LAMMAR DAVID BURNEY v. STATE OF ALASKA; JAMAL KAREEM TOWNSEND v. STATE OF ALASKA
Court of Appeals Nos. A-13327, A-13344; Trial Court Nos. 3AN-14-02889 CR, 3AN-14-02888 CR
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
January 3, 2025
No. 2794
NOTICE
The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
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ΟΡΙΝΙON
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for Appellant Burney. Brooke Berens, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for Appellant Townsend. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
Judge ALLARD, writing for the Court.
Judge TERRELL, concurring in part and dissenting in part.
Lammar David Burney and Jamal Kareem Townsend were convicted, under a theory of principal or accomplice liability, of first-degree murder for shooting into a darkened apartment window and killing a fifteen-year-old girl who was asleep in her bed.1 Both defendants were also convicted, under a theory of principal or accomplice liability, of second-degree assault and second-degree weapons misconduct for conduct related to the shooting.2 Townsend was also separately convicted of first-degree weapons misconduct for firing shots towards that same apartment eleven days prior to the murder.3
Both men now appeal, raising two claims of error. First, they argue that the trial court erred in failing to sever their cases based on their mutually antagonistic defenses. Second, they argue that the trial court erred in denying their motion for a new trial following a post-trial allegation of juror misconduct and jury tampering.
For the reasons explained in this opinion, we conclude that the trial court should have severed the cases based on the defendants’ mutually antagonistic defenses. However, we also conclude, based on the overwhelming strength of the State‘s case for second-degree murder, that the error was prejudicial only as to the jury‘s guilty verdict for first-degree murder rather than second-degree murder. In other words, we conclude that the remedy for the trial court‘s failure to sever is limited to vacating the first-degree murder convictions and entering judgment for second-degree murder. Lastly, we conclude that the trial court erred in denying the defendants’ motion for a new trial based on juror misconduct and jury tampering and that further proceedings are required to resolve that claim.
Background facts
We begin by presenting the underlying facts of this case. We note that the parties sometimes presented conflicting versions of events, which will be indicated where appropriate.
Fifteen-year-old P.A. was shot and killed while she was sleeping in her bedroom in the early morning hours of April 1, 2014. Eleven days earlier, on March 21, Townsend had gotten into a physical altercation with Quentin Hargrove, P.A.‘s father, that ended with Townsend firing shots into the building where the family lived.
The altercation arose because Townsend‘s girlfriend, Desiree Rilatos, was unhappy with the marijuana that she had purchased from
Prior to fighting Hargrove, Townsend handed Rilatos a 10mm handgun that he was carrying. The two men grappled and traded punches and, according to Hargrove, Hargrove seemed to have the upper hand. Hargrove also testified that P.A. hit Townsend while Hargrove choked Townsend. However, Townsend testified that “nobody” won the fight.
After the fight ended, Rilatos gave the gun back to Townsend. As Rilatos and Townsend drove away, Townsend fired seven shots at the upper floor of the apartment building. No one was hit, but several bullets struck the building. At trial, Townsend admitted that he fired the shots and he testified that his goal was to bring the police to the house.
Hargrove did not report the shooting because he did not want police attention. However, the next day, Hargrove posted on Facebook that he had beaten up Townsend, and that Townsend had shot at his kids. At trial, Townsend denied ever seeing the post. But Rilatos testified that Townsend and his family felt threatened by this incident. She also testified that Townsend was holed up for about a week at her apartment, and then at a Motel 6.
Eleven days later, Townsend was at a small party with his friend, Burney. The party was at the apartment Burney shared with his girlfriend, Karlie West. West later told a detective that, during the gathering at her apartment, “the boys were in the kitchen” talking about someone “doing something to [Townsend].” At trial, West testified that her impression was that Townsend wanted “to get back [at] them for doing what they did to him.”
In the early morning hours of April 1, at around 3:00 a.m., Burney asked West for a ride. When West asked where he wanted to go, Burney said he needed her to take him somewhere but did not specify where. West could tell that Burney was drunk and she did not want him to drive her car while drunk, so she agreed. Burney then looked at Townsend and said, “Let‘s go.” West later testified that Townsend said something like “right now?” — indicating that he was surprised when Burney said they were leaving.
Before they left the apartment, Burney went to the apartment‘s lower level (where the bathrooms and bedrooms were located) for a few minutes.4 West drove the two men, with Townsend in the front passenger seat and Burney in the back seat.
Townsend gave West directions to Mountain View. At trial, West testified that she was not told where they were going but she “figured out that it was obviously a trip for [Townsend] since he was the one giving [her] directions.”
According to Townsend‘s testimony at trial, while they were in the car, Burney asked to see where the fight on March 21 took place. Townsend then directed them to the building and pointed out the apartment where Hargrove and his family lived. Security camera footage shows West‘s Jeep driving by the apartment four times: at 2:58 a.m., 3:03 a.m., 3:08 a.m., and 3:10 a.m. Townsend testified that, while in the car, Burney asked if there was anything in the apartment that could be taken. Townsend replied that the family did not have anything valuable. Burney then told West to stop the car.
What occurred over the next couple of minutes was the main subject of dispute at trial. Security camera footage suggested that only one man got out of the car. However, it was impossible to tell from the footage which man got out of the car and which man stayed in the car.
In her initial interview with the police, West said that both Burney and Townsend got out of the car. However, she later retracted this statement and told the police that only Burney got out of the car. She told the police that she had originally said that
At trial, West was adamant that only Burney got out of the car. This testimony was consistent with Townsend‘s testimony. Townsend testified that Burney got out of the car, and he claimed that he did not know why Burney got out of the car or what Burney was going to do.
Burney did not testify at trial. However, when he was arrested, Burney told the police that he had passed out drunk in the back seat of the car, that he never got out of the car, and that he only woke up when the officers pulled the car over. At trial, Burney‘s attorney argued that this version of events occurred and that Townsend, acting alone, had committed the shooting.
Although the identity of the man who got out of the car was disputed, it is undisputed that the man fired six gunshots in rapid succession through the basement apartment window. The apartment was dark and the window was closed with curtains that were slightly open. Two of the shots hit P.A. while she was asleep in her bed, killing her. Another minor, D.S., was also in the room and was shot in the foot.
Police officers in the area heard the shots. The police dispatch also received a 911 call at 3:14 a.m. reporting that shots had been fired through a window and that a girl had been shot. Responding officers found casings and bullet holes from six shots that had been fired from a .40 caliber pistol.
One of the officers who heard the shots saw West‘s Jeep pull out of a nearby alley shortly after the shots were fired. When the officers stopped the Jeep, West was driving, Townsend was in the front passenger seat, and Burney was in the rear driver‘s side seat. Townsend immediately told the officers that he had an outstanding warrant and that he had a small amount of marijuana in his pocket. He also texted his girlfriend that he was going to jail.
Burney, Townsend, and West gave conflicting and false statements to the officers about where they were coming from and where they were going. Townsend said he had just been picked up at his girlfriend‘s nearby house. West said they were going to pick up a friend at a party. Burney said they had been coming from Boniface Parkway, but he then changed his story to say he had been picked up on Muldoon Road. When an officer pressed Burney and said, “Your friend already said you guys were in Mountain View,” Burney responded — without having been directly accused of any particular criminal act — “I had nothing to do with it.” Burney also claimed not to know Townsend.
Townsend was taken into custody on the warrant. Burney and West were also taken into custody.
The officers searched the vehicle and found a .40 caliber pistol under the front passenger seat. At trial, there was testimony that the pistol, based on its orientation, was most likely placed under the seat from the back (Burney‘s location), but that it could have been placed there from the front (Townsend‘s location). West testified that Townsend passed something to Burney during the car ride, although she did not see what it was. West testified that it was possible that either Burney or Townsend had moved the gun under the sеat and she did not notice at the time because she was driving.
West was interviewed multiple times by detectives from the Anchorage Police Department, and changed her story over time. As already mentioned, West initially told the detectives that both Burney and Townsend got out of the car, and she stuck to that version of events for two years. But after entering a plea agreement to manslaughter where she agreed to testify truthfully, West retracted this statement and told the police that only Burney got out of the car.
In his interview, Townsend denied involvement in the shooting, and said he had not gotten out of the Jeep. He did not incriminate Burney.
Burney told the officers that he did not know Townsend. As previously mentioned, he
Burney and Townsend were charged, under a theory of principal or accomplice liability,5 with first- and second-degree murder for the death of P.A.,6 first-
degree attempted murder and second-degree assault for the injury to D.S.,7 and second-degree weapons misconduct for discharging a firearm in the direction of the apartment.8 Both were individually charged with third-degree weapons misconduct,9 but these charges were later dismissed. Townsend was also charged with first-degree weapons misconduct for the March 21 shooting incident.10
West was originally charged with second-degree murder, third-degree assault, and second-degree misconduct involving weapons. West ultimately pleaded guilty to manslaughter. Her plea agreement required her to testify truthfully at Burney and Townsend‘s trial.
