Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Hammock v. State (7/12/2002) ap-1810
Hammock v. State (7/12/2002) ap-1810
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM R. HAMMOCK, )
) Court of Appeals No.
A-7800
Appellant, )
Trial Court No. 1SI-S00-64 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1810 - July 12, 2002]
)
Appeal from the District Court, First Judi
cial District, Larry C. Zervos, Judge.
Appearances: David Graham, Graham Law Firm,
Sitka, for Appellant. Kurt C. Twitty,
Assistant District Attorney, Sitka, Richard
Svobodny, District Attorney, Juneau, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A jury convicted William R. Hammock of second-degree
criminal trespass1 for remaining on the premises of the Rookies
Sports Bar & Grill in Sitka after he was repeatedly asked to
leave. Hammock argues that a new trial is necessary because he
was prejudiced by the trial courts refusal to excuse two jurors
he challenged for cause. He also claims that the court should
have granted his motion for judgment of acquittal because the
criminal trespass statute does not prohibit his conduct: leaving
the Rookies premises each time he was asked to leave, then
returning later. Lastly, Hammock argues that the court erred by
not instructing the jury that it must find his conduct unlawful.
After reviewing the record, we conclude that the court
abused its discretion by not excusing one prospective juror for
cause. However, because Hammock used a peremptory challenge to
excuse that prospective juror, he did not serve on the jury and
Hammock was not prejudiced. We reject Hammocks other claims and
affirm the verdict.
Facts and proceedings
The evening of March 11, 2000, Brent Denkinger, the
owner of the Rookies bar in Sitka, told Hammock to leave the bar
because Hammock was with an underage person and was involved in a
conflict with other bar patrons. Hammock left the bar but
remained outside in the parking lot. Denkinger then called the
police, but Hammock had left by the time the police arrived.
Peter Menendez, the bartender, testified that Hammock was told to
leave [a]t least for the night.
About thirty minutes later, Hammock showed up outside
the bar and Denkinger called the police again. Before the police
arrived, Hammock became involved in a fight in the parking lot
with the same bar patrons. This time Sitka Police Officer David
E. Johnson told Hammock at Denkingers request that he was no
longer welcome ... in Rookies or ... on their property and that
he would be arrested for criminal trespass if he returned.
Thirty to forty-five minutes later, Hammock came back
to the Rookies bar a third time and was told to leave by Menendez
and the manager working the front door. Hammock left the bar but
went outside and stood around. The police were called again.
When Officer Johnson arrived, Hammock was at the front door
trying to get into the establishment. Officer Johnson arrested
Hammock without telling him to leave the premises.
Hammock was charged with second-degree criminal
trespass. Before trial, Hammock challenged two prospective
jurors for cause, arguing that they were predisposed to find him
guilty if he chose not to take the stand and testify at trial.
The district court denied both challenges after the prospective
jurors stated that they could set aside their predispositions and
follow the law. Hammock then used his three peremptory
challenges, removing one of the jurors that he had challenged for
cause. The jury convicted Hammock of second-degree criminal
trespass.
Hammock appeals.
Discussion
The challenges for cause
Hammock argues that the court abused its discretion by
not excusing the prospective jurors he challenged for cause.
Hammock challenged two jurors because they were equivocal during
voir dire about their ability to follow the courts instructions
to draw no inference of guilt if Hammock did not testify at
trial.
Alaska Criminal Rule 24(c) provides that a prospective
juror should not serve on the jury if the person shows a state of
mind which will prevent the person from rendering a just verdict
or has opinions ... which would improperly influence the persons
verdict. The trial court has discretion to grant or deny a
challenge for cause and this court will interfere with that
discretion only in exceptional circumstances and to prevent a
miscarriage of justice.2 To support the courts decision to deny
a challenge for cause, the record need not reflect unequivocal
and absolute impartiality on the part of a juror because the
truly honest juror likely could not claim unequivocally and
absolutely that his or her biases will have no effect on the
verdict.3 As the supreme court explained in Sirotiak v. H.C.
