Opinion
Court of Appeals No. A-8795.
October 11, 2006.
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3DI-03-120 Cr, Dillingham, Fred Torrisi, Judge.
Dan S. Bair, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
W.H. Hawley Jr., Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Richard Lance Clark lived in Clark's Point, near Dillingham, with his girlfriend, Katherine Nielsen. On March 26, 2003, the couple got into an argument, and Clark left their home. In response, Nielsen began breaking various household items. While Nielsen was in the kitchen, cleaning up some of the broken items, Clark returned home. Clark stood in the doorway of the kitchen, blocking Nielsen's egress from the room. He then poured a flammable liquid onto the kitchen floor and set fire to this liquid.
The fire spread rapidly. Nielsen began to cry; she was trapped in the kitchen, and she believed that she was about to die. Clark then had an apparent change of heart: he began dousing the flames with buckets of water from the bathroom. Clark succeeded in putting the fire out, but not before it burned a large portion of the kitchen floor and the carpet leading to the living room. Nielsen (who has asthma) was laboring for breath because of the extensive black smoke that filled the house, and she blacked out temporarily.
Meanwhile, Clark's niece, Jessica Walker, saw the smoke and ran into the house. She found Nielsen at the kitchen table, and she escorted her from the house.
Based on this incident, Clark was convicted of first-degree arson and third-degree assault. For these two offenses, Superior Court Judge Fred Torrisi sentenced Clark to a composite term of 16 years' imprisonment with 8 year suspended ( i.e., 8 years to serve).
AS 11.46.400(a) and AS 11.41.220(a)(1)(A), respectively.
Clark now appeals both his convictions and his sentence. For the reasons explained in this opinion, we affirm Clark's convictions but we conclude that he must be resentenced, both because he was denied his right to counsel at the sentencing hearing and because, under the facts of this case, Clark should not have received separate convictions for first-degree arson and third-degree assault.
Clark's argument that he was denied the "assistance of counsel" because his court-appointed attorneys would not sign a proposed contract that would have required the attorneys to restrict their representation of Clark to those courts and legal proceedings which Clark was prepared to recognize as constitutionally valid
On the same day that Clark was indicted for arson and assault, George Frederick Gottschalk Jr., a self-proclaimed "amicus curia", filed a request seeking the "assistance of 6th Amendment to the Constitution of the United States counsel" on Clark's behalf. Attached to Gottschalk's notice was a proposed two-page "Contract for Assistance of Counsel Arising under the Sixth Amendment" which Gottschalk had apparently faxed to the Office of Public Advocacy (the agency appointed to represent Clark).
Under this proposed contract, the Office of Public Advocacy would promise not to represent Clark in any "statutory non-constitutional" court. Instead, the Office of Public Advocacy would promise to represent Clark only in "true court[s] of record with prescribed boundaries [and] a true seal of court", "in which the Constitution of the United States and the Laws . . . made pursuant there[to] [are] the rule of law".
The proposed contract also required the Office of Public Advocacy to confine their representation of Clark to courts whose judicial officer is "a bona fide public officer . . . of the State of Alaska [who] has an Oath of Office on file in a public forum that arises under Article VI of the Constitution of the United States . . . and Article XII section 5 of the Constitution of the State of Alaska . . . [and who] has filed an Official Bond as mandated by . . . AS 39.15". In addition, the proposed contract required the Office of Public Advocacy to refuse to represent Clark in any court in which the judicial officer is "a member of the Alaska Bar".
Another provision of the proposed contract prohibited the Office of Public Advocacy from "waiv[ing] . . . any of [Clark's] constitutionally secured rights without [his] express written consent".
Finally, the proposed contract required the Office of Public Advocacy to "always abide by the Constitution of the United States and the Laws which shall be made pursuant there[to] which are not listed or enumerated in this contract."
Five days later, Herman G. Walker Jr. (a lawyer who was appointed by the Office of Public Advocacy) entered an appearance on behalf of Clark. Clark provided Walker with a copy of the contract described above and demanded that Walker sign this contract.
When Walker appeared in the superior court for Clark's felony arraignment, he informed the court that he would not sign the proposed contract. Walker also informed the court that Clark said he would refuse to let Walker represent him unless Walker signed the contract. Clark confirmed Walker's account of their conversation.
