Whiteaker v. State

stop in this case notes that

investigate complaint that McCollum had

damaged shopping carts with his car and

that, being in addition to cited for

driving, juvenile as a he was also argues

with malicious mischief. McCollum reasons,

that, inap- for these Berkemer is

plicable. issue, disagree. pertinent our se, stop per the focus of the

.view not surrounding

whether the circumstances

stop, totality, substantially in their were typical those of a traf-

more coercive than stop. previously applied

fic We have Ber- stops purposes

kemer to traffic made for investigating potential offenses other See, Blake, e.g.,

than traffic violations. (finding

763 P.2d at 514 no Miranda custo-

dy police stopped ques- a motorist for when

tioning taking about the unlawful of a

bear). See also Hintz v. (Alaska 1981) (no Miranda custo-

dy by “investigative created detention” of approximately

motorist for ten minutes to

investigate suspicious in- circumstances driven).

volving being the car While the

stop case have McCollum’s exceed- period

ed the minimal of restraint neces-

sary to issue a citation for a traffic viola-

tion, properly the trial court could find that totality appeared of the circumstances to, than, typi-

similar and no more coercive investigations

cal on-scene of minor traffic

accidents.

The conviction is AFFIRMED. WHITEAKER,

Shelagh Appellant, Alaska, Appellee.

STATE

No. A-2594. Appeals

Court of of Alaska.

March

jection jury when the declared itself unable to reach a verdict. The refused to questions answer raised juror at the time discharge and refused to jury specific question on the of their una- nimity first-degree murder. December, The case was retried in preclude Whiteaker moved to a second trial murder, on the first-degree claiming no manifest necessity existed to mistrial, declare the first hence the second put trial would in jeopardy her twice for the same offense. The motion sum- was marily denied. At the conclusion of the trial, second found Whiteaker guilty of in degree. murder the second It is from appeals, this verdict that Whiteaker claiming legal numerous errors. ad-We only jeopardy dress the double claim of dispositive error as it is of this case. The First Trial charged Whiteaker first-degree was with Defender, Orlansky, Susan Asst. Public Although murder. incomplete record is Salemi, Defender, and B. John Public An- point, glean that her defense to chorage, appellant. charge, like her defense in the second Hora, Gen., Cynthia M. Atty. Asst. Of- trial, included alternative claims of self-de Sp. Appeals, fice of Prosecutions and An- fense, accident, suicide, or some form of chorage, Douglas Gen., and Baily, Atty. B. case, killing. non-intentional In any it is Juneau, appellee. undisputed that her claim of self-defense entitled her to instructions on all of OPINION the lesser offenses included within the BRYNER, C.J., COATS, J., Before and charge. murder was ANDREWS, Judge.* District Court degree, instructed on murder in the second manslaughter, criminally negligent ANDREWS, Judge. District Court homicide. accord with Dresnek v. Shelagh appeals Whiteaker from her con- (Alaska App.1985), 697 P.2d 1059 aff'd viction murder (Alaska 1986), denied, P.2d 156 cert. grounds right that her constitutional U.S. 107 S.Ct. 93 L.Ed.2d 729 free jeopardy from double was violated. instructed the that it We reverse her conviction. required to return a verdict on the charged greatest charge before returned a verdict shooting murder in any death of Jeff Oster- This instruction also gaard September they 1984. She stood advised the could deliberate charge May, trial on that in charges 1986. The trial on the order.1 The Dresnek instruction, i.e., declared a mistrial over defense ob- no verdicts on lesser * Sitting by assignment pursuant Degree, Manslaughter, Criminally made to article ond IV, section 16 of the Alaska Constitution. Negligent Homicide in order it wishes. precluded returning from a verdict 1. The was instructed: returning on a lesser offense without first is free deliberate on the on the offenses. Degree offense of Murder in the First and the lesser included offenses of Murder in the Sec- problem got past degree first they

