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Liddicoat v. State (12/30/2011) ap-2340

Liddicoat v. State (12/30/2011) ap-2340

                                                  NOTICE 
         The text of this opinion can be corrected before the opinion is published in the Pacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to the 
        attention of the Clerk of the Appellate Courts. 

                                  303 K Street, Anchorage, Alaska    99501
 
                                           Fax:  (907) 264-0878
 
                            E-mail:  corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

JUSTIN G.      LIDDICOAT,                         ) 
                                                  )         Court of Appeals No. A-10559 
                             Appellant,           )         Trial Court No.     1KE-09-69 CR 
                                                  ) 
              v.                                  )                   O P I N I O N 
                                                  ) 
STATE OF ALASKA,                                  ) 
                                                  ) 
                             Appellee.            )         No. 2340 - December 30, 2011 
                                                  ) 

                 Appeal      from   the   Superior     Court,   First   Judicial   District, 
                 Ketchikan, William Carey, Judge. 

                 Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, for 
                 the   Appellant.    Kenneth      M.   Rosenstein,    Assistant    Attorney 
                 General,      Office    of   Special     Prosecutions      and    Appeals, 
                 Anchorage, and John J. Burns, Attorney General, Juneau, for the 
                 Appellee. 

                 Before:     Coats,    Chief   Judge,   and   Mannheimer      and   Bolger, 
                 Judges. 

                 COATS, Chief Judge. 

                 Justin G. Liddicoat was convicted of several offenses related to his assault 

on   his   former   girlfriend.     He    was   also   convicted    of   weapons   misconduct   for   not 

----------------------- Page 2-----------------------

informing the officer who arrested him for these offenses that he was carrying a steak 

knife. 

                 After the jury returned its verdicts, Liddicoat filed a motion for a new trial, 

asking the superior court for an evidentiary hearing on his claim that one of the jurors in 

his case failed to disclose in voir dire that she knew him and was biased against him.  In 

this appeal, Liddicoat argues that the trial court should have granted his request for an 

evidentiary hearing on this claim.           He also claims that he is entitled to reversal of his 

concealed   weapon   conviction   because,   he   argues,   a   steak   knife   does   not   meet   the 

statutory definition of a "deadly weapon."              We conclude that the trial court did not err 

in denying Liddicoat's request for an evidentiary hearing.   We also conclude that a steak 

knife falls within the definition of a deadly weapon.                We therefore affirm Liddicoat's 

convictions. 

                 Facts and proceedings 

                                                                               1 
                 Liddicoat was charged with second-degree assault,  interfering with a report 

                           2                                               3 
of domestic violence,  and fourth-degree criminal mischief,                   after he assaulted his then- 

girlfriend, Brenda Green, broke her cell phone, and disabled the phones in her apartment 

so she could not call the police.  Liddicoat was also charged with fifth-degree weapons 

               4 
misconduct  for not immediately informing the police officer who contacted him that he 

had a steak knife in his pocket. 

         1   AS 11.41.210(a)(1). 

         2   AS 11.56.745(a). 

         3   AS 11.46.484(a)(1). 

        4    AS 11.61.220(a)(1)(A)(i). 

                                                    - 2 -                                                2340
 

----------------------- Page 3-----------------------

                 During trial, after the State rested its case, Liddicoat moved for a judgment 
of acquittal5 on the weapons misconduct charge, arguing that the steak knife the police 

found in his pocket was not a "deadly weapon."                 Liddicoat pointed out that, under the 

Alaska Statutes, a "deadly weapon" is defined in part as "anything designed  for and 
capable of causing death or serious physical injury."6            He conceded that a steak knife was 

capable of causing death or serious physical injury, but argued that the State had failed 

to show that it was designed for that purpose.               Superior Court Judge William Carey 

denied   the    motion,   finding   that   the   statute   specifically   included   knives   within   the 

definition of a deadly weapon. 

                 The jury convicted Liddicoat of all charges.   Liddicoat then filed a motion 

for a new trial, arguing that he had information that one of the jurors, Julia Guthrie, had 

failed   to   disclose   in   voir   dire   that   she   knew   Liddicoat   and   was   biased   against   him. 

