Opinion
Court of Appeals No. A-9178.
November 21, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-02-10062 CR.
Cynthia Strout, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
After Robert R. Dorr shot his wife, Gail Dorr, several times with a handgun, he turned the gun on himself and twice shot himself in the head. Dorr survived, but his wife did not.
The State charged Dorr with first-degree murder, extreme indifference second-degree murder, kidnapping, two counts of first-degree sexual assault, and one count of second-degree misconduct involving weapons. The trial jury did not reach a verdict on the sexual assault counts but found Dorr guilty on the remaining counts. The superior court imposed a composite 99-year term.
AS 11.41.100(a)(1)(A), AS 11.41.110(a)(2), AS 11.41.300(a)(1)(C), AS 11.41.410(a)(1), and AS 11.61.195(a)(3)(A), respectively.
Dorr contends that admissions he made to the police were involuntary. Dorr attacks several of the superior court's findings relating to the involuntariness claim, and argues that the superior court wrongly concluded that Dorr's admissions were voluntary. We conclude that the superior court's findings were supported by substantial evidence. We independently conclude that Dorr's admissions were voluntary.
Dorr argues that an order entered by this court on a petition for review regarding jury instructions created structural error. We reject this claim.
Dorr contends that the superior court should have granted his motion for judgment of acquittal on one theory of kidnapping. We conclude that under the facts of this case, any error was harmless because no reasonable juror would disagree that the State had proven the alternate kidnapping theory.
Finally, Dorr argues that if we reverse his murder conviction, the term imposed for kidnapping is excessive. This claim is moot because we affirm the murder conviction.
Background facts and proceedings
The Dorrs married in 1998, but Gail told Dorr in August 2002 that she wanted a divorce. Dorr suspected that Gail was having an affair, but Gail denied it. After Gail moved out the next month, Dorr hired a private investigator, Walter Compton, to spy on Gail to see if she had a lover.
Compton videotaped a man heading toward Gail's new apartment. The video convinced Dorr that something was going on, and Dorr decided that Gail had falsely denied an affair. On October 11th, Dorr bought a .38 caliber handgun.
On October 12th, Dorr staked out Gail's home. He saw a man arrive in a truck and enter Gail's apartment. Dorr recorded the truck's license plate number and gave the information to Compton, who identified the driver for Dorr.
Dorr called the man's wife and told her what he had observed. The man called Dorr and confirmed Dorr's suspicions that he was Gail's lover.
Before 5:00 a.m. on October 28th, Dorr arrived at Gail's residence with his handgun. Gail called her office and spoke with Barbara Pelletier, a co-worker, telling her she wanted to speak with Kevin Scott, Gail's supervisor. She told Pelletier that someone was banging on her door and would not go away. Pelletier thought that Gail sounded "very shaky, very distraught and upset, panicked," but Pelletier could not locate Scott.
Gail called back a few minutes later and spoke with Scott, telling him that she was sick and would not come into work. Scott felt that something was wrong because of Gail's tone of voice, so he asked her if Dorr was there. Gail answered that he was and ended the conversation abruptly.
Dorr and Gail left Gail's apartment with Gail driving her truck and headed towards Dorr's house. As they passed by a gas station/convenience store, Gail suddenly turned into the parking lot, jumped from the moving truck, and ran toward the store's front door. Dorr fired several shots at Gail, hitting her twice in the back and once in the head, killing her. Dorr then shot himself twice in the head, but neither wound was fatal. Dorr was hospitalized and underwent surgery for his wounds.
On the following day and fifteen hours after surgery, the police interviewed Dorr at the hospital when Dorr was medicated. The police returned the next day, October 30, and interviewed Dorr twice more.
Dorr moved to suppress the statements he gave to the police while in the hospital. Superior Court Judge Larry D. Card granted the motion in part, suppressing the portion of the second October 30 interview that continued after Dorr "broke off questioning indicating he had spoken to his attorney and the attorney told him not to say anything else." Judge Card rejected Dorr's argument that his admissions were involuntary.
During the trial, Judge Card granted Dorr's request that the jury be instructed on the heat-of-passion defense with respect to the charge of second-degree murder. The State petitioned this Court for review and we granted the petition in part. We instructed the superior court to use verdict forms that would require the jury to specify if the jury agreed that the State failed to disprove Dorr's heat-of-passion defense, and if so, to which murder charge (first-or second-degree) this defense applied. The superior court submitted verdict forms to the jury that complied with this Court's order.
