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Adam Charles Dere v State of Alaska (5/17/2019) ap-2644

Adam Charles Dere v State of Alaska (5/17/2019) ap-2644

                                                  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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ADAM CHARLES DERE,  

                                                                 Court of Appeals No. A-12338  

                                  Appellant,                  Trial Court No. 3AN-13-10287 CR  



                          v.  

                                                                         O  P  I  N  I  O  N 

STATE OF ALASKA,  

                                                                    No. 2644 - May 17, 2019  

                                  Appellee.  



                 Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                                          

                 Anchorage, Philip R. Volland, Judge.  



                 Appearances:  Brooke Berens, Assistant Public Advocate, and  

                 Richard Allen, Public Advocate, Anchorage, for the Appellant.  

                 A. James Klugman, Assistant District Attorney, Anchorage, and  

                 Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  



                 Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                       

                 Superior Court Judge. *  

                                               



                 Judge MANNHEIMER.  



    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                     Adam Charles Dere was charged with first-degree robbery, fourth-degree           

assault, and third-degree theft, 1 based on allegations that Dere borrowed another man's  



mobile phone and then, when the man asked Dere to return his phone, Dere assaulted the  

                                                                               



man with an electrical stun device and ran off with the phone.   



                     The primary issues in this appeal arise from the fact that the jury at Dere's  

                                                                                                              



first trial was unable to reach a verdict on the robbery charge, and the judge ultimately  

                                                                                                                



declared a mistrial on that count.  Then, over defense objection, the judge allowed the  

                                            



jury to continue deliberating on the lesser charges of assault and theft - and the jury  

                                                                                 



returned guilty verdicts on those two counts.   



                     Dere's first major argument on appeal is that the jury at his first trial should  

                                                                                                        



not have been allowed to return verdicts on the charges of assault and theft.   



                     Dere contends that, given the State's theory of prosecution, and given the  

                                                                                                



evidence  presented  at  Dere's  trial,  both  the  charge  of  fourth-degree  assault  and  the  



charge of third-degree theft were lesser included offenses of the robbery charge.  And  

                                              



because  (according  to  Dere)  these  lesser  offenses  were  necessarily  included  in  the  



robbery charge, Dere argues that the trial judge committed error when the judge allowed  

                                                                 



the jurors to continue deliberating on the assault and theft charges after the jurors could  

                                                                                    



not reach unanimous agreement on the robbery charge.  Dere contends that the judge  

                                                                                           



should have declared a mistrial as to all three charges:  robbery, assault, and theft.  



                     Dere's second major argument on appeal arises from the fact that, after the  

                                                       



mistrial on the robbery charge, the State brought Dere to trial a second time for robbery.  

                                                                                                 



At this second trial, Dere's attorney asked the judge to allow the jury to deliberate on the  

             



assault and the theft charges, even though Dere had already been found guilty of those  

                                 



      1    AS 11.41.500(a)(2), AS 11.41.230(a)(1), and former AS 11.46.140(a)(1) (pre-2016),  



respectively.  



                                                                 - 2 -                                                           2644
  


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

charges.  The judge refused to instruct the jury on the charges of assault and theft -  

                                



concluding that it would be improper to allow Dere to use the second trial as a means of  

                                                                                                                      



relitigating the two guilty verdicts from the first trial.  On appeal, Dere contends that the  

                                                                         



judge's decision was error.   



                    Both of Dere's appellate claims require us to revisit the law that governs  



situations where a jury is instructed on a charged offense and, in addition, one or more  

                                                                                               



lesser included offenses.   



                    This Court has issued several decisions in this area, and one of them -  

                                                                                                            



Hughes v. State , 668 P.2d 842 (Alaska App. 1983) - deals with the precise situation  

                                                                                    



presented at Dere's first trial, where the jury deadlocked on the charged offense but was  

                                                                                          



later able to reach a verdict on a lesser included offense.   



