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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| TALALELEI EDWARDS JR., | ) |
| ) Court of Appeals No. A-9018 | |
| Appellant, | ) Trial Court No. 3AN-01-8074 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2097 May 4, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Rex Lamont Butler, Anchorage,
for the Appellant. W. H. Hawley Jr.,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Talalelei Edwards Jr. was convicted of second-degree
murder for killing a one-year-old child who was left in his care.
In this appeal, Edwards argues that the evidence was not
sufficient to support his conviction (in that the evidence was
not sufficient to establish that he was the one who injured the
child). Edwards also asserts that his trial was flawed by
various procedural and evidentiary errors. Finally, Edwards
argues that he was sentenced in violation of the Sixth Amendment
right to jury trial as interpreted in Blakely v. Washington, 542
U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
For the reasons explained here, we affirm Edwardss
conviction and sentence.
Sufficiency of the evidence to support a finding that
Edwards caused the childs death
Edwards asserts that the evidence presented
at his trial was not sufficient to support a finding
that he was the one who fatally injured the infant. At
Edwardss trial, the parties actively disputed the
timing of the childs injury and, in particular,
whether the child was fatally injured while in Edwardss
care.
When we assess a claim of insufficient
evidence, we must view the evidence in the light most
favorable to upholding the jurys verdict.1
Viewed in the light most favorable to the
verdict, the evidence showed that the childs mother
went to work and left her one-year-old child in
Edwardss care at around 9:00 in the morning. About two
hours later, Edwardss downstairs neighbor heard a loud
thump coming from Edwardss apartment, as if something
had been dropped. Approximately forty-five minutes to
an hour after that, Edwards brought the child to the
hospital. Edwards told the receiving nurse that he had
brought the child to the hospital because the child was
having difficulty breathing.
According to the nurse, Edwardss affect was
flat (i.e., he showed little or no emotion) and his
attention was not focused on the child. The nurse
testified that Edwards was the only person she had ever
seen who, having brought a child with breathing
problems to the hospital, was not upset or panicked.
Two doctors testified that, based on the
childs medical symptoms, the child had suffered serious
injury an hour or two before he was brought to the
hospital. (A third doctor testified that the childs
injury had been inflicted within a few hours of the
childs arrival at the hospital.)
This evidence, in conjunction with the
reasonable inferences to be drawn from it, is
sufficient to support a finding that Edwards was the
one who injured the child.
We acknowledge that Edwards presented
evidence (including expert testimony) indicating that
the child had been injured as much as five days
earlier. However, as explained above, the test is
whether the evidence, taken as a whole, and viewed in
the light most favorable to upholding the verdict, is
sufficient to support the jurys decision. We conclude
that this test is met.
Whether Edwards was improperly denied the opportunity
to present photographic evidence to support his expert
witnesss testimony
At trial, Edwardss defense attorney called
Dr. Janice Ophoven to give her opinion on the issue of
when the childs injuries were inflicted. Based on her
examination of the medical records and her analysis of
the autopsy slides, Dr. Ophoven concluded that the
childs fatal injury was inflicted about five days
before his death.
One of Dr. Ophovens grounds for this opinion
was her assertion that the autopsy slides showed the
presence of massive iron deposits and an advanced
fibroblast reaction in the childs brain and lungs.
During her direct examination, Dr. Ophoven stated that
she had prepared enlarged photographs of these slides
to more clearly depict the iron deposits.
But when the defense attorney offered these
photographs, the prosecutor objected that she had not
previously seen these enlarged photographs; she told
the court that she wanted some time to have her own
expert examine the photographs before she decided
whether to object to their admission.
Superior Court Judge Larry D. Card stated
that the State was entitled to an opportunity to
examine and analyze the photographic enlargements of
the slides. Judge Card suggested that he would
normally give the State twenty-four hours to do this,
but the judge recognized that this would pose a problem
for the defense because Dr. Ophoven was scheduled to
leave Anchorage that afternoon, and she had other
commitments.
But when Judge Card asked for the details of
Dr. Ophovens schedule, she responded by telling the
judge that she could fully present her testimony
without relying on the disputed photographic
enlargements of the autopsy slides:
The Court: Lets talk about [the issue
of] Dr. Ophovens availability ... . [She was
promised that we would] try to get her out of
here, but [now] it looks like we have some
issues. So I need to talk Dr. Ophoven needs
to relate to me her situation regarding her
travel. Are you prepared to address that, or
do you wish ...
Defense Attorney: Well, ... yes, we
should probably address it, yes.
The Court [to Dr. Ophoven]: Doctor?
Dr. Ophoven: Just throw the pictures
away. Just throw the pictures away.
. . .
