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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4979
Appellant, ) Trial Court No. 4FA-92-2707
Cr
)
v. ) O P I N I O N
)
KELVIN A. WALKER, )
)
Appellee. ) [No. 1384 - December 23, 1994]
________________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: John A. Scukanec,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho and Charles E. Cole,
Attorneys General, Juneau, for Appellant.
Gina M. Tabachki, Assistant Public Defender,
Fairbanks, and John B. Salemi, Public
Defender, Anchorage, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Kelvin A. Walker was charged with two counts of first-
degree assault, AS 11.41.200(a)(1) and (a)(2). A superior court
jury convicted him of one count and acquitted him of the other.
Acting Superior Court Judge Charles R. Pengilly concluded that
the jury's verdicts were inconsistent, and so he granted Walker a
new trial on the surviving count. The State appeals Judge
Pengilly's order. For reasons explained below, we remand this
case to the superior court for reconsideration of the order
granting a new trial.
The first issue we must address is the State's right to
appeal Judge Pengilly's order. In this context, the term
"appeal" refers to a party's right to demand that an appellate
court review a lower court's decision - as opposed to a "petition
for review", the procedural device which allows a party to
request an appellate court's review of a lower court's decision,
but which also allows the appellate court to decline the case
without reaching the merits of the lower court's ruling. See
State v. Browder, 486 P.2d 925, 930 (Alaska 1971).
Formerly, Alaska law limited the State's right of
appeal in criminal cases to two specific situations: when the
State wished "to test the sufficiency of the indictment or
information" after the superior court had dismissed the charging
document, and when the State wished to challenge a sentence "on
the ground that the sentence is too lenient". This limitation
was first enacted in former AS 22.05.010 and, after the creation
of the court of appeals, the same limitation was re-enacted in
former AS 22.07.020(d)(2).
In State v. Michel, 634 P.2d 383, 384-85 (Alaska App.
1981), this court construed former AS 22.07.020(d)(2) to allow
the State to appeal any final decision in a criminal case unless
such an appeal would run afoul of the guarantee against double
jeopardy. However, in Kott v. State, 678 P.2d 386, 388-390
(Alaska 1984), the supreme court rejected this court's
interpretation of the statute and held, instead, that the State's
power to appeal trial court decisions in criminal cases was
strictly limited to the two types of appeal listed in the
statute.
In 1993, prompted by a request from the Department of
Law, the Alaska Legislature amended AS 22.07.020(d)(2). See Ch.
71, 2 SLA 1993 (effective June 26, 1993). This statute now
reads:
(d) An appeal to the court of appeals is a
matter of right in all actions and
proceedings within its jurisdiction except
that
. . . .
(2) the state's right of appeal in crimi
nal cases is limited by the prohibitions
against double jeopardy contained in the
United States Constitution and the Alaska
Constitution.
In the present case, the State contends that this amended statute
gives the State the right to appeal (that is, demand our review
of) Judge Pengilly's decision to grant Walker a new trial.
The State's argument founders on the rule that an
appeal (in all cases, civil and criminal) can normally be taken
only from a "final judgement" or a "final order". See United
States v. Nixon, 418 U.S. 683, 690; 94 S.Ct. 3090, 3099; 41
L.Ed.2d 1039 (1974). See also W. LaFave & J. Israel, Criminal
Procedure (1984), 26.2(a), Vol. 3, pp. 182-84; C.A. Wright et
alia, Federal Practice & Procedure (2nd ed. 1992), 3907.
Though the Alaska Supreme Court stated in Juneau v.
Thibodeau, 595 P.2d 626, 628 (Alaska 1979), that we should employ
common sense and practicality when determining whether a lower
court's decision is a "final" order for purposes of appeal, the
basic test of finality continues to be whether the lower court's
order "disposes of the entire case, ... ends the litigation on
the merits[,] and leaves nothing for the court to do but execute
the judgment". Greater Anchorage Area Borough v. City of
Anchorage, 504 P.2d 1027, 1030 (Alaska 1972). See also LaFave &
Israel, supra.
