal ing significance estoppel collateral with the obviously conviction is a factor cases, Stewart, in criminal Mr. writ relevant to the decision of what were issues majority of ing for the the Court Ashe acquittal. decided noted: have held that We DeSacia’s ac estoppel” is an awkward “Collateral quittal must be allowed to stand insofar as phrase, extremely but stands for jeopardy precludes double a retrial on that important principle adversary sys- in our count. But our regard in this justice. simply tem It means expression should be taken as an when an issue of ultimate fact has once faith our acquit the merit of the by a final been determined valid and tal a resolution of the issues involved in liti- judgment, again cannot issue charge. ingredient As an the guar gated parties any between the same jeopardy, antee double the rule future lawsuit. estoppel requires degree collateral of con 397 443, U.S. 90 at 1194. S.Ct. prior acquittal adjudica in a as an fidence difficulty issues of instant case is unlike tion ultimate fact. It should quite estoppel problem usual collateral obvious that the cases, criminal where it must be here as much doubt decided reflects particular upon prior general acquittal what issues a as it did the convic ver- acquittal dict of must decide whether this element resolved.30 In this tion. We case whether, preclude we must determine will be sufficient of its doubt because inconsistency, estoppel on a retrial of DeSacia’s claim collateral on count resolved issues the second count. whatsoever. Analysis 29. For Res the first Verdict: United States An General Applied applying estop- Proceed- decision Criminal collateral Judicata pel 1959); (May matter, Hastings ings, in a criminal see 10 L.J. 404 United Oppenheimer, Comments, Estoppel 85, States v. 242 Collateral U.S. 37 68, (1916). 61 161 L.Ed. Prosecution —Effect of a Previ- Criminal Acquittal See, Crime, g., 496, Hoag, 34 ous of a Related e. State 21 v. N.J. (1956); aff’d, 122 A.2d (March 628 631 N.Y.U.L.Rev. 464, (1958); 2 L.Ed.2d 913 Swenson, 31. Ashe 90 S. U.S. Orth, App. 35, State v. 106 Ohio (April Ct. L.Ed.2d N.E.2d 394 1970); Sealfon Mayers Yarbrough, See also New 575, 579, 92 L.Ed. Prosecutions, Trials Successive (Nov.1960); Comments, Harv.L.Rev. law, ei the state to found little case allow the to argue, state, breath, assist ns in mak same ther federal or is of certainty sufficient determination.32 In absence of to suit purposes is to authority, approach estoppel. collateral persuasive simply our There is reason grounded in considera here to prosecution seek resolution force the to run parties perilous to both involved. gauntlet tions of fairness procedure. criminal circumstances, are at a loss appellant, As for Under these to- allow unfairly discern how he would disad to invoke the rule of collateral retrial. vantaged by granting estoppel would, of a Clear as Judge Friendly stated in Dapcevich like ly this a case Maybury, guarantee is not “convert of double Swenson, supra, where supra, jeopardy or Ashe v. from a shield into a sword.” 274 subject the ac prosecution would further F.2d repeated un and cused to harassment Accordingly, we order a new trial on the fail to how

necessary prosecution. We see appellant’s conviction, reversed and further subject the possibly a retrial here could preclud- hold that such a retrial will not be of harass greater chance appellant a estoppel. ed a claim of collateral subjected to in he would be ment than DIMOND, (dissenting part). a following retrial for case ordered other appeal. Appellant successful was tried for manslaughter in connection persons, with the deaths of two hand, the ac- if allow we theOn Reynaldo Evangelista Eugene Hogan. and case, its doubtful despite quittal The evidence persons showed that both died claim of nature, of a valid the source be appellant after had caused the car in which estoppel, then the state would collateral they were riding drive off a road into a own, of of its deprived, through no fault river. A jury appellant guilty found reso- a full and fair opportunity have manslaughter as Evangelista, not but brought. Both charges it has lution of the guilty as to Hogan. Ashe, dealing Dapcevich with and Both deaths resulted from one act of problem of harassment of accused individ- negligence appellant’s part. criminal on He uals, encourage prosecution to in effect responsible was either for both deaths or various into one indictment the consolidate responsible for either. He could not To charges upon which it seeks to convict. rationally only held accountable for plea estoppel collateral in this allow death not for the other. The two con- and would, think, frus- case serve flicting obviously totally verdicts were attempts by prosecution comply trate inconsistent. It is of the incon- because spirit Dapcevich with the Ashe. sistency that this aside the con- court sets bringing appeal, appellant In manslaughter for the viction successfully argued Evangelista.