charges without second, now decide about repeated you can’t greater charge, was shortened know, some lesser.... about the transitional instructions part form as degrees of the various between each [Simultaneous discussion]. homicide.2 So, we are Counsel: entitled to Defense the case either verdict on deliberation, days After several way respect without to the lesser includ- they the court that were jury the informed ed, verdict, if they could reach that judge polled The hopelessly deadlocked. least our time would not have been com- asking general the form the jury, varied pletely very possi- And it’s wasted here. question any there was chance of whether just they that can reach a verdict ble The answers a verdict. individual obviously very that it is related case. So negative response. After to a amounted to the the law now. state of requested the counsel to polling, defense No ... it isn’t. Prosecutor: [Defense bench, At approach bench. argument] counsel’s ... doesn’t reflect ensued: following conference no the state of the law. He has reason you I to want to ask Counsel: Defense poll jury considering to is assume that the any if jury to see there are charge except other murder in the packet among the charges ... within following jury jury ... is not them that have been submitted to ones to you gave instructions as them them they can reach a verdict. general which—I’m familiar with- see, I You instructed them ... Judge: packet of clear on instructions—is how find a as they have to unanimous verdict jury supposed approach is to the case greater they offense before can to the lesser-included_ and [Defense on the lesser offense. find reason for has no rational think- counsel] right And that’s Prosecutor: because ing they’re up on the messed idea of appear It that Dresnek case.... doesn’t degrees. versus the lesser open. request is to an issue that Obviously you could Counsel: Defense appear one does not that is related just poll to verdicts in He is present to the state law. packet they think it to which would be entitled to a verdict on a lesser not possible agree. to charge until there is a verdict on the because, That’s not material Prosecutor: greater charge, way either one or the I’m a verdict on the entitled to first-de- means, hung jury And that’s it. other. gree charge. they entitled to retrial. We’re Whether think, law ... Judge: I under the would find a verdict on lesser is agree, I that’s I Counsel: all irrelevant, right we have the Defense because ask. re-try Degree in the on Murder First Judge: going poll them I’m not hung up assuming they are on this and No, I think that’s issue. don’t what re-try going it. we I should do. point That’s Counsel:

Defense Well, guess okay, I if Counsel: though. They could have a verdict found Defense not, discharge. argue so can we They degree. could find an ac- discharge. quittal degree. Judge: going I’m Maybe on first their Jury Jury in- Instruction No. the transitional in- Instruction No. transitional manslaughter criminally struction between negligent between struction murder homicide, read: manslaughter, read: deliberate is also to of on the free jury is also free to deliberate on the Criminally Negli- lesser included offense Manslaughter. offense of gent precluded from Homicide. The returning precluded from verdict on the returning the lesser included of- a verdict on Manslaughter lesser offense of without first Negligent Criminally with- fense of Homicide returning a verdict on offenses of returning on the out first a verdict Degree in the Murder in First and Murder Degree, in the First Mur- offenses of Murder Degree. Second Degree, Manslaughter. der in the Second Okay, object. appeal This Counsel: arises from Whiteaker’s Defense claim that she only subject to retrial Counsel, Judge: Alright. per- I am homicide, the least serious of every suaded this has made effort to argument the included offenses. Her persuaded I resolve the issue. am the second trial should have encompassed going are not to reach a I don’t verdict. only negligent premised homicide is on the got think I’ve sufficient basis to send right conclusion that she had the par- this out and tell them to work until tial verdict and the abused his discre- got you’ve nine o’clockor to work til ten refusing tion in jury, upon re- just o’clock. I think that would be non- quest, question of whether the productive. disappointed I am as as was unanimous on the most serious counsel that this unable challenges the trial court’s con- you get reach a But verdict. sometimes manifestly clusion that it was necessary to people cases that twelve can’t on. declare a mistrial possi- when there was a apparently This Alright is that case. bility that a could have returned a gentlemen, I you’ve ladies and know that unanimous verdict on one or more of the appreciate your worked hard and I .dil- degrees most serious of homicide. If Whi- igence. disappointed you I’m didn’t right teaker had no partial verdict then verdict, things happen reach a but these Thus, her claim begin must fail. our I’m ever mindful of the fact that analysis of this issue. my instruction I made it clear that the judgment verdict had to be the individual Right to a Partial Verdict juror. call of you each All twelve analysis begin must awith definition pretty much impossible said it would be term, “partial verdict”, of the as the term jurors for the twelve to reach a unani- susceptible interpretations. is to several mous Okay. going verdict. I’m to dis- defendants, In a involving ease several a ,3 charge jury... partial may verdict mean that the thereafter, Immediately a member of the able to return a against final verdict one or you gave asked: “When us instruc- against more of the accused but not as all up verdict, tions to partial come ... with a of them. clearly we are Such verdicts are permitted faced charge with the under Alaska Criminal Rule 31(b). The many degrees. we considered Federal courts follow the possible Is it same practice. 31(b). See Fed.R.Crim.P. hung charge hung one and not another?” replied: The court “I have dis- involving In a single case a defendant jury.” Defense counsel asked facing multiple-count indictment, partial a approach replied: bench. The court may verdict mean that the is able to anymore.” “This doesn’t exist Coun- return a final verdict as to one or more of inquired: you sel “Could undo that for a the counts but not as to all the counts. second, you?” so we can talk to The court approved Such a verdict has been replied: “I don’t think I can undo it. I’ve implicitly by supreme court decision in them, discharged said I’ve and I don’t have State, Koehler v. 519 P.2d at 449 jury.” a trial refused (Alaska 1974) (no to answer necessity to de question. Thereafter, the trial was clare a mistrial where the court failed to concluded.4 possibility reaching argument text sought cited above differs discussions was raised when Whiteaker transcript pp. from the 1020-1024 and the prevent a second trial on murder. transcript pleadings unofficial cited in defense 606(b), Whiteaker concedes that A.R.E. as well pp. 75-76 of the record. The above cited text law, persuasive precludes as case consideration listening original tape is derived from to the MacQueen, of the affidavits. United States v. proceedings. (2d Cir.1979); Castrillo, 596 F.2d State v. overruled on other attorneys 4. were allowed to discuss the case Wardlow, grounds, by State v. 95 N.M. jurors discharge. after the The admissibili- (1981). P.2d 527 ty of affidavits obtained as a result of these offenses of first- 100. The lesser-included one of the two at least final murder in the second degree murder are are in accord. counts). decisions Federal 11.41.110, manslaughter, AS Havener, degree, F.2d AS See, e.g., Wallace 11.41.120, criminally negligent homi- denied, (6th Cir.), 434 U.S. cert. cide, 11.41.130. AS 433, 54 L.Ed.2d 300 S.Ct. We frame the issue as follows: involving single-count In a case definition, to a verdict on the includes, by accused entitled indictment, which may has unani offenses, mean where some, but is dead mously not all of decided that a final verdict included offenses? degrees of the offense locked on the lesser-included Additionally, although the accused is entitled to conclude that within the separate holding scenarios case is not a new a verdict.6 This we describe such separate faces several the first although a defendant of law rule the defendant express in which proposition counts and a ease has been time that this encompasses single charge which faces a In ly stated in Alaska.7 Staael v. offenses, we do so (Alaska several lesser-included App.1985), P.2d 1055 n. 2 clarify the definitional simplify and only (Alaska 1986), we con aff'd, 718 P.2d 948 claim resolving Whiteaker’s problems. that manifest was found cluded merits, its we find no partial verdict on agree great could not on where can be made between distinction rational charge attempted first-degree mur est of by persuaded are scenarios. We these two and that the defendant was not entitled der argument that whether Whiteaker’s offense on lesser-included to a verdict multiple accused in charges the prosecutor in those facts. Our decision Dres under indictment single-count or count indictment 1064, nek, jurors to 697 P.2d at allows of involving lesser-included for an offense in and lesser offenses deliberate fenses, jeopardy double the defendant’s prohibits return of verdicts any order but v. rights are the same. Green United returning on lesser offenses without 190, 221, 225, 184, States, 78 S.Ct. 355 U.S. logical greater offense. The verdict on the (1957), Superi v. 2 and Stone L.Ed.2d 199 from this case is that proposition that flows 647, 503, Court, Cal.Rptr. 31 Cal.3d 183 or capable reaching a unani if a of (1982),support proposition P.2d 809 646 offense, it greatest on the mous verdict issue of this constitutional that resolution so, position on regardless of its must do wording should not turn on Thus, when the offenses. lesser-included indictment.5 disposition as to the of jury is unanimous charge, necessity for greatest case, in the fol- the issue arises this not arise on that will single defendant a mistrial lowing context—a inability as to lesser-in in from its single count of murder charged with a jurisdictions charges. Twelve other 11.41.- cluded degree in violation of AS the first final ver complex and should not be considered Obviously, combina- verdicts there are more 1062; Dresnek, Staael v. P.2d at simplified One dicts. 697 scenarios. tions of these three 1050, (Alaska App.1985). involving P.2d 1056 easily several 697 the case could codefendants, describe often charges allow such verdicts Jurisdictions which whom has several each of legislation court which authorizes have or rule pending against and several of those him or her 1146, Castrillo, See, e.g., P.2d over 566 charges offenses. In de- them. lesser-included contain 527; Wardlow, uncommon, grounds, case, 624 P.2d on other scribing ruled such a which is 53, Justices, N.Y.S.2d N.Y.2d 364 "partial Oliver v. 874, 36 verdict” be- of the term the looseness 348, (N.Y. Therefore, 348 attempt 324 N.E.2d 324 N.E.2d apparent. comes aff'd 1974). law or court rule regard has no such Alaska closely here with define what we decide Dresnek, P.2d at 1062 n. in 697 partial and our decision question verdicts. to the 6, approach. precludes such 6. argue is entitled does not that she suggest court is that this dissent seems where 7.The lesser-included offenses to a verdict on applying adopting law which it greatest a new rule of offense. is deadlocked only explicitly the im- retroactively. state jurisdictions hold which We concur with other holding noted compromise plicit of Dresnek as partial are often that such verdicts infra.

