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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4125
Petitioner, ) Trial Court No. 3AN-91-3122
Cr
)
v. )
) O P
I N I O N
ELIZABETH WASKEY, )
)
Respondent. )
________________________________) [No. 1235 - July 17, 1992]
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Milton
Souter, Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Petitioner. Kevin F. McCoy, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Respondent.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
An Anchorage grand jury indicted Elizabeth Waskey for
third-degree assault, AS 11.41.220(a)(1)-(2). Superior Court
Judge Milton Souter dismissed the indictment because the
prosecutor who presented the case to the grand jury did not give
the grand jury the special instruction on the definition of
"dangerous instrument" this court required in Konrad v. State,
763 P.2d 1369, 1374-75 (Alaska App. 1988). The State has
petitioned for review of the dismissal of the indictment. We
reverse the decision of the superior court and reinstate the
indictment.
The evidence presented to the grand jury showed that,
on the afternoon of May 5, 1991, Waskey drove through a stop sign
at the intersection of North Price and Richmond Avenue, turned
into the wrong lane of North Price, and struck an eleven-year-old
bicyclist. The handlebar of the bicycle hooked the front bumper
of Waskey's car; Waskey dragged the bicyclist 140 feet before
stopping. Waskey was apparently intoxicated; when she submitted
to a breath test afterwards, the result was .306 percent blood
alcohol, over three times the legal limit. Through good fortune,
the child was not seriously injured.
Waskey was indicted for third-degree assault under both
clauses of AS 11.41.220(a):
(a) A person commits the crime of
assault in the third degree if that person
recklessly
(1) places another person in fear
of imminent serious physical injury by
means of a dangerous instrument; or
(2) causes physical injury to anoth
er person by means of a dangerous instru
ment.
At the grand jury proceedings, the prosecuting attorney argued
that Waskey's automobile had been the "dangerous instrument"
required by the statute. The prosecutor read the grand jurors
the statutory definition of "dangerous instrument" under
AS 11.81.900(b)(11):
"dangerous instrument" means any deadly
weapon [as defined in AS 11.81.900(b)(13)] or
anything that, under the circumstances in
which it is used, attempted to be used, or
threatened to be used, is capable of causing
death or serious physical injury[.]
Waskey asked the superior court to dismiss this indict
ment, arguing that the prosecutor had failed to adequately
instruct the grand jury on the meaning of "dangerous instrument".
Citing this court's decision in Konrad, Waskey argued that the
statutory definition of dangerous instrument is insufficient
guidance to the grand jury in a case like hers, where "the
defendant is alleged to have used a dangerous instrument that was
not a _deadly weapon› and that did not actually inflict death or
serious physical injury". Konrad, 763 P.2d at 1374-75. The
superior court agreed with Waskey that Konrad required dismissal
of the indictment.
We believe that Waskey's reading of Konrad is too
broad. In Konrad, the defendant had beaten his wife with his
hands, striking her once in the head and once in the ribs; the
blow to Ms. Konrad's ribs ruptured her spleen, causing her severe
abdominal pain, but the injury healed itself without medical
intervention. Konrad, 763 P.2d at 1372. Konrad was charged with
third-degree assault under AS 11.41.220(a)(2) for "recklessly ...
caus[ing] physical injury to another person by means of a
dangerous instrument." The prosecutor gave the grand jury the
statutory definition of dangerous instrument and, additionally,
told the grand jury that "in the State of Alaska, hands or feet
can be considered a _dangerous instrument› under the definition
that I have given you". Id. at 1372.
This court invalidated Konrad's indictment on two
grounds. First, there was a troubling ambiguity in the prosecu
tor's ancillary instruction that hands or feet "can be
considered" dangerous instruments under Alaska law; the grand
jurors might have taken the prosecutor's statement to mean that,
under Alaska law, striking another person with one's hands or
feet constitutes the use of a dangerous instrument. Konrad, 763
P.2d at 1374. Second, this court found that, "even without the
ambiguous instruction, ... the circumstances of the present case
[were] sufficiently unique to require a specific admonition to
the grand jury concerning [how] to determine whether a dangerous
instrument had been used." Id. The problem was that the grand
jury might have voted to indict Konrad based upon their
evaluation of a human hand's potential for inflicting serious
physical injury "as an abstract or hypothetical matter" rather
than based upon evidence establishing how Konrad had used his
hand in the particular circumstances of his case. Id. at 1375.