Defense Attorney: Well, this is what Im
going to request, then. ... First of all,
that [the photographic enlargements] be
authenticated, and that [the doctor] be
allowed [to continue] with her testimony to
talk about her findings without showing [the
photographs] to the jury. ...
The Court: [I agree that] she can
[testify] that she looked at the [autopsy]
slides and she made notes from the slides ...
. And she can testify as to what she saw on
the various slides ... . And Ill reserve [my
decision] in terms of moving to admit [the
photographs], because ... at some point
before the trial is over, [the States
pathologist] will have an opportunity, I
suppose, ...
Prosecutor: Right.
Defense Attorney: ... to look at them.
... But I would also ask to reserve an
opportunity to [re-]call Dr. Ophoven by phone
and ...
Prosecutor: [Im not certain I will
consent to that.]
The Court: Well, lets do this: Lets
reserve that part of it. If were going to
proceed, lets proceed. And then you folks
can talk and decide what youre going to do
[about the defense attorneys suggestion to
have Dr. Ophoven offer additional testimony
by telephone].
. . .
Lets go ahead and [have Dr. Ophoven
testify] without reference to the
photographs, and then well proceed on.
Defense Attorney: But she can use them
while shes I can ask her questions ...
The Court: Well, if ... shes looking at
something [that] the jurys not looking at,
... thats fine because its like her notes.
Defense Attorney: Okay.
. . .
Dr. Ophoven: I can talk without [the
photographs], Your Honor.
Dr. Ophovens testimony then continued. The
defense attorney never asked Judge Card to
make a final ruling on the admissibility of
the photographic enlargements of the autopsy
slides.
On appeal, Edwards argues that
Judge Card committed error in the handling of
this matter that Judge Card erroneously
excluded the photographs. But, as can be
seen from the above-quoted excerpt of the
trial, Judge Card never made a final ruling
on this evidence. Instead, Dr. Ophoven
mooted the issue by declaring that she could
give her anticipated testimony (concerning
the iron deposits in the deceased childs
brain and lungs) without showing the
photographs to the jury.
It is true that, ultimately, this
was not a matter for Dr. Ophoven to decide.
Rather, Dr. Ophoven was the defense attorneys
witness, and the defense attorney had the
right to decide whether the photographs were
crucial to the jurys understanding of the
doctors testimony. But the defense attorney
never told Judge Card that he disagreed with
the doctors appraisal (i.e., the doctors
conclusion that her testimony could be fully
presented without the photographs).
Indeed, after the doctor presented
her testimony, the defense attorney never
asked Judge Card to issue a final ruling on
the admissibility of the photographs. The
defense attorneys failure to take subsequent
action strongly suggests that he agreed (at
least at that time) with Dr. Ophovens
appraisal.
We therefore reject Edwardss claim
of error for two reasons. First, the defense
attorney failed to preserve an objection to
Judge Cards handling of this issue. And
second, Edwards has failed to show that the
presentation of the defense case was
prejudiced by the lack of the photographs.
Whether Edwards was improperly denied the opportunity
to present evidence that the childs mother had a
short temper
At trial, Edwards argued that there was a
significant possibility that the childs mother had
inflicted the fatal injury. In support of this
theory, Edwards presented evidence that the child
had suffered broken ribs in the weeks before he
died, and Edwards argued that there was no
evidence that these broken ribs were attributable
to him. Edwards also introduced evidence that the
childs mother had a short fuse, that she used
profanity toward her son, and that she was
physically rough with him.
To further bolster Edwardss claim that the
childs mother had a short temper, the defense
attorney announced that he intended to call two of
the mothers supervisors from the bank where she
worked.
The first of these witnesses was Connie
Jones. The defense attorney told Judge Card that
he wanted Jones to testify that the childs mother
had a short fuse at work. Judge Card asked if
Joness testimony related solely to the mothers
behavior at work, or whether Jones [had] seen her
... around her child, [or] in her home setting,
and so forth ... ? The defense attorney answered
that Joness knowledge of the woman was confined to
the workplace, and that she had no specific
knowledge of the womans behavior around children.
Judge Card then ruled that the contemplated
character evidence was more prejudicial than
probative that it was too broad because it went
to the womans general character rather than her
characteristic behavior with, or reaction toward,
children.
A few moments later, Judge Card further
clarified his ruling:
The Court: [If] you [have] a witness
[who] will come in and say [that] they know
[the mother] well enough in her home setting,
[or] in her social setting, [or in] her
relationship with her child, and [that] she
was short with her child, [or] jerked the
child, [or] beat the child up, or [other
testimony] to that effect, ... then that
would be an appropriate witness. [But an]
employer[] with no more knowledge [and] no
relationship [with the mother] other than
work, [such as] Ms. Jones, [is not an
appropriate witness.]
