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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MATTHEW J. DAVIDSON, )
) Court of Appeals No. A-6147
Appellant, ) Trial Court No. 1SI-95-0140CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1626 - March 19, 1999]
______________________________)
Appeal from the Superior Court, First Judicial
District, Sitka, Larry C. Zervos, Judge.
Appearances: William E. Olmstead, Olmstead &
Conheady, Juneau, for Appellant. James L.
Hanley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Matthew J. Davidson was convicted by a jury of assault in
the first degree, a class A felony.1 Davidson appeals to this
court, raising essentially two issues: (1) that the state
presented insufficient evidence at trial to support a conviction
for assault in the first degree; and (2) Superior Court Judge Larry
C. Zervos erred in rejecting Davidson's motion for a new trial. We
affirm.
SUFFICIENCY OF THE EVIDENCE
Davidson was convicted of assault in the first degree for
assaulting Gordon Hall. Assault in the first degree occurs when
the defendant "recklessly causes serious physical injury to another
by means of a dangerous instrument."2 Davidson challenges the
sufficiency of the evidence by claiming the state presented
insufficient evidence to prove: (1) that Hall sustained "serious
physical injury"; (2) that Davidson caused the serious physical
injury to Hall; and (3) that Davidson used a "dangerous
instrument."
In determining whether there is sufficient evidence to
support a conviction, we are to consider the evidence in the light
most favorable to the prevailing party, in this instance, the
state.3 We are to determine whether the evidence is adequate to
support a conclusion by a reasonable mind that the defendant is
guilty of the offense beyond a reasonable doubt.4
According to the evidence presented at trial, Davidson
and his friend, Jeff Anderson, confronted Hall in Sitka, Alaska.
According to Hall's testimony, following an argument, Davidson
began striking him with his fists. Hall tried to run away but
Anderson caught up to him and knocked him to the ground. Then,
Davidson and Anderson kicked Hall, mostly in the head. Hall
eventually passed out. Robert Gorman testified that he and a
friend came upon the scene and saw the two men kicking Hall.
Gorman testified that he saw him (Davidson) kick Hall in the upper
body and head. Gorman stated Davidson used full kicks in striking
Hall, and that he saw Davidson kick Hall approximately eight times.
Gorman stated that Hall was unconscious by the time he and his
friend reached him. Gorman summoned an ambulance for Hall and Hall
was taken to the hospital.
According to Hall, he was unable to return to work for
more than a week after the beating. He sustained a concussion, a
broken nose, and several other abrasions/cuts from the assault. At
trial, which was held six months after the beating, Hall stated
that he still suffered from headaches. He had scars below his
right eye and forehead.
Davidson's first contention is that the evidence
presented at trial was insufficient to establish that Hall
sustained serious physical injury. Serious physical injury is
defined by Alaska Statute 11.81.900(b)(53) as:
(A) physical injury caused by an act performed
under circumstances that create a substantial
risk of death; or
(B) physical injury that causes serious and
protracted disfigurement, protracted impair-
ment of health, protracted loss or impairment
of the function of a body member or organ, or
that unlawfully terminates a pregnancy.
The evidence presented at trial, taken in the light most favorable
to the state, established that Davidson kicked Hall several times
in the head while Hall was lying helplessly on the ground. Gorman
demonstrated the nature of the kicks for the jury which he
described as "a full kick." He indicated that it was difficult to
demonstrate the kick without kicking something because otherwise he
could fall down doing the demonstration. Hall described the extent
of his injuries which supported the conclusion that he had been
struck severely in the head and sustained a concussion.
Based upon this evidence, a reasonable jury could have
concluded that Davidson kicked a helpless and unconscious Hall
several times in the head. There was sufficient evidence for the
jury to find that Hall's injury was "caused by an act performed
under circumstances that create a substantial risk of death."5 We
accordingly conclude there was sufficient evidence for the jury to
find that Hall suffered serious physical injury.
Next, Davidson contends that the evidence presented at
trial was insufficient to establish that Davidson caused Hall's
injuries. He points out that Hall was unable to tell whether
Anderson or Davidson was the person who kicked him in the head.
Gorman's testimony, however, taken in the light most favorable to
the state, establishes that Davidson was the person kicking Hall's
head as Hall lay helplessly on the ground. This evidence was
sufficient to support a conclusion by a reasonable jury that
Davidson caused serious physical injury.