275 validity jeop Juvenile, jury.” considered the double A 465 N.E.2d have at 244 partial (quoting 21). ardy Hickey, claims verdicts in 303 N.W.2d at based volving greater Eight offenses. and lesser policy argument state’s final is that partial jurisdictions reject the notion ver allowing partial verdicts could increase the jurisdictions and four accord dicts appears number of mistrials. This today.8 our with decision here speculative based notion that since Dresnek allows the state, deliberate on relying on conclusions reached order, charges starting by jurisdictions number working lowest offense urges partial use toward the reject us to ver greatest never offense deliberate on comprehen most dicts. clearest and greatest jurors if the decisions, are frus- sive these A Juvenile v. Com agreement trated monwealth, their lack of 392 465 N.E.2d Mass. charges. (1984), People Hickey, 243-44 103 Mich.App. 350, (1981), 303 N.W.2d We think reasoning that the of the cases partial that a in conclude situation adopted which have the use of ver volving greater and lesser offenses is not a adequately dicts confronts and resolves conclusion, reaching verdict.9 In this final California, these Hamp concerns. New quote passage People cases from both shire, Mexico, New and New York have Griffin, Cal.Rptr. 66 Cal.2d adopted Stone, use of verdicts. emphasized P.2d 809; Pugliese, P.2d State v. N.H. tentative nature of deliberations. A Juve (1980); Castrillo, 422 A.2d 1319 nile, 244; 465 N.E.2d Hickey, P.2d grounds, overruled other at 21. N.W.2d court stated Wardlow, 527; Oliver, Griffin 364 N.Y. might tempo deliberations result in a 874 aff'd, S.2d 324 N.E.2d 348. rary compromise part of an effort to In Pugliese, the trial instructed the unanimity. Griffin, reach 426 P.2d at 510. manslaughter jury and the lesser-includ- anything Both courts assume that short of ed criminally negligent offense of homicide. acquittal guilty total or a verdict is a judge 422 A.2d at 1320. The also instruct- agreement subject to change. tentative jury ed the that it could consider the case, present argument In the the state’s it offense unless found the defen- position, empha- mirrors this the state for guilty manslaughter. dant not Id. Dur- jury may sizes the consider the vari- deliberations, ing day jury the first the degrees of an in ous offense order. manslaughter judge asked the about and According state, to the discussion on one offense, day then the next the lesser about point prompt juror change his or negligent jury finally homicide. Id. mind deadlocked, her about an element one of the announced that it was and the included The state going grant various offenses. also judge indicated that he was expressed in shares concerns A Juve- a mistrial. Id. The defendant asked the “polling Hickey jury acquittal and nile about manslaughter charge, ... would constitute an unwarranted and the but province unwise intrusion into the refused. Id. 798, Hall, People cases in and v.