Superior Court Judge Dan A. Hensley entered a "not guilty" plea for Clark and agreed to hold another hearing regarding this apparent impasse between Walker and Clark.
At the subsequent hearing, Clark claimed that Walker was not his attorney because Walker refused to sign the contract. But Judge Hensley ruled that Walker could validly refuse to sign Clark's proposed contract, and that Walker would remain Clark's attorney.
Judge Hensley suggested that if Clark was not satisfied with having Walker represent him (absent the contract), Clark could hire an attorney, or Clark could represent himself (if Judge Hensley was satisfied that Clark could do so), or Clark could apply for "hybrid" representation in which Clark would represent himself with the advice of counsel. But Judge Hensley told Clark that, until Clark specifically asked to represent himself, the judge would assume that Clark acquiesced in having Walker represent him.
This ruling did not satisfy Clark. At subsequent hearings, Walker informed the court that, because Walker had not signed the proposed contract, Clark did not consider Walker to be his lawyer. This state of affairs lasted until Clark's case was called for trial. At the trial call, Judge Torrisi (who would preside over Clark's trial in Dillingham) re-affirmed Judge Hensley's decision that Walker did not have to sign the proposed contract. As a result, Walker represented Clark at his trial.
Following Clark's trial, Walker was granted leave to withdraw and another lawyer, Sean Brown of the Angstman Law Office, was appointed to represent Clark for the sentencing proceedings. Clark objected to Brown's representation as well — because Brown, too, refused to sign the proposed contract.
On appeal, Clark asserts that he was denied his constitutional right to the assistance of counsel because Walker and Brown would not sign his proposed contract. Clark further argues that, because he was denied the assistance of counsel, the superior court could not validly exercise jurisdiction over him, and all of the court proceedings leading up to his conviction and sentencing are void.
Clark argues that his proposed contract merely required his court-appointed attorneys "to tender him the services secured by the United States Constitution, the Alaska Constitution[,] and [pertinent] federal and state laws". He argues that, because the attorneys were already bound to do (or refrain from doing) the things described in the proposed contract, they should have been directed to sign the contract. There are three answers to this argument.
First, if (as Clark suggests) the proposed contract merely required the attorneys to do things that they were already legally required to do, the contract was superfluous and there was no need for the attorneys to sign it.
But second, Clark mischaracterizes the proposed contract. The contract does not merely echo the law that would otherwise govern an attorney's conduct.
For instance, the proposed contract would bar Clark's attorneys from representing him in any "statutory non-constitutional" court. This clause would apparently bar Clark's attorneys from representing him in this Court — because this Court was not created by the Alaska Constitution, but rather was created by statute.
See SLA 1980, ch. 12, § 1.
Similarly, the proposed contract would bar Clark's attorneys from representing him in any court whose presiding judicial officer is a member of the Alaska Bar Association. But with the exception of district court magistrates and district court judges who have previously served at least seven years as magistrates, all the judges of this state must be licensed to practice law. And under AS 08.08.020(a), "[e]very person licensed to practice law in th[is] state shall become a member in the Alaska Bar". Thus, with the exception of district court magistrates and district court judges who have previously served at least seven years as magistrates, all judges in Alaska are required to be members of the Alaska Bar Association. Clark's proposed contract would bar his attorneys from representing him in front of any judge of the superior court or Alaska's two appellate courts.
See AS 22.05.070, AS 22.07.040, AS 22.10.090, and AS 22.15.160(a) (requiring all judges of the supreme court, the court of appeals, the superior court, and the district court to be "licensed to practice law" in the State of Alaska, with an exception for district court judges who have previously served at least seven years as a magistrate).
Another provision of the proposed contract would bar his attorneys from "waiv[ing] . . . any of [Clark's] constitutionally secured rights without [his] express written consent". This provision is incompatible with the Alaska Rules of Professional Conduct and this Court's decisions regarding the allocation of decision-making authority between criminal defendants and their attorneys.