Price Company,4 [a]ll that is required of a prospective juror is
a good faith statement that he or she will be fair, impartial and
follow instructions.5
Hammock first challenged Alan Blankenship, a state
maintenance employee in Sitka, after Blankenship gave conflicting
and ambiguous responses about his ability to draw no inference of
guilt if Hammock chose not to testify at trial. At various
points during voir dire, Blankenship indicated he would have
difficulty not drawing an inference of guilt if Hammock decided
not to testify, stating I would probably in the back of my mind
be thinking hes guilty and I dont think Id be able to put [the
inference of guilt] out of my mind. At other points, Blankenship
testified that he would be able to set aside the inference of
guilt if instructed to do so by the court. But each of these
statements was followed by a qualifying remark suggesting that
Blankenship might disregard the courts instructions. For
example, Blankenship said I can set it aside but its still gonna
be there. I mean, nobodys gonna know what why I decide what I
decide. Later, when Hammocks attorney asked Blankenship again if
he could follow the law, Blankenship said: I believe so.
Nobodys going to find out either way, right? Blankenship gave
similar responses when questioned by District Court Judge Larry
C. Zervos, stating first that I believe I can [follow the law]
but then adding that what I say and what I do are gonna be
probably could be two different things. Finally, Blankenship
made one unequivocal statement I will apply the law as
instructed and Judge Zervos denied Hammocks challenge for cause.
Although the court eventually did elicit a statement
from Blankenship that he could follow the law, the voir dire
considered as a whole undermines any conclusion that this
statement was made in good faith. Blankenship repeatedly
indicated he might disregard the courts instructions because no
one would find out he had done so; he also suggested he might
ignore his oath to follow the law because its only illegal when
you get caught. Given these responses, Judge Zervoss continued
questioning seemed tailored to rehabilitate [him] as a qualified
juror rather than to ascertain [his] willingness to perform [his]
duty as a juror in a fair and impartial manner.6 We conclude
that the court abused its discretion by denying Hammocks
challenge of Blankenship for cause.
Hammock challenged a second juror, Shelby Albrecht, for
the same reason. Albrecht stated during voir dire by Hammocks
attorney that she did not know if she could draw no inference of
guilt from Hammocks decision not to testify. Later, she said she
definitely would draw such an inference, even if the judge
instructed her otherwise. Finally, she reversed course, stating
equally unequivocally that she could follow the law. The trial
judge observed Albrechts demeanor and was entitled to take her
indecision and eventual change of heart at face value.7 Although
additional voir dire might have helped ascertain why Albrecht had
changed her mind, the court reasonably could have concluded that
Albrecht believed in good faith that she could set aside her
predispositions and decide the case in an impartial manner.8 No
more is required.9 We conclude that the court did not abuse its
discretion by denying Hammocks challenge of Albrecht for cause.
Hammock argues that he was prejudiced by Judge Zervoss
refusal to grant his challenges for cause because he exhausted
his peremptory challenges. Hammock used one peremptory challenge
to excuse Blankenship and his remaining two peremptory challenges
to dismiss prospective jurors whom he had not challenged for
cause. Hammock did not ask the court to grant any extra
peremptory challenges. Hammock argues that if the court had
granted his challenge for cause against Blankenship he would have
used his last peremptory to remove Albrecht. Hammock ultimately
did not testify, and he contends that Albrechts presence on the
jury was prejudicial because the case was close and Albrecht was
predisposed to infer guilt from his failure to take the stand.
Even assuming Hammock would have exercised a peremptory
challenge to excuse Albrecht from the jury, this fact alone does
not establish prejudice. To show prejudice, Hammock must
demonstrate some reason to believe that one or more of the jurors
who decided his case were, in fact, not fair.10 As discussed
above, the court did not abuse its discretion in deciding that
Albrecht could be an impartial juror. Therefore, we reject
Hammocks claim that he was prejudiced by her presence on the
jury.
The motion for judgment of acquittal
Hammock next argues that the district court should have
granted a motion for judgment of acquittal because the second-
degree criminal trespass statute on its face does not prohibit
the conduct he engaged in leaving premises that are open to the
public (the Rookies bar) each time he was asked to leave, and
then returning later.11 Underlying this claim is Hammocks
contention that the court should have instructed the jury that it
was legal to return to a public place after being told to leave.