                    In Hughes , we upheld the trial judge's decision to declare a mistrial on the  

                                                                                                            



charged offense, to allow the jurors to continue deliberating on the lesser offense, and  

                                                                                                                 



ultimately to accept the jury's verdict on the lesser offense - but to delay entering  



judgement  and  imposing  sentence  until  after  the  charged  offense  was  retried  and  



resolved.  Thus, Hughes approves the procedure that was adopted by the judge at Dere's  



first trial.   



                    On appeal, Dere argues that Hughes was wrongly decided, and that our  



decision in Hughes is inconsistent with things that this Court has said in other cases  



dealing with this area of the law. As we explain in this opinion, the holdings of our other  

                                                   



cases  are  all  consistent  with Hughes ,  but  one  of  these  cases  contains  dictum  that  is  

                                                                                      



potentially contrary to our holding in Hughes .   We therefore take this opportunity to  



further explain and clarify the law that governs these situations.  



                    Dere raises other issues on appeal:  he claims that the prosecutor at his first  

                                                                                               



trial violated the State's duty of pre-trial discovery by providing tardy disclosure of a  



recording of Dere's police interview, and Dere also challenges two conditions of his  

                                                                                                                          



                                                              -  3 -                                                        2644
  


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

probation.  For the reasons explained in this opinion, we reject these claims with one  



exception:    we  conclude  that  one  of  the  challenged  conditions  of  Dere's  probation  



amounts to plain error, and we therefore vacate it.  



         Background facts  



                   On September 21, 2013, Johnny Grafft finished his shift at an Anchorage  

                                                                                                        



restaurant.    Grafft  was  about  to  walk  home  when  Dere  approached  him  outside  the  



restaurant and asked to borrow his mobile phone.  Grafft obliged him.  



                   After Dere unsuccessfully attempted to place a call, he briefly gave the  



phone back to Grafft, but then he snatched it from Grafft's hand.  After grabbing the  

                                                                                                         



phone, Dere circled behind Grafft and shocked him twice with an electrical stun device.  

                                                 



Then Dere ran off with the phone into some adjoining woods.   



                   Grafft returned to the restaurant and alerted his co-workers that a man had  

                             



"tased" him and stolen his mobile phone.  Several of the restaurant employees went  



looking for Dere.  They found him in the woods and subdued him.  An electrical stun  

                                             



device shaped like brass knuckles was discovered in Dere's pocket, but Dere no longer  

                                                  



had the mobile phone.  The employees took Dere back to the restaurant's parking lot, and  

                                                       



Grafft identified Dere as the man who had assaulted him and stolen his phone.   



                   Three Anchorage police officers were dispatched to the scene.  One of them  

                                                      



searched  the  nearby  woods  and  located  Grafft's  mobile  phone.    Another  officer  



interviewed Dere for about 30 minutes.  In this recorded interview, Dere acknowledged  

                                        



being present when Grafft's phone was taken, but Dere claimed that "a friend of his  



named Billy" was the one who tased and robbed Grafft.   



                                                          - 4 -                                                     2644
  


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

                    According  to  the  interviewing  officer,  Dere  "couldn't  really  tell  me  



anything about Billy - couldn't tell me his last name, where he lived, what his phone  

                                                                                                 



number was, [or] anything like that."   



                    As we explained at the beginning of this opinion, Dere was charged with  

                                                                                  



three crimes - first-degree robbery, fourth-degree assault, and third-degree theft -  

                                                          



based on these events.  



                    Dere was brought to trial twice in connection with these charges.  At Dere's  

                                                                                                                   



first trial, Dere's attorney conceded that Dere was guilty of the two lesser charges - i.e.,  

                                                            



the assault and the theft - but the defense attorney argued to the jury that the State had  

                                                                



overreached when it charged Dere with first-degree robbery.   



                    According to the defense attorney, the State's evidence failed to establish  

                                                                         



some  of  the  necessary  elements  of  first-degree  robbery.    Although  Dere's  attorney  



conceded  that  Dere  had  struck  Grafft  with  the  knuckle-shaped  device,  the  defense  



attorney argued that this device did not qualify as a "stun device" in the eyes of the law  

                                                                                                                   



- and that, in any event, there had been no battery in the device when Dere used it to  



strike Grafft.  Thus, the attorney argued, even if Dere committed robbery, Dere was not  

                                                                                



guilty of first-degree  robbery - a charge which required the State to prove that Dere  



used or attempted to use a dangerous instrument or a defensive weapon in aid of the  



           2  

taking.     