The pretrial motion to sever
Two months before trial, Burney filed a motion to sever his case from Townsend‘s.11 Burney argued that the men‘s defenses were “mutually exclusive” and “actually irreconcilable” because each man intended to argue that the other man got out of the car and acted alone in shooting into the apartment building window.12 Burney
argued that the defenses were actually irreconcilable because “[i]n order for Jamal Townsend‘s defense to be believed Lam[m]ar Burney‘s defense must be disbelieved and vi[ce] versa.”13
The State opposed the motion to sever, asserting that there was some conflicting evidence that both men got out of the car and participated in the shooting.14 The State also argued that its position at trial would be that “Burney and Townsend are both guilty, either by personally committing the crime or by aiding and abetting the other.” The State noted that Burnеy had not pointed to any evidence that could be admitted at a joint trial that would not be admitted at separate trials.
The trial court denied Burney‘s motion to sever “for the reasons set forth in the State‘s opposition.” In a handwritten note on the order, the court acknowledged that West‘s testimony at trial “may be that only one person left the vehicle,” but the court indicated its belief that “the evidence/witnesses may contradict that anticipated testimony.”
The first renewed motion to sever
The first renewed motion to sever came in the middle of opening statements. The prosecutor‘s opening statement previewed the State‘s theory of the case: that both men planned the shooting together even though it was likely that only one man (Burney) got out of the car. Immediately following the prosecutor‘s opening, Townsend‘s attorney
Ladies and gentlemen, there is a killer sitting amongst us in this courtroom. And it‘s not Jamal Townsend. The killer is Lammar Burney.
Townsend‘s attorney then went on to describe Townsend‘s version of events:
In the early morning hours, about 3:00 in the morning, [Burney] went up, and with this gun fired — stood outside a window, and went bang, bang, bang, bang, bang, bang, drunk out of his mind, mad at the world, upset, whatever.
The attorney asserted that the victim P.A. “didn‘t have a chance,” that Burney “snuffed out the life of [P.A.] like it was a cheap cigarette,” and that Burney “shattered” the victim‘s family like a “tidal wave.” The attorney further asserted that Burney had decided to do a home invasion, and that he brought a ski mask to conduct the invasion but then forgot it in the car:
So what he decides to do is he‘s just so pissed off, so disgusted with the situation that he just walks up and just says — yeah, he‘s mad at the world, he‘s mad — he just says — striking out and he just says take that. He doesn‘t care. He doesn‘t care if there‘s people in there or not. And that‘s why it‘s murder. . . . He had a choice and what instead he decided to take his disgust or whatever, drunk on ever — on her and just ripped the souls out of a lot of people. And he didn‘t care.
After Townsend‘s attorney finished his opening statement, the court adjourned for the day.15
The next day, Burney‘s attorney renewed his motion to sever, arguing that Townsend‘s opening statement demonstrated why the court needed to sever the cases. The court noted that it was under the impression that the State had a witness (D.S.) who would testify to seeing two men at the bedroom window, which was one of the reasons why it denied the pretrial motion to sever. The attorneys for both Burney and Townsend correctly stated that no such evidence would be introduced. The trial court then stated that it was taking the renеwed motion to sever under advisement.
In his opening statement, Burney‘s attorney disparaged the opening statement made by Townsend‘s attorney, referring to the attorney as “very passionate” and his version of events as “fantasy.”
Townsend‘s attorney objected to these remarks, arguing that Burney‘s attorney was “making this personal.” The trial court sustained the objection, and instructed Burney‘s attorney to “focus on a normal opening.” Burney‘s attorney then proceeded with his opening statement, arguing that Townsend was the shooter because Townsend had the motive, the opportunity, the willingness, and the means to commit the crime. Burney‘s attorney emphasized the State‘s burden of proof beyond a reasonable doubt but then ended his opening statement as follows:
Remember that from my perspective, the only person in this courtroom who gets the benefit of any and all reasonable doubts is Lammar Burney. If you do all that, in the end, you [will] find that Lammar Burney is not guilty.
The defendants’ renewed motions to sever
The defense attorneys continued to seek severance multiple times during trial. At the end of the first week of trial, Townsend‘s attorney argued that his client‘s due process rights were being eroded by the joint trial because of the “tension” between Burney‘s and Townsend‘s defenses. Townsend‘s attorney also argued that the tension between the two defenses was only going to get worse as the trial proceeded, and that the trial would be “basically Armageddon” if one of the defendants decided to testify.
The court continued to take the severance motion under advisement, stating that the issue was “very close” and that it did not know what its ruling on the motion would be.
The defense attorneys subsequently renewed their motions to sever multiple times
The trial court continued to take the motion under advisement, noting that it still needed to see “what other evidence the State intend[ed] to offer.”
The court‘s ruling on the severance motion
The court finally ruled on the severance motion at the close of the State‘s evidence. In its ruling, the court recounted the evidence that had been admitted, and concluded that the same evidence would probably have been admitted if the cases had been severed. The court acknowledged that the two defendants had antagonistic defenses, but concluded that severance was not necessary because there was a “third alternative” — that both defendants were guilty, as the State argued. The court found “no prejudice to either defendant based on a joint trial of these facts,” and denied the motion to sever.
Burney‘s defense case
After the State rested, Burney‘s attorney called two witnesses. The first witness was a cousin of P.A.‘s who was sleeping in the same room as P.A. and who testified that the lights in the bedroom were off when the shooting occurred. The second witness was an Alaska State Crime Lab forensic scientist who testified that Burney‘s blood alcohol content the afternoon after he was arrested was .029. The scientist also explained that retrograde extrapolation could be used to determine Burney‘s blood alcohol content at the time of the shooting. The forensic scientist agreed with Burney‘s attorney that Burney‘s blood alcohol content at the time of the shooting could have been as high as .304.
Townsend‘s defense case
Townsend testified in his own defense. In his testimony, Townsend admitted to shooting the upper floor of the Hargrove apartment on March 21. He said that he fired the shots at the upper floor because he thought it was empty (the apartment had a “for rent” sign in the window). Townsend testified that he was not angry after the March 21 incident and that he bought marijuana the next day from a member of Hargrove and P.A.‘s family.
Townsend testified that Burney and West were giving him a ride to his girlfriend‘s house in Mountain View. He said that Burney asked him where the “fight” had taken place. (Townsend also testified, somewhat contradictorily, that he never mentioned the March 21 incident to Burney.) According to Townsend, Burney asked if there was anything in the apartment that could be taken and Townsend responded that he did not think the family had anything to take.
Townsend testified that Burney got out of the car but Townsend did not think that he would do anything. When asked why he did not walk the four to five blocks to his girlfriend‘s apartment, Townsend testified that he “didn‘t want to mess up [his] shoes.” Townsend had brand new white sneakers on and it was breakup season. Townsend testified that he did not hear any gunshots, and that they were playing music in the car. According to Townsend, Burney was calm when he returned to the car. Townsend testified that he suspected Burney had done something criminal when the police pulled over the car, and that after detectives told him that a girl had been killed, he thought Burney was to blame. Townsend stated that he did not tell the police that Burney got out of the car because he did not want to be a “snitch.” Townsend denied ever talking about revenge or passing Burney a gun, and he reiterated that he had no idea what Burney planned to do after exiting the car.
Townsend was cross-examined by both the prosecutor and Burney‘s attorney about previous statements he had made and about the
The defendants’ renewed motion to sever and closing arguments
After Townsend rested his case, Burney‘s attorney renewed his motion to sever based on Townsend‘s testimony that Burney was the shooter. Townsend‘s attorney joined the renewed motion. The trial court denied the renewed motion to sever.
At the end of trial, the parties made their closing arguments. The State‘s closing argument discussed accomplice liability and how the jurors did not have to agree with each other about who pulled the trigger. The prosecutor argued, “By far the most likely scenario is that Jamal Townsend came up with the plan [and] Lammar Burney got out of the Jeep and fired the shots himself.”
Burney‘s attorney argued that Burney was highly intoxicated and therefore could not have had the “conscious objective” to kill someone, and that Townsend had committed the shooting instead. He argued that West lied about Burney getting out of the car because she was afraid of Townsend. Burney‘s attorney also argued that the shooter could not have had the “conscious objective” to kill because they could not see into the window of the apartment.