Davidson also argues that there was insufficient evidence
to support his conviction for assault in the first degree because
the state did not establish that he caused the injury "by means of
a dangerous instrument." Alaska Statute 11.81.900(b)(13) defines
"dangerous instrument" as:
any deadly weapon 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.
Davidson contends that the evidence was insufficient to show that
his foot was a dangerous instrument. In determining whether a foot
is a dangerous instrument, the appropriate inquiry is to examine
the precise manner in which the foot was actually used.
Feet, regardless of how they are shod,
are not per se dangerous instruments. They
may become dangerous instruments "if used in
such a way as to be capable of causing death
or serious physical injury." Whether a foot
constitutes a dangerous weapon when used to
kick another person is a fact-specific
determination to be gleaned from the
circumstances surrounding an assault; the
inquiry in each case must center on the manner
in which the kick was administered and the
victim's vulnerability to the kick.[6]
We believe that the jury could properly conclude, under
the facts of this case, that Davidson's action of kicking Hall
several times in the head while he was lying helplessly on the
ground made his foot a dangerous instrument. The jury could
conclude that the manner in which he used his foot to strike Hall
several times was "capable of causing death or serious physical
injury."7 We accordingly conclude that there was sufficient
evidence to support the jury's verdict.
NEW TRIAL MOTION
Following deliberations in this case, the jury completed
and returned three verdict forms.8 On the first verdict form, the
jury placed a check mark indicating that it had found Davidson
guilty of assault in the first degree. On the two other verdict
forms, the jury placed check marks indicating that it had found
Davidson not guilty of the lesser-included offenses of assault in
the third degree and assault in the fourth degree, respectively.
When the jury returned these verdicts, Judge Zervos
announced to the parties that the jury had found Davidson guilty of
assault in the first degree. Judge Zervos polled the jury, and
each of the jurors confirmed that he or she had found Davidson
guilty of assault in the first degree. Judge Zervos then dismissed
the jury. Only after the jury left the courtroom did Judge Zervos
distribute copies of the verdict forms to the parties.
The next day, Davidson moved for a new trial, arguing
that the jury's verdicts were inconsistent. Davidson contended
that, if the jury had found him guilty of first-degree assault, it
would necessarily have had to find him guilty of the lesser degrees
of assault as well, since those lesser offenses were necessarily
included in the charged offense. Thus, Davidson argued, the jury's
decision to acquit him of third-degree and fourth-degree assault
was logically inconsistent with its decision to convict him of
first-degree assault.
Five days later, over Davidson's objection, Judge Zervos
reassembled the jury. The judge explained to the jurors that,
normally, when a jury finds a defendant guilty of the charged
offense, the jury does not fill out the verdict forms for the
lesser-included offenses. The judge then asked each juror to
answer a written interrogatory concerning the jury's verdicts. In
this interrogatory, the jurors were asked to explain what their
verdicts on the lesser-included charges meant. The interrogatory
was worded thus:
JUROR INTERROGATORY
Please check the appropriate box below.
The jury returned Not Guilty verdicts on
the lesser-included assault charges (Third and
Fourth Degree) because:
[ ] We concluded that the defendant did
not do what was alleged in the lesser-included
charges.
OR
[ ] We thought that if we found the
defendant guilty of Assault in the First
Degree then we could not find him guilty of
the lesser charges (Assault in the Third or
Fourth Degree).
OR
[ ] Neither of the above.
Please explain.
_________________________
_________________________
_________________________
_______________
_____________________________________________
If you check the first box[,] leave the
verdict forms as they are now. If you check
the second box, cross out the original check
marks on the verdict forms for Third Degree
Assault and Fourth Degree Assault by placing
an X over them and write "Not Used" on the
forms.
If you check the third box, please return
to the courtroom.
The jurors selected the second
option: "We thought that if we found the
defendant guilty of Assault in the First
Degree then we could not find him guilty of
the lesser charges (Assault in the Third
Degree or Fourth Degree)." Accordingly, the
jurors used an "X" to mark out their previous
check marks on the verdict forms for third-
degree and fourth-degree assault, and they
wrote "Not Used" on these verdict forms.
The jurors were further questioned
by the court. They confirmed that they had
found Davidson guilty of assault in the first
degree and had checked "Not Guilty" on the
other verdict forms "because we thought we
were supposed to do that."