8. also cites four which the 18 N.W.2d 203 validity partial (1975). courts of a assume the verdict: 324 N.E.2d 50 658, Halsey, State v. (1989); 441 232 Neb. N.W.2d 877 Seagroves, State v. 691 S.W.2d 537 rejecting the use of other six decisions 9. Russell, 349, (Tenn.1985); 101 State v. Wash.2d Lile, Fitzgerald partial verdicts v. 732 (1984); People Krogul, 678 P.2d v. 332 115 Ill. 1990); Bell, (N.D.Ohio F.Supp. State v. 784 322 734, 807, App.3d 70 Ill.Dec. 450 N.E.2d 20 Booker, (Iowa 1982); N.W.2d State v. 306 93 cases, (1983). In all four defendant was ac (1982); Walters v. N.C. S.E.2d 78 293 quitted jury hung of a while the offense (1974); State v. 255 Ark. 503 S.W.2d validity acquit on a lesser of the included. The Hutter, (1945); and 145 Neb. 18 N.W.2d tal was not at issue in cases. The Hall, People Ill.App.3d v. 324 N.E.2d 50 Halsey Krogul and decisions indicate that Ne accept braska and verdicts de Illinois Hutter, spite holdings in State 145 Neb. the evidence jurors believed none of the has “a val- a defendant Emphasizing that guilty support by was sufficient completed his trial right to have ued discharging Before murder. Id. for tribunal”, Hampshire the New particular confirming judge polled again, it jury, the that there was concluded Supreme Court for murder. Id. no votes that there were necessity a mistrial. Id. no manifest at 813. Washington, 434 (quoting Arizona L.Ed.2d 497, 503, 98 S.Ct. U.S. jeopardy concluding that double not ex- (1978)). judge had The trial murder, the California barred retrial mistrial; alternatives plored possible all in Supreme Court noted that Stone therefore, degree” of “high the record open in court and on indicated did not exist. justify a mistrial required to Id. at that it could render a verdict. court stated supreme Id. Pugliese, in the Cali- Like the court have justice” would not public “ends of defendant has a stated that a fornia court if simply asking by defeated been jury. particular from a right to a verdict manslaugh- a verdict on the it had reached empha- The court further at 818 n. 7. Id. Id. ter the de- that successive trials burden sized allowing to benefit while the state fendant partial verdicts for adopted California Id. at 817. from dress rehearsals. Stone, in offenses greater and lesser The defendant Stone P.2d 809. reasoning in these cases find the murder, in- charged with com The state’s concern about be sound. options: on six first-de- structed by procedure set in promise is met murder, murder, second-degree volun- gree Dresnek, Staa place manslaugh- involuntary tary manslaughter, el, is not allowed 697 P.2d 1050. homicide, acquittal. ter, Id. justifiable on lesser of report tentative verdicts deliberating days, for seven After at 812. It must return a verdict fenses. there open court that stated will offense before lesser verdicts greatest or for first accepted. were no votes The state’s concern about murder, split the man- that it was polling but nature of about intrusive charges. The defendant is the same slaughter Id. and lesser offenses polls on the murder court a formal verdict that exists when the asked for concern see no separate court denied the re- counts. We charges, the trial about jury which is any remedy province thought intrusion into quest because more ex or unwise or come from the either unwarranted defendant should for the already takes which judge The tensive than that Supreme Court. Id. California however, ruling place.10 stated, that he was that Supreme offers Court in Stone jury The California that instructions based

