HAUBE v. STATE, A-10047 (Alaska App. 7-21-2010)

ANTHONY HAUBE, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10047.Court of Appeals of Alaska.
July 21, 2010.

Appeal from the Superior Court, First Judicial District, Petersburg, Larry Zervos, Judge. Trial Court No. 1PE-06-22 CR.

Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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
COATS, Chief Judge.Page 2

Following a trial in which the defendant, Anthony Haube, did not testify, a jury returned a verdict finding Haube guilty of murder in the second degree.[fn1] But when the trial judge, Superior Court Judge Larry Zervos, polled the jury by asking, “Is this your true and correct verdict?”, one of the jurors responded, “Unless he tells me what he was doing during that time.” Judge Zervos then cautioned the juror that Haube had no obligation to say anything, and that the juror could not use Haube’s silence against him. The juror then declared that she concurred in the verdict.

Before discharging the jury, Judge Zervos, at Haube’s request, asked this juror further questions about her verdict; in response to the judge’s questions, the juror stated that she wished Haube was not guilty. Haube moved for a mistrial, arguing that the juror’s response indicated that the jurors had not been unanimous in reaching their verdict. Judge Zervos discharged the jury.

A short time after Judge Zervos discharged the jury, the juror wrote a letter to Judge Zervos. In that letter, the juror stated that she wished she had “held out for what [she] believed in which was that Anthony Haube is not guilty of second-degree murder.” The defense attorney moved for a mistrial based on the juror’s comments at trial and the letter, but Judge Zervos ultimately upheld the verdict.

Haube challenges this decision on appeal, but we conclude that the record supports Judge Zervos’s conclusion that the juror in question agreed with the verdict when it was rendered. We further agree with Judge Zervos’s conclusion that Alaska Evidence Rule 606(b) prohibited him from considering the statements that the juror later made in her letter.Page 3

Judge Zervos sentenced Haube to 85 years of imprisonment. Haube argues that the sentence is excessive. We conclude that the sentence is not clearly mistaken.

Factual and procedural background

During the early morning of April 1, 2005, Anthony Haube, Thomas Lyons, Thomas Evenson, Tom Hixon, and Michael Gerber were gathered in a Petersburg apartment, drinking and playing cards.

Gerber was dating Charlene Hixon (Tom Hixon’s sister), who had previously dated Haube. Haube had fought with Gerber on prior occasions, and a few days before the murder, Haube told Charlene Hixon that he was “going to shank [her] boyfriend’s ass.”

At some point during the April 1 gathering, a fight broke out. Tom Hixon testified that Lyons, Haube, and Evenson proceeded to severely beat Gerber, and that Haube threw Gerber out of a second-story window into an alley. Haube and Lyons then went downstairs and after about fifteen minutes, they returned to the apartment, covered in blood.

The next day, Charlene Hixon found Gerber’s body in the alley, hidden underneath sheets of aluminum siding. Gerber had been cut over seventy times. There were defensive wounds on his hands, indicating that he was alive and conscious at the time that the cuts were made. The cause of death was from two deep knife wounds to his chest and a cut throat.

Haube, Lyons, and Evenson were indicted for first-and second-degree murder, based on various theories. Haube was also indicted for robbery and evidence tampering.Page 4

Lyons entered a plea agreement with the State, agreeing to testify in exchange for pleading guilty to a charge of criminally negligent homicide. He received a sentence of 10 years, with 3 years suspended.

Evenson was tried twice, and both times the jury was unable to reach a verdict. Ultimately (after Haube’s trial), the State entered a plea agreement with Evenson in which he pleaded no contest to second-degree assault and received a sentence of 8 years, with 3 years suspended.[fn2]

Haube went to trial shortly after Evenson’s second trial ended with a hung jury. Haube was convicted of second-degree murder, acquitted of robbery, and the evidence tampering charges were dismissed. He received a sentence of 85 years for the murder.

The jury poll and Judge Zervos’s exchanges with Juror B.

After the jury returned to court with a verdict finding Haube guilty of murder in the second degree, Haube asked Judge Zervos to poll the jury. Judge Zervos began to poll the jury. When Judge Zervos got to Juror B., the following exchange ensued:

THE COURT: Ms. B., the verdict of guilty of murder in the second degree. Is this your true and correct verdict?

JUROR: Unless he tells me what he was doing during that time.

MR. HEDLAND [counsel for Haube]: What?Page 5

THE COURT: Okay. You understand he has no obligation to do or say anything. And you can’t use that, in any way, in making the decision.

JUROR: I know. So then I have to say yes.

THE COURT: It’s your true and correct verdict, as to murder in the second degree?

JUROR: Uh-huh (affirmative).

THE COURT: I’m sorry. Yes, you’re saying?