The jury convicted Dorr of all charges except the two counts of first-degree sexual assault, which were dismissed after the jury was unable to reach a verdict. Judge Card imposed 99 years' imprisonment for murder and merged the convictions for first-and second-degree murder. He imposed a concurrent term of 99 years for kidnapping and 4 years for second-degree weapons misconduct. Dorr appeals. Discussion Dorr's admissions to the police were voluntary
Judge Card concluded that Dorr's statements to the police were "free and voluntary." Dorr argues that Judge Card relied on clearly erroneous factual findings in denying his suppression motion. He also argues that his admissions were involuntary.
Our review of the superior court's voluntariness ruling is a three-part question. First, we review the trial judge's findings of historical fact for clear error. Second, we independently review the mental state of the accused. Third, considering the totality of the circumstances, we independently examine the legal significance of this inferred mental state.
Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000); State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987).
Beavers, 998 P.2d at 1044 (quoting Ridgely, 732 P.2d at 554).
Id.
Id.
Detectives Joseph Hoffbeck and Timothy Landeis contacted Dorr in the hospital on October 29th and again on October 30th. The first interview took place approximately fifteen hours after Dorr had come out of surgery, and Dorr had received several drugs during his treatment. Portions of Dorr's statements to the police were used against him at trial. Dorr moved to suppress the statements, arguing that they were not voluntary.
During the evidentiary hearing on the motion to suppress, Dorr called Dr. George Woods as an expert witness in the area of forensic neuropsychiatry and pharmacology. Dr. Woods opined that Dorr was suffering from acute delirium when he was questioned by Detectives Hoffbeck and Landeis. He explained that "delirium is a waxing and waning of consciousness that . . . can be caused by medications, . . . a lack of oxygen, [or] by trauma, head trauma particularly. [It] allows a person to have impairments of memory [and] orientation, [and] to often have disturbances in language." Dr. Woods concluded that Dorr "was extremely more vulnerable to police questioning," that Dorr's "capacity for self-determination had been critically impaired," and that Dorr's statements "were not essentially free and unconstrained by his choice."
Dr. Woods noted that Dorr had experienced "significant surgical interventions" in the twenty-four hours prior to the interrogation, and that Dorr had been under anesthesia. Dorr had also received doses of several drugs that "can alter one's mental state." Dr. Woods explained that these drugs "were designed not only to control pain, but [also] to induce [an] anesthetic coma which . . . would be designed to impair memory."
Dr. Woods gave specific examples from the interrogation that he believed demonstrated the neurological phenomena of delirium. Dr. Woods suggested that Dorr exhibited signs of non-responsiveness, an inability to sequence, an impaired consciousness, echolalia (where a person repeats a specific word or phrase), disorientation, memory impairment, a breakdown in the ability to retain information, impaired processing of information, slurred speech, and suggestibility. The doctor concluded that the delirium would impair Dorr's ability to make voluntary statements.
Judge Card found that "Dorr was heavily medicated before, during, and after any statements made." But Judge Card listened to a recording of the interview and found that "there was no indication that he was not lucid, alert as to time and space, and aware that he was talking to police officers." Judge Card rejected Dorr's contention that Dorr was incapable of giving a voluntary statement. He denied the motion, finding that the "statements were voluntary, that the police were not overreaching, and that [Dorr's] responses were both coherent and rational."
Dorr attacks two of Judge Card's factual findings. The first is the finding that "there was no indication that [Dorr] was not lucid, alert as to time and space, and aware that he was talking to police officers." Dorr points to certain statements he made during the interview to support his contention that he lacked lucidity: "I'm in and out"; "This is Monday?" (it was actually Tuesday); and "Boy, you talk about dizzy." (Dorr also claims to have said, "Things aren't very clear here," but the transcript reads only, "Not very clear.") In addition, Detective Landeis testified that Dorr received medication during the interview and fell asleep.
But, after examining the interview as a whole, Judge Card found that Dorr was "groggy when he first was awakened but soon began to talk to the officers quite freely, and often asked questions of them." The record supports Judge Card's finding. Dorr said he was "in and out" when he was first awakened by the detectives, but he soon began to converse easily with them. The court also found that Dorr's confusion about whether it was Monday or Tuesday was not a symptom of his lack of lucidity, but it was attributable to the fact that he was not conscious on Monday, the day he shot himself twice in the head.