Liddicoat also alleged that Guthrie impermissibly discussed the case while she served 

as a juror.   Liddicoat asked for an evidentiary hearing on his claim of juror misconduct. 

Judge Carey denied the motion without prejudice, concluding that Liddicoat had not met 

his burden to show that he was entitled to an evidentiary hearing. Judge Carey invited 

Liddicoat to present additional affidavits or other evidence to support his claim, but 

Liddicoat instead filed this appeal. 

        5    Liddicoat actually moved for a directed verdict, but the court treated it as a motion 

for judgment of acquittal.     Under Criminal Rule 29(a), "Motions for directed verdict shall not 
be used and motions for judgment of acquittal shall be used in their place." 

        6    AS 11.81.900(b)(17). 

                                                    - 3 -                                                2340 

----------------------- Page 4-----------------------

                 Why Liddicoat was not entitled to a hearing on his juror misconduct claim 

                A two-part inquiry governs claims of juror misconduct: (1) whether the 

evidence establishes a serious violation of the juror's duty and, if so, (2) whether the 
violation deprived the complaining party of a fair trial.7 

                The first part of this test - whether there   was   a   serious violation of a 

juror's duty - may be shown by evidence of "fraud, bribery, forcible coercion, or any 
obstruction of justice."8     When a juror knows a party or witness, and is questioned about 

this information in voir dire, but fails to disclose this information, that conduct may 
amount to an obstruction of justice.9          In Swain v. State,10 we found an obstruction of 

justice where a juror did not reveal her friendship with the victim or the fact that she had 

spoken to the victim about the crime, because that conduct deprived the parties of the 
opportunity to challenge the juror or question her on the issue of bias.11               In Swain, we 

relied   on   the   supreme   court's   decision   in  Fickes   v.   Petrolane-Alaska   Gas   Service,12 

which similarly held that it was "tantamount to an obstruction of justice" for a juror to 

        7   Manrique v. State, 177 P.3d 1188, 1191 (Alaska App. 2008) (citing West v. State, 409 

P.2d 847, 852 (Alaska 1966) and Fickes v. Petrolane-Alaska Gas Service, 628 P.2d 908, 910 
(Alaska 1981)). 

        8   Id. (quoting  West, 409 P.2d at 852). 

        9   Fickes, 628 P.2d at 910; Soundara v. State, 107 P.3d 290, 296-97 (Alaska App. 2005); 

Swain v. State, 817 P.2d 927, 935 (Alaska App. 1991). 

        10   817 P.2d 927 (Alaska App. 1991). 

        11  Id. at 935. 

        12  628 P.2d 908 (Alaska 1981). 

                                                  - 4 -                                             2340
 

----------------------- Page 5-----------------------

fail to disclose that he knew an important witness and then, during deliberations, to 
assure other jurors of the witness's reliability and competence.13 

                 The second part of the test - whether the violation deprived the party of 

a fair trial - hinges on three considerations: 

                 (1) Would the defendant have challenged the juror if the juror 
                 had not concealed this information? (2) Was the improperly 
                 withheld information directly relevant to the decision of the 
                 defendant's case, or was it instead merely collateral to the 
                 issues being litigated? and (3) Is there a reasonable possibility 
                 that   the   juror's   withheld   information      affected   the   juror's 
                 vote?14 

                 After reviewing these legal standards, Judge Carey found that Liddicoat 

would be entitled to a new trial if he could show that, during the jury selection process, 

Guthrie deliberately withheld information that she was acquainted with Liddicoat and 

had personal animosity toward   him, because that information would likely have led 

Liddicoat   to   challenge   Guthrie   for   cause   or   peremptorily.       But   the   court   denied   the 

motion for a new trial because the affidavits submitted by Liddicoat   advanced only 

"unverified allegations by   unknown persons and innuendo," and thus did not entitle 

Liddicoat to an evidentiary hearing. 

