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Nelson v. State (4/18/2003) ap-1867
Nelson v. State (4/18/2003) ap-1867
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
CHARLES L. NELSON, )
) Court of Appeals No.
A-8113
Appellant, )
Trial Court No. 1KE-S00-1193 CR
)
v. ) O P I
N I O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1867 April 18, 2003]
)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Rosamund
M. Lockwood, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
A jury selected for a trial in Ketchikan found Charles
L. Nelson guilty of first-degree arson, two counts of second-
degree criminal mischief, and one count of fourth-degree
assault.1 Nelson raises one point in this appeal: he argues
that the superior court erred when it denied his motion to
discharge the entire jury panel during voir dire. One potential
juror said she had a very strong opinion of the defense attorney.
When prodded for further explanation, the juror explained that
she did not trust the attorney because she felt the attorney
distorted some of the information when she served as a juror in
another trial. The court excused the juror. Nelson moved to
discharge the entire panel, but the superior court denied Nelsons
motion.
We have examined the record and conclude that the
superior court did not abuse its discretion when it denied this
motion and continued to select the jury from the remaining panel.
Therefore, we affirm Nelsons convictions.
Background facts
The details of Nelsons misconduct are of little import
in this case. Witnesses testified that Nelson was at Thomas
Widmyers home in Ketchikan on December 10, 2000. Nelson left and
Widmyer thought Nelson stole Widmyers cell phone. Widmyer, Kevin
Taylor, and Bonnie Abbott left to look for Nelson. They found
him in front of Patricia Duncans home and confronted Nelson about
the theft of Widmyers cell phone. Abbott said Nelson lunged at
her with a knife during this confrontation, but Widmyer did not
see this and Abbott was unable to describe the knife at trial.
Duncan saw the confrontation and yelled out her window that she
was calling the police. Widmyer retrieved his cell phone.
Widmyer, Taylor, and Abbott went back to Widmyers residence.
Nelson followed but was told to leave. Nelson began yelling
insults and pounding on the door, and when Abbott opened the
door, Nelson punched her in the face.
Not long after, Abbott and Widmyer discovered that the
garage door and a vehicle outside the garage were on fire. They
saw Nelson across the street, watching the fire, holding a gas
can, with his leg and arm aflame.
The grand jury indicted Nelson for one count of first-
degree arson,2 two counts of second-degree criminal mischief,3
one count of third-degree assault,4 and one count of fourth-
degree assault.5 The trial jury acquitted Nelson of third-degree
assault but found him guilty of the remaining counts.
Did the superior court err by refusing to discharge the
entire jury panel?
During the prosecutors questioning of a proposed juror,
the prosecutor asked the juror a general question about whether
the juror had any strongly held views that the attorneys should
know about. The juror responded: I have a very strong opinion
about the other attorney ... from a previous trial where I was a
juror. The prosecutors questioning continued without
interruption:
Prosecutor: Okay. And is that
something that either she should be concerned
about or I should be concerned about,
depending on which way your feeling goes?
Juror: I dont trust her.
Prosecutor: Okay. So it sounds like
in this particular case, the defense should
be very concerned about you as a possible
juror?
Juror: (Inaudible response).
Prosecutor: Are you going to hold it
against Mr. Nelson its Mr. Nelson who is on
trial here, not [the defense attorney]. Are
you going to hold it against him?
Juror: No, Im not going to hold it
against him.
Prosecutor: Do you think you can set
aside whatever your past experience is with
[the defense attorney] and give Mr. Nelson a
fair shake?
Juror: This has nothing to do with Mr.
Nelson.
Prosecutor: Exactly. Thats exactly
my point. And Im wondering if youre able to
make that distinction between Mr. Nelson and
his attorney.
Juror: Oh, yeah.
Prosecutor: Okay. Any other strong concerns in
that area or ...
Juror: No.