                    The defense attorney also argued that, even though Dere struck Grafft, Dere  



                                          

did not commit this assault for the purpose of taking or retaining possession of Grafft's  



            

mobile phone.  According to the defense attorney, Dere's crimes of assault and theft  



                                                                                      

were completely independent of each other, and Dere was therefore not guilty of robbery  



at all - not even in the second degree.   



     2    See AS 11.41.500(a)(2).  



                                                             -  5 -                                                       2644
  


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

                    During  the  jury's  deliberations,  the  foreman  sent  a  note  to  the  judge  



indicating  that  the  jury  was  deadlocked  on  the  charge  of  first-degree  robbery.    In  

                                                                       



response to this note, the judge summoned the jury to the courtroom and asked each juror  

                                                                      



whether they believed that further deliberations would be helpful. Each juror confirmed  

                                                                                                     



that the jury was in fact deadlocked on the charge of first-degree robbery.  The jury  

                     



foreman told the judge that the jurors had not reached verdicts on the remaining counts  

                                                                                                     



of theft and assault, but the foreman also stated that he believed the jury could reach  

                                



verdicts on those counts.   



                    Dere's attorney objected to any continued jury deliberations on the assault  

                                                                     



and theft charges.  He asserted that, under the State's theory of the case, the assault and  

                                                                 



the theft charges were lesser included offenses of the robbery charge.  (As we have  

                                                                               



already explained, the defense attorney was partially correct:  the assault charge was a  

                                                                                                



lesser included offense, but the theft charge was not.)   



                    Based on his assertion that both of the lesser offenses were included in the  

                                                              



robbery charge, the defense attorney argued that if the jurors could not reach a verdict  



on the robbery charge, they should be told to stop deliberating altogether - without  



returning any verdict on the assault and theft charges.  



                    In response, the prosecutor noted that the crimes of assault and theft were  



charged independently, as separate counts of the charging document.  Because of this,  

                                                                                                            



the  prosecutor  argued  that  even  if  the  assault  and  the  theft  might  qualify  as  lesser  



included offenses of the robbery, the jury should nevertheless continue deliberating on  

                                                          



these two remaining charges.   



                    After hearing the attorneys' positions, the judge declared a mistrial on the  



first-degree robbery count, but he allowed the jury to continue deliberating on the assault  

                                                                                                                     



and theft counts.   



                                                              -  6 -                                                         2644
  


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

                    The judge stated that, given the way Dere's case was being litigated, he was  

                                                                                                         



unsure whether the assault and the theft were actually lesser included offenses of the  

                                                                                   



robbery.  But the judge ultimately concluded that there was no manifest necessity to  



declare a mistrial on the assault and theft charges, so he instructed the jury to continue  

                                                                            



deliberating on those charges.  After resuming deliberations, the jury found Dere guilty  

                                                       



of the assault and theft charges.  



                    The State elected to try Dere again on the first-degree robbery charge.  Prior  

                                                                                                 



to this retrial, Dere's attorney filed a series of motions arguing that, because Dere had  



already been tried and convicted of assault and theft, and  because these two crimes  

                                                                                          



constituted lesser included offenses of robbery, any retrial of the robbery count would  



violate the guarantee against double jeopardy.  The judge denied these motions.   



                    Then, at the beginning of the second trial, Dere's defense attorney argued  

                                                                                   



that the jury should be instructed to deliberate and return verdicts, not just on the robbery  

                                                                                                            



charge, but also on the crimes of assault and theft, even though the first jury had already  

                                   



found Dere guilty of those crimes.  The defense attorney argued that this procedure was  

                                                                                                     



necessary so that the jury at the second trial would have the same opportunity as the first  

                                                                           



jury to consider whether the assault and the theft were truly independent crimes, rather  



than components of a robbery.  The judge denied the defense attorney's request.  