The record also shows that the October 29th interview began at about 3:20 p.m. and lasted until 4:03 p.m., and that Dorr received medication at 3:50 p.m. Dorr's previous medication was administered at 9:45 a.m., several hours before the interview. Dorr's comment, "Boy, you talk about dizzy," came near the end of the interview, apparently after he received the medication. The detectives did not ask Dorr any questions about the shooting after Dorr's "dizzy" comment, and the interview promptly ended. Though he sounded groggy, there was no other indication that Dorr was under the effects of medication at any earlier time in the interview.
The record supports Judge Card's finding that Dorr "effectively communicated" with the detectives, and that Dorr "responded appropriately and . . . volunteered information that was not even being asked of him." Judge Card's finding that Dorr was lucid during the October 29th interview was not clearly erroneous.
Dorr next attacks Judge Card's finding that "there was no indication . . . that [Dorr] was suffering from delirium." Dorr claims that Dr. Woods's opinion was unchallenged by any other evidence, so Judge Card must have "dismissed Dr. Woods'[s] opinions because the court was using the term delirium in its colloquial sense, in that Dorr was not ranting and raving, or speaking nonsense words." But Judge Card had other evidence to consider Dorr's mental state: transcripts and audio recordings of the interviews. Judge Card was not obligated to uncritically accept Dr. Woods's opinion. He was authorized to consider Dr. Woods's opinion in light of the other evidence. Judge Card's review of all the evidence led him to believe that Dorr was not suffering from delirium during the interviews.
See Dolchok v. State, 519 P.2d 457, 460 (Alaska 1974); Trumbly v. State, 515 P.2d 707, 708 (Alaska 1973) (It is "within the exclusive province of the trial judge, as fact determiner, to evaluate [expert] testimony and to accord to it such weight as he deem[s] appropriate."); Bowker v. State, 373 P.2d 500, 501 (Alaska 1962) ("We shall not adopt a rule which would treat medical testimony as conclusive merely because it is not disputed by other medical testimony.").
The State points out several examples why Dorr's statements were not involuntary because of delirium. For example, Dr. Woods opined that Dorr's confusion as to whether the October 29 interview was taking place on a Monday or a Tuesday was symptomatic of his temporal disorientation. But Judge Card found that Dorr's confusion could just as easily have occurred because Dorr was unconscious throughout Monday as a result of shooting himself in the head and the surgery: "[I]t's true that he did not know what day it was, but it was because he had been passed out, not because he [was] not oriented as to time and space." Judge Card's finding is not clearly erroneous.
Next, the State points out weaknesses in Dr. Woods's opinion that several of Dorr's statements were either non-responsive or consistent with an impairment of consciousness. The State contends that Dr. Woods evaluated Dorr's statements "out of context and hypercritically, using an excessively stringent standard of responsiveness that approaches what might be used when a person testifies in court or debates formally." The State pointed out that Dr. Woods focused on a few of Dorr's statements. First, the doctor opined that Dorr's statement that "I'm in and out" was non-responsive. But Dorr made this statement just after the detectives woke him up. Dorr appeared to converse freely and intelligently soon thereafter, and he did not complain about feeling sleepy or dizzy again until the very end of the interview after he received more medication.
Dr. Woods also found the following exchange demonstrated Dorr's non-responsiveness:
Q: . . . we're just wanting to know exactly what happened.
A: Well, love, that's all I know.
Q: I'm sorry?
A: I say all I know is I love her.
The State argues that Dorr's concern for Gail was "contextually relevant and appropriate." The State says Dorr was depressed about the deterioration of his marriage, and he was obsessed about reviving it. The State asserts that Dorr's obsessive feelings, and not delirium, explain his dwelling on Gail instead of responding directly to the detective's question. Judge Card came to a similar conclusion; he found that Dorr's non-responsiveness was "very limited" and related only to Gail, "but when asked the questions directly he had responded appropriately and, in fact, volunteered information that was not even being asked of him." Judge Card's finding is not clearly erroneous. Dorr's non-responsiveness was limited, and as a whole, Dorr responded appropriately throughout the interview.