After receiving this ruling, the
defense attorney announced that he no longer
intended to call the other supervisor.
On appeal, Edwards argues that
Judge Cards ruling denied him due process of
law by excluding important exculpatory
evidence. But we have repeatedly held that a
defendants right to due process is not
infringed when a trial judge properly applies
Alaska Evidence Rule 403 to exclude
evidence.2
Here, Judge Card concluded that
evidence of the mothers short temper at work
had only small probative value on the issue
of how she treated her own child, and Judge
Card further concluded that this small
probative value was outweighed by
considerations of prejudice that is, the
danger that the proposed evidence would
mislead the jury or confuse the issues.
We note that, even though Judge
Card did not allow the bank supervisors to
testify about the mothers short fuse at work,
Judge Card allowed the defense to introduce a
substantial amount of testimony concerning
matters of more direct relevance. Three
witnesses (Edwardss friend, Clifton Ziegler,
Edwardss wife, and Edwards himself) testified
that, during the weeks before the childs
death, the childs mother repeatedly declared
that the baby was stressing [her] out and
that the baby was getting on [her] damn
nerves. These witnesses also testified that
the childs mother was rough to him and that,
on one occasion, she threw the child onto a
couch.
Given the issue being litigated,
given the tenor of the testimony that was
admitted, and given the comparatively small
relevance of the excluded testimony, we can
not say that Judge Card abused his discretion
under Evidence Rule 403 when he ruled that
Edwards could not present the testimony of
the two bank supervisors concerning the
mothers short temper in the workplace.
Edwardss claim of prosecutorial misconduct during final
argument
Alaska Evidence Rule 608 generally forbids a
party from introducing evidence of a witnesss
specific past acts of dishonest conduct in order
to establish the witnesss general character for
untruthfulness. Evidence Rule 609, however,
contains an exception to this rule of preclusion:
subject to certain limitations, Evidence Rule
609(a) authorizes a party to introduce evidence
that a witness has been convicted of a crime ...
involv[ing] dishonesty or false statement.
Edwards took the stand at his trial, and he
was impeached with evidence that he had previously
been convicted of a crime involving dishonesty.
(The jury was not given any further information
concerning this prior crime.)
During the opening portion of her summation
to the jury, the prosecutor referred to this
evidence. Specifically, the prosecutor told the
jurors that they [could] consider the fact that
[Edwards] has a criminal conviction relating to
honesty [sic] and ... false statement.
Edwardss attorney did not object to the
prosecutors statement at the time. However, after the
jury retired to commence its deliberations (i.e., after
the defense attorney had delivered his summation to the
jury, and after the prosecutor had delivered the
rebuttal portion of her summation), the defense
attorney announced that he planned to seek a new trial
because the prosecutor had referred to a criminal
conviction relating to [dis]honesty and ... false
statement. The defense attorney contended that the
prosecutor, by referring both to dishonesty and false
statement, had led the jury to believe that Edwards had
committed two prior crimes, not just one.
The defense attorney told Judge Card that he
believed that this was a sufficient ground for
declaring a mistrial. However, the defense attorney
also told Judge Card that Edwards and his family did
not have the resources to finance a second trial.
Because of these competing considerations, the defense
attorney told Judge Card that he wished to consult
Edwards and his family before deciding what to do.
Judge Card responded by warning the defense
attorney that the jury was already deliberating, and
therefore the attorney had to make a decision quickly.
The judge told the defense attorney, I think you either
make [a] motion [for a mistrial] or you dont. Judge
Card then declared a recess to give the defense
attorney some time to consider the matter.
When the recess ended, the defense attorney
told Judge Card that he needed still more time to make
a decision. Judge Card responded that he (the judge)
needed to make a decision, one way or the other, before
the jury returned its verdict that he would not hold
Edwardss motion for mistrial under advisement until
after the jury decided the case.
At this point, the defense attorney told
Judge Card that he had not yet actually made a motion
for a mistrial. The defense attorney said, I didnt
really make [such a] motion to the court; I just said
that we might be doing that. ... [That is just]
something that we might do. But I didnt actually say,
Judge, I move for a mistrial because I wouldnt do that
without talking to the Edwards family ... . (Emphasis
added)
At this point, Judge Card told the defense
attorney that, with respect to any potential motion for
a mistrial, he viewed the motion either as having never
been made, or as having been withdrawn. Judge Card
said, There is no motion pending, and the defense
attorney replied, All right, sir.
No further action was taken until the jury
found Edwards guilty. Then Edwards filed a motion for
a new trial, claiming that he had been prejudiced by
the prosecutors remark about a criminal conviction
relating to [dis]honesty and ... false statement.