At this point, the court indicated it was time for a
recess, but asked the juror clarifying questions before excusing
the panel:
The Court: So if you feel biased
against one of the attorneys and I think
thats what you were saying, although frankly
[the prosecutor] was between the two of us
and I couldnt see you. Is that what you were
saying, that you feel biased against one of
the ...
Juror: I dont no, I didnt say I felt
...
The Court: Protagonist here.
Juror: ... bias. I said I didnt trust
her.
The Court: Well, that sounds like a
bias to me.
Juror: It just means I have to listen
real close to to what shes saying because I
I felt in one of the trials that she was an
attorney, that she distorted some of the
information.
The Court: Right.
Juror: Mislead the jury.
The Court: Well, I in other words,
you have an opinion about her and its a
strong one at this point?
Juror: Well, yeah. I guess. I would
just listen real close to make sure she
doesnt like, going to mislead me again.
The court then took a recess. During the recess, Nelson moved
to discharge the panel.
Defense Counsel: [I] move that all of
this jury panel be excused because of [the
jurors] comments. I think perhaps, [the
juror] might have tainted the jury such that
Mr. Nelson is not going to get a fair trial.
Superior Court Judge Michael Thompson said that he
would excuse the juror because of the jurors bias but did not
excuse the entire panel because I dont think theres a particular
prejudice in her comments.
The court returned the jury panel to the courtroom and
addressed the juror.
The Court: ... I thought some more
about your answers to the questions and I
felt you should be excused from this case.
Dont take that in a negative way, I just
think that it [would] be better if we had
people here who largely were totally
unacquainted with everybody involved and, you
know, can start fresh and not start with some
sort of baggage involving anybody in the
courtroom. So, Ill let you go in this case.
Judge Thompson then excused the juror and jury selection resumed.
Even though Nelson did not designate the remainder of
jury selection for transcription, the record does reflect that
after Judge Thompson denied the motion to discharge the panel,
Nelson individually questioned all the jurors then seated and
those jurors who replaced any who were excused. The State
exercised four peremptory challenges and Nelson exercised three.
Nelson passed all the remaining jurors for cause. The State
challenged one juror for cause, but Nelson opposed the challenge;
apparently Judge Thompson upheld the challenge because the record
reflects that the State preempted that challenged juror.
Nelson contends that the jurors comment about the
defense attorney was prejudicial and that the comment should be
analyzed the same as prejudicial pretrial publicity. Nelson
argues that the jurors comments were inflammatory and that any
juror exposed to the comment would be subject to a challenge for
cause whether or not the juror claimed to be impartial.6 But
Nelsons attempt to draw parallels to prejudicial pretrial
publicity is flawed.
Judge Thompson was present during the jurors comments
and was in a position to evaluate the impact of the comments on
the other jurors. Judge Thompson did not believe that there was
a particular prejudice in her comments. Nelson does not discuss
this finding but argues that prejudice must be presumed. We
reject Nelsons invitation to assume that the jurors comments were
so prejudicial that the entire panel had to be excused.
As with many incidents that occur during trial, the
court was not powerless to alleviate the potential prejudice from
the comment. When Judge Thompson excused the juror, he did
explain that it was preferable to have jurors who were not
acquainted with the parties so the jurors could start fresh. We
also note that Nelson did not object at any point during the
jurors questioning or request that continued questioning take
place out of the presence of the other jurors. Nor do we have
any indication in the record before us that Nelson asked the
court to give the panel a limiting instruction.
However, we do not suggest that it is solely a
defendants obligation to manage voir dire in a manner that
reduces potential prejudice to a party. It is clear from the
transcript that the juror stated clearly her strong opinion about
defense counsel without revealing the basis for that opinion. It
was only when she was questioned further by the prosecutor that
the juror expressed her mistrust of defense counsel and, when
questioned by the court, explained that defense counsel misled
her in the earlier trial. Obviously, when a juror expresses a
patent bias that may expose, in the words of Judge Thompson, some
sort of baggage, the better practice would be to examine that
issue without the other jurors present. The transcript we have
shows that Judge Thompson did this when other jurors expressed a
potential disqualifying reason.
