Opinion
Court of Appeals No. A-10233.
April 7, 2010.
Appeal from the Superior Court, Third Judicial District, Dillingham, Patrick J. McKay, Judge, Trial Court No. 3DI-06-173 CR.
Doug Miller, Assistant Public Advocate and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Christopher Strub was convicted of assault in the first degree, assault in the second degree, assault in the third degree, and reckless endangerment based on an incident where his Ford Bronco went out of control, veered into the lane of oncoming traffic, and struck a Hyundai, injuring the two occupants of that car and endangering the passenger in his own car. The jury was unable to reach a verdict on a charge of driving under the influence.
AS 11.41.200(a)(1).
AS 11.41.210(a)(2).
AS 11.41.220(a)(1)(B).
AS 11.41.250.
Strub appeals, arguing that Superior Court Judge Patrick J. McKay committed plain error by failing to include the name of the alleged victim in the jury instructions pertaining to each separate count.
Furthermore, Strub argues that because it was uncontested that he was highly intoxicated at the time of the incident and the State argued that his intoxication was the cause of the collision, it was irrational for the jury to convict him of the assault counts and reckless endangerment while failing to reach a verdict on driving under the influence. He argues that the guilty verdicts were inconsistent with the failure to reach a verdict on driving under the influence and therefore should be set aside.
We find no error in the instructions. We conclude that there was sufficient evidence for the jury to conclude that Strub acted recklessly. Even if the jury could not agree that he was driving under the influence, the evidence supported his conviction on the assault charges and reckless endangerment. The fact that the jury was unable to reach a verdict on the driving under the influence count was not inconsistent with the jury's guilty verdict on the other counts.
Factual and procedural background
On April 27, 2006, Christopher Strub picked up Michael Carty in his Bronco, and they went to a barbeque at a friend's house in Dillingham. Strub drank Budweiser at the barbeque. The exact amount that Strub drank was unclear, but he was able to adequately help out with food preparation. After the meal, Strub fell asleep while others watched a movie. Strub and Carty later left the barbeque in Strub's Bronco. Because Strub had been drinking, Carty was supposed to drive. However, at least one witness testified that when they left, Strub was driving.
At about 9:00 p.m., the Bronco went out of control, veered into the other lane into oncoming traffic, and struck a Hyundai. Both passengers in the Hyundai, Nels Johnson and Simuka Smith, were injured. Strub suffered a head injury, but Carty was unharmed.
Officer John Kirby first spoke with Strub at the hospital. He stated that he was not able to have Strub perform field sobriety tests because Strub had a head wound. Strub informed Kirby that he had three beers about two hours prior to the accident. During this interview, Kirby thought that Strub was "articulate" and "seemed with it." He testified he would not have thought alcohol was a factor in the accident based on Strub's demeanor.
At the hospital, Strub's blood was drawn three times at half-hour intervals, starting at 12:15 a.m. (over three hours after the accident), revealing blood-alcohol contents of .29, .27, and .26. At trial, the State's expert witness testified that Strub would have had to drink approximately fifteen cans of beer to have a blood-alcohol content this high.
Strub was charged with one count each of first-, second-, and third-degree assault, based on injuries to Johnson and Smith. Strub was also charged with one count of reckless endangerment, based on the risk of injury to Carty, and driving while intoxicated.
At trial, the State presented all five charges under the underlying factual theory that Strub had been reckless in that he was driving while intoxicated. The State made this case during the opening statement: "This case is about a drunk driver. . . . There will be no question at the end of this trial that the defendant was driving, [and] that he was drunk . . ." At the beginning of its final argument, the State again made the case that Strub was driving intoxicated: "He was drunk, extremely drunk, .29. Nearly four times the legal limit to drive. And he was driving." The State reiterated this again at the end of its argument: "He was driving. He was drunk."