Townsend‘s attorney asserted that Burney committed the shooting alone. The attorney argued that Burney retrieved a gun before leaving West‘s house, and that Burney “emptied the clip” when he shot into the apartment. The attorney argued that Burney knew that he would blame it on Townsend and that Burney was “going to ruin everyone‘s life.” Townsend‘s attorney argued that “whatever happened in that car is not accomplice liability. You know, they were driving around. This man, Lammar Burney, just went nuts and he tried to pull off something and what happened was it was supposed to be a robbery.” The attorney also argued that the shooting was sеcond-degree murder, not manslaughter, because “six shots really negates the manslaughter.”
In rebuttal, Burney‘s attorney attacked Townsend‘s closing argument. Burney‘s attorney argued that Townsend‘s attorney was trying to distract the jury from the truth “because that‘s what he has to do. But don‘t let him do that.”
The State‘s rebuttal argument focused on accomplice liability. The prosecutor argued the two men had to work together to commit the crime because Townsend had the motive and Burney was the one to get out of the car. According to the prosecutor, “This was a plan, this was an event, this was a process that required contributions from both of them and that‘s whichever one fired the shots at the end of the plan, they‘re both guilty.” The prosecutor also pointed out that Townsend‘s attorney had said in his closing argument that the shooting was murder, not manslaughter.
After closing arguments, Burney renewed his motion to sever based on Townsend‘s closing. Townsend again joined the motion. The trial court denied the motion.
Following deliberations, the jury found Burney and Townsend guilty of first-degree murder, second-degree murder, second-degree assault, and second-degree weapons misconduct. The guilty verdicts for second-degree murder were merged with the guilty verdicts for first-degree murder for both defendants. Townsend was also convicted of first-degree weapons misconduct for the events on March 21.
The post-verdict issue with the jury foreperson
After the verdicts were read and the jury was dismissed, the jury foreperson approached the judge who had taken the verdicts (the judge who presided over trial was unavailable when the verdicts were returned). The jury foreperson, T.S., informed the judge that he had experienced what he believed was an attempt at jury intimidation a week earlier, but he had not said anything before because “he did not want anything to distract the jury or mess up the trial.”
An evidentiary hearing was held before the judge who presided over trial. T.S. testified that he was outside smoking with two women
T.S. acknowledged that the judge had instructed the jurors that they were to report any external contact with anyone involved with the cаse. He testified that he did not talk to anyone about the incident until the trial was over because nothing came of the incident and he did not want to delay the trial. He also testified, however, that he thought it was “important” to inform the judge about the incident after the trial was over. T.S. testified that the incident did not affect his deliberations.
Based on T.S.‘s testimony, Burney and Townsend moved for a new trial, alleging juror misconduct, jury intimidation, and jury tampering. Following a second evidentiary hearing, a different judge denied the defendants’ motion for a new trial, ruling that the encounter had been too “innocuous” to be prejudicial.
Sentencing
Burney was sentenced to 67 years to serve, with no time suspended. Townsend was sentenced to 87 years to serve, with no time suspended.
This appeal followed.
The two issues on appeal
Burney and Townsend raise two issues on appeal. They argue first that the trial court abused its discretion by failing to sever their cases and they assert that they were actually prejudiced by the failure to sever. Burney and Townsend argue second that the trial court abused its discretion when it denied their motion for a new trial based on the alleged jury tampering incident. We address each argument in turn.
Why we conclude that the trial court should have severed the cases but nevertheless conclude that Burney and Townsend have not shown actual prejudice as to any conviction other than their convictions for first-degree murder
We begin by describing the basic law governing joinder and severance.
If it appears that a defendant or the state is unfairly prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires.[18]
“This [C]ourt will only overturn a trial court‘s denial of a motion to sever if the defendant can show both an abuse of discretion and actual prejudice.”19
Burney and Townsend argue that the court was required to grant severance because their defеnses were mutually exclusive. We have previously said that “[a]lthough antagonistic defenses do not ordinarily require severance, severance should be granted when
The joinder of defendants advocating mutually exclusive defenses can have a prejudicial effect on the fairness of a trial in a number of ways. Chief among them is the problem of the “second prosecutor.”22 As the Ninth Circuit explained:
Defendants who accuse each other bring the effect of a second prosecutor into the case with respect to their codefendant. In order to zealously represent his client, each codefendant‘s counsel must do everything possible to convict the other defendant. The existence of this extra prosecutor is particularly troublesome because the defense counsel are not always held to the limitations and standards imposed on the government prosecutor. Opening statements . . . can become a forum in which gruesome and outlandish tales are told about the exclusive guilt of the “other” defendant.[23]
There are also other benefits to the prosecution in a joint trial of defendants with mutually exclusive defenses. As the Ninth Circuit explained, “Joinder in these cases can make a complex case seem simple to the jury: convict them both.”24
The government‘s case becomes the only unified and consistent presentation. It presents the jury with a way to resolve the logical contradiction inherent in the defendants’ positions. While the defendants’ claims contradict each other, each claim individually acts to reinforce the government‘s case. The government is further benefited by the additive and profound effects of repetition. Each important point the government makes about a given defendant is echoed and reinforced by the codefendant‘s counsel.[25]
In Miller v. State, this Court identified two tests used by different jurisdictions for determining “when defenses are mutually exclusive and therefore irreconcilable.”26 In the first test, defenses are treated as irreconcilable “if the jury, in order to believe the core of testimony offered on behalf of [one] defendant, must necessarily disbelieve the testimony offered on behalf of his codefendant.”27 In the
second test, defenses are irreconcilable “when the conflict between competing defenses is so great that it gives rise to ‘a danger that the jury will unjustifiably infer that this conflict alone demonstrates that
We begin our analysis of this case with the first test articulated above: whether in order to believe “the core of testimony” offered on behalf of one defendant, the jury was necessarily required to disbelieve the testimony offered on behalf of the other. The core testimony offered on behalf of Burney, put simply, was that Townsend was the shooter and that Burney was drunk and asleep in the back seat. The core
testimony offered on behalf of Townsend was the opposite—that Burney was the shooter and that Townsend was neither aware of nor shared Burney‘s plan.It is obvious that these two defenses are irreconcilable in the sense that in order to believe one defendant, the jury was necessarily required to disbelieve the other. In other words, to acquit Burney, the jury would have to believe that Townsend was the shooter and that he acted alone, and to acquit Townsend, the jury would have to believe that Burney was the shooter and that he acted alone.
The State argues that Burney‘s and Townsend‘s defenses were not mutually exclusive because Burney did not testify or directly claim that Townsend was the shooter, and because, “at least in theory,” the jury could have reconciled Burney‘s and Townsend‘s versions of events by acquitting them both.31 According to the State, the jury could have believed both “that Burney left the SUV as Townsend claimed (perhaps ‘to take a piss’ as Townsend suggested during his police interview) and that Burney was being truthful about his lack of participation in the murder but was simply too drunk to remember that he left the vehicle briefly to relieve himself.”
The State‘s argument is flawed for two reasons. First, as the State acknowledges, this version of events would be “highly implausible” given the rest of the evidence presented at trial. There is nothing in the record to support a theory of a third unknown shooter. To the contrary, the State introduced forensic evidence at trial that showed that the bullets that killed P.A. were fired from the gun found under Townsend‘s seat in the car.
Second, it does not matter that Burney largely denied involvement, rather than directly accusing Townsend. As the Ninth Circuit observed in United States v. Tootick, “Mutual exclusivity may exist when only one defendant accuses the other, and the other
The situation in Tootick is similar to what occurred in this case. There, Tootick was tried jointly with his co-defendant for an assault resulting in serious bodily harm.34 Tootick (like Burney) argued that he was “highly intoxicated” and either “asleep” or “passed out” when the assault occurred.35 Conversely, Tootick‘s co-defendant (like Townsend) argued that Tootick “surprise[d]” him by committing the assault while the co-defendant remained in the car, “watch[ing] in horror.”36
In holding that the defenses were mutually exclusive, the Ninth Circuit explained that, because Tootick and his co-defendant were the only people present when the attack occurred, and because there was no evidence suggesting the victim attacked himself, “[e]ach defense theory contradicted the other in such a way that the acquittal of one necessitate[d] the conviction of the other.”37 That is, the jury could have only acquitted Tootick by disbelieving his co-defendant‘s defense.
Here, as in Tootick, Burney‘s denial of any involvement in the shooting made his defense mutually exclusive of Townsend‘s because there was no credible evidence that any person other than Burney or Townsend was the shooter. Thus, to acquit Burney, the jury would have to believe that Townsend was the shooter (and that Townsend acted alone). Alternatively, to acquit Townsend, the jury would have to believe that Burney was the shooter (and that Burney acted alone). In other words, to believe one defense, the jury would have to disbelieve the other defense.