Professional Conduct Rule 1.2(a) states that a lawyer in a criminal case "shall abide by the client's decision . . . as to a plea to be entered, whether to waive jury trial, whether the client will testify, and whether to take an appeal." But with regard to matters not mentioned in Rule 1.2(a), a lawyer has the authority to make final decisions without the express consent of the client. See Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004). Thus, under Alaska law, an attorney has the authority to decide, as a matter of strategy, to waive a defendant's rights — even if these rights are constitutionally secured.
See also Annas v. State, 726 P.2d 552, 559 n. 7 (Alaska App. 1986).
See Wayne R. LaFave, Jerold H. Israel, Nancy J. King, Criminal Procedure (2nd ed. 1999), § 11.6(a), Vol. 3, p. 600.
For instance, in Lanier v. State, 486 P.2d 981 (Alaska 1971), the Alaska Supreme Court held that an attorney's waiver of a defendant's constitutional rights during trial is binding on the defendant, except in exceptional circumstances ( e.g., if the counsel's actions are incompetent). In Lanier, the supreme court concluded that an attorney's decision to waive cross-examination of the State's witnesses as to certain charges (thus effectively waiving the defendant's constitutional right of confrontation with regard to those charges) was binding on the defendant, regardless of whether the attorney consulted the defendant beforehand, because the decision was made during trial, when an attorney must be "in active control of the defense". Id. at 987.
See Lanier v. State, 486 P.2d 981, 988 (Alaska 1971).
Accordingly, the provision in Clark's contract that required his attorney to obtain Clark's express written consent before waiving any of Clark's constitutional rights is both contrary to Alaska law and inconsistent with an attorney's need to make quick and reasonable strategic decisions at trial.
Third, in the last analysis, Clark's proposed contract is an attempt to make his attorneys conform their conduct to Clark's particular views regarding the Constitution, the proper role of the federal and state governments, and the validity of Alaska courts and judicial officers. The contract would have required Clark's attorneys to restrict their representation of Clark to those courts and legal proceedings that Clark was personally prepared to recognize as constitutionally valid. (We recently rejected similar claims in Crane v. State, 118 P.3d 1084 (Alaska App. 2005).)
In other words, it appears that the true function of the proposed contract would have been to transform all of Clark's views on these issues into potential bases for later disclaiming his attorney's actions and for later arguing that he had received ineffective assistance of counsel. This being so, the superior court correctly declined to order Clark's attorneys to sign this document.
We note that the American Bar Association's Standards for Criminal Justice declare that a defense attorney "has no duty to execute any directive of the accused which does not comport with [the] law or [the standards of professional conduct]". We further note that Clark does not claim that his attorneys actually failed to give him competent legal representation (apart from his allegation that their refusal to sign his proposed contract deprived him of effective representation). We therefore conclude that Clark received the assistance of counsel to which he was constitutionally entitled.
ABA Standards for Criminal Justice, The Defense Function (3rd ed. 1993), Standard 4-1.2(e), p. 120.
Clark's argument that the prosecutor failed to advise the grand jurors of exculpatory evidence, and that Clark's indictment should therefore be dismissed
Three witnesses testified at Clark's grand jury hearing: Katherine G. Nielsen, Jessica Walker, and Trooper Jeffrey D. Laughlin, the law enforcement officer who investigated the case.
Nielsen testified that she and Clark got into an argument after a day of drinking, and that Clark left the house. When Clark returned home, he was holding a jerry jug full of a flammable liquid. He asked Nelson, "Is this what you wanted?", and then he poured the contents of the jerry jug onto the floor of the kitchen, where Nielsen was standing, and set the liquid on fire.
Nielsen testified that the fire grew very quickly and that she thought she was going to die. But then Clark began dousing the fire with water, and he was ultimately able to extinguish it.
Walker testified that she saw smoke rising from Clark's and Nielsen's house, and that she ran to see what was happening. She found Nielsen sitting in the kitchen, and she escorted her out of the house. While she and Nielsen were leaving the house, Walker heard Clark say that Nielsen "[had threatened] to burn down the house a couple days before, and [that] he [ i.e., Clark] might as well do it himself, or something like that."