Next, the State criticizes Dr. Woods's opinion that Dorr exhibited impaired processing of information. Dr. Woods's cited this exchange:
Q: But what happened when, uh, when the two of you drove up to the, uh, to the, uh, little supermarket there on Spenard and Wisconsin, yesterday morning at about 5:00[?]
A: Went to where?
Dr. Woods opined that the detectives might have given Dorr too much information in the question, and that Dorr "may have been overwhelmed with just the amount of information they were giving him." The State offers a simpler explanation — that the detective's use of "little supermarket" to describe a Tesoro gas station and convenience store may have been confusing. Judge Card did not address this specific issue, but it would not be clearly erroneous to conclude that Dorr's response ("Went to where?") was not a symptom of delirium, but instead was an attempt to clarify an arguably confusing question.
The State then presents several reasons why Dr. Woods's diagnosis of delirium could be viewed as faulty. Specifically, the State claims that Dr. Woods did not explain how Dorr's specific injuries would have been sufficient to cause delirium. The State also claims, citing the Diagnostic and Statistical Manual of Mental Disorders, that a diagnosis of delirium based on substance intoxication should be made "only when the cognitive symptoms are in excess of those usually associated with the intoxication syndrome and when the symptoms are sufficiently severe to warrant independent clinical attention." The State argues that the symptoms Dorr displayed — such as slurred speech, impairment in attention or memory, and stupor or coma — could just as easily been the result of medication intoxication, so a diagnosis of delirium was not warranted.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 144-45 (4th ed., Text Revision 2000).
In summary, there was enough reason for Judge Card to doubt Dr. Woods's testimony and to find that Dorr was not suffering from delirium. Some of Dr. Woods's conclusions were debatable, and Dorr has not shown on appeal that Judge Card's findings were clearly erroneous.
Dorr next argues that his statements were involuntary and therefore inadmissible under the due process clauses of the federal and Alaska Constitutions.
A defendant's statement is not admissible unless it is voluntarily made. A voluntary statement is the "product of free will," whereas an involuntary statement is the "product of an irrational mind or one which was overborne by coercion." The State has a "heavy burden" to show by a preponderance of the evidence that the statements were given voluntarily.
Schade v. State, 512 P.2d 907, 916 (Alaska 1973).
Id. 512 P.2d at 916.
Stephan v. State, 711 P.2d 1156, 1160 (Alaska 1985).
Schade, 512 P.2d at 917.
Dorr argues that Judge Card erred in finding that Dorr's "statements were voluntary, that the police were not overreaching, and that [Dorr's] responses were both coherent and rational."
Dorr compares his situation to that in Mincey v. Arizona, where the United States Supreme Court found that Mincey's statements were "the result of virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness." Mincey was "encumbered by tubes, needles, and breathing apparatus. He was . . . `at the complete mercy' of [the police], unable to escape or resist the thrust of [the] interrogation." Dorr argues that he "was being administered numerous mind altering drugs . . . [and] was encumbered by tools and needles when interrogated." He claims that the police were coercive because they "exploited Dorr's vulnerability" by questioning him when he was under "potent narcotic medications." Dorr also claims that the police were coercive because they did not tell him that his wife was dead until the end of the first interrogation.
437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978).
Id. at 401, 98 S. Ct. at 2418.
Id. at 399, 98 S. Ct. at 2417 (quoting Beecher v. Alabama, 389 U.S. 35, 38, 88 S. Ct. 189, 191, 19 L. Ed. 2d 35 (1967)).
The Alaska Supreme Court has held that the fact that a defendant is under the influence of alcohol or drugs is not sufficient in itself to render a statement involuntary, unless the defendant is so intoxicated that he cannot understand the meaning of his statements. The supreme court has also held that mental illness is not "an invariable bar to the admissibility of a confession," but is only one of several factors to be weighed when considering the voluntariness of a statement.
See Hampton v. State, 569 P.2d 138, 144 (Alaska 1977). See also Stobaugh v. State, 614 P.2d 767, 770-71 (Alaska 1980); Mallott v. State, 608 P.2d 737, 743 (Alaska 1980); Collins v. State, 778 P.2d 1171, 1174 (Alaska App. 1989).
Schade, 512 P.2d at 916-17.