                 A court normally must grant an evidentiary hearing on a motion when the 
pleadings establish a genuine dispute concerning a material fact.15   The moving party 

"bears   the   initial   burden   of   alleging   specific   facts,   supported   by   affidavits   or   other 

         13  Id. at 910.
 

         14  Manrique, 177 P.3d at 1193.
 

         15  Alaska   R.   Crim.   P.   42(e)(3)   ("If   material   issues   of   fact   are   not   presented   in   the
 

pleadings, the court need not hold an evidentiary hearing."). 

                                                    - 5 -                                               2340
 

----------------------- Page 6-----------------------

documents, that would entitle the party to relief."16            Those affidavits must be based on 

personal knowledge and must set forth facts that would be admissible at trial.17 

                 Liddicoat     was    represented     at  trial  by  the   Public    Defender     Agency. 

Liddicoat's new trial motion alleged that the Agency had learned                  - from undisclosed 

sources     -    that  Samantha      Turley,   a  roommate      of   Julia  Guthrie,    purportedly     had 

information that Guthrie knew Liddicoat from before trial and that Guthrie was biased 

against him.  These same undisclosed sources said that Turley had reported that Guthrie 

impermissibly discussed the case while she was serving as a juror.  An investigator with 

the Public Defender Agency made an appointment to interview Turley, but Turley did 

not show up for the interview or return later phone calls. 

                 In opposition to the new trial motion, the State argued that Liddicoat's 

allegations, which were not supported by affidavits, did not establish a prima facie case 

of juror misconduct.        In his reply to the State's opposition, Liddicoat provided two 

affidavits by the Public Defender Agency investigator.                In one of those affidavits, the 

investigator recounted that Turley initially agreed to meet with her to discuss Guthrie's 

knowledge   of,   and   bias   against,   Liddicoat,   but   that   Turley   did   not   show   up   for   the 

interview      or  return   subsequent      phone    calls.    The    other   affidavit   recounted      the 

investigator's interview with David Guthrie, juror Guthrie's stepson, at the Ketchikan 

Correctional Center.   David Guthrie said he had been friends with Liddicoat for eight or 

nine years, that he and Liddicoat spent time at Julia Guthrie's home, that Julia Guthrie 

knew Liddicoat, and that she did not like any of David Guthrie's friends. 

        16  Marshall v. State, 198 P.3d 567, 572 (Alaska App.  2008) (quotingDavis v. State, 766 

P.2d 41, 43 (Alaska App. 1988), superseded on other grounds by Alaska R. Crim. P. 16(c)(5)) 
(italics omitted). 

        17   Cf. Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 

1991); Donnelly v. State, 516 P.2d 396, 398-99 (Alaska 1973). 

                                                   - 6 -                                              2340
 

----------------------- Page 7-----------------------

                In denying the motion and the request for an evidentiary hearing, Judge 

Carey observed that Liddicoat had not identified, or included affidavits from, any of the 

unnamed individuals who allegedly provided information to the Public Defender Agency 

about    what    Turley   knew    about    Guthrie's    conduct.    With     respect   to  the  affidavit 

recounting   the   interview   with   David   Guthrie,   the   court   noted   that   the   declarations 

recounted   in   the   affidavit   were   hearsay   and   lacked   specificity.    Judge    Carey   also 

questioned why "Liddicoat apparently [did] not know and recognize [Guthrie] as she 

underwent the jury selection process and sat through a three-day trial?" 

                We agree with Judge Carey's conclusion that Liddicoat failed to meet his 

burden to show that he was entitled to an evidentiary hearing.                In the absence of any 

admissible evidence explaining Turley's reasons for failing to cooperate with the defense 

investigator, no particular inference can be drawn from the fact that Turley did not show 

up for a scheduled interview or return the investigator's phone calls.   And Liddicoat has 

not argued that an exception to the hearsay rules would permit the investigator to testify 

to David Guthrie's assertion that his stepmother knew Liddicoat and apparently disliked 
him.18   Because Judge Carey denied the motion without prejudice, Liddicoat had the 

opportunity to submit additional affidavits or other evidence to support his motion.  At 

the very least, Liddicoat could have personally submitted an affidavit explaining how he 

and Julia Guthrie knew each other, if in fact they did.            Given these circumstances, we 

find no error in Judge Carey's decision to deny the motion for a new trial without a 

hearing. 