Trooper Laughlin testified that he went to Clark's Point to investigate the incident after Nielsen contacted the Dillingham police. He interviewed Nielsen, and then he went with her to the house to examine the damage from the fire. Laughlin testified that the damage to the floor was consistent with Nielsen's version of events, and that the damage to the ceiling suggested that the flames had been fairly high.
Prior to his trial, Clark filed a motion to dismiss the indictment. Clark argued that the prosecutor had violated his duty under Alaska Criminal Rule 6(q) to apprise the grand jurors of exculpatory evidence. In particular, Clark maintained that the prosecutor should have presented evidence that Nielsen had previously threatened to burn down the house. (Nielsen admitted making such statements during her interview with Trooper Laughlin.) Clark argued that Nielsen's threats were crucial exculpatory evidence, since they raised the possibility that Nielsen had started the fire herself.
Judge Torrisi denied Clark's motion, and Clark now challenges that ruling.
Under Alaska Criminal Rule 6(q), "[w]hen the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses." In Frink v. State, 597 P.2d 154, 164 (Alaska 1979), the Alaska Supreme Court interpreted this rule as requiring the prosecutor to present exculpatory evidence to the grand jury.
But as this Court noted in Haag v. State, 117 P.3d 775, 778 (Alaska App. 2005), the Alaska appellate courts have adopted a narrow definition of what constitutes "exculpatory evidence" for purposes of Criminal Rule 6(q). As the Alaska Supreme Court noted in Frink, "the prosecutor does not have to develop evidence for the defendant and present every lead possibly favorable to the defendant." A prosecutor is not obliged to present the grand jurors with any and all evidence that a defense attorney might rely on to establish reasonable doubt at trial. Rather, to qualify as "exculpatory" for purposes of Rule 6(q), the evidence must "tend, in and of itself, to negate the defendant's guilt."
Frink, 597 P.2d at 166.
See State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).
Id.; York v. State, 757 P.2d 68, 73 (Alaska App. 1988).
Evidence of Nielsen's prior threats to burn down the house, and evidence that she admitted making such threats during her interview with Trooper Laughlin, do not qualify as exculpatory evidence under this test. This evidence does not tend, in and of itself, to negate Clark's guilt.
Accordingly, the superior court correctly denied Clark's motion to dismiss the indictment.
Clark's argument that the prosecutor failed to give Clark advance notice that the State intended to introduce evidence of Clark's prior convictions for assault
At Clark's trial, during the prosecutor's direct examination of Katherine Nielsen, the prosecutor asked Nielsen whether Clark had ever physically abused her prior to the incident being litigated. Clark's attorney objected, and a bench conference ensued.
Clark's attorney argued that the prosecutor's question was improper. He conceded that Clark had previously been convicted of assaulting Nielsen, and that evidence of these assault convictions was at least arguably admissible under Evidence Rule 404(b)(4). But the defense attorney noted that the prosecutor had violated the procedural rule announced by this Court in Moor v. State, 709 P.2d 498, 505-06 (Alaska App. 1985) — the rule requiring the prosecutor to give advance notice of the State's intention to introduce evidence of prior bad acts under Evidence Rule 404(b).
The parties and Judge Torrisi then engaged in a discussion about whether Clark's two prior convictions for assaulting Nielsen were admissible under Rule 404(b) and, if so, whether the probative force of this evidence outweighed its potential for unfair prejudice.
In response to the defense attorney's declaration that he had been "blind-sided" by the prosecutor's attempt to introduce this evidence, Judge Torrisi acknowledged that the defense should have an opportunity to review the police reports pertaining to these prior convictions. The judge suggested a possible continuance, or a judicial limitation on the proposed testimony, or a stipulation between the parties that would limit the scope of what the jury heard. But Judge Torrisi also told Clark's attorney that his "basic gut feeling" was to allow the prosecutor to introduce at least some testimony regarding these prior assaults.
Following a brief negotiation between the parties, Clark's attorney informed Judge Torrisi that the parties had reached an agreement concerning the scope of the testimony concerning the prior assaults. However, the defense attorney added that he was not waiving his objection to this testimony. Upon hearing this, Judge Torrisi told the defense attorney that, by entering into the stipulation, the attorney would be waiving the "notice" component of his objection to this evidence — and the defense attorney agreed that this was the case:
The Court: Mr. Walker, the way I would view it [is that] you're waiving your notice argument — because . . . I think I made it pretty clear [that I would give you] a continuance. As to the . . . issue [of admissibility], it seems to me that, given the rule [ i.e., Rule 404(b)(4)], . . . you're not waiving too much, because I think [the evidence] comes in. But as to the notice problem, you are waiving that, because otherwise I'll grant you a continuance.