The State disputes Dorr's contention that the facts in Mincey are similar to this case. For example, the State points out that Mincey had a breathing tube inserted while he was questioned by police, and he could only communicate by writing. Some of Mincey's responses were incoherent. The interrogation lasted almost four hours, and Mincey repeatedly asked for the questioning to stop. The State notes that Dorr's October 29th interrogation lasted about forty minutes, and Dorr did not ask the detectives to leave. When Dorr finally did say that he did not want to answer any questions — at the end of the second October 30th interview — the detectives promptly stopped questioning him.
Mincey, 437 U.S. at 396, 98 S. Ct. at 2415.
Id. at 398-99 n. 15, 98 S. Ct. at 2417 n. 15.
Id. at 396, 399-401, 98 S. Ct. at 2415, 2417-18.
Dorr cites two cases from outside Alaska to explain why the detectives' behavior should be considered coercive. In Iowa v. Vincik, the defendant's statement was taken three hours after he was administered a dose of Valium, and the Iowa Supreme Court held that "Vincik's capacity for self-determination was critically impaired by the drugs' effect on his already debilitated condition, and his reduced resistance was overborne by the officers." In Wisconsin v. Hoppe, medical experts testified that Hoppe was suffering from severe alcohol dependence, alcohol-induced amnesiac disorder, alcohol-induced psychotic disorder with delusions and hallucinations, alcohol withdrawal delirium, and alcohol related dementia. The Wisconsin Supreme Court found that although the police did not engage in "egregious" behavior, "given Hoppe's severely debilitated mental and physical condition, the coercive pressures exerted by police during these interviews exceeded Hoppe's ability to resist."
398 N.W.2d 788 (Iowa 1987).
Id. at 792-93.
661 N.W.2d 407 (Wis. 2003).
Id. at 412.
Id. at 417-18.
The State distinguishes these cases in several ways. First, unlike Vincik and Hoppe, there is no evidence that Dorr suffered any brain damage or disorder. (The bullets Dorr fired into his head did not strike his brain.) Second, the State contends that Dorr was not impaired by medication to the same extent as Vincik and Hoppe. Dorr received medication nearly six hours before the October 29th interview. Third, unlike in Vincik, the detectives recorded the interview and the recording supports the superior court's conclusion that Dorr was lucid. Fourth, the record does not suggest that the detectives used any aggressive tactics in interviewing Dorr.
See Vincik, 398 N.W.2d at 790; Hoppe, 661 N.W.2d at 410.
See Vincik, 398 N.W.2d at 792; Hoppe, 661 N.W.2d at 410.
See Vincik, 398 N.W.2d at 790.
See id. at 792; Hoppe, 661 N.W.2d at 417.
After reviewing the totality of the circumstances, we conclude that Dorr's statements to the police were voluntary. Dorr was medicated during the interview, but he was responsive and forthcoming with the officers soon after he awoke. There is no indication that Dorr did not understand the detectives' questions or his own statements. The detectives did not attempt to trick Dorr during the interviews, they were not aggressive, and Dorr never asked the detectives to leave (until the end of the second October 30th interview).
Dorr next argues that even if the police engaged in no coercive activity, his statements should be deemed involuntary under the due process clause of the Alaska Constitution. Dorr claims that under some circumstances, police coercion is not a necessary predicate to the finding that a statement was involuntarily given. We reserved this question in Macauly v. State, and need not answer it here.
Macauly v. State, 734 P.2d 1020, 1023 n. 2 (Alaska App. 1987).
We have held that "when a litigant claims that a provision of the state constitution should be interpreted at variance with its federal counterpart, it is incumbent upon that litigant to point this court to something in the text, context, or history of the Alaska Constitution which justifies this divergent interpretation." The State argues that Dorr has not explained why the Alaska Constitution would not require a finding of police coercion when considering the voluntariness of a statement. The State contends that the supreme court has already implicitly approved of the rule that makes police coercion a necessary factor in finding involuntariness. In Stobaugh v. State, the court held that "all the requisite elements of voluntariness appear from the record: a rational mind which was not the product of duress or coercion."
Mitchell v. State, 818 P.2d 1163, 1165 (Alaska App. 1991).
614 P.2d 767 (Alaska 1980).
Id. 614 P.2d at 771.