The State argues that any conflict between Burney‘s defense and Townsend‘s defense does not matter because the jury had a third option—to convict them both under the State‘s aiding and abetting theory. We agree that there is support in the case law for the proposition that the strength of the State‘s aiding and abetting case can help mitigate the prejudice that mutually exclusive defenses can otherwise create.38 Courts have therefore affirmed a trial court‘s failure to sever defendants with allegedly mutually exclusive defenses in cases where the State‘s evidence of both defendants’ guilt was particularly strong.39
The case law from other jurisdictions further establishes that mutually exclusive defenses are not prejudicial per se.40 In Tootick, the Ninth Circuit concluded that the defendants had mutually exclusive defenses because “[e]ach defense theory contradicted the other in such a way that the acquittal of one
The Ninth Circuit‘s rejection of a per se prejudice standard in Tootick preceded the United States Supreme Court‘s 1993 decision in Zafiro v. United States.45 In Zafiro, the Supreme Court similarly rejected a per se prejudice rule for mutually exclusive defenses and instead held that severance was mandated (and reversal was required) “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”46
The Zafiro test is similar to the second test identified in Miller. Under that test, severance is mandated “when the conflict between competing defenses is so great that it gives rise to ‘a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both [defendants] are guilty.‘”47
On appeal, the State argues that the second Miller test is not satisfied because the State “presented overwhelming evidence that Burney and Townsend were both participants in the shooting, regardless of who pulled the trigger.” Thus, according to the State, it was not the “conflict alone” that demonstrated both defendants were guilty, but rather the strength of the State‘s evidence that the defendants acted in concert.
We agree with the State that it presented overwhelming evidence that Burney and Townsend acted in concert. It was undisputed at trial that Burney had no reason to target Hargrove‘s family, and that it was only Townsend who had any kind of motive to cause them harm. As the prosecutor observed during closing argument, what happened does not make much sense unless there was some sort of plan between the two men to seek retaliation for the events of March 21. In other words, the evidence does not support the conclusion that Townsend was the shooter, but it also does not support the conclusion that Burney would act on his own to harm a family that he had no “beef” with.
There was also significant evidence presented that there was some sort of retaliatory plan in action. West testified that Townsend was talking about getting back at Hargrove, and she testified that her impression was that Burney and Townsend were looking for retaliation. West also testified that Townsend passed something to Burney before Burney got out of the car, and that while Townsend was known to carry a gun, she had never known Burney to carry a gun.
That said, while the State‘s evidence for some form of homicide was strong, its evidence
But there was relatively little evidence introduced at trial to support such an inference. Although the dissent speculates that the shooter could see into the window and was targeting the king-size bed inside the room, there was no clear evidence that the shooter could see into the room that early morning. To the contrary, the testimony at trial was that the curtains were at least partially drawn and the lights in the room were off.
Moreover, there was evidence at trial that Burney was unfamiliar with the apartment and the family who lived in it, so there was relatively little reason to believe that (assuming Burney was the shooter) he knew he was shooting into a bedroom.50
There was also evidence that Burney was highly intoxicated, arguably making him incapable of forming an intent to kill.51
The evidence for first-degree murder under an accomplice theory was even weaker. To prove first-degree murder under an accomplice theory, the State was required to prove, beyond a reasonable doubt, that the person remaining in the car “solicited, encouraged, or assisted” the shooter “with the intent to promote or facilitate” the intentional killing of another person.52 That is, assuming Burney was the shooter, the State had to prove that Townsend aided or abetted Burney with the specific intent that Burney would kill a person. But, while there was evidence of a retaliatory plan, there was no evidence of an actual plan to kill someone. There was little in West‘s testimony or any of the other evidence at trial to suggest that the two men actually conspired to kill someone.
Certainly, there was strong evidence that the two men seemingly did not care whether their actions killed someone. There is little question that shooting six bullets into a darkened basement window in the middle of the night constitutes the extreme indifference to human life that is the hallmark of second-degree murder.53 But there was relatively little evidence from which to discern a specific intent to kill, particularly with regard to the accomplice who did not leave the car.
The dissent argues that a reasonable juror could nevertheless conclude that both men committed first-degree murder based on the
In his treatise on criminal law, Professor LaFave refers to the joint trial of defendants who truly have antagonistic defenses as “most unfair,” and he states that the remedy of severance is needed to prevent the kind of trial described by one appellate court as follows:
The trial was in many respects more of a contest between the defendants than between the people and the defendants. It produced a spectacle where the people frequently stood by and witnessed a combat in which the defendants attempted to destroy each other.54
Courts have therefore reversed convictions in cases where the co-defendant‘s counsel acts as “an overly aggressive adversary . . . , in effect becoming a second prosecutor.”55 The Illinois Supreme Court put it aptly: “Where one defendant accuses his codefendant, an antagonism arises which requires separate trials; otherwise, the alternative is a ‘circus.‘”56
Here, the fear that a joint trial of defendants with mutually exclusive defenses could devolve into a “spectacle” or a “circus” was at least partially realized. Both defense attorneys engaged in aggressive tactics that a prosecutor would not have been permitted to engage in. Townsend‘s attorney began his opening statement with the outlandish declaration that Burney was a “killer,” and much of his argument was an attack on Burney‘s character.57 For his part, Burney‘s attorney derided Townsend‘s opening statement as “fantasy,” and repeatedly emphasized Townsend‘s drug dealing and how dangerous Townsend was.
When evidentiary issues arose, the two defense attorneys were more aggressive than the prosecutor in seeking to have prejudicial evidence admitted, and some of the most incriminating evidence at trial was elicited by the other defense attorney rather than the
At the same time, although it is true that the defense attorneys were frequently at “loggerheads” with one another, we do not find that the trial devolved into the “Armageddon” that the attorneys warned of. For the most part, the same evidence was admitted at the joint trial that could have been admitted at separate trials, and the theatrics were mainly limited to the opening statements and some parts of the closing arguments. We also note that when Burney‘s attorney began using inflammatory language in his opening statement, Townsend‘s attorney objected, and Burney‘s attorney was instructed to stay within the bounds of a “normal” opening statement, which he largely did. In contrast, Burney‘s attorney only objected once to Townsend‘s opening statement (on hearsay grounds) even though it was Townsend‘s attorney who engaged in the more outlandish rhetoric during opening statement.
This is a difficult case to resolve. On the one hand, there were clear grounds to sever the case based on the mutually exclusive defenses, and it certainly would not have been an аbuse of discretion for the trial court to grant the pretrial motion even before the potential problems associated with the second prosecutor became apparent.58 On the other hand, the strength of the State‘s case makes it questionable whether the defendants were actually prejudiced by the joint trial. As we have explained, to obtain reversal based on a failure to sever, defendants must show not only that the trial court should have severed their cases (i.e., abused its discretion), but also that the failure to do so resulted in actual prejudice.59
Here, we conclude that the only actual prejudice that Burney and Townsend have shown is that the mutual antagonism demonstrated by the defense attorneys may have unfairly influenced the jury to convict Burney and Townsend of first-degree murder when the evidence for first-degree murder (as opposed to second-degree murder) was relatively weak.60 Thus, if there were no other issues in this case, we would vacate Burney‘s and Townsend‘s convictions for first-degree murder and remand the case to the superior court to allow for either a retrial on the first-degree murder charges, if the State so elects, or entry of judgment on the second-degree murder charges and resentencing.
However, before such a remand can take place, we must first address the other issue on appeal related to the allegations of jury tampering and juror intimidation.
Additional details about the alleged jury tampering and juror intimidation
On the day that the jury reached its verdicts, the trial judge, Superior Court Judge Jack Smith, was unavailable. A different judge, Superior Court Judge Patrick McKay, presided over the return of the verdicts.
Judge McKay later sent Judge Smith an email about an off-the-record exchange he had with the jury foreperson, T.S., after the verdicts were returned. The email stated:
[T]he foreperson, [T.S.], pulled me aside and recounted an instance which occurred a week ago yesterday, 9/28/17, in which a brother/family member of one of the defendants
(I did not ask which defendant) approached him while outside the courthouse on a break. The person made a gesture that [T.S.] felt could indicate that the person was armed. [T.S.] indicated he did not feel concern for his own safety and made a conscious decision not to report the encounter. My understanding is that he reported it to no one, not even other jury members until after the verdict. He relayed to me that he did not want аnything to distract the jury or mess up the trial.
Judge Smith informed the parties of this email and scheduled an evidentiary hearing so that T.S. could be questioned under oath about what he experienced.
