Opinion
Court of Appeals No. A-10099.
June 16, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland and John Suddock, Judges, Trial Court No. 3AN-03-8701 CR.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Jeremiah Hebert of assault in the second degree, two counts of assault in the fourth degree, and one count of resisting arrest after an incident in which Hebert strangled his wife. Hebert appeals, arguing that Superior Court Judge Philip R. Volland erred in refusing to dismiss his indictment for assault in the second degree.
AS 11.41.210(a)(1).
AS 11.41.230(a)(1); AS 11.41.230(a)(3).
AS 11.56.700(a)(1).
Hebert contends that the State never presented "particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which [he used his hands] posed an actual and substantial risk of causing death or serious physical injury." He contends that, even if the evidence was sufficient, the indictment was flawed because the jury was not given a Konrad instruction to this effect. He also points to a statement which the prosecutor made to the grand jury, arguing that the statement encouraged the grand jurors to consider the hypothetical, rather than actual, risk posed by his conduct:
Konrad v. State, 763 P.2d 1369, 1374 (Alaska App. 1988).
Again, I'm going to articulate to you my theory, as I am permitted to do. Dangerous instrument is anything that in the manner in which it's used may occasion serious physical injury or death. There are a number of dead people who died at simply someone's hands, have been strangled to death. That is the theory under which I am seeking assault in the second degree.
For reasons explained here, we affirm the superior court ruling.Factual and procedural background
Because Hebert only attacks his indictment, we take the facts from the grand jury proceeding.
C.H. testified that, on August 17, 2003, she had been married to Hebert for almost two years. She discovered a bottle of whiskey in the freezer. She poured it down the sink. Hebert yelled at her, so she left.
She testified that when she returned, Hebert began assaulting her. She also testified that Hebert strangled her.
He was strangling me and he told me that if I could be quiet and quit crying and act like everything was fine, that he would quit strangling me. So I kept trying to . . . nod my head or signal with my hands that I would do that . . . Because he was strangling me, I couldn't talk. . . . Every time he'd let go of me I was gasping for air and I was . . . crying and . . . I was taking big heavy breaths, and he would just start again, and, [say] "I told you to shut up" . . . And he did that probably six or seven times and the last time he did it everything just got kind of fuzzy and then completely black, . . . and that's the last thing I remember of the strangling.
C.H. managed to get away. She went upstairs and called the police. Afterwards, she vomited.
A neighbor testified that her living room window faced C.H.'s living room window. She observed Hebert assaulting C.H., so she called the police. She stated that, "it looked like [Hebert] was choking [C.H.] . . . What I saw was her laying back on her couch, and she had her hands up here, his back was to me, but I could see that he had his arms down and I could see that he was pressing down on her."
Anchorage Police Officer Christopher Nelson responded to the scene. He testified that C.H. had "quite a bit of injury. She had a lump on the left side of her face where her chin is, she had a lot of . . . redness around her neck, including what looked like fingernail impressions."
Paramedics took C.H. to the hospital. The examination showed that she suffered from left jaw, scalp, and chest contusions, abrasions, and a sprained ankle. The grand jury indicted Hebert for assault in the second degree.
Hebert moved to dismiss the indictment. He argued that the evidence which the State presented at the grand jury was insufficient to establish assault in the second degree. He also argued that, even if the evidence was sufficient, the prosecutor had not properly instructed the grand jury on what it needed to find to indict him for that offense. Judge Volland denied the motion.
Why we uphold Judge Volland's decision
A person commits the crime of assault in the second degree if, with intent to cause physical injury to another person, that person causes physical injury to another person by means of a dangerous instrument.
AS 11.41.210(a)(1).
At the time of Hebert's offense, "dangerous instrument" was defined as: "any deadly weapon or anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury."
AS 11.81.900(15).
In his motion to dismiss the indictment and on appeal, Hebert relies on Konrad v. State. In Konrad, we held that the trial court erred in denying the defendant's motion to dismiss the indictment because the State had not offered sufficient evidence to show that Konrad's hands were a "dangerous instrument." Konrad was convicted for striking his wife with his fist once on the head and once on the ribs. The State did not present any evidence that Konrad's wife suffered serious physical injury or that Konrad had struck her in an abnormally dangerous manner.