Judge Zervos subsequently denied
Davidson's motion for a new trial because he
found that, even without the jury's
explanation, the three verdicts were not
"strictly" inconsistent. Judge Zervos
declined to rely on the jury's answer to the
interrogatory or its accompanying explanatory
statements in court because of "the problems
associated with having reconvened the jury six
days after it was discharged." At the same
time, however, Judge Zervos found (based on
the jurors' answers to the interrogatory) that
the jury had in fact "determined that the
evidence did prove the greater offense," and
that the jury's first-degree assault verdict
accurately "indicat[ed] the level of assault
that [the jury] found Mr. Davidson to have
committed." Judge Zervos concluded that the
jury had checked "Not Guilty" on the other
verdict forms, not because it believed that
the state had failed to prove Davidson guilty
of those lesser offenses, but because of "a
procedural error in filling out the verdict
forms." Davidson argues on appeal that Judge
Zervos erred in denying his motion for a new
trial.
We disagree with Judge Zervos'
ruling that he could uphold the jury's verdict
for assault in the first degree on the ground
that, even without explanation, the verdict
forms were not strictly inconsistent.9 We
conclude, however, that Alaska Evidence Rule
606 did not bar Judge Zervos from considering
the jury's response in interpreting the three
verdict forms.
Rule 606(b) provides:
(b) Inquiry Into Validity
of Verdict or Indictment.
Upon an inquiry into the
validity of a verdict or
indictment, a juror may
not be questioned as to
any matter or statement
occurring during the
course of the jury's
deliberations or to the
effect of any matter or
statement upon that or
any other juror's mind or
emotions as influencing
the juror to assent to or
dissent from the verdict
or indictment or
concerning the juror's
mental processes in
connection therewith,
except that a juror may
testify on the question
whether extraneous
prejudicial information
was improperly brought to
the jury's attention or
whether any outside
influence was improperly
brought to bear upon any
juror. Nor may a juror's
affidavit or evidence of
any statement by the
juror concerning a matter
about which the juror
would be precluded from
testifying be received
for these purposes.
The commentary to Rule 606(b) discloses that
the Alaska rule was modeled after the federal
rule.10
The policy behind Rule 606(b) was
stated in Lowery v. State,11 where this court
stated:
The policy reasons
underlying the exclusion
of jurors' affidavits or
testimony impeaching
verdicts include
protection of jurors
against annoyance or
embarrassment, freedom of
deliberation, and
finality of verdicts.
Allowing inquiry into the
mental operations and
emotional reactions of
jurors in reaching a
given verdict would
invite constant review as
a result of tampering and
harassment. Moreover,
even without pressure by
counsel or litigants,
many jurors are likely to
have second thoughts
about their verdicts
after they are excused by
the Court and the
influence of fellow
jurors dissipates. Such
second thoughts might
cause jurors to question
their verdicts if
permitted to do so. Yet
these policy reasons are
not promoted by a blanket
prohibition against
inquiry into
irregularities which
occur in the jury process
when such irregularities
result from preju-dicial
extraneous information or
influences injected into
or brought to bear upon
the deliberative process.
If the judicial system
is operating properly,
such inquiries should
rarely be necessary.
Some jurisdictions interpret Federal Evidence
Rule 606(b) as allowing post-verdict inquiry
into jury deliberations where the jury might
have made a "clerical error."12 These
jurisdictions allow a judge to reassemble a
jury and inquire whether the verdict
accurately reflects what the jury decided.