Under AS 11.46.330, a person commits second-degree
criminal trespass if the person enters or remains unlawfully ...
in or upon premises.12 To enter or remain unlawfully is defined,
inter alia, as fail[ing] to leave premises ... that [are] open to
the public after being lawfully directed to do so personally by
the person in charge.13
In reviewing a trial courts decision on a motion for
judgment of acquittal, we view the evidence in the light most
favorable to the prevailing party.14 We reverse a decision to
deny such a motion only if fair-minded persons would have to
agree that the state had failed to carry its burden of proof
beyond a reasonable doubt.15 The interpretation of a statute is
a question of law we review de novo.16
Hammocks argument that he is entitled to a judgment of
acquittal hinges on his view of the facts and his interpretation
of the trespass statute. Hammock asserts that the evidence in
his case shows that he left the Rookies Bar every time he was
ordered to, although he quickly returned each time. Hammock then
argues that this conduct does not constitute trespass. He points
out that, as defined in AS 11.46.350(a)(2), a person remain[s]
unlawfully on anothers property if the person fail[s] to leave
[the] premises ... after being lawfully directed to do so.
Hammock asserts that, under this definition, a person who is
asked to leave anothers property commits no trespass so long as
the person promptly leaves the boundaries of the property before
returning.
But viewing the evidence in the light most favorable to
the State (as we must), a reasonable jury could conclude that
Hammock did not depart from the Rookies property on the third
(i.e., the final) occasion when he was ordered to leave. Rather,
Denkinger testified that Hammock left the building but then went
outside and stood around. When the police arrived a little
later, Hammock was at the front door trying to get into the
establishment. Viewing this evidence (and the inferences that
might reasonably be drawn from it) in the light most favorable to
the State, Hammock never left the property on this final occasion
thus committing trespass even under his own interpretation of the
statute.
Moreover, we reject Hammocks interpretation of the
trespass statute. The underlying issue is whether a person who
is asked to depart from property truly leaves within the meaning
of the statute if the person departs for only a few minutes and
then returns. In Turney v. State,17 this court limited
the application of Alaskas trespass statute with regard to public
buildings (for example, a courthouse). We held that the
supervisors of public buildings could lawfully direct a person to
leave the premises for a time, but in the absence of a special
statute giving them this power they could not bar a person from
ever returning to the property.18 Yet despite this limitation on
the governments power to permanently bar citizens from its
buildings, we noted that people could properly be convicted of
trespass at a government building if they either ignored a
reasonably contemporaneous request to leave or if they heed[ed]
the directive to leave but then return[ed] to the public facility
after only a short while.19
Under the interpretation of the trespass statute
adopted in Turney, Hammocks conduct leaving, then returning
within minutes would have constituted trespass even if the
property involved had been a government building open to the
public. But the property involved in this case was a privately
owned bar and restaurant. The owners of private commercial
property have at least as much authority to remove unruly patrons
as the supervisors of government buildings. Indeed, we noted in
Turney that under New York law (one of the primary sources of
Alaskas trespass and burglary statutes),
[o]wners of private property (even private
property open to the public for commercial
purposes) may order a person to leave and
never come back. If the person returns, he
or she can be convicted of trespass for the
mere act of returning.[20]
Thus, even under Hammocks view of the
evidence i.e., even assuming that he
physically departed from the premises for
brief periods of time before returning a
reasonable jury could conclude that Hammock
was guilty of trespass for ignoring a
reasonably contemporaneous request to leave.
The jury instructions
Hammock next argues that the
district court erred by not instructing the
jury that it must find that his conduct was
unlawful and that he disobeyed a lawful order
to leave the Rookies premises. Hammock argues
that a finding of unlawfulness is an
essential element of the offense, and that
the courts error prejudiced him because it
relieved the state of its burden to establish
every element.