JUROR: Yes.

Judge Zervos continued polling the rest of the jury. Then, at Haube’s request, he questioned Juror B. further regarding her response.

THE COURT: . . . Ms. B., obviously the . . . rules about returning a verdict on these cases involves certain . . . requirements. And the one requirement that’s important for us to understand, and for you to tell us about is what’s going on in your mind and heart about this issue, concerning whether or not Mr. Haube says anything or doesn’t say anything.

The way . . . our law is, under our Constitution is that that’s not an issue that can be considered, in any way in reaching a verdict, whether he testified or not. It’s just not a relevant issue. And you seem to imply that that was causing you some difficulty.

JUROR: I haven’t slept. I don’t even know what you just said.

THE COURT: You don’t know what I just said? I’m sorry.

JUROR: No.Page 6

THE COURT: Okay. . . . the issue about whether Mr. Haube testifies or not is not an issue that the jurors can consider in reaching their decision. . . . He has that Constitutional right to make that decision. Whatever he chooses, that’s his right to do.

JUROR: Okay.

THE COURT: Obviously, sometimes, people do testify. Sometimes, people don’t. But it’s not an issue that the jury . . . can consider in reaching a decision. And when you answered the question earlier, you said something about him making or not making a statement, and . . . what we need to make clear here — and I need to understand from what’s going on in your heart and your mind, that that’s not an issue, or it can’t be an issue in your reaching your decision about whether Mr. Haube is guilty or not guilty of these offenses.

JUROR: I don’t know.

THE COURT: Pardon me?

JUROR: I don’t know.

THE COURT: Okay.

JUROR: I can’t — I am so tired of this.

THE COURT: Right. Well, I guess the question that I need to put directly to you is then that issue about whether he testified or not, did that lead you to make your decision about what the outcome of this case is?

JUROR: No. I just wish he would tell me what he was doing.

THE COURT: But . . . he has no obligation to do that.

JUROR: No.Page 7

THE COURT: And that’s not a factor that the jury can consider in making their decision. That’s important. Any question about that?

JUROR: No. But I’d still like to know.

THE COURT: Oh, yeah. I know. Sure, just as a matter of completeness or some other matter. But as to whether or not Mr. Haube was or was not guilty of this offense, does that, the fact that he . . . did not testify . . . was that used by you in reaching your decision, that he was guilty of . . .

JUROR: No. I just . . . wish that he wasn’t.

THE COURT: Wish that he wasn’t guilty?

JUROR: Yeah.

THE COURT: All right. So, if I understand and — if I can recap and please correct me if I’m wrong on this. You’ve made your decision that Mr. Haube is guilty of the murder in the second degree, you wish he would say something about it, so that you can come to a different decision, but that’s not what you’re basing you decision that he’s guilty of this offense on?

JUROR: No. I’m basing it on I think he may have kicked the guy. According to your rules . . .

MR. HEDLAND: Your Honor, I’m moving for a mistrial right now.

Judge Zervos decided to dismiss the jury, and he told Haube’s attorney to pursue a motion for a new trial in writing.

About three days after Judge Zervos had discharged the jury, Juror B. contacted Judge Zervos by telephone. He suggested that she set out her concerns in a letter. Juror B. then wrote a letter in which she stated that she “should have held out forPage 8
what [she] believed in which was that Anthony Haube is not guilty of second-degree murder.”

Judge Zervos’s decision denying Haube’s motion for mistrial

Following briefing and argument, Judge Zervos entered a decision denying Haube’s motion for a new trial. He first turned to Juror B.’s statements in court, when the verdict was returned. The judge concluded: “Ms. B.’s initial response does not seem equivocal at all. She said that her verdict was guilty but she added `unless he tells me what he was doing during that time.’ But right after this statement, she specifically said that her verdict was guilty.”

The judge next focused on whether Juror B. had improperly considered Haube’s failure to testify in reaching a verdict. He concluded that her statements showed that she had not:

Twice Ms. B. said she did not consider Mr. Haube’s silence in reaching her verdict. But twice she also said that she wished things were different. Ms. B.’s wishes probably reflect the emotional difficulty she was having with her verdict. Her verdict was guilty but she wanted it to be different.

Based on Ms. B.’s statements, the court is convinced that she did not use Mr. Haube’s silence in reaching her verdict. The court is also convinced that Ms. B.’s verdict, like the verdict of the other jurors, was that Mr. Haube is guilty.

Judge Zervos further reasoned that the policy underlying Alaska Evidence Rule 606 cautioned against relying on Juror B.’s “unsolicited, incomplete statement about her reason for the verdict . . .” during his second inquiry in court. Finally, Judge Zervos concluded that Evidence Rule 606(b) prohibited him from considering thePage 9
statements in Juror B.’s letter. For these reasons, the judge denied Haube’s motion for a new trial.