Courts and commentators agree that orders granting new
trials are not "final" orders and, for this reason, such orders
are not appealable unless the legislature has expressly granted
the government the right to appeal them. LaFave & Israel,
26.3(c), Vol. 3, pp. 220-21. "[A]n order granting a new trial
is interlocutory in nature and therefore not immediately appeal
able". Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34-
35; 101 S.Ct. 188, 190; 66 L.Ed.2d 193 (1980). "This rule is
obeyed virtually without exception." Wright et al., 3915.5,
p. 298.
An order granting a new trial has none
of the earmarks of a final decision. It
settles no rights between the parties, but
instead initiates a new proceeding to deter
mine those rights. Accordingly, such orders
have almost uniformly been held
interlocutory, and hence nonappealable, both
in civil cases, and in criminal cases.
United States v. Sam Goody, Inc., 675 F.2d 17, 20 (2nd Cir. 1982)
(citations and footnote omitted). See also J.A. Jones Constr.
Co. v. Steel Erectors, Inc., 901 F.2d 943, 944 (11th Cir. 1990);
Evers v. Equifax, Inc., 650 F.2d 793, 796 (5th Cir. 1981); Juneau
Square Corp. v. First Wisconsin Nat. Bank, 624 F.2d 798, 806 (7th
Cir. 1980); United States v. Taylor, 544 F.2d 347, 349 (8th Cir.
1976).
The State nevertheless argues that AS 22.07.020(d)(2)
confers the right to appeal any order of a trial court, whether
that order is "final" or not. The State's argument rests on the
fact that, when the Alaska Legislature amended AS
22.07.020(d)(2), the legislature declared that the newly-amended
statute was "based on the provisions of 18 U.S.C. 3731". See
Ch. 71, 1 SLA 1993.
18 U.S.C. 3731 is a statute that abrogates the
finality requirement in several situations that arise in federal
criminal cases. For federal litigation (both civil and
criminal), the rule of finality is codified in 28 U.S.C. 1291.
Under 28 U.S.C. 1291, a litigant normally can take an appeal
only "from [a] final decision[] of the district court[]".
However, 18 U.S.C. 3731 gives federal prosecutors the right to
appeal certain types of trial court orders even though these
orders are non-final.1
One of the non-final appealable orders listed in 18
U.S.C. 3731 is an "order ... granting a new trial after verdict
or judgment". From this, and from the legislature's statement
that AS 22.07.020(d)(2) is based on 18 U.S.C. 3731, the State
infers that AS 22.07.020(d)(2) was intended to allow the
government to appeal orders granting new trials in criminal
cases. However, neither the federal courts' interpretation of 18
U.S.C. 3731 nor the legislative history of AS 22.07.020(d)(2)
supports the State's expansive interpretation of the statute.
Even though 18 U.S.C. 3731 gives the federal
government the right to appeal specified non-final orders, the
statute does not give the government a carte-blanche exemption
from the final judgement rule.
Section 3731 can, and does, make it lawful
for the government to take certain appeals
even though there is no final judgment. For
example, section 3731 expressly authorizes
the government to appeal interlocutory
suppression orders under certain
circumstances. However, Congress intended
for section 3731 to waive the final judgment
requirement of section 1291 in certain
limited circumstances only. It did not
intend for section 3731 to eliminate the
final judgment requirement entirely. Thus,
unless the right to take an interlocutory
appeal is expressly provided in section 3731,
government appeals must satisfy the final
judgment requirement of section 1291 as well
as the requirements of section 3731.
United States v. Martinez, 763 F.2d 1297, 1308 n.10 (11th Cir.
1985). See also United States v. Dior, 671 F.2d 351, 355 (9th
Cir. 1982); United States v. Sam Goody, Inc., 675 F.2d 17, 23
(2nd Cir. 1982).