between verdicts rendered his conviction Up point agree to this I with the court. meaningless. opinion, In our it im- would why guilty But I am unable the not to see pose unjustifiably Hogan as to should not harsh restriction verdict the death Although majority upon of the court used in the count resort evidence Maybury acquitted. Thus, F.2d which the (2d 1960), applica- Maybury, Cir. decided basis judicata judicata prevent been, tion of res res retrial would stage, premature. case, conviction reversed Mayers Maybury directly upon Yarbrough, Trials not bear See New does problem Prosecutions, present and Successive Iiarv.L. of the Since the case. Comments, (Nov.1960); Maybury Rev. 41-43 did alleging Crim- stem Inconsistent Verdicts a Federal from counts identical ele- ments, Trial, have, inal 1011- Colum.L.Rev. the state could retrial conviction, sought of the reversed to es- tablish the elements of the crime without another The reason for disre- offense for

also be set aside. which he had been ac- only quitted.4 garding guilty verdict—and No such condition im- would be posed by setting it is inconsistent with here guilty because aside the not reason—is ' verdict, result guilty verdict, as well as the guilty the not verdict. overall verdicts, requiring just and not is irrational. Both new trial to both counts one, by the incon- guilty says are indictment. The court it affected irrationality, express so there is cannot sistency and faith “in the merit actually knowing as a way what the resolution of the issues in- volved in charge.” It decided. states that “[i]t quite should be obvious that the inconsist- give obliged The court feels that ency of the verdicts here reflects as much verdict, guilty effect to the not when upon doubt as it did verdict, gives guilty because none to conviction.” I what the believe provision the con- jeopardy double saying is that not guilty verdict is as my disagree At this stitution. meaningless as the court holds the colleagues. so, being verdict to be. This there is noth- pre principle jeopardy of double jeopardy operate upon. for double government prosecuting vents the Appellant required would to waive a person more than same of once jeopardy defense of double because it has policy pre fense. It reflects sound —to fact, application. no In he is not even government, vent the with all its resources required the conviction order power, harassing accused and from court, to obtain a The trial new trial. when prosecutions successive so as to afford verdicts, totally faced with the government opportunity a more favorable verdicts, ought disregarded to have both jeopardy to convict.1 The double clause discharged jury and ordered another “stands as a constitutional barrier trial as to both counts of the indictment. possible tyranny by prosecutor.” the overzealous 2 inconsistency, Because of the I can reach logical conclusion than that the In order to policy effectuate the perform failed to its function as a clause, jeopardy double it held that a jury. The result is no different than if the verdict of is conclusive even jury had been unable reach verdict though may appear it to be erroneous.3 We equivalent at all. This situation is to a are concerned here error on the with hung jury agree unable to on a part of jury. concern is Our —a verdict. In such a jeop- situation double ascertain, inability to inconsist- because of ardy is not a bar to another trial. As the verdicts, ent what the decided as to United States Court has said: guilt appellant. or innocence was, simply do what their know decision may There be unforeseeable circumstanc- since guilty cannot be of one man- es that during arise trial making its slaughter guilty and not of the other. completion impossible,such as the failure It is a jury agree also held that on a appealing one from a verdict. such In conviction of may purpose protect one offense re- event the law to so- quired, ciety guilty as a condition appealing, to sur- those of crimes fre- quently render defense of jeopardy denying double as to would be frustrated opinion 734, Douglas States, Brennan, 1. Downum v. United of Justices 372 U.S. 736, 1033, 100, 83 Marshall]. 102-103 S.Ct. L.Ed.2d ( See also Green v. United States, 184, Green 355 U.S. States, 184, 187-188, 365 U.S. 188, 221, 199, L.Ed.2d 221, (1957). 2 L.Ed.2d Swenson, 436, 456, 2. Ashe v. 397 U.S. 4. Green v. United 1189, 1200, 193-194, L.Ed.2d 2 L.Ed.2d 78 S.Ot. 57, April (No. [Concurring 1970) 207-208 put the defendant power courts again. [Emphasis added.] a “classic ex- agree is unable

juryA appli- has no jeopardy double

ample” where

cation.6 trial on be a new there

I believe should prac- As a indictment. ^of the

both counts matter, no dif- probably will make

tical is tried on both

ference whether one, for under the evidence

counts or innocence as to finding guilt to the finding as require

would the same if is that

other. The to make wish require going reason

consistency jury, as it does in this

case, standard it should not set different consistency ignore itself reason and

in its own decisions. That is what does by holding guilty verdict

here

without effect because of verdict, then guilty

with the not the not verdict is effective de-

spite inconsistency. the same THORSHEIM,

Tracie Administratrix Stanley Thorsheim, Estate of de- ceased, Appellant, Alaska, Employer’s Liability

STATE of As- Corporation, surance Work- and Alaska Compensation Board, Appellees. men’s

No. 1090. Alaska. 22,

May Hunter, 734, 5. Wade Downum United 834, 837, 10 L.Ed.2d L.Ed.

Case Details

Case Name: DeSacia v. State

Court Name: Alaska Supreme Court

Date Published: May 15, 1970

Citation: 469 P.2d 369

Docket Number: File 1071

Court Abbreviation: Alaska