Why we uphold Judge Zervos’s decision

Alaska Criminal Rule 31(a) requires that the jury’s verdict in a criminal case be unanimous. Rule 31(d) also provides that “[w]hen the verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court’s own motion. If, upon the poll, there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.”

Accordingly, when the jury in Haube’s case returned its verdict and Haube asked to have the jury polled, Judge Zervos’s duty was to determine whether the jury’s verdict was unanimous. That is exactly what Judge Zervos did.

The problem with Juror B.’s initial response to the poll, as Judge Zervos recognized, was that she stated, “Unless he tells me what he was doing during that time.” Judge Zervos immediately responded that Haube had no duty to say anything and that the jury could not use Haube’s silence against him. Juror B. agreed and affirmed her guilty verdict. We conclude that Judge Zervos acted within his discretion in confirming that Juror B. had agreed to the verdict. We agree with Judge Zervos that, during this first inquiry, Juror B. unequivocally confirmed that her verdict was that Haube was guilty of murder in the second degree.

Judge Zervos addressed Juror B. a second time. Judge Zervos concluded from Juror B.’s responses that she had not considered Haube’s failure to testify in reaching her verdict and that she had again affirmed the fact that she had agreed to the guilty verdict. We conclude that Judge Zervos’s findings about this inquiry are supported by the record.Page 10

Haube argues that Judge Zervos should not have questioned Juror B. in open court. He argues that this questioning created “a coercive or confusing situation” and that questioning her “in front of other jurors prevented [Juror B.] from raising an issue related to those jurors.”

But Haube never objected to Judge Zervos’s questioning of Juror B. In fact, Haube specifically asked Judge Zervos to question the juror. And Haube never objected to Judge Zervos’s questioning or asked him to question the juror outside the presence of the other jurors. Therefore, Haube has not preserved this issue for appeal.[fn3] Furthermore, we fail to see how questioning the juror in private would necessarily have been less coercive than questioning her in open court.

In addition, Judge Zervos concluded that Evidence Rule 606(b) prohibited him from considering Juror B.’s “unsolicited, incomplete statement about her reason for the verdict.” Rule 606(b) prohibits inquiring into the validity of the jury’s verdict or the jury’s deliberations. The only exception is when there is a question about whether “extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.”[fn4]Page 11

Rule 606(b) “should be interpreted so as to preserve and advance the policies underlying the rule: insulating the jury’s deliberative process and promoting the finality of jury verdicts, while not foreclosing post-verdict attacks if external forces have erroneously been injected into the deliberative process.”[fn5]

As Judge Zervos recognized, “there seems to be no logical reason why the principles underlying Rule 606(b) should not apply to comments made by a juror about the jury’s deliberations during a jury poll.” There is support for this conclusion. The language of the rule does not limit itself to inquiries that are made after the jury is discharged. And the American Bar Association Standards on Trial by Jury state:

The poll should be conducted so as to obtain an unequivocal expression [of assent or dissent] from each juror. If this is obtained, then any volunteered statements by a juror in explanation of the juror’s verdict may be disregarded. A juror should not be asked to give reasons for the verdict. . . .[fn6]

For purposes of this case, we do not need to decide whether Evidence Rule 606(b) applies to the statements which Juror B. made about how she arrived at her verdict. But certainly the policy behind the rule supports Judge Zervos’s caution about relying on any statements that the juror made about her reasons for arriving at her verdict.Page 12

Judge Zervos also concluded that Rule 606(b) precluded consideration of Juror B.’s letter. Juror B.’s letter did not allege that “extraneous prejudicial information was improperly brought to the jury’s attention or [that] any outside influence was improperly brought to bear on any juror.”[fn7] Her letter indicated that she had second thoughts about her verdict. Therefore, the letter clearly fell within the kind of allegation that the court could not consider under the evidence rule. We agree with Judge Zervos that Evidence Rule 606(b) prohibited him from considering Juror B.’s letter.

We therefore conclude that Judge Zervos did not err in concluding that the jury verdict was unanimous, and that he therefore did not err in denying Haube’s motion for a new trial.

The sentence appeal

Judge Zervos sentenced Haube to 85 years of imprisonment for his conviction of murder in the second degree. Haube argues that the sentence is excessive.

Murder in the second degree is an unclassified felony. Haube was subject to a minimum sentence of 10 years of imprisonment and a maximum sentence of 99 years.[fn8] In Page v. State, [fn9] we stated that a sentence of 20 to 30 years was the benchmarkPage 13
range for a typical second degree murder.[fn10] However, a sentencing court can depart from this range based on objective aggravating or mitigating factors.[fn11]

Judge Zervos found Haube’s case to be a particularly egregious example of murder in the second degree. He found that Haube “played a primary and fundamental role” in the homicide. He found that the murder was particularly brutal and that Haube had deliberately tortured Gerber by stabbing him numerous times.