For instance, prior to 1984, federal courts routinely
held that the government could not appeal orders granting a new
trial in criminal cases because such orders were not listed in 18
U.S.C. 3731. See United States v. Alberti, 568 F.2d 617 (2nd
Cir. 1977); United States v. Taylor, 544 F.2d 347 (8th Cir.
1976). In response, Congress amended the statute in 1984 to
expressly provide that the government could appeal an order grant
ing a defendant a new trial. Crime Control Act, Public Law No. 98-
473, 205, 98 Stat. 1986 (1984).2
Thus, even though 18 U.S.C. 3731 allows the federal
government to appeal certain trial court orders that clearly are
not final, the statute does not abrogate the final judgement
rule. It merely creates specific exceptions to that rule.
Turning to the legislative history of AS
22.07.020(d)(2), we conclude that the legislative proceedings
demonstrate an intent to expand the State's right of appeal in
criminal cases. However, the legislative history does not
demonstrate that the legislature wished to exempt the State from
the final judgement rule in criminal cases, nor does the legisla
tive history support the State's contention that the legislature
intended to enact the specific exceptions to the final judgement
rule listed in 18 U.S.C. 3731.
The House Judiciary Committee considered House Bill
181, the legislative proposal that eventually was enacted as
AS 22.-07.020(d)(2), at a meeting on March 8, 1993. At this
meeting, representatives of the executive branch explained the
goals they had in mind when seeking reformulation of
AS 22.07.020(d)(2). According to the minutes of the meeting,
Assistant Attorney General Margo Knuth told the committee that
the intent of the amended statute was to grant the State "the
same right to appeal from adverse decisions in criminal cases
that the federal government [enjoyed]". However, Ms. Knuth at
the same time told the committee that the proposed change in the
law would affect only "about twelve cases per year", cases in
which the State suffered adverse evidentiary rulings that
effectively ended a prosecution. Ms. Knuth told the committee
that the proposed amendment "would not affect ... mid-trial
petitions [for review]". Rather, "the bill would affect [only]
evidentiary rulings which resulted in dismissal of a case".
One of the committee members asked why the proposed
legislation carried a zero fiscal note (that is, why the fiscal
note stated that the change in the law would have no monetary
impact on state government). Ms. Knuth responded that the
projected cost was zero because the amended statute "would not
result in more appeals". Ms. Knuth told the committee that the
cases the Department of Law was concerned about, cases in which
the Department currently had to file a petition for review,
amounted to approximately a dozen a year. Under the proposed
legislation, the State would be able to file an appeal and
litigate these issues at a normal pace rather than having to
prepare a petition for review within a shortened time frame.
In further explanation of the proposed legislation, Ms.
Gayle Horetski told the committee that the former language of
AS 22.07.020(d)(2) had once been "interpreted to be the same as
federal law on [this] issue", but that "a 1983 [sic] Alaska
Supreme Court decision" had given AS 22.07.020(d)(2) a narrower
interpretation. Ms. Horetski was clearly referring to this
court's decision in Michel and the supreme court's superseding
decision in Kott. The intent of the proposed law, Ms. Horetski
explained to the committee, was to alter the result of the
supreme court decision and return the law to its former interpre
tation.
From this House Judiciary Committee hearing, it appears
that the Department of Law was seeking a statute that would allow
the State to appeal orders of dismissal - "final" orders -
whenever such an appeal would not violate the guarantee against
double jeopardy. The minutes of the committee hearing do not,
however, support the State's contention that the legislature
wished to abrogate the final judgement rule for the State in
criminal cases. Nor do these minutes support the State's
contention that the legislature, when it amended
AS 22.07.020(d)(2), intended to give the State the right to
appeal orders granting new trials or any of the other non-final
orders listed in the federal statute.