Defense Attorney: Right. I understand that, Your Honor.
The Court: All right.
Under the stipulation reached by the prosecutor and the defense attorney, the State was allowed to ask Nielsen about Clark's two prior convictions for assaulting her (one from 1997, and the other from 2000), as well as the fact that she had required medical attention after one of these incidents. However, the State was prohibited from eliciting any further details of these offenses.
Clark's attorney then argued that, because evidence of Clark's prior assaults on Nielsen was going to be admitted, the defense should be allowed to introduce evidence that Nielsen had previously been charged with assaulting Clark. (Nielsen ultimately pleaded no contest to a reduced charge of violating the conditions of release.) Even though Judge Torrisi believed that evidence of Nielsen's prior assault charge was probably beyond the scope of Evidence Rules 404 and 405, he nevertheless allowed the defense attorney to ask Nielsen about the assault charge on the grounds of fairness, and because the evidence was not overly prejudicial.
When Nielsen's direct examination resumed, the prosecutor asked her again if she had ever suffered past assaults by Clark. In accordance with the parties' stipulation, Nielsen testified that Clark had twice been convicted of assaulting her and that she had needed medical attention after one of these two incidents. Judge Torrisi then gave the following limiting instruction to the jury:
The Court: [These prior convictions] are brought to your attention for your assistance in determining whether this crime occurred. You're not . . . to punish him for anything that may have occurred in the past, but to decide this case on all of the evidence presented.
Later, during the defense attorney's cross-examination of Nielsen, she admitted that she had previously been charged with assaulting Clark.
At the end of Clark's trial, Judge Torrisi again reminded the jury of the limited purpose for which they might properly consider the evidence of Clark's prior assault convictions. This instruction informed the jurors that the evidence of Clark's two prior assaults against Nielsen
may not be considered by you to prove that [Clark is] a bad person, or a person who deserves to be punished. You may consider [this evidence], and weigh it in the same manner as other evidence, only to the extent you find it helpful in determining whether the State has proved the charges in this case beyond a reasonable doubt.
After the jury found him guilty, Clark moved for a new trial, arguing that Judge Torrisi erred in allowing the State to introduce evidence of Clark's two prior convictions for assaulting Nielsen. Clark renewed his argument that this evidence was more prejudicial than probative because the prior assaults were not sufficiently similar to the current assault and arson charges. Moreover, Clark argued that even if this evidence should have been admitted, he was nevertheless prejudiced because the State had failed to give notice of its intention to introduce evidence of the prior convictions, thus denying Clark the opportunity to voir dire the jurors regarding their knowledge of these prior incidents. Clark maintained that, although he stipulated to the admission of an abridged version of this evidence in order to avoid a delay of his trial, he should not be deemed to have waived his objection to the lack of notice — because, he contended, there was no cure for his inability to voir dire the jurors once the prosecutor unexpectedly asked Nielsen (in the jury's hearing) about Clark's prior assaults.
Judge Torrisi denied Clark's request for a new trial, and Clark challenges this ruling on appeal.
On appeal, Clark does not renew his argument that the evidence was more prejudicial than probative. However, Clark renews his argument that, because he was not given advance notice of the State's intention to introduce evidence of Clark's prior convictions for assaulting Nielsen, Clark was denied a fair opportunity to voir dire the jurors on this issue.
As described above, Clark's attorney objected immediately to the prosecutor's question concerning Clark's prior assaults on Nielsen, noting that the prosecutor had failed to give advance notice as required by Moor v. State. Judge Torrisi agreed with the defense attorney, and the judge offered to grant Clark a continuance of the trial so that Clark and his attorney could review the police reports pertaining to these prior assaults and prepare to meet the State's evidence of these prior convictions.