        18  Cf. Allen v. State, 153 P.3d 1019, 1025 (Alaska App. 2007) (holding that hearsay 

statements that would be inadmissible at trial cannot be employed to support or defend a motion 
for summary judgment). 

                                                  - 7 -                                              2340 

----------------------- Page 8-----------------------

                 Why Liddicoat is not entitled to acquittal on the weapons charge 

                As    already    discussed,    the  police   found    a  steak   knife   in  Liddicoat's 

sweatshirt   pocket   when   they   conducted   a   pat-down   search   of   him.       Liddicoat   was 

convicted of fifth-degree weapons misconduct for not immediately disclosing to the 

police that he was carrying a concealed deadly weapon. 

                A person commits the crime of fifth-degree weapons misconduct under 

AS 11.61.220(a)(1)(A)(i) if the person: 

                (1) is 21 years of age or older and knowingly possessed a 
                deadly     weapon,     other   than   an  ordinary    pocket    knife   or 
                defensive weapon,19 

                (A) that is concealed on the person, and, when contacted by 
                a peace officer, the person fails to 
                (i) immediately inform the peace officer of that possession[.] 

                For purposes of this statute, "deadly weapon" is defined as "any firearm, 

or   anything   designed   for   and   capable   of   causing   death   or   serious   physical   injury, 
including a knife, an axe, a club, metal knuckles, or an explosive."20 

                Liddicoat argues that the concealed weapons charge should not have gone 

to the jury because the State presented no evidence that a steak knife meets the definition 

of a "deadly weapon."         He concedes that a steak knife is capable of causing death or 

serious   physical   injury,   but   argues   that   the   statute   also  requires   that   the   knife   be 

specifically designed for that purpose. 

                We acknowledge that Liddicoat's argument based on the language of the 

statute defining "deadly weapon"   has some force.   That statute on its face seems to limit 

        19  A "defensive weapon" is defined as "an electric stun gun, or a device to dispense 

mace or a similar chemical agent, that is not designed to cause death or serious physical injury." 
AS 11.81.900(b)(20). 

        20  AS 11.81.900(b)(17). 

                                                  - 8 -                                               2340 

----------------------- Page 9-----------------------

"deadly weapon" to "anything designed for ... causing death or serious physical injury." 

A steak knife is clearly not "designed" for the purpose of killing or injuring people, as 

that term is commonly understood. 

               But when read as a whole, the statutory definition of "deadly weapon" is 

ambiguous. The examples of deadly weapons actually listed in the statute -a knife, an 

axe, a club, metal knuckles, or an explosive - are, with the exception of a club and 
metal knuckles,21 not what one would expect to find on a list of weapons designed to 

injure or kill people.   Knives have many uses and, as a general rule, axes and explosives 

are designed for purposes such as felling trees and clearing rock.        Indeed, "explosive" 

is defined in Title 11 to include items such as dynamite and blasting powder and to 
exclude "salable fireworks."22     If the legislature had understood the term "explosives" 

to be limited to explosives designed for killing or seriously injuring people, it would 

have had no reason to exclude fireworks from the definition.  Therefore, the legislature 

must have included these items in the definition of "deadly weapon" not because they 

were specifically designed to be used as weapons but because, when used as designed - 

i.e., to cut or to explode - they are capable of killing or injuring people. 

               To resolve this ambiguity in the meaning of deadly weapon, we look to the 

legislative history of the statutes at issue.   Alaska courts apply a sliding scale approach 

to statutory interpretation, which considers the legislative history of a statute and whether 

       21  "Metal knuckles" is defined in AS 11.81.900(b)(36) as "a device that consists of 

finger rings or guards made of a hard substance and designed, made, or adapted for inflicting 
serious physical injury or death by striking a person." 