At the evidentiary hearing, T.S. testified that an individual approached him while he was outside smoking with two other jurors. T.S. believed that the individual was Townsend‘s brother because, during trial, one of the attorneys identified where Townsend‘s family was sitting. T.S.‘s initial impression was that the man “was trying to show [T.S.] something that he had in his waistband.” T.S. testified that, in response, he first made sure the two female jurors smoking with him were out of harm‘s way and then “stepped forward in an attempt to block anything that might be coming of it.” T.S. testified that his attention was focused on the man‘s hands because he was worried that he had a gun. But T.S. testified that he did not feel personally threatened from the encounter because he spent “most of [his] life in the military” and had “been around individuals like that quite a bit of the time.” T.S. denied telling any other jurors what had happened.
T.S. was then questioned by the court and the defense attorneys. In response to a question from the court, T.S. testified that the event did not impact his evaluation of the evidence with regard to either defendant.61 In response to questioning by the defense attorneys, T.S. elaborated on his perception of this encounter and its aftermath.
T.S. confirmed that his impression was that the man was “trying to intimidate” him about what his decision in the case was going to be. He testified that the incident did not affect his decisions in any way, even “unconsciously.”62 T.S. testified that he did not report the incident to anyone at the time because “it came of nothing so [he] didn‘t do anything about it.” However, he testified that after the trial was over, he thought it was “important” to tell the judge what happened. T.S. testified that during the encounter, he never “felt threatened” although he did feel “intimidated.” In response to a defense attorney‘s question about whether T.S. thought that jury tampering could “mess up” the trial, T.S. stated that he did not know what the man‘s intention was, but he acknowledged that the jury had been instructed to report any external contact with anyone involved in the case.
At the conclusion of the evidentiary hearing, Judge Smith invited the parties to submit written briefing on what should happen next. Burney filed a motion for a new trial alleging juror misconduct, jury intimidation, and jury tampering, which Townsend joined. They argued that a presumption of prejudice attached under federal law to this type of threatening contact with a juror. And they both argued that no weight should be given to T.S.‘s testimony that the incident had no effect on his deliberations because Alaska case law required the court to assess the effect of such an encounter objectively, from the perspective of a reasonable juror.63
In briefing that Townsend filed after this hearing, he noted that had the juror reported this contact when it occurred, as he was required to do under the court‘s instructions, steps could have been taken to limit any prejudicial effect.64 Townsend requested that the court hold a second evidentiary hearing so that the two female jurors present during the incident could be questioned to determine whether they had any knowledge of what had occurred.
Judge Smith granted Townsend‘s request for an evidentiary hearing, but did not personally preside over this hearing. Instead, the second evidentiary hearing occurred before a new judge, Superior Court Judge Erin Marston.65 Four different female jurors who the parties believed may have been present during the encounter were called to testify. The hearing confirmed that none of these women had heard or seen anything, and that T.S. had not discussed the incident with any of them.
Judge Marston subsequently issued a written order denying the motion for a new trial. In the order, Judge Marston characterized T.S.‘s testimony from the first evidentiary hearing (which Judge Smith had presided over) as follows:
The third party contact was described as lasting just a couple of seconds. No words were exchanged and the juror did not report any subsequent attempts at contact or recall seeing the individual in the courtroom again after that day. The entirety of the contact was described as an individual approaching the juror outside of the courthouse and pulling up their jacket in a way that displayed their waistband. The juror did not report actually seeing any weapons when the third party made the motion. Furthermore, the juror‘s own testimony regarding how he interpreted the contact is somewhat conflicting. The juror stated he did not feel threatened, but also stated he was intimidated or at the least thought the action was meant to intimidate him. Then in yet another response, the juror said he thought it was just another encounter and was unsure of the оther individual‘s intentions.
Based on this characterization, Judge Marston ruled that “the encounter was not sufficient to present a credible risk of influencing the verdict.” The judge concluded that “[u]nder an objective analysis, the contact was so short and the conduct by the third party was such an innocuous gesture [that] the court believes there is no credible risk that an objective and typical juror would have been influenced by the contact.” The judge therefore concluded that the contact did not “trigger a presumption of prejudice,” as the defense attorneys claimed. The judge also ruled, in the alternative, that even if a presumption of prejudice was triggered, the State had rebutted that presumption by conclusively establishing that there was “no reasonable possibility” that the encounter had any effect on the jury‘s verdict.
Judge Marston also rejected the defense attorneys’ argument that the foreperson had not reported the contact because he did not want to risk being removed from the jury. Instead, the judge concluded that T.S.‘s explanation that he did not report the incident
Why we conclude that a remand for further proceedings is required
The
To help safeguard this right, the United States Supreme Court, in Remmer v. United States, created a rebuttable presumption of prejudice that applies to contacts or communications between third parties and jurors concerning the matter pending before the jury.67 Thus, when faced with certain allegations of improper contact between a juror and an outside party, most federal courts apply a settled two-step framework:
At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a “tendency” to be “injurious to the defendant.” If so, the contact is “deemed presumptively prejudicial” and the court proceeds to step two, where the “burden rests heavily upon the [state] to establish” the contact was, in fact, “harmless.” If the state does not show harmlessness, the court must grant the defendant a new trial.68
The first step presents a “low threshold.”69 A defendant cannot rely merely on “‘[t]hreadbare or speculative allegations’ of misconduct” or “allegations involving prosaic kinds of jury misconduct,’ such as ‘chance contacts between witnesses and jury members’ (as when passing in a hallway or in an elevator).”70 But the defendant need only present “evidence of an external contact that has a ‘tendency’ to be ‘injurious to the defendant.‘”71 In order to trigger the presumption of prejudice, the contact need only “raise a credible risk of influencing the verdict.”72
Courts have held that a suspected incident of jury tampering necessarily raises a presumption of prejudice under Remmer.73 As the Ninth Circuit explained in United States v. Dutkel, “Because jury tampering cuts to the heart of the Sixth Amendment‘s promise of a fair trial, [courts] treat jury tampering cases very differently from other cases of jury misconduct.”74 There are a number of concerns that arise from an incident of suspected jury tampering. As the trial court noted, there is the possibility that the juror‘s actions could be influenced by fear or resentment.75 There is also concern that the incident may have been distracting
In the current case, the trial court ruled that the presumption of prejudice did not apply because it found that T.S.‘s contact with the unknown man was so “innocuous” that it presented “no credible risk that an objective and typical juror would have been influenced by the contact.” Burney and Townsend argue that in reaching this conclusion the trial court mischaracterized the nature of the third-party contact. We agree.
In its order, the trial court focused primarily on what it viewed had “objective[ly]” occurred, concluding that the encounter involved little more than a man “pulling up their jacket in a way that displayed their waistband.” The State does the same on appeal, arguing that the encounter may have been nothing more than a man “adjusting his jacket” or “pulling up his pants.”
But the central flaw with this reasoning is that it does not account for T.S.‘s own understanding of what occurred. While it may be true that T.S. was mistaken about the identity of the man, the fact remains that T.S. apparently believed that the man was Townsend‘s brother.79 Thus, T.S. entered into deliberations under the impression—accurate or not—that Townsend‘s brother had tried to intimidate him.80 The same is true with regard to the presence of a gun. While one might doubt whether the man actually had a gun, the fact remains that T.S. was worried that the man might have had a gun.81
The trial court‘s focus on the “objective” evidеnce of what occurred appears to be based on a misreading of this Court‘s holding in Swain v. State.82 In Swain, we held that a trial court should not inquire into a juror‘s subjective assessment of the effect that potentially prejudicial external contact may have had on their deliberations.83 Instead, the test for prejudice is an objective one.84 The question is how such a contact would likely have affected the deliberations of an objectively reasonable juror.85
But while Swain prohibits a trial court from considering a juror‘s post-verdict assessment of whether an external contact influenced their deliberations, it does not prohibit a trial court from considering a juror‘s subjective assessment of the nature of the external contact.86 Indeed, it would be impossible for a trial court to apply the objective “reasonable juror” Swain test without
Accordingly, the trial court erred when it viewed the encounter as entirely “innocuous.” Instead, the court was required to consider T.S.‘s own subjective understanding of what had occurred. T.S.‘s subjective view was that he had experienced an apparent incident of juror intimidation by a man he believed to be Townsend‘s brother. Under federal law, the Remmer presumption of prejudice attaches to a suspected incident of jury tampering if the contact has a “credible risk of influencing the verdict.”87 In the present case, T.S.‘s testimony that he believed Townsend‘s brother
was trying to intimidate him as a juror was more than sufficient to meet this “low threshold.”88Having established that the first step of the Remmer test was met, we turn to the second step — whether the State can rebut the presumption of prejudice that arises when an incident of suspected jury tampering has occurred. As the United States Supreme Court made clear in its sequel to Remmer (Remmer II), this assessment requires the court to examine the “entire picture” for harmlessness, including the factual circumstances and the impact of the event on the juror.89 “Harmlessness in this context means ‘that there is no reasonable possibility that the communication . . . influence[d] the verdict.‘”90
On appeal, Burney and Townsend argue that the State failed to rebut the presumption of prejudice because, according to them, an objective, reasonable juror would necessarily have had their deliberations impacted by an incident of suspected jury tampering. But the facts here are not so simple.