The inquiry seems to be limited, however, to
asking the jury if the verdict reflects what
the jury decided; the court cannot ask how the
jury arrived at its decision or whether it
understood or followed the court's
instructions. Other jurisdictions do not
allow this sort of inquiry at all, construing
Rule 606(b) as only allowing inquiry into
whether extraneous prejudicial information or
outside influence had an improper effect on
the jury.13
Attridge v. Cencorp Division of
Dover Technologies International, Inc.14 is an
example of a case where the court allowed such
an inquiry. Appellant Attridge, a maintenance
engineer who was injured while attempting to
repair a machine used to cut computer circuit
boards, brought a products liability action
against the manufacturer of the machine
(Cencorp), who in turn brought a third-party
indemnification action against Sykes
Datatronics (Attridge's employer).15 The
defendants claimed contributory negligence.16
The court provided the jury with a special
interrogatory, which the jury completed.17
After the court polled and discharged the
jury, two jurors revealed to the courtroom
deputy that the $150,000 verdict that the jury
arrived at represented net recovery, rather
than an unadjusted verdict.18 The deputy
informed the court. The court recalled the
jury the following day, and asked each juror
individually and on the record "[w]hat was
your understanding as to what the verdict
was?"19 The jurors unanimously responded that
they intended the $150,000 figure to represent
net, rather than gross, recovery.20
On appeal, the defendants asserted
that the amount of recovery could not be
altered because any inquiry into the meaning
of the jury's verdict was prohibited by
Federal Evidence Rule 606(b).21 The Attridge
court disagreed. The court interpreted
Evidence Rule 606(b) as:
largely restat[ing] Lord Mansfield's broad
prohibition against juror testimony. In
pertinent part, [the rule] prohibits juror
testimony:
[A]s to any matter or statement
occurring during the course of the
jury's deliberations or to the
effect of anything upon that or any
other juror's mind or emotions as
influencing the juror to assent to
or dissent from the verdict or
indictment or concerning the juror's
mental processes in connection
therewith. . . .22
The court noted, however, that Rule 606(b) was
obviously not intended to preclude all inquiry
into jury verdicts, since the rule "permits
testimony that extraneous prejudicial
information reached the jury's attention or
that other improper external influences
interfered with deliberations."23
Finally, the court observed that
Rule 606(b) was "silent regarding inquiries
designed to confirm the accuracy of a
verdict."24
Rule 606(b) therefore, by its own terms,
does not extend to juror testimony on the
veracity of a verdict. Rather, juror
testimony is admissible to show that the
verdict delivered was not that actually agreed
upon. The permissibility of juror testimony
hinges upon the purpose for which it is
offered. Where the court seeks to correct the
mistaken transmission of the verdict from the
jury, evidence may be received.[25]
Similarly, in United States v.
Dotson,26 defendants appealed their convictions
of conspiring to distribute cocaine and
marijuana, distribution of and possession with
intent to distribute marijuana, and one
defendant was convicted of willfully evading
income taxes. After trial, the jury returned
a verdict that convicted Dotson of all ten
counts in the indictment.27 Later that
evening, two jurors called the judge and
stated that the jury had unanimously voted to
acquit Dotson on the tenth count.28 Over the
state's objection, the trial court reasoned,
and the Fifth Circuit agreed, that Federal
Rule 606(b) allows inquiry into whether the
verdict delivered was congruent to the verdict
that the jury agreed upon.29 The Dotson court
explained:
An affidavit of a juror is admissible to show
that the verdict delivered was not that
actually agreed upon . . . but a juror may not
subsequently impeach a verdict by stating how
it was reached. . . . Our research indicates
that cases to which this exception applies are
few and far between. Nonetheless, courts have
accepted that an appropriate means to remedy a
clerical error in a verdict discovered by
juror affidavits is to simply amend the
verdict to reflect the intent of the
jury. . . .[30]
We are guided by this federal
authority in our interpretation of Alaska
Evidence Rule 606(b). Like its federal
counterpart, Alaska Rule 606(b) prohibits a
court from questioning jurors "as to any
matter or statement occurring during the
course of the jury's deliberations or [as] to
the effect of any matter or statement upon
[any] juror's mind or emotions as influencing
the juror to assent to or dissent from the
verdict[,] . . . or concerning the juror's
mental processes in connection therewith."31
But, as the Attridge court noted, Evidence
Rule 606 is silent concerning a court's
authority to question jurors when it appears
that the written verdict may not accurately
convey their group decision.
Judge Zervos did not ask the jurors
to justify their verdicts or to explain how
they arrived at their decision. Rather, he
asked the jurors to clarify what their
decision had been. Because Rule 606(b) does
not prohibit such an inquiry, we conclude that
a trial judge has the power to conduct the
type of inquiry that was done in Davidson's
case.
We also conclude that Davidson's
case presents a particularly strong factual
setting for allowing an inquiry. In Attridge
and Dotson, the juries returned verdicts which
appeared proper and complete on their face.
In Davidson's case, on the other hand, the
verdict forms themselves engendered the
confusion as to what the jury's decision was.