But rather than accepting the offered continuance, Clark's attorney reached an agreement with the prosecutor limiting the scope of the evidence concerning the prior assaults. And, as we explained above, when the state's attorney announced this agreement to Judge Torrisi, the judge expressly informed the defense attorney that, by entering into this stipulation concerning the disputed evidence, the defense attorney was effectively waiving any continued objection regarding the fact that the prosecutor had failed to give proper advance notice. Clark's attorney immediately replied: "Right. I understand that, Your Honor."
In other words, when Judge Torrisi stated that the legal effect of the stipulation would be a waiver of any claim of "lack of notice", Clark's attorney did not object to the judge's characterization of the stipulation; nor did the defense attorney say that, under those circumstances, he wanted a continuance; nor did the defense attorney voice Clark's present argument concerning the lack of an opportunity to question the jurors about these prior incidents. Instead, Clark's attorney said, "Right. I understand that, Your Honor."
Accordingly, we conclude that Clark's present argument was either expressly waived or, at least, was not preserved for appeal.
Clark's sentence must be vacated because, at his sentencing hearing, he proceeded without the assistance of counsel even though the superior court never obtained Clark's knowing waiver of this right
We have already described Clark's disputes with his attorneys over their refusal to sign his proposed contract. This problem resurfaced at Clark's sentencing hearing.
By the time of sentencing, Clark's trial attorney, Herman G. Walker Jr., had left the case and Clark was represented by Sean Brown. As we noted earlier, Clark objected to Brown's participation in the case because Brown, like Walker, refused to sign Clark's proposed contract.
At the same time, however, Clark declared that he did not want to represent himself. He told Judge Torrisi, "I don't have the knowledge at this time to represent myself in a court of law, because I'm unlearned in the law." Judge Torrisi advised Clark that it would be better for him to have a lawyer, both at sentencing and on appeal. The judge offered to continue the sentencing hearing so that Clark could make up his mind concerning the issue of his legal representation.
A lengthy colloquy then ensued between Judge Torrisi, Clark, Brown, the prosecutor, and George F. Gottschalk Jr. (the man who initially faxed Clark's proposed contract to the Office of Public Advocacy, and who apparently continued to be interested in Clark's case). At the end of this colloquy, Clark announced that he wanted the sentencing hearing to proceed, but that he would forego Brown's assistance. Judge Torrisi proceeded to hold the sentencing hearing.
On appeal, the State concedes that it was error to hold the sentencing hearing under these circumstances. Clark was not represented by counsel. And, although Clark purportedly elected to proceed without counsel, Judge Torrisi accepted Clark's decision without first advising Clark of the benefits of counsel and the dangers of self-representation. This was error; see Gladden v. State, 110 P.3d 1006, 1009-1012 (Alaska App. 2005); James v. State, 730 P.2d 811, 813-14 n. 1 (Alaska App. 1987), modified on rehearing, 739 P.2d 1314 (Alaska App. 1987).
For this reason, Clark's sentence must be vacated, and Clark is entitled to a new sentencing hearing.
Given our decision on this issue, Clark's claim that he was sentenced in violation of Blakely v. Washington is moot.
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Under the double jeopardy clause of the Alaska Constitution, and given the facts of this case, Clark should not have received separate convictions for the offenses of first-degree arson and third-degree assault
Even though we are vacating Clark's sentence, we must resolve a double jeopardy issue that will inevitably arise at Clark's re-sentencing.
The jury found Clark guilty of both first-degree arson under AS 11.46.-400(a) and third-degree assault under AS 11.41.220(a)(1)(A). The first-degree arson verdict required proof that Clark "intentionally damage[d] . . . property by starting a fire" and that, by this act, he "recklessly place[d] another person in danger of serious physical injury". The third-degree assault verdict required proof that Clark "recklessly . . . place[d] another person in fear of imminent serious physical injury by means of a dangerous instrument".
In Clark's case, the State alleged that the actus reus of both these offenses was Clark's act of intentionally setting the fire in the kitchen, and the State further alleged that this fire was the "dangerous instrument" required for third-degree assault. Once the jury accepted these two allegations, the offense of first-degree arson was proved if the jury found that, through this act, Clark recklessly placed Katherine Nielsen "in danger of serious physical injury". Likewise, the offense of third-degree assault was proved if the jury found that, through this act, Clark recklessly placed Katherine Nielsen "in fear of imminent serious physical injury".