       22  AS 11.81.900(b)(23). 

                                             - 9 -                                          2340 

----------------------- Page 10-----------------------

that history reveals a legislative intent and meaning contrary to the plain meaning of the 

         23 
statute. 
                 Before   1980,   when   the   Revised   Criminal   Code   went   into   effect,24         the 

concealed weapons statute made it unlawful for a person 

                 to   carry   concealed      about    his  person,    in  any    manner,     a 
                 revolver,   pistol,   or   other   firearm,   or   knife,   other   than   an 
                 ordinary pocketknife, or a dirk or dagger, slingshot, metal 
                 knuckles, or any instrument by the use of which injury could 
                 be inflicted upon the person or property of another.25 

                 In the Revised Criminal Code, this statute was split into two statutes:                  the 
statute   defining   a   "deadly   weapon,"26      which   applies   to   numerous   provisions   in   the 

Alaska Statutes,27 and the third-degree weapons misconduct statute (the precursor to the 

fifth-degree weapons misconduct statute), which prohibited possession of any concealed 
"deadly weapon" other than an ordinary pocket knife.28                    Because these statutes were 

enacted at the same time, have the same source, and concern overlapping subject matter, 
we construe the terms used in those statutes in pari materia.29 

        23   Stephan v. State, 810 P.2d 564, 566 (Alaska App. 1991).
 

        24   Ch. 166, SLA 1978,  25.
 

        25   AS 11.55.010 (1970).
 

        26   Ch. 166, SLA 1978,  10.
 

        27   See, e.g., AS 11.61.210; AS 14.03.160; AS 18.66.100; AS 26.20.100.
 

        28   Ch. 166, SLA 1978,  7.
 

        29   See Norman J. Singer and J.D. Shambie Singer, 2B Sutherland Statutory Construction
 

 51:3, at 235-37, 275-77 (7th ed. 2008) ("[T]he rule that statutes in pari materia should be 
construed together has the greatest probative force in the case of statutes relating to the same 
subject matter and passed at the same session of the legislature, especially if they were passed 
                                                                                               (continued...) 

                                                   -  10 -                                               2340
 

----------------------- Page 11-----------------------

                 As just explained, the pre-1980 concealed weapon statute made it unlawful 

for a person to carry concealed about his person "an instrument by the use of which 

injury could be inflicted upon the person or property of another."                  The commentary to 

the Tentative Draft to the Revised Criminal Code indicates that this language was not 

included in the definition of "deadly weapon" because it was overbroad, "since virtually 

any    item,   even    this  volume     [of  the   Tentative    Draft],   would     be  included     in  this 
category."30     The drafters instead adopted the narrower language at issue in this case: 

"anything designed for and capable of causing death or serious physical injury."31                     The 

commentary suggests that this language was intended to exclude from the definition of 

deadly weapon items (such as legal treatises) that could conceivably cause injury or 

death    (for   instance,   if  dropped     from   a  tall  building),    but  that   are  not   inherently 

dangerous. 

                 The history of the concealed weapons statute also provides insight into what 

the drafters intended when they included "knife" in the definition of a deadly weapon. 

The pre-1980 statute made it unlawful to carry concealed about the person any knife 

"other than an ordinary pocketknife."            This language was carried over into the current 
concealed weapons statute.32        The clear implication from this language is that the drafters 

did not intend the definition of "knife" to be limited to knives specifically designed to 

        29   (...continued) 

or approved or take effect on the same day, or in the case where the later of two or more statutes 
relating to the same subject matter refers to the earlier."). 

        30  Alaska Criminal Code Revision Part V, at 113 (Tent. Draft 1977) (commentary to 

Tent. Draft AS 11.71.120, misconduct involving weapons in the third degree). 

        31  Id. 

        32  AS   11.61.220(a)(1)(A)(i).       This   offense   was   originally   enacted   as   third-degree 

weapons misconduct.       See ch. 166, SLA 1978,  7. 

                                                  -  11 -                                              2340
 

----------------------- Page 12-----------------------

be used as weapons - because if that had been the drafters' intent, there would have 

been no need to exclude pocket knives from the definition.   Liddicoat has not pointed to 

any statutory history, and we have found none, suggesting that the drafters intended to 

narrow this meaning of "knife"   when they defined "deadly weapon" in the Revised 

Criminal Code. 