As noted above, Judge Zervos
resolved this case by declaring that the three
verdict forms were not internally
inconsistent. This was error; the verdict
forms are inconsistent. However, this error
was harmless in light of the jury's
clarification of its decision. Judge Zervos
was entitled to elicit the jury's
clarification and to amend the verdict forms
accordingly. The record establishes that the
jury unambiguously found Davidson guilty of
assault in the first degree. Judge Zervos
therefore properly upheld Davidson's first-
degree assault conviction, based on the jury's
responses to the court's post-verdict inquiry.
The conviction is AFFIRMED.
Footnotes
1 AS 11.41.200(a)(1).
2 AS 11.41.200(a)(1).
3 See Napayonak v. State, 793 P.2d 1059, 1061 (Alaska App.
1990); Walker v. State, 742 P.2d 790 (Alaska App. 1987).
4 See O'Dell v. Municipality of Anchorage, 573 P.2d 1381, 1383
(Alaska 1978); Sheldon v. State, 796 P.2d 831, 839 (Alaska App.
1990).
5 AS 11.81.900(b)(53)(A).
6 Willett v. State, 836 P.2d 955, 959 (Alaska App. 1992)
(citations omitted).
7 AS 11.81.900(b)(13).
8 Additionally, the jury returned not guilty verdicts on the
charges of robbery, theft, and tampering with evidence. These
verdicts are not at issue in Davidson's appeal.
9 In Brown v. Anchorage, 915 P.2d 654, 660 (Alaska App. 1996),
we stated:
The law governing inconsistent jury verdicts
is well settled. When a defendant is tried
for two crimes and is convicted of one but
acquitted of the other, the conviction must be
reversed if the jury's verdicts are logically
inconsistent with each other.
The state argued in the trial court and argues on appeal that
the verdicts for assault in the third degree and assault in the
fourth degree were of no consequence because they had not been
returned in open court. Judge Zervos concluded that the state's
contention had no merit because the verdicts had been accepted by
the court. We agree with Judge Zervos' disposition of this issue.
10 See Commentary, Alaska Evidence Rule 606(b), first para-
graph; Titus v. State, 963 P.2d 258, 260 & n.2 (Alaska 1998).
11 762 P.2d 457, 463 (Alaska App. 1988).
12 See 2 Stephan A. Saltzburg, Michael M. Martin, & Daniel J.
Capra, Federal Rules of Evidence Manual, 903-05 & n.18 (7th ed.
1998) (collecting cases).
13 See id. at 903-04 & n.17 (collecting cases).
14 836 F.2d 113 (2nd Cir. 1987).
15 See id. at 114.
16 See id.
17 See id. at 115.
18 See id.
19 Id.
20 See id.
21 See id. at 116.
22 Attridge, 836 F.2d at 116 (citations omitted).
23 Id.
24 Id.
25 Id. at 116-17 (citations omitted).
26 817 F.2d 1127 (5th Cir. 1987), vacated in part on other
grounds, 821 F.2d 1034 (5th Cir. 1987).
27 See id. at 1129.
28 See id.
29 See id. at 1130.
30 Id. (citations omitted); see also McCullough v. Consol. Rail
Corp., 937 F.2d 1167, 1170-72 (6th Cir. 1991) (proper for judge to
inquire whether dollar amount awarded to plaintiff was what jury
intended verdict to be, where court did not elicit any testimony
about the process by which the jury reached its verdict); Eastridge
Dev. Co. v. Halpert Assocs., Inc., 853 F.2d 772, 783 (10th Cir.
1988) (proper for trial court to amend verdict to reflect jury's
true decision, where jury had mistakenly deducted 20% for
contributory negligence from its verdict).
31 Attridge, 836 F.2d 116.
In the Court of Appeals of the State of Alaska
Matthew J. Davidson, )
) Court of Appeals No. A-06147
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: 3/19/99
)
Trial Court Case # 1SI-95-00140CR
IT IS ORDERED:
Opinion Number 1624, issued on March 5, 1999, is WITHDRAWN. Opinion Number
1626 is issued today in its place, making various stylistic changes to the text. No substantive changes
were made.
Entered by direction of Clerk of the Appellate Courts.
Clerk of the Appellate Courts
Deputy Clerk
Distribution:
Court of Appeals Judges
Central Staff Attorneys
Judge Larry Zervos
Publishers
William E. Olmstead
Olmstead & Conheady
213 3rd Street, Suite 102
Juneau AK 99801
James L. Hanley
OSPA
310 K Street #308
Anchorage AK 99501
- 6 - 1626
Order1.wpt