In Remmer II, the United States Supreme Court reversed the defendant‘s convictions and granted a new trial because it concluded that, based on the totality of the evidence, the State had not rebutted the presumption of prejudice.91 Central to its decision, however, was the fact that the juror testified that he felt he was under “terrific pressure” as a result of the tampering incident and subsequent FBI investigation.92 That is, the Court found that it was “quite evident” from the juror‘s testimony that he was a “disturbed and troubled man from the date of the [extrajudicial] contact until after trial.”93 Other courts have likewise emphasized that incidents of suspected jury tampering left jurors “devastated and fearful”94 or “extremely scared.”95
Here, the testimony is more conflicting. Although T.S. testified that he felt “intimidated” by the encounter, he also testified that he did not feel personally threatened because of his military background. Likewise, while he testified that he viewed the encounter as an attempt to intimidate him as a juror, he also testified that he did not actually know the man‘s intentions, and that he did not report it because it was “just another encounter” and “it came of nothing.” T.S.
Typically, when there is conflicting testimony at an evidentiary hearing, we look to the trial court to resolve the conflict because the trial court is in the best position to evaluate the witness‘s affect and demeanor and to come to a conclusion as to what really happened.96 But here, we have the added complication that the judge who heard T.S.‘s testimony is not the judge who rendered the decision on the defendants’ motion for a new trial. The judge issuing the order was therefore not well positioned to resolve the conflicting testimony, and he did not do so, instead simply noting that there was conflicting testimony.
There are also other errors in the trial court‘s order. Although the judge who conducted the evidentiary hearing later issued an order acknowledging that he could not consider T.S.‘s testimony that the encounter had not affected his deliberations, the judge who ultimately ruled on the motion for a new trial referred to this fact twice in his order and appeared, at least in part, to rely on it in his analysis.
Both federal and state law are clear that a court cannot consider a juror‘s post-verdict reassurances that an external contact did not affect their deliberations. This prohibition is derived from
Evidence Rule 606(b) declares that juror testimony and juror affidavits can not be offered for any of these purposes: (1) to prove “any matter or statement occurring during the course of the jury‘s deliberations“, or (2) to prove “the effect of any matter or statement upon that [juror‘s] or any other juror‘s mind or emotions as influencing the juror to assent to or dissent from the verdict“, or (3) to prove “the juror‘s mental processes in connection therewith” [i.e., in connection with the juror‘s decision to assent to or dissent from the verdict].98
Applying
But what about T.S.‘s testimony that he did not feel threatened because of his military background and his testimony that he was not “on edge” because of the encounter? Can this testimony be considered under
Indeed, federal law is quite clear on this matter. In United States v. Rutherford, for example, the Ninth Circuit stated:
[A] juror cannot testify to whether an outside influence caused him to change his vote from innocent to guilty. However, a court can and should consider the “effect of extraneous information or improper contacts on a juror‘s state of mind,” a juror‘s “general fear and anxiety following” such an incident, and any other thoughts a juror might have about the contacts or conduct at issue.106
The court further explained:
In this regard, a juror‘s testimony concerning his fear that individuals would retaliate against him if he voted to acquit (or convict) wоuld be admissible, although his statement that he actually cast his vote one way or the other because of that fear would not.107
Similarly, in United States v. Henley, the Ninth Circuit distinguished between “testimony regarding the affected juror‘s mental processes in reaching the verdict,” which is barred by
We therefore conclude that for purposes of determining whether the State can rebut the presumption of prejudice established under Remmer, the trial court is entitled to consider testimony regarding how T.S. was (or was not) emotionally affected by the third-party contact, although it cannot consider testimony regarding the effect (or lack of effect) that the contact may have had on T.S.‘s deliberative processes.
Lastly, we note that our analysis has focused on the Remmer test and its application to this case because that is the test on which the parties focused in the superior court and the test on which the superior court relied. On appeal, Burney and Townsend argue that they are also entitled to relief under the state tests for jury misconduct. As we recently explained, there are two lines of cases in our case law that set out two slightly different standards for “jury misconduct” — a term that is used both to describe “action by jurors that is contrary to their responsibilities and conduct by others which contaminates the jury process with extraneous influence.”109
The first test — which addresses misconduct committed by the juror — depends on a two-part test:
First, the evidence must establish a serious violation of the juror‘s duty — i.e., fraud, bribery, forcible coercion, or any obstruction of justice. Second, the violation must deprive a party of a fair trial — which may be shown by three factors: (1) whether the juror would have been challenged for cause had the juror disclosed the relevant information; (2) whether the misconduct went to a collateral or material issue; and (3) whether the probable effect of the misconduct was prejudicial.110
The State argues that Burney and Townsend have waived reliance on this test by failing to argue the test in their trial court pleadings and failing to obtain a ruling from the trial court. We agree. A review of the pleadings before the trial court shows that although Burney and Townsend argued generically that T.S.‘s failure to immediately notify the court of the encounter with the man T.S. believed to be Townsend‘s brother constituted “jury misconduct,” they never articulated or argued any legal standard by which to evaluate such alleged misconduct and they never obtained any ruling on that issue from the trial court.111
The second test — which addresses when a juror has been exposed to material outside the trial record — requires the court to grant a new trial when “the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself.”112 This test is similar to the Remmer test in that it deals with contacts and communications between third parties and jurors. But it is seemingly less protective than Remmer because it does not employ a presumption of prejudice standard. Instead, the burden is on the defendant to establish a “substantial likelihood” that the vote of one or more jurors was affected by the third-party contact.113
As a general matter, a state constitutional test cannot be less protective than its federal counterpart.114 It therefore makes
We therefore remand this case to the trial court for further proceedings to give the State an opportunity to rebut the presumption of prejudice under Remmer. If, upon completion of those proceedings, the trial court concludes that the verdicts were tainted, then the judgments of conviction shall be set aside and a new trial may be conducted, if the State so elects. If the court determines that the State has rebutted the presumption of prejudice, however, the judgments of conviction (other than for first-degree murder) shall remain.
Conclusion
For the reasons explained in this opinion, we VACATE Burney‘s and Townsend‘s convictions for first-degree murder. We also VACATE the superior court‘s order denying defendants’ motion for a new trial and REMAND for further proceedings consistent with this opinion. On remand, the superior court shall conduct a new evidentiary hearing, as appropriate, and enter a new order on defendants’ motion for a new trial. Thereafter, the superior court may conduct a retrial, if required, or enter judgment on Burney‘s and Townsend‘s second-degree murder convictions and proceed to a resentencing. We retain jurisdiction.
Judge TERRELL, concurring in part and dissenting in part.
The majority concludes that the trial court should have granted appellants’ motions to sever their cases for trial, while concluding that the denial of severance was not prejudicial as to the charge of second-degree murder but that it was prejudicial as to the charge of first-degree murder. I do not agree that the trial court should have severed the cases, but because the court reaches the correct resolution with respect to the second-degree murder charge, I concur in the result as to that charge. I dissent from both the majority‘s analysis and resolution as to the first-degree murder charge.
As to the first-degree murder charge, the majority takes the view that the State‘s case for intentional homicide was “far from overwhelming,” and that the evidence of this case more strongly supports a second-degree murder conviction under the theory that the shooter was so reckless as to the possibility that his acts would cause death that it amounted to acting with extreme indifference to the value of human life.1 The majority concludes that the fact that the jury convicted both Burney and Townsend of first-degree murder suggests that the jury may have been influenced to find guilt on the higher charge due to the antagonistic nature of their defenses, as exemplified by the rhetoric of defense counsel, who both strenuously argued that their client‘s co-defendant was the real culprit. I disagree with this assessment. The State‘s case provided a cohesive and unifying theory and solid evidentiary basis for the jury to convict both Burney and Townsend of first-degree murder. In these circumstances the trial court did not abuse its discretion in denying severance.2
My discussion of the case is laid out as follows. First, I will discuss some preliminary points about the nature of first-degree murder, and why the facts of this case map onto the requirements for first-degree murder. Second, I will discuss why the State put forth a solid first-degree murder case. Finally, I will conclude with some brief thoughts about the standards and considerations that should be applied by trial judges when evaluating motions to sever co-defendants’ cases based on antagonistic defenses.
shooting can sometimes provide the basis to conclude that the shooter intended to kill and thus committed first-degree murder.6 Courts have recognized some factors that can provide the basis to find a shooter‘s intent to kill include firing numerous shots into a targeted area of a room, at a level or height most likely to hit a person, at a time when it is substantially likely that persons will be in the targeted area.7 These factors have converged in retaliatory shooting cases where the defendant seeks retribution for a past harm, allowing a jury to infer intent.8
The State argued from the outset that Burney and Townsend had not necessarily set out to kill a specific individual, but rather targeted members of the Hargrove household.9 In the State‘s opening statement, immediately
I turn now to discuss my differences with the majority as to the strength of the State‘s first-degree murder case. The record provided a solid basis from which a reasonable juror could conclude that the State had proved that Burney and Townsend committed first-degree murder.