Speaking of the evidence presented at Konrad's trial, this court
noted:
[T]here is nothing in the record to establish
that the manner in which Konrad used his
hands was inordinately violent or
particularly calculated to inflict serious
physical injury. No evidence was offered to
suggest that Konrad had received martial arts
training or that he was otherwise skilled in
using his hands to inflict physical injury.
... [T]here was no evidence to suggest that
[Ms. Konrad] was especially susceptible to
incurring a serious physical injury ... [or]
that she was vulnerable to suffering [an]
injury more serious than [the injury]
actually inflicted[.]
Konrad, 763 P.2d at 1375. This court concluded that, in such
cases, an instruction should be given to "alert the grand jury to
the need ... to find, based upon the evidence in the case before
it, that the defendant used an instrument in a manner that
actually created a substantial risk of death or serious physical
injury" as opposed to an instrument that might theoretically have
created such a risk under some imaginable circumstances not
supported by the evidence. Id.
Waskey interprets Konrad as establishing a "bright-line
rule" that a special instruction on the meaning of dangerous
instrument must be given whenever "the defendant is alleged to
have used a dangerous instrument that is not a _deadly weapon›
and that did not actually inflict death or serious physical
injury". Konrad, 763 P.2d at 1374-75. However, this language
from the Konrad decision must be interpreted in the context of
the unique circumstances of Konrad's case.
Konrad struck another person once in the head and once
in the ribs. These blows were apparently of ordinary force and
delivered in an ordinary manner. This type of assault can
conceivably inflict serious physical injury, but many such
assaults would not reasonably be expected to leave lasting
injury. Thus, when an assault is committed by hands or fists
only, and when no serious physical injury has been inflicted, it
is important to apprise the grand jury that such an assault will
be considered a felony only when the evidence in the particular
case shows that the defendant used his or her hands in a manner
that actually created a substantial risk of death or serious
physical injury to the victim.
By contrast, Waskey's assault involved a collision
between an automobile and a bicyclist. Because of an
automobile's solidity and mass, an automobile is normally easily
capable of inflicting death or serious physical injury in such
circumstances. While it is possible to imagine collisions
between an automobile and a pedestrian or a cyclist that one
might not expect to result in serious physical injury (for
instance, when the driver's failure to set the parking brake
leads to a collision at 2 miles per hour), these are clearly
exceptional cases.
Under any reasonable construction of the facts of
Waskey's case, her automobile constituted a "dangerous instru
ment" within the statutory definition. The circumstances of
Waskey's collision with the bicyclist show that her car was
easily capable of inflicting serious physical injury or death;
indeed, the bicyclist's escape with only minor injuries was
completely fortuitous.
This is the key distinction between Waskey's case and
Konrad. In Konrad, the defendant used only his fists, and he
used them in a manner that left open a significant factual
question: whether the defendant's particular mode of assault
created a substantial risk of serious physical injury or death.
As Waskey conceded at oral argument, her case does not present
this issue, and there is no reasonable possibility that the grand
jurors' decision to indict Waskey for third-degree assault would
have changed if they had received the type of ancillary
instruction specified in Konrad.
Waskey suggests that, even though giving a clarifying
instruction would not alter the result in her case, this court
should nevertheless require the State to give such an instruction
in all cases, out of caution. However, it appears to us that
Konrad represents the unusual case, while Waskey's case is more
representative of third-degree assaults. We see no advantage in
creating a rule that will make a difference only in exceptional
cases and whose violation will normally be harmless error.
The judgement of the superior court is REVERSED. The
third-degree assault charge against Waskey is reinstated.