We recognize that the legislature declared that
AS 22.07.020(d)(2) is "based" on 18 U.S.C. 3731. The statutory
language that allows appeals by the State except where "limited
by the prohibitions against double jeopardy contained in the
United States Constitution and the Alaska Constitution" is
clearly based on the wording of the federal statute. However, AS
22.07.020(d)(2) conspicuously omits the specific exceptions to
the final judgement rule listed in 18 U.S.C. 3731.
In sum, neither the wording of AS 22.07.020(d)(2) nor
the minutes of the committee hearing on that legislation provide
any support to the State's argument that the legislature wished
to allow the State to appeal orders granting new trials or any
other non-final orders. Congress did not abrogate the final
judgement rule when it enacted the federal statute. We conclude
that the Alaska Legislature likewise did not intend to abrogate
the final judgement rule when it amended AS 22.07.020(d)(2). We
further conclude that the Alaska Legislature did not intend to
enact the specific exceptions to the final judgement rule found
in 18 U.S.C. 3731. Instead, the legislature intended to re-
establish the rule announced by this court in Michel - the rule
that "the state may appeal ... any adverse final judgment of a
trial court in a criminal action ... unless [trial or] retrial
would be barred by the double jeopardy clauses of the state or
federal constitutions". Michel, 634 P.2d at 385.
Because Judge Pengilly's order granting a new trial in
this case is not a final order, the State has no right to appeal
it. Nevertheless, we have decided to treat the State's current
appeal as a petition for review and to grant that petition, both
because we find that the issue raised is a significant one and
because the parties have, at this point, invested significant
resources in this appellate litigation. We therefore turn to the
substance of Judge Pengilly's order granting Walker a new trial.
Walker was accused of stabbing two men, Bond Sutton and
Jerry Dompeling, with a knife during a confrontation at a party.
The evidence at trial indicated that Walker stabbed Sutton once,
in the upper right arm, severing his bicep. The evidence also
indicated that Walker stabbed Dompeling three times in the back;
one of these stab wounds was to Dompeling's neck, while the other
two were to his chest. Although Dompeling's neck injury was
minor, the two stab wounds to his chest were quite deep; they
caused his lungs to collapse. Walker claimed that he had acted
in self-defense. The jury acquitted Walker of assaulting Sutton,
but they convicted Walker of assaulting Dompeling.
Walker sought a new trial, arguing that the jury's
verdicts were so contradictory (given the evidence in the case)
that it would be a miscarriage of justice to allow his conviction
to stand. Judge Pengilly agreed. In his ruling, Judge Pengilly
found that neither Sutton nor Dompeling had engaged in any
behavior that would have justified Walker in believing that he
was in danger of death or serious physical injury from them.
Nevertheless, Judge Pengilly found that Walker might reasonably
have perceived a danger of death or serious physical injury
stemming from the possibility that a fight might break out, a
fight that would pit Walker (and a single friend) against Sutton,
Dompeling, and the six to eight other men gathered at the house.
Judge Pengilly further concluded:
Reasonable minds could differ on the
question of whether Kelvin Walker's belief
that the use of deadly force was necessary to
defend himself against serious physical
injury was reasonable under the
circumstances.
Finally, Judge Pengilly found that the assorted wounds Walker
inflicted on Sutton and Dompeling all occurred "in the space of
approximately one second" and that there was no change in the
surrounding circumstances during that period of time which would
have altered Walker's perception of the threat of serious
physical injury.
Based on these findings of fact, Judge Pengilly
concluded that the jury's verdicts were irreconcilable and that,
therefore, Walker's assault conviction was "contrary to the clear
weight of the evidence". The State seeks reversal of this
ruling.