From the foregoing description of events, it
is clear that the defense attorney recognized that
there was a potential ground for seeking a mistrial,
but the defense attorney refrained from pursuing the
motion until he learned the jurys decision. By
pursuing this course of action that is, by gambling on
the jurys verdict the defense attorney waived any
potential claim of error. As the Alaska Supreme Court
declared in Owens v. State, 613 P.2d 259, 261 (Alaska
1980), a defendant should not be allowed to take a
gamblers risk and complain only if the cards [fall] the
wrong way. See also Allen v. State, 51 P.3d 949, 953
(Alaska App. 2002); Turpin v. State, 890 P.2d 1128,
1130 (Alaska App. 1995).
Edwardss attacks on the indictment
Before his trial, Edwards asked the superior
court to dismiss the indictment. He argued that the
evidence presented to the grand jury was insufficient
to establish that he was the cause of the infants
death.
At the grand jury, the childs mother
testified that she left for work at around 9:00 a.m.,
and that she left her infant son in Edwardss care. At
that time, the child was awake. The child cried a
little when she left, but he was sitting on the bed
with Edwardss young son, watching television.
Edwardss downstairs neighbor and apartment
manager testified that, in the middle of the morning,
she heard a very loud thump in the apartment above her
so loud that she and her sons (who were preparing for
their home school lessons) stopped what they were
doing. Within the hour, the apartment manager saw
Edwards carrying the infant to his car. The child
wasnt moving at all. When the apartment manager asked
Edwards how his day was going, Edwards responded, Oh,
things are great; things are fine. However, Edwards
appeared to be in a hurry, and he immediately departed
in his car.
The States pathologist, Dr. Frank Fallico,
testified that, based on the results of the autopsy,
the infant died as a result of multiple blunt-force
shaking injuries, which the doctor defined as including
hitting the infant with an object or causing the infant
to hit an object. Fallico explained that, based on the
observed injuries, the infant was subjected to a great
deal of force, a force equivalent to a high-speed
automobile crash or a fall from great height but with
the crucial difference that the force was applied to
the childs body in a twisting or rotational direction,
as opposed to the linear force that is characteristic
of an actual fall.
The childs mother testified that, around
11:45 a.m., Edwards called her at work to say that he
was taking her child to the hospital because the child
was having trouble breathing. When the childs mother
met Edwards at the hospital, Edwards told her that the
infant had been sleeping on a couch for about two
hours, and that he first noticed that something was
wrong when he tried to wake the infant up and the
infant would not respond. According to the mother,
Edwards told her that the child was kind of out of it,
and ... didnt seem [to be] breathing well, so Edwards
decided to take the child to the hospital.
But Dr. Fallicos testimony suggested that
Edwardss version of events was unlikely. As explained
above, Fallico testified that the child died from
multiple blunt-force shaking injuries. Fallico also
testified that very, very soon after suffering such
injuries, the child would have demonstrated both an
observable difficulty in breathing and an altered
consciousness. These changes in the childs behavior
would be obvious even to an observer who had no medical
training: An average person without medical knowledge
would know, very soon after the event, that something
was very wrong with the baby.
In other words, Dr. Fallicos testimony
suggested that Edwards could not be telling the truth
when he said that the child was acting normally when he
put the child down for a nap and then, two hours later,
without intervening incident, the child was
unresponsive and could not breath properly. The
doctors testimony, coupled with the apartment managers
description of what she heard and saw, was sufficient
to support a reasonable conclusion that the child
suffered his fatal injuries while he was in Edwardss
sole care.
We conclude that this evidence was sufficient
to warrant an indictment for second-degree murder.3
On appeal, for the first time, Edwards argues
that the grand jury process was flawed for a different
reason. He contends that a police witness improperly
gave what amounted to expert testimony on the expected
behavior of infants who have suffered serious blunt-
force or shaking injuries. This contention was not
raised in the superior court. It is therefore waived.
See Alaska Criminal Rule 12(b)(1), which
states that any defense claim relating to defects in
the institution of the prosecution must be raised
before trial, and Criminal Rule 12(e), which states
that the defendants failure to timely raise such a
claim shall constitute [a] waiver of that claim.
Edwardss claim that the jurys verdicts are inconsistent
For reasons that are not obvious from the
record, the State asked the grand jury to indict
Edwards on alternative counts of second-degree murder
and manslaughter, even though, under the facts of
Edwardss case, these two charges stood in the
relationship of greater offense and lesser included
offense.4 And at the end of Edwardss trial, the jurors
were asked to return separate verdicts on each of these
two counts; they were told that their verdict on one
count should not control [their] verdict on [the]
other.