10. While we believe closely analogous guidarce to that out- that is jury apprise to the of Dresnek are sufficient on lined in Dresnek. obligations, not hesitate a trial court should its guide of this state in the trial courts To polling proce- forms or its to amend verdict obligations en- fulfilling tails, which this rule the jury fact itself that a has in dures to reassure by suggest procedures analo- derived we greatest charge. For exam- deadlocked multiple gy count situation.... from the request upon ple, evident or where is confusion judge a has instructed When a trial counsel, Fitzgerald, suggested as of uncharged charged lesser- and on an a offense F.Supp. at 789 n. offense, appropriate of course one included forms submit additional court could [T]he provide the with to action would be only complete one and admonition to with the guilty guilty as to or not a verdict of forms for alternatively: cautioned, read the forms would where of be The must each offense. course, (stated guilty A defendant not of We find the the decide whether it should first (less- crime) agree on B we are unable to guilty but offense be- the of defendant offense); offense, We find the defendant considering included and that if lesser er[-] the fore B, guilty guilty we are unable to of A and of the not the defendant it finds offense, (more agree agree lesser included to C than one if it is unable or offense, the offense); a verdict on to on a not return or We are unable it should the offense or of lesser offense. verdict as to the omitted). (citations Stone, 646 P.2d lesser offenses. Finally state the s concern about an in- murder or charge, another the record support crease in the number of is both would finding mistrials a of probability no speculative reached, It is that a equally and unreasonable. verdict could be hence a arguable return of the verdicts will manifest See, need to declare a mistrial. promote goal judicial economy e.g., Koehler, the 519 P.2d at 448. Jurors are litigation. finality presumed A criminal defendant to understand and follow the acquitted who is charge most serious place instructions we to decline a charges may likely or be more to burden judge resolve on the trial sponte to sua lesser-pending charge plea inquire perform once the special poll further or a consequences jurors most serious are eliminated. who deliberate on involving cases lesser See, included offenses. e.g., Fitzger- in Stone, Unlike the facts this is not a ald, F.Supp. at 789. On other case where clearly announced on hand, upon request upon or counsel acquittal greatest record an evidence among jurors, of confusion a charge judge accept. which refused to apply. different rule must question This case turns on the of whether the trial abused his discretion find- ease, In this infra, detailed sev ing to a declare mistrial. eral jury poll. events occurred after the question dependent The to that answer specifically requested upon whether the his abused discre- polled to ascertain that were refusing tion in juror’s ques- a answer greatest deadlocked on tion, suggested possibility request. declined the began He verdict, reaching a and refusing discharge jury. During the course of specific request repoll Whiteaker’s comments, his discharge juror interjected jury to if the jury acquitted ascertain had question.

her of murder. you gave When us the instructions to verdict, come up with faced record, in summary, reveals and we that the properly instructed under many degrees. possible considered Is Dresnek that verdict had to be returned to be hung hung on one on murder in the degree first before the on another? jury could return verdict on jury reported offense. The judge, it was The apparently failing recognize agree. judge properly legal unable to options him,11 trial available to refused polled jurors polled individually. question pursue answer the or other report clarify confirmed the of a deadlock. In expressed the measures to confu- request absence of a to determine jury despite whether sion of the Whiteaker’s re- degree quest deadlocked that he so.12 do Anchorage, We note with interest that the California Su- him. Cano v. preme partial verdict/juror (Alaska faced 1981). Court the in- App. problem struction in reverse order. Cali- right partial fornia court addressed first the recognize interrupted We that the was 12. Kurtzman, People verdict in Stone. In v. 46 speech immediately discharge in his after he 322, 244, 8, Cal.Rptr. Cal.3d n. 250 250 note, however, jury. discharged had the We 572, (1988), 577 n. 8 which the court termed the seats, jurors that the had not left their talked to Stone," "inevitable to successor California counsel, anything one another or to or heard Court, Supreme reviewing Jury California In- during post-deliberation pro- of the course these (Criminal) implemen- structions No. 875 as approval ceedings any way which would in affected have Stone, tation of cited with our decision they their if had asked to deliberations been proper guiding in Dresnek as the for method try clarify retire to the room to to in deliberation lesser-included cases and confusion or to delibera- which existed continue assuring greatest charges. final verdicts on the appeared possible tions if a verdict after their analysis our reinforces conclu- Kurtzman question was answered. provides guidance sion that Dresnek sufficient jurors partial to to allow them to a reach ver- sparse, Relevant New York case law but a dict. exactly point. decision is In Dissell v. 570, Adams, judge may by 11. A 576 abuse his or discretion 115 A.D.2d 497 N.Y.S.2d her (1985), failing recognize legally option judge discharged to available based the trial 278 497, 514, 824, 835, 54 judge abused U.S. S.Ct. L.Ed.2d that the trial conclude We (1978). refusing in to resolve

his discretion evi by juror questions posed conclude on this record that Whiteak- We reaching par a possibility some of denced free right er’s constitutional from request Const, repoll jury as or to tial verdict jeopardy was violated. U.S. double Const, consequence, we As by ed Whiteaker. I, V; art. amend. Alaska She § his the trial abused conclude that for the placed jeopardy twice same no concluding that there was discretion no offense because there was manifest ne- could verdict probability cessity justify that a unanimous on her to a mistrial trial, People Chaney, In Cal. she the same of be faced reached. in her again 258-59 murder second Cal.Rptr. App.3d trial. (1988), noted: “The unmistakable the court of an thus evidence

