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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
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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
| ERICK A. DAVID, | ) |
| ) Court of Appeals No. A-8698 | |
| Appellant, | ) Trial Court No. 3AN-S01-06571 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2017 November 10, 2005] |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Michael R. Smith, Thetford
Center, Vermont, for the Appellant. Kenneth
J. Diemer, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
At a joint trial, a jury convicted Erick A. David and
his co-defendant, William R. Grossman, of second-degree murder1
for assaulting Larry Brown and causing his death. David claims
that the superior court erred by refusing to allow him to present
evidence of a factual concession that the prosecutor made in a
memorandum opposing one of Davids pre-trial motions. David also
claims that the court erred by admitting evidence that the police
found blood on one of Davids shoes that was genetically similar
to the blood of another person who was injured at the scene.
Finally, David contends that the superior court erred by refusing
to give the lesser-included offense instructions that he
requested. We reject each of these claims for the reasons
expressed below.
David argues that the 30-year term to serve imposed by
the superior court is excessive. Because we conclude that Davids
sentence is not clearly mistaken, we affirm Davids sentence.
Background facts and proceedings
On August 14, 2001, David, Grossman, Kevin Vanderway,
Kathy Tugatuk and Brown were drinking heavily near downtown
Anchorage. A dispute arose in the group which ended with
Grossman and David punching and kicking Brown extensively. Brown
died at the hospital shortly thereafter.
The grand jury indicted David and Grossman for second-
degree murder. Grossman was also indicted for third-degree
assault for injuring Vanderway.
At David and Grossmans joint trial, the jury convicted
David and Grossman of second-degree murder. Superior Court Judge
Larry D. Card sentenced David to 50 years imprisonment with 20
years suspended, a net 30-year term to serve. David appeals.
Did the superior court properly deny Davids request to
admit the prosecutors characterization of the evidence
contained in a pre-trial memorandum?
Because of a discovery problem that arose during Davids
first trial (the State disclosed that Anchorage Police Detective
Mark Huelskoetter had shown several witnesses a photo line-up
that included David), the court declared a mistrial. Before the
re-trial, David moved the court for leave to depose four people
about the photo line-up: three witnesses who saw the attack on
Brown from their residences and Detective Huelskoetter, who
showed the photo line-up to at least two of those witnesses. In
the memorandum opposing Davids motion to depose the witnesses,
the prosecutor asserted: David was not identified from the
photographic line-ups which were shown to two witnesses[.] Judge
Card denied Davids request to depose the three civilian
witnesses, noting that none of the three had identified David,
but granted the deposition of Detective Huelskoetter.
At the re-trial, after David rested the defense case,
Judge Card excused the jury to discuss a motion David had filed
the day before. This motion asked the court to admit the
prosecutors written assertion, quoted above, that David had not
been identified in a photographic line-up. David argued that the
prosecutors statement in the memorandum was admissible under
Alaska Evidence Rule 801(d)(2) as the admission of a party
opponent. In the memorandum accompanying Davids motion, David
suggested that the prosecutors statement be presented to the jury
in written form as either (1) a quotation titled Admission of
Plaintiff and signed by the prosecutor; or (2) as a jury
instruction.
Judge Card denied Davids request because he felt that
the suggested means of presenting the prosecutors statement to
the jury would require the prosecutor effectively to testify.
Judge Card did not deny Davids request on the ground that
evidence of the witnesses failure to identify David was itself
inadmissible. Judge Card stated that David could present the
evidence to the jury via the testimony of the detective who
conducted the photo lineup.
Judge Card said that he would allow Davids attorney to
reopen the defense and call Detective Huelskoetter to testify
about the photo line-ups. Davids attorney reminded Judge Card
that Detective Huelskoetter (who had previously testified
pursuant to the courts deposition order) could not remember
whether the witnesses he had interviewed identified David. The
record shows that Detective Huelskoetter testified that one of
the witnesses to whom he had shown the photographic line-up had
not identified David, but Huelskoetter could not recall whether
anyone else to whom he showed the line-up had been able to
identify David. In response, Judge Card advised Davids attorney
to argue to the jury at closing that no witness had been able to
identify David: [T]hats the best evidence of your argument, isnt
it? Alternatively, Judge Card suggested that the attorneys could
stipulate that no witness had identified David. Judge Card
concluded that, although the evidence of the prosecutors
statement was relevant, it was more prejudicial than probative
because introducing it would essentially require the prosecutor
to testify as a witness.