Given the fact that Katherine Nielsen was the only person endangered by Clark's act, we conclude that the differences in the proof of these two offenses, and the difference in the societal interests protected by these two offenses, are not substantial enough to warrant the imposition of two convictions under the double jeopardy test announced by the Alaska Supreme Court in Whitton v. State, 479 P.2d 302 (Alaska 1970).
The State argues that the crime of arson is primarily aimed at protecting property interests, and that this fact readily distinguishes arson from assault. But under the Alaska Statutes, the primary difference between first- and second-degree arson is not any threat to property, but rather the threat to human beings. Second-degree arson, as defined in AS 11.46.410(a), consists of intentionally damaging a building by setting a fire or causing an explosion. This same act becomes first-degree arson under AS 11.46.400(a) if, by this conduct, the defendant recklessly places another person in danger of serious physical injury.
The third-degree assault statute requires proof of a similar result. That offense requires proof that the defendant's conduct placed another person in fear of imminent serious physical injury — that is, it caused another person to reasonably perceive a danger of imminent serious physical injury.
See Hughes v. State, 56 P.3d 1088, 1090 (Alaska App. 2002) (construing the language of the third-degree assault statute to mean this).
There is, of course, a technical difference between endangering a person and causing another person to perceive a danger. For instance, it is conceivable that an arsonist might endanger a heavily sleeping person who never woke up until the fire was extinguished, and who thus remained unaware of the danger until it was over. But, except in cases where the arson causes the death of a sleeping victim, it would be unusual for a potential victim of an arson to remain unaware of their danger. In Clark's case, for example, Katherine Nielsen was quite aware of the situation. She testified that she was trapped in the kitchen by the flames and that she believed she was going to die.
Another more plausible distinction between the two offenses arises if the defendant's act of arson causes two or more people to perceive a danger of imminent serious physical injury. The Alaska Supreme Court has ruled that when a defendant places two or more people in fear of injury by a single act, the defendant has committed multiple assaults, not just one. See Cooper v. State, 595 P.2d 648, 650 (Alaska 1979). But Clark's case involved a single victim.
Finally, the State argues that Katherine Nielsen not only perceived a danger of imminent serious physical injury, but she actually was injured. The State points out that, according to the testimony, Nielsen passed out temporarily because she was having trouble breathing. The State's argument on this point is directly contrary to Judge Torrisi's remarks at the sentencing hearing. The judge declared that Nielsen "didn't get hurt". Moreover, regardless of whether this temporary impairment of Nielsen's physical condition might constitute a "serious physical injury", or even a "physical injury", the State did not charge Clark with causing injury to Nielsen, and the jury made no finding on this issue.
See AS 11.81.900(b)(56).
See AS 11.81.900(b)(46).
Thus, the double jeopardy question presented in Clark's case is whether, given the fact that Clark's act of arson endangered only one person, there is a significant difference in either conduct, culpable mental state, or protected societal interests between (1) Clark's recklessly placing Nielsen "in danger of serious physical injury" and (2) Clark's recklessly placing Nielsen "in fear of imminent serious physical injury".
We hold that, given the facts of Clark's case, and given the way Clark's case was charged and litigated, any difference between these two offenses is insignificant for purposes of Alaska's double jeopardy clause.
Alaska Constitution, Article I, Section 9.
Both of the jury's verdicts remain valid, but the superior court should enter only one conviction against Clark — for the more serious crime, first-degree arson — based on those two verdicts.
First-degree arson is a class A felony, see AS 11.46.400(b), while third-degree assault is a class C felony, see AS 11.41.220(d).
Conclusion
For the reasons explained here, we uphold the result at Clark's trial — that is, we uphold the trial process and the jury's verdicts. However, we conclude that only one conviction should be entered against Clark based on those verdicts — a conviction for first-degree arson.
In addition, because Clark was not represented by counsel at his sentencing hearing, and because Clark never validly waived his right to counsel, the superior court must hold a new sentencing hearing.
The judgement of the superior court is AFFIRMED IN PART and VACATED IN PART.