A trial judge's power to order a new trial is premised
on the judge's obligation to prevent manifest injustice. Even
though a jury's verdicts may not be logically inconsistent, the
jury's verdicts may demonstrate such a skewed or inconsistent
view of the evidence as to indicate that the jury either failed
to understand the evidence, failed to understand the court's
instructions, or simply returned a compromise verdict when the
case proved too difficult. When a trial judge is convinced that
there has been such a failure of justice, the judge may grant a
new trial under the authority of Alaska Criminal Rule 33 even
though the jury's verdicts are not, strictly speaking, logically
inconsistent. However, there are two main constraints on a
judge's authority to grant a new trial.
First, it is the jury, not the trial judge, who is
entrusted with the primary responsibility of determining issues
of fact and, ultimately, the defendant's guilt or innocence.
Before a trial judge negates the jury's decision by ordering a
new trial, the jury's verdicts must clearly manifest the jury's
failure to engage in a valid fact-finding process. Second, in
cases such as Walker's where the allegation of flawed jury
deliberations is premised on the ostensible inconsistency of the
jury's verdicts, it must be clear that the flaw affected the
jury's decision to convict (rather than merely the jury's
concurrent decision to acquit).3
As Judge Pengilly viewed Walker's case, the crucial
issue was whether Walker was legally justified in using deadly
force against Sutton and Dompeling.4 Judge Pengilly believed
that this issue turned solely on the question of whether Walker
had reasonably believed that he faced imminent death or serious
physical injury when he stabbed Sutton and Dompeling. See
AS 11.81.335(a).
Judge Pengilly found that no reasonable jury could have
believed that Walker faced a threat of death or serious physical
injury from the individual or combined actions of Sutton and
Dompeling. However, Judge Pengilly found that reasonable jurors
might have believed that Walker faced a threat of imminent
serious physical injury from the possibility of a fight breaking
out between Walker and the entire group of men present at the
house.
Thus, Judge Pengilly concluded, any threat of serious
physical injury had to arise from the situation as a whole, not
from the actions of either Sutton or Dompeling. Because the
jury's verdicts (acquitting Walker of assaulting Sutton but
convicting him of assaulting Dompeling) appeared to Judge
Pengilly to rest on a distinction between the threat posed by
Sutton and the threat posed by Dompeling, Judge Pengilly
concluded that these verdicts were either inconsistent or were
based on a manifestly flawed view of the evidence.
There is, however, another theory that possibly
reconciles the verdicts. Even though a person faces a threat of
imminent death or serious physical injury, so that he or she is
legally entitled to use deadly force in self-defense, the law
still requires that the force used be no greater than necessary
to avert the danger.
Professor Paul Robinson, in his work Criminal Law
Defenses (1984), addresses the defensive use of force and the
requirement that a defendant's use of force be "necessary" under
the circumstances.
One common formulation of the necessity
requirement gives the actor the right to act
when "such force is necessary to defend him
self". But this formulation fails to
highlight the two essential parts of the
necessity requirement[:] force should be
permitted only (1) when necessary and (2) to
the extent necessary. The actor should not
be permitted to use force when such force
would be equally as effective at a later time
and the actor suffers no harm or risk by
waiting. Nor should the actor be permitted
to use more force than is necessary for the
defensive purpose.
P. Robinson, Criminal Law Defenses, 131(c), Vol. 2, p. 77
(footnotes omitted).
The principle that defensive force should be no greater
than necessary to avert the danger underlies the rules that
define the situations in which a person is limited to non-deadly
force and is not authorized to use deadly force. See
AS 11.81.330 and 335. But even in circumstances when a person is
permitted to use deadly force in self-defense under AS 11.81.335,
that person may still not be authorized to employ all-out deadly
force because such extreme force is not necessary to avert the
danger. Korzep v. Superior Court, 838 P.2d 1295, 1301 (Ariz.
App. 1991) (the defendant's "chosen degree of force [must not be]
unreasonable to prevent the [threatened] crime"); State v.