Strub did not contest that he was intoxicated. His sole defense was that he was not driving. Strub essentially conceded that he was intoxicated during his opening statement — his attorney told the jury to take his statements to Officer Kirby in the context that Strub had "a high alcohol content." Strub did not cross-examine the State's expert, who presented evidence of his intoxication. And Strub himself admitted that in order to have a blood-alcohol content as high as his tests showed, he would have had to have drunk a lot more than three beers and that he would not have been able to handle that much beer. Despite this concession, Strub never formally conceded that he was intoxicated in a manner (such as a stipulation) that would preclude the jury from finding that he was not intoxicated.
Strub testified that he did not remember who drove, nor could he remember how much he drank, and that he felt, "If I was the driver, then I need to assume responsibility for it; [b]ut if I wasn't[,] then I don't think I should." Carty and Sarah Johnson testified that Strub was driving when he left the barbeque. And, at the scene of the collision, Kenny Jensen testified that he pulled Strub out of the driver's side of the Bronco, and then Carty got out. Other than this, nobody saw who was actually driving the Bronco at the time of the accident.
The jury returned guilty verdicts on the assault and reckless endangerment counts, but hung on the driving under the influence count. Strub moved for a new trial because the verdicts were inconsistent. Judge McKay found the verdicts were consistent. He noted:
A review of the grand jury proceedings reveals that the State presented testimony regarding [Strub's] reckless conduct, including driving erratically, drinking prior to driving, and knowledge of the poor condition of his vehicle. During the trial, the jury was presented with similar evidence, thereby providing a sufficient evidentiary basis to convict [Strub]. The fact that the jury was unable to reach a conclusion on the DWI charge does not support [Strub's] argument that he had insufficient notice of the State's case.
. . .
[Strub's] argument regarding inconsistent verdicts is equally flawed. The jury convicted [Strub] on four charges, each of which required a finding of reckless conduct that created some type of injury. The jury was presented with sufficient evidence to conclude that [Strub] was guilty of reckless conduct that subsequently contributed to the victims' injuries. The fact that the jury did not find [Strub] guilty of a certain level of intoxication or a particular blood alcohol content is not inconsistent with a finding of otherwise reckless conduct.
Strub appeals.
The court did not commit plain error by omitting the names of the victims from the jury instructions and verdict forms
Strub contends that Judge McKay committed plain error by failing to include the names of the alleged victim of each count on jury instruction numbers 10 through 14. The court did not list the name of each victim on the verdict forms.
In the trial court, Strub did not object to the instructions on this ground. Where a claim of error was not raised below, it will not be considered unless it rises to the level of plain error. "A plain error is one that is (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice." Jury instruction number 9 set out each of the charges and the alleged victim for each of the charges. This instruction should have made it clear to the jury who the alleged victim was for each count. We see no reason why this information needed to be repeated in the other instructions. And the fact that this information was not repeated certainly does not rise to the level of plain error.
Adams v. State, 927 P.2d 751, 756 (Alaska App. 1996) (citation omitted).
Why we conclude that the jury's verdicts of guilty on the assault charges were not inconsistent with the jury's failure to reach a verdict on driving under the influence
In Edwards v. State, we stated:
158 P.3d 847 (Alaska App. 2007).
[A]ny claim of inconsistent verdicts must be evaluated in light of the jury instructions taken as a whole, and in light of the summations of the parties. If the record "reveals a basis upon which the jury's verdict[s] can rationally be explained," the verdicts will be upheld.
Edwards, 158 P.3d at 857 (quoting Davenport v. State, 543 P.2d 1204, 1208 (Alaska 1975)).
In order to convict Strub on the assault charges, the jury had to find that Strub acted recklessly. Strub points out that the State's primary theory at trial was that Strub had acted recklessly because he was driving while highly intoxicated. And Strub did not contest that he was highly intoxicated; his defense was that he was not driving the Bronco, Carty was driving. Strub therefore argues that it was inconsistent for the jury to convict him on the assault charges and to fail to reach a verdict on driving under the influence.