David argues that the superior court abused its
discretion by refusing to admit the statement. Statements
contained in the pleading of an opposing party can constitute an
admission of a party-opponent.2 McCormicks treatise on the law
of evidence notes that, when an attorney makes a formal statement
in a brief or an in-court stipulation, that statement constitutes
an admission.3 Courts generally decline, however, to admit
statements by a government agent in a criminal prosecution when
the statement is made about the investigation of the case.4 Even
so, courts have ruled that formal statements by government
attorneys in a criminal prosecution made after the initiation of
proceedings are admissions.5
But even assuming that Judge Cards ruling may have been
error, the state of the evidence at trial reflected the same
point the prosecutor made in the memorandum. There was no
indication that any of the three civilian witnesses whom David
wanted to depose identified David from a photo line-up. Indeed,
when each of the three witnesses testified at trial, none of the
three witnesses were asked to identify David in the courtroom in
any way, whether by his facial features or physical
characteristics. One of the three testified on direct
examination that she identified Davids co-defendant, Grossman, in
a photo line-up shown to her by Officer Huelskoetter. This
witness also identified Grossman in the courtroom. But neither
Grossmans nor Davids attorney asked that witness anything about
her identification of Grossman or the photo line-up.
Davids identity was established by other evidence. For
example, the police recovered Browns coat from David, and David
admitted that the coat was Browns. DNA statistically likely to
be Browns DNA was found on Davids shoes. Furthermore, David
admitted that he went with Brown and others to the lot where the
beating occurred and, when the police contacted David, he
admitted that he was still wearing the same clothing that he had
worn to the lot. Davids clothing looked like the clothing
described by witnesses to the beating.
Essentially, the prosecutors statement in the
memorandum that David had not been identified in a photo line-up
only summarized the evidence presented at the trial. Davids
attorney emphasized the absence of a photo lineup both in opening
statement and in final argument. We conclude that the absence of
the prosecutors statement had no substantial affect on the jurys
verdict. Even if Judge Card did err in declining Davids request,
we conclude that any error was harmless.6
Evidence of a bloodstain on Davids shoe was properly
admitted
David argues that the superior court improperly denied
his motion, based on Evidence Rule 404(b), to exclude evidence of
a bloodstain that was found on Davids shoe. DNA testing showed
the blood as statistically likely to be Vanderways blood (the
indictment charged Grossman with third-degree assault on
Vanderway). Judge Card ruled that the evidence was relevant as
to co-defendant Grossmans case. Judge Card did not rule on
whether the evidence was admissible regarding David. He noted
that the evidence may also become relevant as to the States case,
but the States not offering it in first instance.
Later, when the State called criminalist Kristen
Denning to testify regarding the blood stains on Davids shoes,
David argued that the State could not introduce the evidence.
Judge Card concluded that, since David was not accused of
assaulting Vanderway, there was no reason to bar the evidence.
Judge Card suggested that the evidence would not prejudice David
because it would show only that David was present when Vanderway
was injured, not that he had injured Vanderway. Judge Card
therefore overruled Davids objection. Later, David proposed a
limiting instruction that addressed his view of the evidence.7
Judge Card declined to give the instruction, ruling that the
evidence was relevant because it would (1) explain the entire
atmosphere of the crime scene; (2) establish the identity of the
perpetrators; and (3) show a common plan shared by David and
Grossman.
The State also called Dr. Abirami Chidambaram, a DNA
analyst at the Alaska crime lab, who testified that the
bloodstain on Davids shoes was in all probability from Vanderway.
On appeal, David argues that the court erred by
admitting evidence that the bloodstain on Davids shoes was
Vanderways blood. David maintains that the bloodstain evidence
was impermissible character evidence showing his propensity for
assault admitted in violation of Evidence Rule 404. But the
evidence was admitted at trial for non-character purposes not
governed by Evidence Rule 404.
The evidence was clearly relevant for the reasons Judge
Card expressed. Therefore, Judge Card did not err when he
declined Davids request to bar the evidence. In addition, for
these same reasons, Judge Card did not err when he declined
Davids request for the jury instruction discussed above.
Davids request for jury instructions on fourth-degree
assault
At the close of evidence, the parties discussed which
lesser-included offense jury instructions the jury should receive
in addition to the instructions on second-degree murder. The
parties agreed that the jury should receive instructions on the
lesser-included offenses of manslaughter and criminally negligent
homicide. David argued that the court should also instruct the
jury on fourth-degree assault. But the prosecutor argued that
assault cannot be a lesser-included offense of criminally
negligent homicide. She reasoned that, because there is no
lesser culpable mental state than criminal negligence, thats
where the lessers stop. Judge Card agreed with the prosecutor.