(Normally, in such circumstances, the jury
would be told: (1) that second-degree murder was the
greater offense; (2) that if the jurors unanimously
convicted the defendant of second-degree murder, they
should cease deliberating; and (3) that the jurors
would be allowed to return a verdict (whether guilty or
not guilty) on the manslaughter charge only if the
jurors simultaneously acquitted the defendant of the
second-degree murder charge. See Dresnek v. State, 697
P.2d 1059 (Alaska App. 1985), affirmed 718 P.2d 156
(Alaska 1986).)
Because the jurors were instructed that they
must return verdicts on both the murder and the
manslaughter charges (that is, they were instructed to
return a verdict on the manslaughter charge regardless
of their verdict on the greater charge of second-degree
murder), and because the jurors were also told that
their verdict on one count should not control their
verdict on the other, Judge Card recognized that there
was a danger of verdict inconsistency that normally
does not arise in such cases.
As just explained, when a jury is instructed
on both a greater offense and a lesser included
offense, the jurors are normally told to cease their
deliberations if they find the defendant guilty of the
greater offense, and to return no verdict on the lesser
offense in that circumstance. But Edwardss jurors were
told that it was their duty to return verdicts on both
offenses, even if they found Edwards guilty of second-
degree murder. Judge Card recognized that, in this
circumstance, there was a theoretical possibility that
the jurors might return a guilty verdict on second-
degree murder (i.e., the greater offense), but a not
guilty verdict on the lesser included offense of
manslaughter.
When Judge Card suggested to the parties that
a not guilty verdict on the manslaughter count would be
inconsistent with a guilty verdict on the second-degree
murder count, Edwardss attorney agreed with Judge Card
that it would be inconsistent for the jury to acquit
Edwards of manslaughter and, at the same time, convict
him of murder.
Apparently to forestall this possibility, the
prosecutor (in her summation) urged the jurors to think
of the manslaughter count as the first step in their
analysis of the murder count. That is, she advised the
jurors to first decide whether the State had proved
that Edwards was the one who injured the child, and
that Edwards had recklessly disregarded the risk that
his actions would result in the childs death. Then, if
the jurors answered these questions in the affirmative,
the jurors should next decide whether the State had
proved that Edwards acted with the kind of extreme
recklessness required for second-degree murder:
conduct manifesting an extreme indifference to the
value of human life.
The jury ultimately found Edwards guilty of
both second-degree murder and manslaughter. (Judge
Card merged these verdicts at Edwardss sentencing.)
Seemingly, this ended any possibility of inconsistent
verdicts. But six months after the jury returned its
verdicts, Edwards moved for a new trial alleging that
the jurys verdicts were inconsistent.
The alleged inconsistency arose from the
wording of the manslaughter verdict. Judge Card
instructed the jurors in accordance with the wording of
the manslaughter statute, AS 11.41.120(a)(1): that is,
he instructed the jurors that they should convict
Edwards of manslaughter only if the State proved beyond
a reasonable doubt (1) that Edwards intentionally,
knowingly, or recklessly caused the death of [the
child]; and (2) that Edwards did so under circumstances
not amounting to murder in the ... second degree.
Edwards argued (and continues to argue on
appeal) that the jurys manslaughter verdict is
inconsistent with its second-degree murder verdict
because, if the jury indeed found Edwards guilty of
killing the child under circumstances not amounting to
murder in the ... second degree, then the jury could
not rationally, at the same time, also find Edwards
guilty of killing the child under circumstances that
did amount to murder in the second degree.
Before we explain why we reject Edwardss
claim of verdict inconsistency, we wish (as a
preliminary matter) to formally endorse the
construction of the manslaughter statute that we first
expressed twelve years ago in an unpublished decision:
Buie v. State, Alaska App. Memorandum Opinion No. 3100
(March 29, 1995), 1995 WL 17220362.
The statutory phrase under circumstances not
amounting to murder in the first or second degree does
not constitute an element of the offense of
manslaughter. Rather, this language means that a
manslaughter conviction should be entered unless the
jury concludes that the unlawful homicide is not just a
manslaughter, but rather constitutes a murder. That
is, we construe AS 11.41.120(a)(1) to mean: A person
commits the crime of manslaughter if he or she
intentionally, knowingly, or recklessly causes the
death of another person, unless the finder of fact
concludes, beyond a reasonable doubt, that the homicide
is murder in either the first or second degree.
As we pointed out in Buie, if the language in
question were construed as an element of manslaughter
that is, if the State were required to prove beyond a
reasonable doubt that an act charged as manslaughter
did not constitute murder in either the first or second
degree then juries would be required to acquit the
defendant of both murder and manslaughter whenever
there was a reasonable doubt as to whether the
defendants act of homicide constituted murder as
opposed to manslaughter. Buie, Memorandum Opinion No.