But, as Judge McKay pointed out, in order to convict Strub on the assault charges, the jury only had to find that Strub had acted recklessly. The jury did not have to find that Strub was intoxicated. The evidence presented at trial showed that Strub's Ford Bronco went out of control, veered into the lane of oncoming traffic, and struck the Hyundai. There was sufficient evidence for the jury to find that Strub was driving the Bronco and that his driving was reckless and caused the collision. The fact that the jury was unable to agree that Strub was driving under the influence only establishes that at least one juror had a reasonable doubt about whether Strub was intoxicated. But this is not inconsistent with the finding that Strub acted recklessly, even though intoxication was the State's primary theory of Strub's criminal responsibility.
There was evidence at trial to support a juror's reasonable doubt that Strub was intoxicated. Officer Kirby testified that when he contacted Strub after the accident, just based on Strub's speech, he wasn't able to tell if Strub was intoxicated. Kirby testified that Strub's speech was not slurred and that Strub was "articulate" and "seemed like he was with it." Kirby thought he might have smelled alcohol, which led him to ask Strub if he had been drinking. Strub told Kirby that he had only had three beers in the last two hours. However, at trial, Strub testified that he had "no idea how much [he] had to drink prior to getting into [the Bronco] . . ." Dr. Wallis, who treated Strub, did not smell alcohol. Strub testified that he had eaten a meal, and about three hours had passed between the beginning of the meal and the accident, so Strub was not drinking on an empty stomach. Tracen Wassily, who hosted the barbeque which Strub attended, testified that Strub had been drinking, and although he didn't know how much Strub drank, Strub "was able to handle his duties on the barbeque" without any trouble — in other words, Strub did not appear intoxicated to Wassily. Relying on this evidence, a juror could have a reasonable doubt that Strub was intoxicated. And given the evidence that Strub was apparently unaffected by his drinking, one or more jurors may have doubted the accuracy of the blood alcohol readings obtained at the hospital. But it would not have been inconsistent for this juror to rely on the other evidence at trial to find beyond a reasonable doubt that Strub had acted recklessly.
We accordingly conclude that it was not inconsistent for the jury to convict Strub on the assault counts while being unable to agree on whether Strub was guilty of driving under the influence.
Conclusion
The judgment of the superior court is AFFIRMED.
I agree with the result of Judge Coats's lead opinion. But the meaning of the hung jury on the count of driving under the influence seems highly speculative to me. The jury's failure to reach a decision is not a reliable verdict — it means that the jury did not agree on a verdict. The United States Supreme Court recently addressed this issue by holding that a hung jury declaration was not a verdict for purposes of collateral estoppel:
Because a jury speaks only through its verdict, its failure to reach a verdict cannot — by negative implication — yield a piece of information that helps put together the trial puzzle. . . . [T]here is no way to decipher what a hung count represents. . . . A host of reasons — sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few — could work alone or in tandem to cause a jury to hang. To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room. But that is not reasoned analysis; it is guesswork. Such conjecture about possible reasons for a jury's failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did return.
Yeager v. United States, 557 U.S. ___, 129 S. Ct. 2360, 2367-68, 174 L. Ed. 2d 78 (2009) (internal citations omitted).
Similarly, the Indiana Court of Appeals recently concluded that the declaration of a mistrial based on a hung jury is not a verdict for purposes of the doctrine of inconsistent verdicts.
Hoover v. State, 918 N.E.2d 724, 730 (Ind. Ct. App. 2009) (quoting Yeager, 557 U.S. ___,129 S. Ct. at 2367-68).
I recognize that the Alaska Supreme Court analyzed the possible inconsistency between a jury's failure to reach a verdict on one count and a guilty verdict on another in Daygee v. State. But that case did not directly address whether the hung count should be treated with the same effect as a verdict. I am more persuaded by the foregoing opinions that directly address that issue.
514 P.2d 1159, 1167-68 (Alaska 1973).