Judge Zervos considered Haube’s “extraordinary criminal history.” Haube was thirty-five years old at the time of sentencing. He had fifty-two prior misdemeanor convictions — seven of those convictions were for assault. Haube also had numerous probation violations. Judge Zervos concluded that probation had been a “total failure” and that probation “would be a failure in the future.” He found that Haube’s “prospects for rehabilitation are very low.” He concluded that it was necessary to isolate Haube from society in order to protect the public from future criminal acts.

Haube argues that Judge Zervos’s findings about his role in the murder are not supported by the record. But Judge Zervos conducted the trial and was able to see the witnesses testify. We must uphold Judge Zervos’s findings unless they are clearly erroneous.[fn12] We conclude that Judge Zervos’s findings are supported by the record.

Haube argues that his sentence is excessive compared to the sentences his co-defendants received. Lyons entered a plea of no contest to criminally negligentPage 14
homicide and received a sentence of 10 years with 3 years suspended.[fn13]
The State points out that Lyons’s sentence resulted from a plea bargain with the State in which Lyons took responsibility for his actions and agreed to testify against his co-defendants. Evenson pleaded no contest to a single count of assault in the second degree, an offense with a maximum term of 10 years of imprisonment.[fn14] Evenson received a sentence of 8 years with 3 years suspended. But this sentence occurred after the State had tried Evenson twice. In both trials, the jury was unable to reach a verdict.

The Alaska Supreme Court has rejected the concept that co-defendants should necessarily receive similar sentences. “Comparison with other sentences cannot be determinative of a particular sentence appeal. While theoretically two defendants with identical backgrounds should receive like sentences, there are too many factors entering into sentencing to produce such a mechanical result.”[fn15] This court has explained that “[s]entencing is an individualized process that requires case-by-case consideration of the background of the offender and the seriousness of the conduct involved in the offense.”[fn16]

Haube, Lyons, and Evenson all engaged in conduct that subjected them to criminal prosecution for the death of Michael Gerber. But Judge Zervos found that Haube was the “primary actor” who was motivated by his relationship with Charlene Hixon. He found that Haube had acted with deliberate cruelty and had tortured Gerber. Haube had an extensive prior criminal record. Haube has not shown that Lyons orPage 15
Evenson had a similar criminal history. And the record shows that Lyons received leniency for agreeing to accept responsibility and to testify. Evenson benefitted from the fact that the State had been unable to obtain a murder conviction against him. So the record does suggest reasons that Lyons and Evenson received more lenient sentences than Haube.

We have stated that, in sentencing a defendant, the trial court should compare the offender’s case to reported cases involving similar offenses and offenders to promote reasonable sentencing uniformity.[fn17] Judge Zervos referred to several previously reported cases in determining Haube’s sentence. The record shows that Judge Zervos carefully considered Haube’s sentence in the context of these other cases.

We conclude that the sentence that Judge Zervos imposed was not clearly mistaken.[fn18]
Conclusion

The judgment of the superior court is AFFIRMED.

[fn1] AS 11.41.110.

[fn2] Evenson v. State, Alaska App. Memorandum Opinion and Judgment No. 5528 at 2 (October 7, 2009), 2009 WL 3233723 at *1.

[fn3] Barrett v. State, 772 P.2d 559, 568 n. 10 (Alaska App. 1989) (discussing “plain error” and “invited error”).

[fn4] Evidence Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of any matter or statement upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

[fn5] Larson v. State, 79 P.3d 650, 659 (Alaska App. 2003) (citing the Commentary to Alaska Evid. R. 606(b), seventh paragraph).

[fn6] ABA Standards for Criminal Justice: Discovery and Trial byJury § 15-5.6 and Commentary at 266 (3d ed., 1996).

[fn7] Alaska Evid. R. 606(b).

[fn8] AS 11.41.100; AS 12.55.125(b).

[fn9] 657 P.2d 850 (Alaska App. 1983).

[fn10] Id. at 855.

[fn11] Id.

[fn12] See State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987).

[fn13] AS 11.41.130; AS 12.55.125(d).

[fn14] AS 11.41.210; AS 12.55.125(d).

[fn15] Strachan v. State, 615 P.2d 611, 614 (Alaska 1980).

[fn16] Major v. State, 798 P.2d 341, 343 (Alaska App. 1990).

[fn17] Williams v. State, 809 P.2d 931, 935-37 (Alaska App. 1991); Page,657 P.2d at 854-55.

[fn18] McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).Page 1