Fischer, 598 P.2d 742, 744 (Wash. App. 1979) ("persons may use
[only] that degree of force necessary to protect themselves as a
reasonably prudent man or woman would use under the conditions");
Leeper v. State, 589 P.2d 379, 382 (Wyo. 1979) ("To justify a
homicide on [the ground of self-defense], it must appear that the
defendant was in [imminent] peril of death or serious bodily harm
[and it] must appear that the killing was a necessary and
reasonable means of avoiding the threatened harm[.]")
For instance, AS 11.81.900(b)(12) defines "deadly
force" as including the act of pointing a firearm at another
person. Under the circumstances of a particular case, a jury
might conclude that a defendant surrounded by a hostile crowd was
justified in using deadly force to the extent of drawing a
firearm, pointing it at the crowd, and firing the weapon into the
air as a warning. However, the jury might also reasonably
conclude that these same circumstances did not justify the
defendant in intentionally shooting one of the crowd in the head.
In State v. Bergeson, 824 P.2d 515 (Wash. App. 1992),
the defendant was attacked by a man carrying a knife. The
defendant, armed with a firearm, shot his attacker twice in the
head from far enough away that no powder marks were left on the
victim. The court agreed that the case presented a jury issue as
to whether the defendant "used more force than was necessary
under the circum-stances". Id. at 518.
In Walker's case, Judge Pengilly could properly find
that neither the individual actions of Sutton nor the individual
actions of Dompeling affected the quality of threat Walker faced
from the crowd. However, Walker stabbed Sutton only once in the
arm, while he stabbed Dompeling three times in the back,
including two deep wounds to the chest that collapsed Dompeling's
lungs. Given this evidence, the jury might have concluded that
the severity of Walker's attack on Sutton was warranted by the
circumstances but that the additional severity of Walker's attack
on Dompeling was not necessary and was therefore not legally
justified.
The trial judge, not this court, has the primary
responsibility under Alaska Criminal Rule 33 for evaluating the
jury's verdict in light of the evidence presented. However,
Judge Pengilly's findings address only the question of whether
Walker was justified in using deadly force against members of the
crowd. His findings do not address the further issue of what
degree of deadly force was warranted under the circumstances.
Because Judge Pengilly apparently did not consider this issue in
his ruling, we remand this case to him for reconsideration.
This case is REMANDED to the superior court for
reconsideration in light of this opinion. We do not retain
jurisdiction of this appeal.
_______________________________
1 The pertinent portion of this statute reads:
3731. Appeal by United States
In a criminal case an appeal by the United States
shall lie to a court of appeals from a decision,
judgment, or order of a district court dismissing an
indictment or information or granting a new trial after
verdict or judgment, as to any one or more counts,
except that no appeal shall lie where the double
jeopardy clause of the United States Constitution
prohibits further prosecution.
An appeal by the United States shall lie to a
court of appeals from a decision or order of a district
court suppressing or excluding evidence or requiring
the return of seized property in a criminal proceeding,
not made after the defendant has been put in jeopardy
and before the verdict or finding on an indictment or
information, if the United States attorney certifies to
the district court that the appeal is not taken for
purpose of delay and that the evidence is a substantial
proof of a fact material in the proceeding.
2 A number of state legislatures have also enacted laws
that partially abrogate the finality requirement and give the
government the right to appeal orders granting new trials in
criminal cases. See LaFave & Israel, 26.3(c), Vol. 3, pp. 220-
21.
3 That is, if the government's evidence was strong and the
jury's decision to acquit is apparently inexplicable, there might
be no manifest injustice in allowing the surviving conviction to
stand. On the other hand, if the case was close and it clearly
appears that the jury must have returned a compromise verdict,
the jury's decision to compromise the case rather than lawfully
decide the separate counts would be a flaw that infects both
verdicts and would justify a judge in granting a new trial.
4 Under AS 11.81.900(b)(12), "deadly force" means "force
that the person uses with the intent of causing, or uses under
circumstances that the person knows create a substantial risk of
causing, death or serious physical injury ... ."