                    When  the  parties  discussed  jury  instructions  toward  the  end  of  Dere's  



second trial, neither the prosecutor nor the defense attorney requested an instruction on  



the lesser offense of second-degree robbery - even though one of the defense attorney's  



primary themes at Dere's first trial was that the stun device contained no battery, and  



thus Dere could be guilty of no more than second-degree robbery.  



                    However, the defense attorney again requested to have the jury instructed  

                                                      



on the lesser crimes of assault and theft.  The judge denied this request.  



                    The jury deliberated and found Dere guilty of first-degree robbery.   



                                                            -  7 -                                                       2644
  


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

                    At Dere's sentencing, the judge merged the assault and theft verdicts from  



Dere's first trial with the robbery verdict from his second trial.  Based on these verdicts,  

                                                                                              



the judge entered a single conviction and sentence for first-degree robbery.  



                    (As we explain in the next section of this opinion, theft is not a lesser  

                                                               



included offense of robbery, and thus the superior court should not have merged the  

                                                                                                  



robbery  and  theft  verdicts  into  a  single  conviction.    However,  the  State  does  not  



challenge this irregularity on appeal.)  



          The double jeopardy principles that govern this case  



                    In this appeal, Dere renews his assertion that his crimes of assault and theft  



were lesser offenses that were necessarily included in the robbery charge. And based on  

                                                                                                              



his assertion that the assault and the theft were lesser included offenses of the robbery,  

                                                                                                               



Dere  argues  that  the  State  violated  his  rights  under  the  double  jeopardy  clause  by  



bringing him to trial a second time on the robbery charge - or, at least, by bringing him  



to trial a second time for robbery without also allowing the second jury to re-decide  

            



whether Dere was guilty of assault and theft.  



                    There are four principles of double jeopardy law that apply to Dere's case  

                                                                                             



- principles that apply generally whenever a defendant is brought to trial on a charged  

                                                                                                               



offense that necessarily includes one or more lesser offenses.  



                    The first principle is that, once jeopardy has attached at a criminal jury trial  

                                                                                                      

(i.e., once the jury has been sworn), 3 

                                                      the defendant is entitled to have that jury decide the  



                                                                                                                    

case unless (1) the defendant consents to ending the trial prematurely, or (2) there is a  



                                                                           

manifest necessity for declaring a mistrial - i.e., a necessity for ending the trial before  



     3    Tritt v. State, 173 P.3d 1017, 1019 (Alaska App. 2008).  



                                                             -  8 -                                                       2644
  


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

                                                                     4  

the  jury  has  resolved  the  issues  before  it.      If   the  jury  is  discharged  without  the  



defendant's  consent  before  it  has  returned   a  verdict,  and  if  there  was  no  manifest  



necessity  for  discharging  the  jury,  then  the  defendant  cannot  be  retried  for  that  



             5 

offense.        



                     The second principle is that, even though there are lesser offenses that are  



necessarily included in the charged offense, and even though the jury may be able to  

                                                                                                                           



reach a verdict on a lesser offense, the government is still entitled to have the jury decide  

                                                                                                                



                                6  

the charged offense.     



                                                                                                      

                     The third principle is that, if a mistrial is declared on one or more charges,  



                                                                                                                  

and if the defendant consented to the mistrial, or if there was a manifest necessity for  



                                                                                                      

declaring a mistrial on those charges, then the ensuing retrial of the charges does not  



constitute a second jeopardy.  Rather, the retrial is a continuation of the defendant's  



                          7  

earlier jeopardy.      



     4    Douglas v. State , 214 P.3d 312, 326 (Alaska 2009).  



     5    Green v. United States, 355 U.S. 184, 190-91; 78 S.Ct. 221, 225; 2                                      L.Ed.2d  199  



(1957);  Whiteaker v. State, 808 P.2d 270, 277-78 (Alaska App. 1991).  



     6    Staael v. State, 697 P.2d 1050, 1056 (Alaska App. 1985) ("The government, like the  

                                                                                               

defendant, is entitled to resolution of the case by a verdict from the jury."), affirmed 718 P.2d  

                                                                                                                          

948 (Alaska 1986).  