Even so, after Judge Thompson excused the juror, Nelson
was able to question each juror individually. Because this
portion of voir dire was not designated, we do not know what
questions Nelson put to the potential jurors, but it is apparent
that Nelson did not challenge any of the jurors for cause and
exercised only three peremptory challenges. Even when the State
challenged one of the remaining jurors for cause, Nelson objected
to the challenge and the court apparently upheld Nelsons
objection. The record before us contains no suggestion that
Nelson had any continued concerns with the jury after jury
selection was complete.
From our review of the record, there is no indication
that the jurors who were finally sworn to try Nelsons case were
anything but fair, impartial, open-minded jurors. We conclude
that Judge Thompson did not abuse his discretion when he denied
Nelsons request to discharge the entire panel.
We address one last claim by Nelson. In his brief,
Nelson raises an issue regarding the proper standard of review.
Nelson urges us not to evaluate Judge Thompsons decision under
the abuse of discretion standard, but rather to employ the
constitutional error standard of harmless beyond a reasonable
doubt.
Nelsons argument is based on a misunderstanding of what
is meant by the standard of review. The standard of review is
the test for determining whether error has been proved on appeal.
The core function of the standard of review is to define the
degree of deference that an appellate court must show toward the
decision of the trial court.
When the claim of error involves a pure question of
law, an appellate court shows no deference to the trial courts
decision; rather, the appellate court decides the issue
independently or de novo. On the other hand, when the claim of
error involves an issue of historical fact, an appellate court
must show considerable deference to the trial courts finding.
The trial courts decision is reviewed under the clearly erroneous
standard, which means that an appellate court is authorized to
reverse the trial courts decision only if, viewing the record as
a whole, the [appellate court is left] with a definite and firm
conviction ... that a mistake has been made[.]7
On matters involving challenges to jurors, the normal
standard of review is abuse of discretion because there is
generally a range of reasonable responses that a trial judge
might make to a particular problem.8 Under this standard of
review, an appellate court is authorized to reverse the trial
judges decision only if the trial courts decision is clearly
untenable or unreasonable.9
In contrast to the various standards of review, the
rule regarding constitutional error the harmless beyond a
reasonable doubt rule only comes into play after an appellate
court (employing the proper standard of review) has concluded
that error occurred in the trial court. In such circumstances,
the constitutional error rule determines whether a proven error
requires reversal of the trial courts judgment.
Under this rule, if the error was of constitutional
dimension, then the judgment must be reversed unless the
appellate court is convinced that the error was harmless beyond a
reasonable doubt. But an appellate court does not employ this
rule when it decides whether error has occurred. That is, even
though a claim of error may involve a potential violation of
constitutional guarantees, there is no rule that an appellate
court must reverse the trial courts judgment if there is any
reasonable possibility that error occurred. Rather, a judgment
can be reversed only for proven error. A defendant who claims
constitutional error must prove that an error occurred (under the
applicable standard of review). Only then does the defendant
obtain the benefit of the harmless beyond a reasonable doubt rule
when the appellate court turns to the issue of whether this error
requires reversal of the judgment.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.46.400(a), former AS 11.46.482(a)(1), and AS
11.41.230(a)(1) respec-tively.
2 AS 11.46.400(a).
3 Former AS 11.46.482(a)(1).
4 AS 11.41.220(a)(1)(A).
5 AS 11.41.230(a)(1).
6 See Mallott v. State, 608 P.2d 737, 749 (Alaska 1980).
7 Geczy v. LaChappelle, 636 P.2d 604, 606 n.6 (Alaska 1981);
Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978).
8 See Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964);
Young v. State, 848 P.2d 267, 269 (Alaska App. 1993).
9 Gonzales v. State, 691 P.2d 285, 286 (Alaska App. 1984).