Id. at 1375.
Id. at 1372.
Id. at 1375.
We held that:
[B]efore a hand may be deemed a "dangerous instrument," the state must present particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand was used in the case at issue posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical or abstract.
Id. at 1374.
We went on to conclude that:
[T]he circumstances of the present case . . . require a specific admonition to the grand jury concerning the manner in which it was required to determine whether a dangerous instrument had been used. . . . [W]hen, as in the present case, the defendant is alleged to have used a dangerous instrument that was not a "deadly weapon" and that did not actually inflict death or serious physical injury, the possibility that the grand jury might decide the instrument's potential for causing injury as an abstract or hypothetical matter is, in our view, sufficiently great to require that an express instruction be given. The instruction should alert the grand jury to the need for it to find, based on the evidence in the case before it, that the defendant used an instrument in a manner that actually created a substantial risk of death or serious physical injury.
Id. at 1374-75.
Based on this, we held that the trial court "erred in denying Konrad's pretrial motion to dismiss the count charging him with assault in the third degree." We also held that there was insufficient evidence to support a conclusion that Konrad's hands were a dangerous instrument because there was no evidence that his wife suffered serious physical injury, that he struck her in a manner that "was inordinately violent or particularly calculated to inflict serious physical injury," that he was skilled in using his hands to inflict physical injury, or that his wife was "especially susceptible to incurring a serious physical injury."
Id. at 1375.
Id. at 1375-76.
In State v. Waskey, we clarified that Konrad was not intended to establish a "bright-line rule that a special instruction on the meaning of dangerous instrument must be given whenever the defendant is alleged to have used a dangerous instrument that is not a deadly weapon and that did not actually inflict death or serious physical injury." Waskey struck a child with her car and dragged him 140 feet before stopping. We held that the prosecutor was not required to give a Konrad instruction, because
834 P.2d 1251 (Alaska App. 1992).
Id. at 1253 (internal quotes and citations omitted).
Id. at 1252.
under any reasonable construction of the facts of Waskey's case, her automobile constituted a "dangerous instrument" within the statutory definition. . . . This is the key distinction between Waskey's case and Konrad. In Konrad, the defendant used only his fists, and he used them in a manner that left open a significant factual question: whether the defendant's particular mode of assault created a substantial risk of serious physical injury or death.
Id. at 1253.
In this case, Judge Volland denied Hebert's motion to dismiss the indictment. He emphasized C.H.'s testimony to the grand jury that "she was strangled to the point of unconsciousness and vomiting":
Hebert's wife testified in detail to the grand jury about the assault. She testified that Hebert struck her on the head and jaw six or seven times with his fist, threw her down the stairs, and repeatedly strangled her to the point of unconsciousness. After regaining consciousness, Hebert's wife testified that she was disoriented and vomited. The officer who responded testified to bruising and nail marks on the neck and throat of Hebert's wife. Emergency room medical records submitted to the grand jury supported this testimony. A neighbor also testified to the grand jury that she saw Hebert choking [C.H.] and "pressing down on her." Viewing this evidence in the light most favorable to upholding the indictment, "a jury could properly conclude that the State presented sufficient evidence to establish a probability that [Hebert] used his hands or was attempting to use his hands in a manner that actually created a substantial risk of death or serious physical injury." Accordingly, sufficient evidence supports the indictment for Assault in the Second Degree.
Judge Volland further concluded that any error in failing to give the grand jury a Konrad instruction was harmless. He found that, on the basis of C.H.'s testimony, there was "little risk that the grand jury concluded that Hebert's potential for causing injury was `abstract or hypothetical.'" He concluded that the prosecutor's statement to the grand jury suggesting that other people had been killed by strangulation was not improper and furthermore would not have affected the grand jury's decision to indict.
We agree with Judge Volland's analysis. C.H.'s testimony that "she was strangled to the point of unconsciousness and vomiting" was sufficient for the grand jury to indict Hebert for assault in the second degree. We also conclude that, assuming that the State erred in failing to give the grand jury a Konrad instruction, the error was harmless because it would not have influenced the grand jury's decision to indict Hebert. Conclusion
See Stern v. State, 827 P.2d 442, 445 (Alaska App. 1992).
The judgment of the superior court is AFFIRMED.