                The later history of the concealed weapons statute is consistent with this 

view.   In 2003, when the legislature repealed the requirement of a concealed weapons 

permit for handguns, it amended the fifth-degree weapons misconduct statute to require 

any person contacted by a police officer while carrying a concealed deadly weapon to 
inform the officer of that possession.33        (Before this amendment to the weapons statute, 

it was unlawful to carry a concealed weapon unless one had a permit, and people who 

had a permit were required to disclose their concealed weapon possession when they 
were contacted by the police.34)         The sponsor of the legislation explained to the House 

Judiciary Committee that under the amended law "a knife that couldn't be characterized 

as an ordinary pocket knife would be a deadly weapon and couldn't be carried concealed 
anywhere."35 

        33  Ch. 62, SLA 2003,  1, 7. 

        34  See undated side-by-side comparison of concealed carry law before and after passage 

of H.B. 102, contained in 2003 House Judiciary Committee microfiche file on H.B. 102; see also 
Minutes of Senate Judiciary Committee, C.S.H.B. 102, statement of Mark Enoft, staff to Rep. 
Eric Croft, bill sponsor, Tape 03-44, Side A (May 12, 2003). 

        35  Minutes   of   House   Judiciary   Committee,   H.B.   102,   Statement   by   Rep.   Croft,   bill 

sponsor, Tape 03-40, Side B, log no. 0266 (Apr. 16, 2003). 

                                                 -  12 -                                            2340
 

----------------------- Page 13-----------------------

                 Other    statutes   that   rely  on  the   definition   of   "deadly    weapon"     in  AS 
11.81.900are also consistent with this view.36  For instance, AS 33.16.150(b)(1) permits 

the parole board, as a condition of parole, to prohibit a prisoner released on parole from 

possessing a deadly weapon (as defined in AS 11.81.900) "other than an ordinary pocket 

knife with a blade three inches or less in length."           And AS 11.61.200, the current third- 

degree weapons misconduct statute, prohibits any in-person communication in violation 

of a domestic violence protective order while in possession of "a deadly weapon, other 
than an ordinary pocketknife."37          Again, the fact that the legislature found it necessary 

to exclude an ordinary pocket knife from the reach of these statutes suggests that it did 

not   view   the   definition   of   "knife"   to   be   limited   to   knives   specifically   designed   as 

weapons. 

                 (We also note that we have, in previous cases, declared that a kitchen or 
steak knife falls within the definition of   "deadly weapon" in AS 11.81.90038 - though 

we put little weight on our earlier declarations on this issue, because the issue was not 

actively litigated in those cases.) 

                 Liddicoat has not advanced any contrary statutory history to show that the 

legislature intended to exclude a steak knife from the definition of a deadly weapon.  The 

        36   We recognize that subsequent legislative interpretation of a statute is not conclusive 

on the meaning of the former statute.  See 2B Sutherland Statutory Construction  49:11 at 145 
47 (7th ed. 2008). 

        37   AS 11.61.200(a)(9); AS 11.56.740. 

        38   See, e.g., Moore v. State, 218 P.3d 303, 305 (Alaska App. 2009) (stating in a case 

involving a robbery with a kitchen knife that "knives are classified as 'deadly weapons' for 
purposes of our criminal code"); Lewandowski v. State, 18 P.3d 1220, 1224 (Alaska App. 2001), 
overruled on other grounds by Michael v. State, 115 P.3d 517 (Alaska 2005) (Mannheimer, J., 
concurring) (noting that steak knives and hunting knives qualify as "deadly weapons" under AS 
11.81.900). 

                                                   -  13 -                                             2340
 

----------------------- Page 14-----------------------

only   authority   Liddicoat   relied   on,   in   superior   court   and   in   this   court,   is Medley   v. 
Runnels,39     a   Ninth   Circuit   case.   Medley     interprets   a   California   statute   defining   a 

"firearm,"40 and does not aid us in interpreting Alaska's definition of a "deadly weapon." 

                 We therefore conclude that Judge Carey did not err in denying Liddicoat's 

motion for judgment of acquittal on the fifth-degree weapons misconduct charge. 

                 Conclusion 

                 We AFFIRM Liddicoat's convictions. 

        39   506 F.3d 857 (9th Cir. 2007). 

        40  Id. at 863-64 (citing Cal. Penal Code  12001(b)). 

                                                  - 14 -                                                2340 
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