The evidence and circumstances surrounding the shooting supported the view that the shooter intended to kill. The shooter used a lethal, .40 caliber semi-automatic handgun and fired numerous (six) shots in a relatively tight pattern, as evidenced by the holes in the bedroom window, downward into a target zone in the bedroom in a location where persons were substantially likely to be, i.e., in the king-size bed.10 The trial exhibits show that the bed was directly facing the window.11 Three of the six shots hit the two persons in the bed, P.A. and D.S. (two shots hitting P.A. and one shot hitting D.S.). Burney and Townsend point to testimony that the lights were off in the room when the shots were fired and that the window had curtains. However, the .40 caliber gun found in West‘s Jeep had a laser sight or an attached flashlight, and the testimony and physical evidence supported the view that the curtains were partially open and had a gap that the shooter could see through. Given all of these facts, a reasonable juror could conclude that the shooter knew that he was shooting at persons inside the bedroom and intended to kill them.
The majority asserts that I am speculating that the shooter could see into the room, stating that “there was no clear evidence that the shooter could see into the room that early morning,” and that “the testimony at trial was that the curtains were at least partially drawn and the lights in the room were off.” Demetra Alex testified that the curtains for that window, even when fully drawn, did not fully cover the window and left a gap, such that someone standing outside the window could see the bed. She stated at trial that this gap would be four to five inches. But the record provides several other
Additionally, although motive is technically not something the State is required to prove, the jury in this case had been presented with strong evidence that Townsend had a substantial motive to retaliate against Hargrove and Alex. The majority‘s description of the facts of the March 21 drug-deal-gone-bad is somewhat cursory and so I will describe it here in greater detail.
Townsend, by his own admission, was a small-time drug dealer. Townsend wanted to make some money by buying an ounce of marijuana from Hargrove and then reselling it, but was out of money. To cover the cost, he directed his girlfriend, Rilatos, to go to the Hargrove apartment in Mountain View and buy an ounce of marijuana from Hargrove for $350 and said that he would reimburse her later. Hargrove was away when Rilatos arrived, but Alex was there and gave Rilatos the bag containing marijuana that Hargrove had left for Rilatos to pick up. After Rilatos left the Hargrove apartment, she texted Townsend that the marijuana was “nothing but stems,” in essence stating that they had been ripped off.
Townsend had Rilatos pick him up and take him to the Hargrove apartment. Rilatos went inside the apartment with Townsend. Multiple people were inside the apartment, including a man referred to as “Taco,” who lived nearby and from whom Townsend had also bought drugs, and who Alex described as like a brother to her. Townsend confronted Hargrove about the disputed marijuana transaction. During their discussion, Townsend gave Hargrove the bag of marijuana, and Hargrove weighed it on a digital scale, revealing a weight of 13 grams. (An ounce is 28.3495 grams, so this weighing showed that the amount of marijuana that Townsend had in the bag was less than half of the full, $350 ounce that he had paid for.) Alex stated that she and Hargrove had not shorted Townsend on the transaction, called Rilatos a “dumb, fat, white bitch,” and said that Rilatos had probably taken some of the marijuana that was purchased. Hargrove declined to return the purchase price ($350) in exchange for Townsend giving back the bag of marijuana. Townsend then challenged Hargrove to fight him. Hargrove initially declined, because Townsend was carrying a gun tucked in his waistband, but Townsend said he would get rid of it and handed the gun to Rilatos. The men went outside to fight.
A good-sized crowd of people — at least eight — watched the fight. The men grappled and traded punches, and, according to Hargrove, Hargrove seemed to have the upper hand. At one point however, Hargrove slipped in the snow, giving Townsend the ability to get on top of him and begin choking him, at which point the later shooting victim, 15-year-old P.A., jumped on Townsend and punched him, in an attempt to get him off of Hargrove. Eventually, Townsend and Hargrove seemed to consider the matter sufficiently
The net result of this drug-deal-gone-bad is that at its conclusion, Townsend had been embarrassed and humiliated in multiple ways. He owed money to his girlfriend, Rilatos, who had spent $350 on his behalf, and now he was out $350 and had been ripped off by Hargrove and Alex. Further, Alex, in front of a group of people, both insulted Rilatos and accused her of taking some of the marijuana that was supposed to be Townsend‘s. Last, there was a fight where Townsend appeared to come out on the short end of it, again in front of multiple witnesses, and where minors piled on near the end. Townsend, even as a small-time drug dealer, was involved in a profession where a reputation for physical dominance is essential; as Townsend stated at trial, when a “deal[ was] going bad,” he needed to “protect [him]self” instead of turning to the authorities. Having all of these things witnessed by multiple people was likely to be highly damaging to his reputation. In this milieu, these events were certainly sufficient to provide a solid motive for a revenge killing.
Burney‘s motive for participating in the offense was less clear, in that he had no known current connection to Hargrove or Alex, and no reason to have animosity towards them or their family. But the reporters that publish the decisions of our federal and state courts are full of cases where persons have willingly joined in to criminal endeavors where they had no personal stake in the encounter, and simply acted to assist a friend or acquaintance with the latter‘s criminal objectives, or did so to gain credibility in the criminal or gang milieu. As incomprehensible as such action is to the average person, the lack of a weightier motive on Burney‘s part did not substantially weaken the State‘s case, in that the evidence surrounding the shooting provided solid support for the view that Burney intended to kill. Moreover, as noted immediately following, the evidence points to an agreement between Burney and Townsend; if a juror credited the existence of an agreement, they could also reasonably conclude that the less-motivated (in terms of direct motive to harm the victim) party to the agreement still decided to keep their end of the bargain.
There was evidence of an agreement between Burney and Townsend to engage in concerted criminal activity. At trial, the State played a recording of Detective Walter Gilmour interviewing West. West told Gilmour that at the party at her apartment, she heard “the boys” (i.e., Townsend, Burney, and the other males at the gathering) in the kitchen talking about Townsend having been robbed, and that Burney and Townsend asked her to drive them to the location where that had taken place. At trial, West conceded that she had told police about overhearing Townsend say that he had been robbed, while claiming that Townsend did not directly say anything about retaliating against the people that had robbed him and that she just inferred that. But West testified to actions and statements by Burney and Townsend that suggested that they were attempting to conceal their actions or objectives and had a pre-existing agreement. As to concealment, West testified that:
- Burney was insistent that she drive him somewhere, but would not say where.
- When they left the apartment, Townsend told her that if she was later asked where they had gone, to say that the group was going to pick someone up.
- When they reached the Hargrove/Alex apartment building, Burney told her to stop the car, got out, and then told her to come around to the next street over (which is suggestive of a desire to avoid having the car spotted — in turn suggestive of the fact that he knew he was going to commit a criminal act when he got out of the car).
As to the fact of a pre-existing agreement, West testified that:
- Before she, Burney, and Townsend left her apartment, Burney turned to Townsend and said, “okay, let‘s go,” and was not waiting for an answer from
Townsend (i.e., Burney‘s statement was the launch signal to commence execution of their pre-existing agreement). - Burney asked for a ride, but it was Townsend that gave her the directions to their destination.
- “[T]hey both knew what they were going over there for.”
Moreover, West‘s own plea to manslaughter undoubtedly underscored for the jury that she acted culpably with respect to the duo‘s рrospective actions. There was sufficient evidence of a tacit agreement between Burney and Townsend, at the time they left West‘s apartment, to engage in criminal activity. And they must have had the gun with them when they left the apartment, because the group did not stop anywhere between leaving the apartment and arriving at the location of the shooting.
The preceding facts regarding their tacit agreement do not themselves conclusively answer the question of whether Burney and Townsend‘s agreement was to try to kill a member of the Hargrove household, but they strongly suggest that they intended to commit criminal activity that involved a firearm. And it seems unlikely that the intent was simply to retaliate against Hargrove and Alex by shooting at their apartment building — Townsend had already done that. Thus, the jury could reasonably conclude that the intent was to shoot at a person.13 Of course, it is theoretically possible that one could shoot merely with the intent to wound, not to kill. But, tying all of the foregoing discussion together, the most obvious basis for concluding that the agreement was to kill someone was the shooter‘s actions — firing six shots through a bedroom window at 3:00 a.m. in a manner that was highly likely to (and in fact did) result in a mortal wound to one of the persons in the bedroom.