Absent a claim of police coercion, Dorr's argument is simply that there should be a special rule for medicated defendants. But Alaska law already holds that statements by intoxicated or mentally ill defendants are not per se involuntary. Dorr does not explain why his degree of medication was so extreme that he should have stronger protections under the Alaska Due Process Clause. On the present record, we conclude that Dorr's statements are voluntary.
See Hampton v. State, 569 P.2d 138, 144 (Alaska 1977). See also Stobaugh v. State, 614 P.2d 767, 770-71 (Alaska 1980); Mallott v. State, 608 P.2d 737, 743 (Alaska 1980); Collins v. State, 778 P.2d 1171, 1174 (Alaska App. 1989).
Schade, 512 P.2d at 916-17.
The ordered verdict forms did not create structural error
The superior court granted Dorr's request that the jury instructions provide that the heat of passion defense was a defense to second-degree murder. Alaska Statute 11.41.115(a) defines the statutory heat of passion defense. It declares that when a defendant is prosecuted for first-degree murder under AS 11.41.100(a)(1)(A) or for second-degree murder under AS 11.41.110(a)(1), "it is a defense that the defendant acted in a heat of passion, before there had been a reasonable opportunity for the passion to cool, when the heat of passion resulted from a serious provocation by the intended victim."
Dorr was charged with first-degree murder under AS 11.41.400(a)(1)(A), so the statutory defense of heat of passion was available to him for that charge. But Dorr was not charged with second-degree murder under AS 11.41.110(a)(1), he was charged with extreme indifference second-degree murder under subsection (a)(2).
The State filed an emergency petition for review in this Court, and this Court granted the petition in part. We instructed the superior court to provide verdict forms for the jury to use if the jury found that the State had failed to disprove Dorr's heat of passion defense. The superior court's instructions to the jury included verdict forms that complied with this Court's order. The jury convicted Dorr of first-and second-degree murder, finding that the State had disproved Dorr's heat of passion defense.
Dorr characterizes the forms as "special verdict forms," and argues that the special verdict forms forced the jury "to decide the case in a step-by-step process" and "interfered with Dorr's constitutional right to a general jury verdict." He cites LaFave, who writes that special verdicts are not widely used in criminal cases. This is because
Wayne R. LaFave, Jerold H. Israel Nancy J. King, Criminal Procedure § 24.10(a), at 611 (2d ed., 1999). See also United States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998) (finding that, as a rule, "special verdicts in criminal trials are not favored").
[t]he general verdict facilitates jury independence by allowing the jury to sidestep the outcome that may follow inescapably from a careful dissection of the crime for each of the factual elements dictated by law. The general verdict also creates the opportunity for jurors to agree upon the same verdict for different reasons and disguises the jury's decision making process from scrutiny.
Wayne R. LaFave, Jerold H. Israel Nancy J. King, Criminal Procedure § 24.10(a), at 612 (2d ed., 1999) (citations omitted).
Dorr argues that the verdict forms forced the jury to "analyze the evidence in a specific manner, a manner the jury may well never have used if allowed to deliberate independently."
But LaFave explains that, in this context, a "special verdict" is a list of "specific factual findings and the absence of a general verdict, so that the judge is left to determine the defendant's guilt or innocence given those findings." Under this definition, the forms used by Dorr's jury did not call for a special verdict. The forms did not ask the jury to make "specific factual findings," and they did not leave the judge to determine Dorr's guilt or innocence. Instead, the jury had to decide whether the prosecution proved all the elements of first-or second-degree murder, and if so, whether the prosecution disproved Dorr's heat of passion defense. The State notes that the forms did not call for the jury to make findings with respect to any specific facts, such as whether Dorr intended to kill Gail or whether she had provoked him. The verdict forms merely required the jury to specify on what grounds the jury rejected first-and second-degree murder, if it did reject either count, by declaring (1) that the State failed to prove the elements of murder or, alternatively, (2) that the State had failed to disprove heat of passion.
Id. at 611 n. 1 (2d ed., 1999).
The State cites Heald v. Mullaney, in which the First Circuit Court of Appeals found that the dangers of special verdicts may be avoided if the questions posed to the jury "plainly lack any capacity to catechize, color or coerce the jury's decision making." Such was the case here. The verdict forms asked generally whether the State had proved the elements of murder and whether it had disproved the defense of heat of passion. The questions did not steer the jury toward any particular conclusion, or preclude discussion of any particular issue. The forms did not infringe on the jury's independence or a juror's individual ability to acquit. The superior court's use of those forms (in compliance with this Court's order) did not violate Dorr's right to due process. The forms did not shift the burden of proof and required the State to meet the burden of proof of beyond a reasonable doubt.