import of is that Stone Remedy unnecessary to implied acquittal is actual outside the of mistrial sug take a declaration are left a record that We with if enough it is concept legal necessity; gests jury may that the have been unani charges, one or fails the dead mous on more dead trial court to afford charge. on at least one Whiteaker render locked to opportunity locked with argues that this court must remand the acquittal.” case, a new limited to a trial give great charge. must deference relies While we homicide 323, 90 grant Georgia, a mis Price v. 398 U.S. S.Ct. judge’s to decision to a trial support 26 L.Ed.2d 300 to her appears probability is no trial when there argument.13 verdict, appellate courts of a unanimous to judge’s a trial decision approve cannot by examine the caselaw cited Whi- jury if record does not discharge a proposition Price for the teaker. stands necessity. finding of support a improperly when a defendant is tried “importance so This is because offense, the jeopardy-barred for a error is able, and for being once the defendant if not cured the convicts defendant all, his with socie to conclude confrontation only a lesser-included offense. Price Price, he ty through the conduct of the tribunal In pattern. fits Whiteaker’s fact favorably disposed charged initially with mur- might believe be defendant was manslaugh- convicted trial of Washington, Arizona der and after his fate.” present indi when verdict was returned. United a note and comments the foreman Beldin, (5th Cir.), being Right cating hopeless after deadlock. States v. 737 F.2d seats, denied, discharged, jurors S.Ct. before the left their cert. 469 U.S. spoke up disagreed jurors with the L.Ed.2d 512 The ABA Standards and three clearly ju assessment that a foreman’s Beldin envision that comments from light unlikely. post-discharge officially discharged com of these after haven't been rors ments, appellate deciding that the trial court held considered in whether to ac discharging cept abused his discretion in a verdict or to order further deliberations offense, jurors respect grant be different or to mistrial. No result no required did not that there was cause the record show verdict has been should be when no possibility virtually a verdict reported but where the issue a retrial the least included court ordered deliberations or same: whether order further charge only. grant Id. 497 at 571-72. N.Y.S.2d mistrial. polling provide requests ABAStandards contrast, argues that court In state granted a has be even after verdict a should to the trial so that should remand case officially accepted, long jury has so as the been original jury poll and reconvene the he could yet dispersed. Ill For Trial Standards not charges voted 147-48, as to which of the (1986 them unanimously Supp.). Jury, Allow 15-4.5 at § them to dead- and which caused meaningless ing poll be if the a would authority support The state offers no lock. learned not consider the information could Likewise, remedy. reject consideration of the a such a decision found therefrom. federal sup- precedential proposal. requesting It is without attorney for state's remiss not when, original hopelessly impractical. The port dispersed,. and even after had ago. years his, attorney convened almost five through was not was no fault of manslaughter conviction re- on m the degree ter. was murder or one of the charges. and Price retried for murder included versed was Because have no knowing manslaughter. way his which and reconvicted of In was on, presume deadlocked appeal, Supreme we must second the United States it charge, least retrial was the serious negligent held that the for murder vio- Court homicide. We reach against being noting this conclusion guarantee lated Price’s twice that doubts about whether an jeopardy first-degree offense is put of conviction of jeopardy-barred must be resolved “in emphatically favor rejected murder. The Court liberty of the of the citizen”. Downum v. state’s claim the error harm- States, 734, 738, United 372 U.S. light S.Ct. less of Price’s conviction for 10 L.Ed.2d 100 As a non-jeopardy-barred only: offense consequence we find that Whiteaker cannot Jeopardy The Double Clause ... is east face trial an offense more serious than in terms of or and the risk hazard of trial negligent homicide. conviction, legal not of the ultimate con- sequences of the verdict. To be Matthews, Morris 475 U.S. subjected to be for second trial S.Ct. L.Ed.2d 187 holds that is an murder ordeal not can court enter a conviction for the Further, lightly. perhaps viewed of highest non-barred offense unless the de- importance, more we cannot determine fendant proba- demonstrates a reasonable or bility whether not murder she would not have been convict- against petitioner induced the to ed of that offense if had been she tried on him guilty find less serious of- it without inclusion jeopardy-barred manslaughter greater charge. fense of voluntary appeal rather On Whiteaker has attempted not showing than to continue debate to make a his innocence. that un- Morris, der if she faced had not a first-de- (footnote at omit- Id. S.Ct. at gree charge, murder she would have been ted). Supreme Court thus vacated acquitted negligent homicide. Whether manslaughter Price’s conviction and or- might capable Whiteaker be of making manslaughter charge dered retrial on the showing prejudice question such a is a only. for the best left trial court on remand. Applying case, if Price to Whiteaker’s State, See, e.g., Nathaniel P.2d there no manifest to declare (Alaska App.1983); 857 n. 4 Nix v. trial, mistrial on her murder (Alaska App.1981). by simply error is not noting cured Therefore, we REVERSE conviction second-degree she was convicted of murder degree second murder REMAND the second Applying trial. the Price court. court the trial The trial has au- analysis, we must determine thority, if the defendant fails to demon- jeopardy for purposes barred offenses judgement prejudice, strate to enter the retrial in which con- the defendant was homicide conviction and to of second-degree victed murder in sec- resentence on that offense. trial, ond where record is unclear which counts the in the deadlocked on COATS, J., dissents. first trial. COATS, dissenting. Judge, Price,

