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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RAYMOND CLOSE, )
) Court of Appeals No. A-5759
Appellant, ) Trial Court No. 3AN-93-1863 Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1461 - February 16, 1996]
______________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, John R. Lohff,
Judge.
Appearances: Glenn E. Cravez,
Anchorage, for Appellant. Carmen E.
ClarkWeeks, Chief Municipal Prosecutor, and
Mary K. Hughes, Municipal Attorney,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Raymond Close appeals his conviction for reckless
driving under Anchorage Municipal Code ' 9.28.010. We affirm.
Toward the end of Close's jury trial, when the trial
judge and the parties were discussing jury instructions, the
judge proposed various instructions defining the elements of
reckless driving under the municipal ordinance. One of these
instructions, ultimately numbered Instruction 6, stated:
The term "reckless" connotes a degree of
carelessness greater than simple negligence
and requires a negligent act or omission
accompanied by an unlawful disregard for the
foreseeable consequences of such act or
omission to the personal safety [or] property
of other persons.
Because the word "carelessness" was used in this instruction,
Close asked the judge to instruct the jury on the meaning of
"carelessness". Close proposed a definition that tracked the
definition of careless driving, a separate offense under the
Anchorage Municipal Code. The prosecutor objected to Close's
proposed definition of "carelessness". The prosecutor argued
that Instruction 6 used the word "carelessness" in its normal,
everyday sense, not as a term of art, and therefore no defining
instruction was needed.
The trial judge agreed with the prosecutor's argument
that "carelessness" as used in Instruction 6 needed no further
definition. The judge asked Close whether he would be requesting
an instruction on the crime of careless driving as a lesser-
included offense. This qustion implied that the judge recognized
the need for a more precise legal definition of "carelessness" if
the jury were asked to return a verdict on the offense of
careless driving. However, Close told the judge that he did not
intend to request an instruction on the lesser offense of
careless driving. The judge then declared that it was not
necessary to give a further instruction defining "carelessness"
for the jury.
At this point, Close told the court: "Under those
circumstances, Your Honor, I feel I am forced to ask for a
careless driving [instruction], and I make such a request at this
time." Pursuant to Close's request, the trial judge instructed
the jury on the lesser offense of careless driving.
On appeal, Close argues that the trial judge committed
error by refusing to instruct the jury on the definition of
"carelessness" as used in Instruction 6. We, however, agree with
the trial judge that Instruction 6 used the word "carelessness"
in its normal sense. No further definition was necessary for the
jury's understanding of Instruction 6. See Williams v. State,
648 P.2d 603, 608 (Alaska App. 1982) (when the word "recklessly"
was used in its normal sense, the trial judge did not commit
plain error by failing to further define this word for the jury).
The specialized definition that Close proposed (a definition
based on the Municipal Code's definition of "careless driving")
did not become relevant until Close decided to ask the jury to
return a verdict on this lesser offense.
Close's other arguments on appeal deal with the fact
that the jury found him guilty of both reckless driving (the
original charge) and careless driving (the lesser-included
offense that Close requested).1 When the jury returned these two
verdicts, Close asked the trial judge to question the jurors
regarding which charge they had voted on first. The trial judge
refused to do this; instead, the judge ruled that the lesser
offense (careless driving) would merge with the greater offense
(reckless driving) for a single judgement of conviction for
reckless driving.
Close asserts that, because the jury simultaneously
returned verdicts on both the reckless driving charge and the
careless driving charge, it is impossible to tell which charge
the jury voted on first. Close further asserts that, if the jury
voted first to convict Close of the lesser charge of careless
driving, then the double jeopardy clause would preclude the jury
from continuing its deliberations and subsequently voting to
convict Close of reckless driving. This is mistaken.
In Dresnek v. State, 697 P.2d 1059 (Alaska App. 1985),
aff'd 718 P.2d 156 (Alaska 1986), this court clarified that "the
jury is free to deliberate on the charged offense ... and [on]
the lesser-included offenses in any order it wishes. The jury is
merely precluded from returning a verdict on a lesser offense
without also returning a verdict on the greater offense[s]." 697
P.2d at 1064. Jury verdicts have no preclusive effect under the
double jeopardy clause until the trial judge accepts the jury's
verdicts. As the Fourth Circuit stated in United States v.
Chinchic, 655 F.2d 547, 549-50 (4th Cir. 1981),
Votes taken in the jury room prior to [the
verdict's] being returned in open court are
merely preliminary and are not binding on the
jury, any member of which is entitled to
change his or her mind up until the time of
the trial court's acceptance of the verdict.
See also United States v. Love, 597 F.2d 81, 85 (6th Cir. 1979)
(the mere announcement of a verdict by the jury foreman is not a
final verdict for double jeopardy purposes C citing several cases
in which courts "have approved the practice of permitting a jury
to correct a mistake in its announced verdict before [the
verdict] has been accepted and the jury discharged"); United
States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975) ("[A] jury
has not reached a valid verdict until deliberations are over, the
result is announced in open court, and no dissent by a juror is
registered."); State v. Robinson, 523 P.2d 1192, 1195 (Wash.
1974) ("[A] jury's action does not become a verdict until it is
finally rendered in open court and received by the trial
judge".).
We thus conclude that the trial judge did not commit
error when he refused Close's request to question the jurors
regarding the order in which they reached their verdicts. The
order in which the jurors voted on the two charges does not
present a double jeopardy issue.
Close raises another related issue. During the
discussion of jury instructions, the trial judge proposed to give
a "transition" instruction based on Alaska Criminal Pattern Jury
Instruction No. 1.37:
The jury is free to deliberate on the
charged offense ... and [any] lesser included
offense(s) in any order it wishes. The jury
must reach a verdict on a greater offense
before reaching a verdict on a lesser
offense.
The prosecutor objected that this instruction misstated the law;
the prosecutor asserted that the jury was not to deliberate on a
lesser-included offense until they had reached a "not guilty"
verdict on the greater offense. (As can be seen from our
previous discussion of Dresnek, the prosecutor was wrong.)
The trial judge correctly discerned that the
prosecutor's argument was mistaken. Nevertheless, after re-
examining the wording of Pattern Instruction 1.37, the trial
judge decided that the instruction might confuse the jury. He
therefore declined to give it. Close took "vigorous exception"
to the trial judge's decision. Close argued that, without
Pattern Instruction 1.37, the jury might conclude that they
"[could not] even look at careless driving until they've
determined reckless [driving]".
On appeal, Close renews his argument that Pattern
Instruction 1.37 should have been given. However, the
prejudicial consequence predicted by Close (that the jurors would
not understand their ability to simultaneously consider both
charges) did not come to pass. From the jury's two verdicts in
this case, it is clear that the jurors considered both the charge
of reckless driving and the charge of careless driving.
Accordingly, even assuming that it was error for the trial judge
not to give Pattern Instruction 1.37, that error was harmless.
The judgement of the district court is AFFIRMED.
_______________________________
1 In returning two guilty verdicts, the jurors apparently failed to understand
that they should find Close guilty only of reckless driving (the charged
offense) if they believed that the government had proved both the charged
offense and the lesser-included offense.