3100 at pp. 32-34, 1995 WL 17220362 at *16-17.
We do not believe the legislature intended
this. Rather, we conclude that the legislature
intended manslaughter to be a residual category of
unlawful homicide, encompassing any unlawful killing
done with recklessness, knowledge, or intent unless the
State proves that the killing constitutes first- or
second-degree murder.
If the jury finds that the defendant
committed an unlawful homicide and acted with
recklessness, knowledge, or intent, but if the jury has
a reasonable doubt as to whether the State has proved
murder, then the defendant is entitled to the benefit
of the jurys doubt and must be convicted only of
manslaughter. But at the same time, the fact that the
jury may believe that there is a reasonable
possibility, or even a likelihood, that the defendants
conduct constituted murder does not entitle the
defendant to be acquitted of manslaughter.
Thus, the manslaughter instruction that
Edwardss jury received was flawed. It was wrong to
tell the jurors that they could not convict Edwards of
manslaughter unless they found, beyond a reasonable
doubt, that the homicide did not amount to murder in
the first or second degree.
This clarification of the law of manslaughter
does not, however, resolve the problem of verdict
inconsistency in Edwardss case. Even though the jury
received an erroneous manslaughter instruction, the
jurors were operating under that instruction thus
raising the possibility that the jurors verdicts were
inconsistent in the manner that Edwards alleges.
Nevertheless, we reject Edwardss argument for three
reasons.
First, Edwards did not object (in any
pertinent way) to the jury instructions on the
relationship between the two charges, nor did he object
(at the time) to the entry of the jurys two verdicts.
Although the Alaska Supreme Court has
declared that logically inconsistent verdicts can be
attacked on appeal as plain error (that is, attacked on
appeal even if the verdicts were not attacked in the
trial court),5 a showing of plain error includes a
showing that the defense attorney had no tactical
reason for failing to make a contemporaneous
objection.6 We have previously noted that a defense
attorney who believes that the jurys verdicts may be
inconsistent often has a powerful tactical reason to
withhold any objection until the trial judge accepts
the verdicts and discharges the jury.
As we explained in Hansen v. State, 845 P.2d
449, 454-55 (Alaska App. 1993), if a defense attorney
alerts the trial judge to the problem of an
inconsistency in the jurys verdicts, the trial judge
would normally advise the jurors that their verdicts
are inconsistent and can not be accepted, and the judge
would then direct the jurors to return to their
deliberations leaving open the possibility that the
jurors would resolve the inconsistency in the States
favor. Or, in a case like Edwardss, a timely objection
would have alerted the trial judge to the troublesome
language in the manslaughter instruction, and the
problem could likely have been solved by asking the
jury to clarify its decision.
Instead, by withholding an objection until
the jury is discharged and the matter is beyond remedy,
a defense attorney gains a new trial on any charges of
which the defendant was convicted, and at the same time
precludes a new trial on any charges of which the
defendant was acquitted (because of the guarantee
against double jeopardy). Under such circumstances,
Alaska law will normally not allow a defendant to
advance a claim of plain error.
A second reason we are unwilling to entertain
Edwardss claim of inconsistent verdicts is that, as we
have already described, Edwardss attorney made exactly
the opposite argument to Judge Card concerning the
interplay between the verdicts on second-degree murder
and manslaughter. As explained above, Edwardss
attorney expressly agreed with Judge Card when the
judge suggested that an inconsistency would arise if
the jurors convicted Edwards of second-degree murder
but acquitted Edwards of manslaughter. Now, on appeal,
Edwardss attorney is arguing that this very combination
of conviction and acquittal was the only way that the
jurors could render a consistent decision and that an
irreconcilable inconsistency arises from the fact that
the jury voted to convict Edwards of both counts.
Thus, even if one might argue that Judge Card
should have recognized a potential legal problem when
the jury convicted Edwards of both second-degree murder
and manslaughter (given the wording of the manslaughter
instruction), Edwardss attorney significantly
contributed to the error by misdirecting Judge Card,
telling him that the potential problem lay elsewhere.
Finally, we reject Edwardss claim because any
claim of inconsistent verdicts must be evaluated in
light of the jury instructions taken as a whole,7 and
in light of the summations of the parties.8 If the
record reveals a basis upon which the jurys verdict[s]
can rationally be explained, the verdicts will be
upheld. Davenport v. State, 543 P.2d 1204, 1208
(Alaska 1975).