Judge Card presented David with a choice. The jury
would either be instructed on second-degree murder, manslaughter,
first-degree assault, and third-degree assault, or,
alternatively, the jury would be instructed on second-degree
murder, manslaughter, and criminally negligent homicide. David
chose the second option. The jury was instructed on manslaughter
and criminally negligent homicide as lesser-included offenses of
second-degree murder.
On appeal, David argues that the court erred in
refusing to instruct the jury on the lesser-included offense of
fourth-degree assault because, based on the evidence presented, a
jury could not convict him of second-degree murder without also
finding that he had used reckless or criminally negligent force
against the victim. David also argues that Judge Card violated
his constitutional right to a jury determination of factual
matters by limiting the number and type of lesser-included
offense instructions available to him.
Criminal Rule 31(c) notes that a defendant can be
convicted of an offense necessarily included in the crime
charged. And in Willett v. State,8 we explained when a defendant
deserves an instruction on a lesser-included offense:
A lesser offense is necessarily included in
the offense charged when it would be
impossible, in the context of the case, to
convict of the charged offense without also
convicting of the lesser. A trial court is
required to give a lesser-included offense
instruction when there is a factual dispute
as to an element of the greater offense so
that the jury could rationally acquit on the
greater offense and convict on the lesser
offense.9
For a factual dispute to exist, there must be some evidence such
that a reasonable juror could entertain a reasonable doubt on the
element.10
In Ridgely v. State,11 we considered a challenge by
Ridgely that the superior court had failed properly to instruct
the jury on a lesser-included offense of manslaughter.12 Ridgely
argued that, although the trial court had instructed the jury on
reckless manslaughter, the manslaughter instruction did not
inform the jury that it was possible that manslaughter applied to
knowing and intentional homicides.13 We rejected Ridgelys claim.
We concluded that Ridgely had suffered no prejudice because the
jury received a proper lesser-included offense instruction on
second-degree murder but chose instead to convict on first-degree
murder.14 Since the jury rejected second-degree murder as a
lesser-included offense, Ridgely suffered no prejudice, even
assuming the manslaughter instruction was inaccurate.15
Here, David received lesser-included offense
instructions on manslaughter and criminally negligent homicide,
in addition to the instruction on second-degree murder. David
does not challenge the instructions on those lesser offenses as
improper. As we concluded in Ridgely, we conclude here that
David was not prejudiced by Judge Cards decision not to instruct
on fourth-degree assault.
Davids request that we overrule Riley v. State
David urges us to reverse our decision in Riley v.
State.16 In Riley, we overruled our earlier decision in Echols v.
State,17 interpreting Alaskas accomplice liability statute.18
In Echols, we reversed Echolss first-degree assault
conviction based on the defendants accomplice liability for her
spouses assault of their daughter.19 The superior court had ruled
that, under Alaskas accomplice liability statute, Echols could be
convicted for acting recklessly regarding the results of her
husbands conduct.20 But we ruled that, to be liable for the acts
of her husband, Echols must have intended that the result of the
underlying assault statute occur even though the underlying
assault statute requires proof of only a lesser culpable mental
state.21
In Riley, we ruled that when a defendant solicits, or
assists another to engage in conduct, and does so with the intent
to promote or facilitate that conduct, the defendant is
accountable under the accomplice liability statute for that
conduct.22 And [i]f that conduct leads to unintended injury or
death, the defendant can be convicted of assault or criminal
homicide[, respectively,] if the government additionally proves
that the defendant acted with the culpable mental state required
for the charged crime.23
David urges this court to reverse Riley because an
accomplice can act intending to facilitate an offense but still
lack sufficient culpability for the underlying crime. David
argues that facilitate can refer to a wide variety of actions,
some of which it would be unfair to punish. David argues that he
did not intend that Brown die; that he was not the principal
actor in the homicidal assault on Brown; and that his role was
not motivated by the same intent as Grossmans.
This court should overrule a prior decision only when
clearly convinced that the rule was originally erroneous or is no
longer sound because of changed conditions, and that more good
than harm would result from a departure from precedent.24 We are
convinced that Riley was correctly decided. Thus, we reject
Davids invitation to overrule Riley.
Davids excessive-sentence claim
Judge Card noted the brutality of the beating inflicted
by Grossman and David: I cannot imagine much worse activity in
the commission of a murder in the second degree. I do believe
that the activity in this case, even though it wasnt charged this
way, bordered on murder in the first degree. I just cannot
imagine the time it took to beat this man to death. Judge Card
found that Brown had been beaten so extensively that he was no
longer recognizable.