505 F.2d 1241 (1st Cir. 1974).
Id. at 1245-46.
Dorr also argues that the verdict forms limited the jury's ability to nullify. But the doctrine of jury nullification was rejected long ago. Was there sufficient evidence to support kidnapping?
Hartley v. State, 653 P.2d 1052, 1055 (Alaska App. 1982).
Dorr next argues that Judge Card erred when he denied his partial motion for judgment of acquittal on the kidnapping charge. The indictment charged Dorr with kidnapping under AS 11.41.300(a)(1)(C) for restraining Gail with the intent to "inflict injury upon or sexually assault the restrained person or place the restrained person or a third person in apprehension that any person will be subjected to serious physical injury or sexual assault." Dorr argued that there was insufficient evidence that he restrained Gail with the intent to sexually assault her, and moved for a partial judgment of acquittal on that theory. Judge Card denied the motion, reasoning that although any restraint that took place in the apartment was incidental to the sexual assault, "reasonable people could differ" about whether Dorr restrained Gail temporally or spatially longer than necessary to commit the assault.
Dorr renews his argument that there was insufficient evidence that he restrained Gail with the intent to sexually assault her. Dorr recognizes that the jury can convict a defendant when the State presents alternative theories from different clauses of the same offense. In State v. James, the supreme court held that when only one criminal act is alleged and only one incident is involved, jurors must agree that the defendant committed the act, but need not agree on which clause of the statute the defendant's conduct violated. The court listed four factors in James to analyze whether a statute describes a single offense or multiple offenses:
698 P.2d 1161 (Alaska 1985).
Id. at 1165-66.
(1) the language of the statute itself; (2) the legislative history; (3) the nature of the proscribed conduct (whether the statute describes distinctly different kinds of conduct); and (4) the appropriateness of multiple punishment for the conduct charged in the indictment.
Id. at 1165.
Under this analysis, AS 11.41.300(a)(1) describes one offense. This subsection of the statute defines a single type of conduct — restraint — and prohibits a defendant from restraining another with any of several intents listed in the statute. This is supported by the commentary to the original code in Senate Journal Supplement No. 47, at 18 (June 12, 1978), which provided: "Kidnapping will occur when the defendant restrains his victim with one of the five intents specified in paragraphs (A)-(E) of subsection (a)(1)."
In this case, Dorr was charged only under subsection (a)(1)(C). The conduct prohibited by the statute is a defendant's restraint of another when the defendant has an intent to assault the person whether the assault would be classified as physical assault or a sexual assault if the assault was separately charged. Arguably, Dorr committed one act of restraint from his first armed contact with Gail until she jumped and ran from her moving vehicle and was gunned down by Dorr.
But the State argued that Dorr would be guilty of kidnapping under two scenarios: (1) that Dorr restrained Gail in her apartment with the aid of his gun with the intent of sexually assaulting her; and (2) that Dorr restrained Gail with the intent to physically injure her by using his gun to force her to drive away from her apartment with him. At trial, Dorr conceded that there was sufficient evidence that Dorr restrained Gail with the intent to physically injure her, but he maintained that there was not sufficient evidence that Dorr restrained Gail with the intent to sexually assault her.
Dorr argues that because there was insufficient evidence to support the State's alternative scenario, his conviction for kidnapping must be vacated because the jurors may not have agreed that Dorr committed a single act of restraint and there was insufficient evidence of restraint with the intent to sexually assault. However, we need not resolve whether there is insufficient evidence to support the State's first scenario — that Dorr restrained Gail in her apartment with the intent to sexually assault her. Overwhelming evidence showed that Dorr restrained Gail with the intent to physically injure her. We conclude that no reasonable juror would fail to find the alternative scenario that the State argued, that Dorr restrained Gail with the intent to physically injure her.
Finally, under the assumption that this court would overturn his murder conviction, Dorr argues that his 99-year concurrent sentence for kidnapping is excessive. Because we affirm Dorr's murder conviction, we need not address this issue.
Conclusion
The judgment of the superior court is AFFIRMED.