Jury Instruction No. 15 provided
that: To enter or remain unlawfully means to
fail to leave premises that [are] open to the
public after being lawfully directed to do so
personally by the person in charge.21 In
closing argument, Hammocks counsel
specifically asked the jury to look to
Instruction No. 15 to determine if Hammock
knowingly entered or remained on the premises
that is, to determine if he was guilty of
second-degree criminal trespass. Thus,
Hammocks claim that the court failed to
instruct the jury that it must find Hammocks
conduct unlawful is without merit.
Hammock also argues in his reply
brief that he was prejudiced by the courts
failure to instruct the jury that it must
find that he disobeyed a lawful order to
leave because the order that he leave the
Rookies premises was based on his Native
heritage.22 But as noted above, the jury was
instructed that it must find that Hammock
ignored a lawful order to leave. Furthermore,
Hammock waived these specific claims of
prejudice because he did not raise them below
or in his opening brief.23
Because the jury was instructed
that it must find Hammocks conduct unlawful,
Hammock cannot claim that he suffered
prejudice. We thus reject Hammocks claim.
Conclusion
The judgment of the district court
is AFFIRMED.
_______________________________
1 AS 11.45.330(a)(1).
2 See Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1275
(Alaska 1988) (quoting Mitchell v. Knight, 394 P.2d 892, 897
(Alaska 1964)).
3 See id. at 1277.
4 758 P.2d 1271.
5 Id. at 1277.
6 See Beck v. Dept of Transp. and Pub. Facilities, 837
P.2d 105, 112 n.4 (Alaska 1992).
7 See Young v. State, 848 P.2d 267, 270 (Alaska App.
1993).
8 See Sirotiak, 758 P.2d at 1277 (finding no abuse of
discretion where court denied challenge for cause against
prospective juror who first indicated that proof by a
preponderance of the evidence would not satisfy him, but then
stated that he would be able to understand the judges
instructions and follow them).
9 See id.
10 See Minch v. State, 934 P.2d 764, 770 (Alaska App.
1997).
11 The parties do not dispute that the Rookies bar was
open to the public. Cf. Arabie v. State, 699 P.2d 890, 893
(Alaska App. 1985) (treating grocery and liquor store as building
that was open to the public for purposes of AS 11.46.350(a)).
12 AS 11.46.330 provides:
Criminal trespass in the second degree. (a) A
person commits the crime of criminal trespass
in the second degree if the person enters or
remains unlawfully
(1) in or upon premises; or
(2) in a propelled vehicle.
(b) Criminal trespass in the second degree is
a class B misdemeanor.
13 See AS 11.46.350, which provides:
Definition. (a) As used in AS 11.46.300
11.46.350, unless the context requires
otherwise, enter or remain unlawfully means
to
(1) enter or remain in or upon premises
or in a propelled vehicle when the premises
or propelled vehicle, at the time of the
entry or remaining, is not open to the public
and when the defendant is not otherwise
privileged to do so;
(2) fail to leave premises or a
propelled vehicle that is open to the public
after being lawfully directed to do so
personally by the person in charge; or
(3) enter or remain upon premises or in
a propelled vehicle in violation of a
provision in [a protective] order issued or
filed under AS 18.66.100 18.66.180 or issued
under former AS 25.35.010(b) or 25.35.020.
14 See Snyder v. State, 661 P.2d 638, 641 (Alaska App.
1983).
15 See id. (emphasis in original).
16 See Sosa v. State, 4 P.3d 951, 953 (Alaska 2000).
17 922 P.2d 283 (Alaska App. 1996).
18 Id. at 288.
19 Id.
20 Id. at 287.
21 Emphasis added.
22 New York courts have defined lawful in this context as
mandating proof that the particular order or exclusion
had a legitimate basis and was not premised on the
exclusion of a person from a place of public
accommodation on the basis of race, creed, color,
national origin, sex, disability, or marital status.
See William C. Donnino, Practice Commentary, N.Y. Penal
Law 140.00(5), 11 (McKinney 1999).
23 See Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411
(Alaska 1990); Mossberg v. State, 624 P.2d 796, 804-05
(Alaska 1981).