Judge Card found that the primary Chaney25 sentencing
criteria that applied to Davids sentencing were community
condemnation and reaffirmation of societal norms. Judge Card
also noted the need to restore or rehabilitate David and the need
to deter David from further crime. Judge Card sentenced David to
50 years with 20 years suspended, a net 30-year term to serve.
David argues that his sentence is excessive because his
conduct compares favorably with sentences this court has upheld
in vehicular homicide cases. David compares his case to Pusich
v. State.26 In that case, we upheld a sentence of 25 years with 7
years suspended for a manslaughter and first-degree assault
conviction, based on the defendants drunk driving.27 David also
urges us to compare his case to Foxglove v. State,28 in which we
upheld a sentence of 25 years with 7 years suspended, based on
Foxgloves convictions of manslaughter and five counts of first-
degree assault.29 In Foxglove, the defendant began his New Years
Day celebration by seriously injuring a boy while driving his
snowmobile at high speeds under the influence of alcohol.30
Despite having been warned that he was too intoxicated to drive,
one-half hour after injuring the boy, Foxglove intentionally
drove his snowmobile at seventy miles per hour into a crowd of
people gathered around a bonfire.31
But Foxglove and Pusich involved defendants who were
sentenced for reckless manslaughter based on proof that the
defendants were operating vehicles while intoxicated. David was
convicted of second-degree murder, an unclassified felony
punishable by a sentence of 10 to 99 years of imprisonment, for
causing Browns death from an extended beating.32
Over twenty years ago, in Page v. State,33 we adopted a
benchmark sentencing range of 20 to 30 years to serve for a
typical first offender convicted of a typical second-degree
murder.34 David is not a typical first offender. David has
fifteen previous convictions, four of which were assaults. And,
at sentencing, Judge Card distinguished the conduct that resulted
in Browns death from the typical second-degree murder case: in
this case, the ferociousness of the beating that Mr. Brown
received takes it out of what I consider the mainstream, the
average, thats described in Page of a murder in the second
degree. Judge Card noted that Browns murder was well beyond that
which is outlined in Page . . . This was not just a simple
assault with a deadly result. ... [T]his was closer to murder in
the first degree. Judge Card noted that, although Grossman was
the primary perpetrator, David aided and abetted Grossman. Even
though Judge Card found that much distinguished Davids offense
from a typical second-degree murder case, Judge Card still
imposed a term to serve that was at the upper end of the
benchmark range.
From our review of the record, we conclude that Davids
sentence was not clearly mistaken.35
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.110(a).
2 See Brigman v. State, 64 P.3d 152, 166-67 & n.28 (Alaska
App. 2003). But see Hayes v. Xerox Corp., 718 P.2d 929, 932
(Alaska 1986) (ruling that an oral statement during closing
argument by defense counsel in a civil negligence action in
which counsel conceded specific amounts of special damages was
counsels opinion only and was not an admission).
3 John W. Strong, et al. McCormick on Evidence 259, at 154-
55 (5th ed.1999).
4 Id. at160.
5 Id.
6 See Love v. State, 457 P.2d 622, 631 (Alaska 1969).
7 The instruction read as follows:
Mr. David is not charged with assaulting Mr. Vanderway.
If you have found that there was evidence that Mr. David
participated in an assault against Mr. Vanderway, this
evidence must be disregarded. You shall not consider any
inference of any kind from this evidence and you must not
permit yourself to be influenced to any extent, however
slight, against Mr. David based on this evidence.
8 836 P.2d 955 (Alaska App. 1992).
9 Id. at 958.
10 Id.
11 739 P.2d 1299 (Alaska App. 1987).
12 Id. at 1301.
13 Id.
14 Id.
15 Id.
16 60 P.3d 204 (Alaska App. 2002).
17 818 P.2d 691 (Alaska App. 1991).
18 Riley, 60 P.3d at 221.
19 Echols, 818 P.2d at 691.
20 Id. at 693.
21 Id. at 695.
22 Riley, 60 P.3d at 207.
23 Id.
24 State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996)
(citations omitted).
25 State v. Chaney, 477 P.2d 441 (Alaska 1970) (codified in AS
12.55.005).
26 907 P.2d 29 (Alaska App. 1995).
27 Id. at 31-32, 41.
28 929 P.2d 669 (Alaska App. 1997).
29 Id. at 670, 672.
30 Id. at 670.
31 Id.
32 AS 11.41.110(b); AS 12.55.125(b).
33 657 P.2d 850 (Alaska App. 1983).
34 Id. at 855. See also Brown v. State, 4 P.3d 961, 964
(Alaska App. 2000); Sam v. State, 842 P.2d 596, 603 (Alaska App.
1992).
35 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court must uphold a sentencing
decision unless it is clearly mistaken).
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