The majority suggests that evidence of Burney‘s intoxication undermines proof of his intent to kill. At trial, State of Alaska crime lab analyst Charles Foster testified that a blood sample was taken from Burney at 2:37 p.m. on April 1, 2014, approximately eleven hours after the shooting, which produced a reading of .029 grams of alcohol per 100 milliliters of blood. Foster testified that people metabolize alcohol at different rates, and that for people with slow metabolisms, their blood alcohol level would go down by .01 grams of alcohol per hour, while the average person metabolized at the rate of .017 grams per hour, while people with fast metabolisms eliminated alcohol at the rate of .025 grams per hour. Burney‘s counsel asked Foster to perform a retrograde extrapolation to calculate backwards as to what Burney‘s blood alcohol level could have been at the time of the shooting. Foster did so but did not expressly state a result. Townsend‘s counsel stated on cross-examination of Foster that Burney‘s counsel had followed along with Foster‘s calculations and came up with a result of .304 percent blood alcohol reading at the time of the shooting, assuming the highest eliminаtion rate. (Doing the math reveals a blood alcohol reading of .216 percent using the average rate of elimination, and a reading of .139 percent using the lowest rate of elimination.) Foster conceded that .304 was the high possibility and that Burney‘s actual blood alcohol level would fall within a spectrum, depending on how fast he metabolized alcohol, which could in turn depend on how heavy a drinker he was in general, and how quickly he consumed the alcohol that evening, and when he stopped drinking.
In closing argument, Burney‘s counsel argued that given Burney‘s intoxication level (which he noted had to be based on a blood alcohol level between .15 and .3 percent), it was highly unlikely that Burney could have done everything necessary to commit the shooting, i.e., walk from the car to the bedroom window on the snow-and-ice covered alley and fire six shots through a gap in the
These arguments did not substantially undermine the view that Burney could form the intent to kill and was capable of committing the shooting. The prosecutor conceded in his rebuttal closing that Burney was intoxicated, noting that it was apparent from the tape of his first police contact when police officers stopped West‘s vehicle several minutes after the shooting, and from the fact that he still had a substantial amount of alcohol in his system when interviewed at the police station eleven hours later. But the prosecutor noted that Burney did a number of things reflective of his ability to deliberately move about and to make decisions. Burney participated in a conversation with Townsend at the party at West‘s apartment about Townsend recently having been ripped off by Hargrove, made a decision to leave the party with Townsend, walked downstairs and got in West‘s vehicle, was able to get out of the car at the Hargrove/Alex apartment and again when stopped by the police, and lied to the police when they stopped him. The prosecutor argued that “[t]his is not a person who‘s so drunk he‘s non-functional.” The prosecutor asserted that it would have been obvious to Burney that the building he was shooting into was an apartment building, and also that the surface conditions of the alley (as seen in trial exhibits) would not have prevented an intoxicated person from walking to the apartment window. And the prosecutor concluded that emptying the entire magazine of the gun demonstrated the intent to kill.
The State‘s argument that Burney was not too intoxicated tо commit the act of shooting into the bedroom window of the Hargrove/Alex apartment and to form intent to kill was consistent with Alaska case law. In Simpson v. State, the jury heard testimony that Simpson and his wife had spent the day drinking and had consumed three cases of beer, in addition to a pint of whiskey that Simpson drank himself.14 The State‘s expert witness testified that people are capable of forming specific intent up until they reach a blood alcohol level where most people pass out, i.e., around .35 percent.15 This Court held that the jury could properly reject Simpson‘s claim that he was too intoxicated to form intent to kill.16 And in Miller v. State, retrograde extrapolation suggested that the two co-defendants could have had blood alcohol levels of .219 and .148 percent, respectively, but the jury rejected their claim that they could not form intent to kill.17 In Howell v. State, Howell spent the evening drinking with friends, and his girlfriend accused him of being intoxicated when he returned home.18 Based on that, Howell argued that he was too intoxicated to form intent to kill and argued that he simply “shot blindly and did not intend to kill.”19 We affirmed Howell‘s conviction, recognizing that the jury could properly reject this defense and that the circumstances of the shooting provided sufficient evidence that Howell intended to kill.20 And Alaska‘s appellate courts have repeatedly recognized that arrestees and suspects may have sufficient mental capacity to waive various legal rights, despite being intoxicated.21 The jury in this case had an ample basis to conclude that, despite his intoxication, Burney was sufficiently in possession of his mental faculties to form intent to kill. Moreover, his intoxication could also be viewed as explanatory of why he participated in this offense despite the lack of clear self-interest in doing so, i.e., why he so willingly went along with Townsend‘s decision to seek further retribution against Hargrove and Alex.
In this vein, a key factor that courts have noted in evaluating juries’ ability to fairly adjudicate guilt among co-defendants is the relative complexity of a case.22 That is to say, in cases of great complexity — whether that complexity stems from the number of defendants, the number of criminal counts, the complexity of the legal theories at issue in those counts, the sheer amount of physical or documentary evidence or number of witnesses, or some combination of all of these factors — the complexity may make it difficult for jurors to accurately attribute the evidence to the pertinent counts and defendant(s), and make it more likely that antagonistic defenses might prevent the jury from reliably adjudicating guilt. But at the same time, the Supreme Court has recognized that the ability of jurors in a joint trial to reliably evaluate the relative culpability of co-defendants may be enhanced “where . . . all the crimes charged against the joined defendants arise out of one chain of events, where there is a single victim, and where, in fact, the defendants are indicted on several of the same counts.”23
In other words, where the events surrounding a crime are not particularly complex, jurors should ordinarily not have undue difficulty in properly attributing evidence, even where co-defendants’ defenses are antagonistic.
Here, there was a clear point of contention on which the case hinged and which focused the jury‘s deliberation. Specifically, surveillance video from a neighboring apartment building showed that only one man (not clearly identifiable) got out of West‘s vehicle and approached the apartment building, and the logical inference to be drawn was that the man was the shooter. The jury‘s determination of the identity of the shooter turned on whether the jury believed West‘s trial testimony that Burney was the man who got out of the vehicle. Burney‘s counsel emphasized this point in his closing argument. The final words of his summation were:
And I break it down again, it‘s Karlie West. That‘s it. That‘s their case. That‘s his case. If you believe Karlie West, if she‘s the type of testimony that you would act without hesitation in your important affairs then you have to convict Lammar Burney of one of those levels of crime [manslaughter, second-degree murder, or first-degree murder]. If you don‘t, you have to acquit him. Thank you.
West‘s testimony was the crucial evidence that identified Burney as the shooter. The rest of the evidence provided the basis from which the jury could conclude that the shooting was not merely a reckless act but rather an intentional homicide. The majority‘s conclusion — that the jury‘s decision to convict Burney and Townsend of first-degree murder was likely influenced by the defense attorneys’ finger-pointing at each other‘s clients, and that the defendants were thus unfairly prejudiced by the trial court‘s denial of their motions to sever — is unwarranted.
I conclude with a few thoughts about the standard that should be used in evaluating severance motions under
Additionally, in evaluating whether defenses are sufficiently antagonistic to warrant severance, the primary measure should be the evidence presented at trial, not the arguments of counsel, given the basic principle that the statements and arguments of counsel are not evidence.29 It is of course true that criminal defense counsel can articulate a defense in closing argument based solely on counsel‘s interpretation of the State‘s evidence — without the defense having called a single witness — and it is also the case that defense counsel is responsible for strategy. For these reasons, the arguments of counsel can be lоoked to in evaluating whether defenses are mutually antagonistic.30 But giving primacy to the arguments and conduct of counsel in evaluating severance incentivizes bad behavior, and in any event jurors’ predominant focus is the evidence. Accordingly, the trial evidence should be the primary measure of whether defenses are antagonistic. Here the trial evidence was not strongly mutually antagonistic.
Third, the majority opinion appears to strongly favor severance when defendants assert antagonistic defenses. I agree that trial judges enjoy broad discretion regarding severance, and should be less hesitant than they currently appear to be to grant severance when real prejudice to the rights of one or more co-defendants is apparent. Like my colleagues, I would not have reversed in this case had the trial judge opted to sever the cases. But I believe we should also heed the United States Supreme Court‘s long-standing recognition of the benefits of joint trials. Joint trials “conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.”31 The Supreme Court has noted that “[j]oint trials have long
Last, I note that in 1991, the Alaska Legislature amended the rules regarding joinder and severance in two pertinent ways. The legislature added language to
I concur fully with the majority‘s resolution of the appellants’ claims related to the alleged jury-tampering incident and its effect on juror T.S.