Under face cannot more than a great majority murder of courts which have However, the state of the record us the issue of a trial leaves addressed whether court charges may accept in doubt as to on a jeopar- what must dy-barred. This confusion results from the unable to unani- offense when fact that the trial on a on a mously declared a mistrial lesser-in- when record was clear whether the cluded have concluded that offense fact, par- appears was hopelessly duty. deadlocked on court no such has charge. only reject say clearly proposi- ticular can cer- that courts most tainty authority that the had to trial to be deadlocked tion that the court has

280 degree. Fitzgerald v. murder in the second But at the such a See receive verdict. (N.D.Ohio 1990); trial, Lile, A F.Supp. 784 time num- only 732 of Whiteaker’s a small Commonwealth, 392 Mass. v. Juvenile jurisdictions procedure. ber of had such a Bell, (1984); v. 322 465 N.E.2d 240 State Judge way knowing had no Buckalew Booker, (Iowa 1982); v. N.W.2d 93 State adopt minority posi- that court would this (1982); People 78 306 N.C. 293 S.E.2d Judge tion. “er- The result of Buckalew’s Mich.App. Hickey, 303 N.W.2d v. 103 ror” is an extreme windfall for Whiteaker. Hall, (1981); Ill.App.3d 25 People v. second-degree Having been convicted of (1975); v. 324 N.E.2d Walters murder, only negli- can she convicted (1974); Ark. S.W.2d State gent Although change homicide. I favor Hutter, N.W.2d Neb. in the rules to the rule criminal effectuate So, Judge Buckalew at the time argues, for which Whiteaker I do not be- the decision was confronted with of wheth- retro- apply lieve that it is fair this rule acquitted if it had Whi- er to ask actively. murder, great first-degree teaker precedent against having weight of was his authority such to receive a verdict. retrial, up came Whi-

When case argued that the court

teaker’s counsel trial retry authority

had no Whiteaker on murder,

first-degree trial because the had was not determined there NOBLIT, Appellant, Ken for a mistrial on that counsel, charge. had con- Whiteaker’s who motion, Alaska, time consider the never siderable Appellee. STATE thought to raise the issue Whiteaker No. A-3140. second-degree could not be retried for mur- Appeals Following Court of of Alaska. manslaughter. der or a second trial, convicted Whiteaker of March 1991. second-degree appeal, murder. On Whi- Rehearing Opinion Granted and adopt argues teaker now that we should May 31, Amended minority Judge position Buckalew required accept in her first trial to was upon offenses verdict on long as agree could required the instruction which

followed unanimously agree acquit

them to on a moving on to a less- offense before offense. are unable to know

er Since we

the state of in the first deliberations

trial, points only out that Whiteaker unable

know certain that charge. agree negligent homicide contends that the maximum

She can

which she face is homicide my view, strong has a ar- jury in her

gument that if the first trial acquitted

concluded that should be she murder, unable murder, accepted guilty

judge should have retrial,

verdict on murder. On a maximum only

she should face

Case Details

Case Name: Whiteaker v. State

Court Name: Court of Appeals of Alaska

Date Published: Mar 22, 1991

Citation: 808 P.2d 270

Docket Number: A-2594

Court Abbreviation: Alaska Ct. App.