Here, because of the unusual way in which the
indictment was framed, the jurors were told to return
separate verdicts on second-degree murder and
manslaughter even though these two counts of the
indictment stood in the relationship of greater offense
and lesser included offense. This provides a ready
explanation for the fact that the jurors returned
separate verdicts on each of these two degrees of
homicide (rather than returning only one verdict
finding Edwards guilty of the greater charge, second-
degree murder).
And although the wording of the manslaughter
instruction is susceptible of the interpretation that
Edwards urges on appeal the interpretation that the
jurors should convict Edwards of manslaughter only if
they acquitted him of second-degree murder the jurors
were in fact told something different in the other
instructions and in the prosecutors summation. As
explained above, the jurors were urged to view their
decision on the manslaughter count as a legally
separate but preliminary stage of their consideration
of the murder charge. The prosecutor suggested that
the jurors first decide if Edwards was guilty of
manslaughter and if jurors found him guilty of
manslaughter, they should then move on to decide
whether Edwards demonstrated such an extreme degree of
recklessness that he should be found guilty of second-
degree murder under an extreme indifference theory.
The prosecutor (without objection) urged the
jurors to find Edwards guilty of both second-degree
murder and manslaughter. In fact, the prosecutor
(again, without objection) told the jurors, If you
agree that [Edwards] committed murder in the second
degree, [then] you are, by definition, finding that
[Edwards] committed manslaughter.
It is true that the manslaughter instruction,
read in isolation, might suggest that if the jurors
ultimately decided that Edwards was guilty of second-
degree murder, they should then go back and alter their
decision (i.e., acquit Edwards) on the manslaughter
charge. But the jurors were also instructed that the
two charges were independent that [their] verdict on
one count should not control [their] verdict on [the]
other. Thus, reasonable jurors could conclude that
they should leave their manslaughter verdict alone,
regardless of how they decided the issue of second-
degree murder.
We therefore conclude that there is no fatal
inconsistency in the jurys decisions to convict Edwards
of both second-degree murder and manslaughter.
We do, however, wish to point out to trial
judges and to the Department of Law that this problem
would not have arisen had the jury received standard
instructions (the kind of instructions described in
Dresnek) concerning the greater-lesser relationship
between second-degree murder under an extreme
indifference to the value of human life theory and
manslaughter. As explained above, when jurors are
confronted with a greater offense and one or more
lesser included offenses, the jurors are normally
instructed that they are free to deliberate on the
different charges in any order they wish, but they
should return a verdict on the lesser offense(s) only
if they find the defendant not guilty of the greater
offense.
Edwardss argument that second-degree murder defendants
have a Sixth Amendment right to jury trial concerning
the factors listed in AS 12.55.125(b) that trigger a
higher mandatory minimum sentence
As noted above, the jury convicted Edwards of
second-degree murder. Under AS 12.55.125(b), the
sentencing range for this crime is normally 10 to 99
years imprisonment. However, this statute also
provides that the mandatory minimum term of
imprisonment is increased to 20 years if the murder
[is] of a child under 16 years of age and the court
finds by clear and convincing evidence that the
defendant ... was [the childs] natural parent, ...
stepparent, [adoptive] parent, [or] legal guardian, or
[occupied] a position of authority in relation to the
child.
(The phrase position of authority is defined
in AS 11.41.470(5). This category includes
babysitters.)
The State contended that Edwards was subject
to the higher, 20-year mandatory minimum sentence
because he killed a one-year-old child who was in his
care. Edwards responded that, under Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d
403 (2004), he was entitled to a jury trial on these
two issues of fact i.e., whether the child was under
the age of 16, and whether Edwards occupied a position
of authority over the child at the time of the
homicide.
Judge Card ruled that these two issues of
fact were not covered by Blakely, and thus he could
decide these issues without a jury. Then, applying a
clear and convincing evidence burden of proof, Judge
Card found that the State had proved both of the facts
that triggered the higher mandatory minimum term of
imprisonment: (1) that the victim was under the age of
16, and (2) that Edwards occupied a position of
authority over the victim.
On appeal, Edwards renews his claim that,
under the Sixth Amendment, he was entitled to a jury
trial on these two issues of fact. But in State v.
Malloy, 46 P.3d 949, 954-55, 956 (Alaska 2002), the
Alaska Supreme Court held that the Sixth Amendment
right to jury trial does not apply to issues of fact
that increase the mandatory minimum term of
imprisonment for a crime (as opposed to issues of fact
that increase the potential maximum term of
imprisonment for a crime).
It is true that State v. Malloy was decided
in 2002 that is, after the United States Supreme
Courts decision in Apprendi v. New Jersey,9 and after
the Alaska Supreme Courts own earlier decision in
Donlun v. State,10 but before the United States
Supreme Court decided Blakely v. Washington. However,
this Court recently held that the Blakely decision does
not undermine the Alaska Supreme Courts analysis in
Malloy. See Malloy v. State, 153 P.3d 1003, 1009-10
(Alaska App. 2007).
For these reasons, we reject Edwardss
contention that, under the Sixth Amendment, he was
entitled to a jury trial on the two issues of fact that
triggered the higher mandatory minimum term of
imprisonment.
Edwards makes a related argument based on
state law. He notes that AS 12.55.125(b) specifies
that the clear and convincing evidence standard of
proof governs the sentencing courts decision on the
question of the defendants relationship to the victim
i.e., whether the defendant was the parent, stepparent,
adoptive parent, or legal guardian, or whether the
defendant occupied a position of authority in relation
to the child. At the same time, however, the statute
is silent regarding the burden of proof that governs
the other issue of fact i.e., whether the victim was
younger than 16 years. Based on the statutes silence
on this issue, Edwards asserts that the legislature
must have intended the victims age to be an element of
the offense something to be included in the indictment
and later proved to the trial jury beyond a reasonable
doubt.
We do not draw this conclusion from the
legislatures silence. We note that in State v. Malloy,
46 P.3d at 954-55, 956, the Alaska Supreme Court
considered the corresponding provisions of
AS 12.55.125(a) i.e., the factual issues that trigger
a higher mandatory minimum sentence for first-degree
murder and concluded that these issues of fact were
not elements of the offense under the Alaska test
announced in Donlun v. State. We likewise conclude
that the factual issues that trigger the higher
mandatory minimum sentence for second-degree murder are
not elements of the offense.
We further conclude that the legislatures
failure to specify a burden of proof on the issue of
the victims age appears to stem from faulty drafting
rather than intentional policy. We interpret AS
12.55.125(b) to require the same level of proof i.e.,
proof by clear and convincing evidence on both issues
of fact that trigger the higher mandatory minimum term
of imprisonment.
Edwardss claim that his sentence is excessive
Judge Card sentenced Edwards to 20 years
imprisonment. This is the minimum sentence allowed
under AS 12.55.125(b) for defendants in Edwardss
circumstances that is, for defendants who commit
second-degree murder when the victim was under the age
of 16 and the defendant occupied a position of
authority over the victim. Nevertheless, Edwards
claims that this sentence is excessive.
The purpose of appellate sentence review is
to correct abuses of sentencing discretion to ensure
that criminal sentences fall within a permissible range
of reasonable sentences.11 But under the facts as
found by Judge Card, the judge had no discretion to
sentence Edwards to less than 20 years imprisonment.
Accordingly, as a matter of law, Edwardss sentence of
20 years imprisonment is not excessive for purposes of
sentence review.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1See, e.g., Dorman v. State, 622 P.2d 448, 453 (Alaska
1981).
2See, e.g., Larson v. State, 656 P.2d 571, 574-75 (Alaska
App. 1982) (a defendants right to present evidence is
properly limited by considerations of relevance and the
balancing test codified in Evidence Rule 403).
3See Cathey v. State, 60 P.3d 192, 195-96 (Alaska App.
2002); Sheldon v. State, 796 P.2d 831, 836-37 (Alaska App.
1990) (a grand jury should return an indictment when the
grand jury is convinced of the probability of the defendants
guilt).
4At oral argument, the States attorney declared that this
mode of charging was required by this Courts decision in
Whiteaker v. State, 808 P.2d 270 (Alaska App. 1991). In
Whiteaker, this Court decided that when the jury in a murder
trial has unanimously voted to acquit the defendant of the
murder charge but is deadlocked on a lesser degree of
criminal homicide (for example, manslaughter), the defendant
is entitled to have the court enter an acquittal of the
greater charge so that, in any retrial, the defendant will
face only the lesser charges on which the jury could not
reach agreement. Id., 808 P.2d at 274-78. We do not see
how our decision in Whiteaker requires the kind of homicide
indictment that the State requested in Edwardss case.
5DeSacia v. State, 469 P.2d 369, 373 (Alaska 1970).
6Jackson v. American Equity Ins. Co., 90 P.3d 136, 144
(Alaska 2004); Henry v. State, 861 P.2d 582, 589 (Alaska
App. 1993); Massey v. State, 771 P.2d 448, 453 (Alaska App.
1989); Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App.
1985).
7See Brown v. Anchorage, 915 P.2d 654, 660 (Alaska App.
1996).
8See Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993);
OBrannon v. State, 812 P.2d 222, 229 (Alaska App. 1991).
9530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
10527 P.2d 472 (Alaska 1974).
11See State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000),
quoting this Courts decision in Erickson v. State, 950 P.2d
580, 586 (Alaska App. 1997).
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