     7    Staael v. State, 697 P.2d 1050, 1055-56 (Alaska App. 1985); Richardson v. United  



States, 468 U.S. 317, 325; 104 S.Ct. 3081, 3086; 82 L.Ed.2d 242 (1984):  



           [T]he protection of the Double Jeopardy Clause by its terms applies only if  

          there has been some event, such as an acquittal, which terminates the original  

          jeopardy.  [The] petitioner's argument necessarily assumes that the judicial  

          declaration of a mistrial was an event which terminated jeopardy in his case  

          and which allowed him to assert a valid claim of double jeopardy [against the  

                                                                                                           

          ensuing retrial].  ...   [But] the failure of the jury to reach a verdict is not an  

                                          

          event which terminates jeopardy.   



                                                               -  9 -                                                         2644
  


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

                      The fourth principle is that, once a defendant has faced jeopardy for an  



offense and that offense has been resolved with either a conviction or an acquittal, the  

                            



government  is  thereafter  barred  from  initiating  a  successive  prosecution  against  the  



defendant (1) for a lesser offense that was necessarily included in the original offense,  

                                                                       



or (2) for a greater offense which necessarily includes the original offense for which the  

                                



                                                               8  

defendant was convicted or acquitted.     



                      Even  before  the  United  States  Supreme  Court  articulated  this  fourth  



                                               

principle as a component of federal double jeopardy law in Brown v. Ohio in 1977, this  



                                                                                                                 

principle had been a feature of Alaska's statutory law for decades. It was codified in the  

Carter Code of 1900, 9 and it is currently found in Alaska Statute 12.20.040:  



                        

                                 When  the  defendant  is  convicted  or  acquitted  of  a  

                      crime  consisting  of  different  degrees,  the  conviction  or  

                      acquittal is a bar to another prosecution for the crime charged  

                      in the former or for any inferior degree of that crime, or for  

                                                                                          

                      an attempt to commit that crime, or for an offense necessarily  

                                                              

                      included in the crime of which the defendant might have been  

                      convicted under the information, indictment, or complaint.  



      8    See  Brown v. Ohio , 432 U.S. 161, 165-68; 97 S.Ct. 2221, 2225-26; 53 L.Ed.2d 187                           



(1977); Staael v. State, 697 P.2d 1050, 1055-56 (Alaska App. 1985).  



      9    Thomas  H.  Carter,  The  Laws  of  Alaska  (1900),  Part  Two  -  Code  of  Criminal  



Procedure, Sec. 107:  



                              

           Conviction or acquittal for crime consisting of different degrees, when a bar to  

      another indictment.  That when the defendant shall have been convicted or acquitted     

                                            

     upon the indictment for a crime consisting of different degrees[,] such conviction or  

                                                                                                                           

      acquittal is a bar to another indictment for the crime charged in the former, or for any  

      inferior degree of that crime, or for an attempt to commit the same, or for an offense   

      necessarily  included  therein,  of  which  he  might  have  been  convicted  under  that  

      indictment, as provided in sections one hundred and forty-six and one hundred and  

      forty-seven of this Title.  



                                                                  -  10 -                                                              2644
  


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

                          (Because this statute predates the Alaska Supreme Court's adoption of the   



"cognate" approach to lesser included offenses, there is a question as to whether this   



 statute applies only to offenses that are necessarily included under the federal "statutory   



elements" test, or whether this statute now incorporates the cognate approach to lesser                        

included offenses that our supreme court adopted in Elisovsky v. State . 10  

                                                                                                                                                 The facts of  



Dere's case do not require us to answer this question.)  



       10    Different  jurisdictions  use  different  tests   for  evaluating  whether  one  offense  is  



necessarily included in another.                             The federal courts use the Blockburger  test - a statutory  

test  which  simply  compares  the  elements  of  one  offense  with  the  elements  of  the  other  

offense, without regard to the particular facts of the defendant's case.  See  Blockburger v.  

 United States, 284 U.S. 299, 304; 52 S.Ct. 180, 182; 76 L.Ed. 306 (1932).                                                                  See also  Brown  

v. Ohio , 432 U.S. 161, 166; 97 S. Ct. 2221, 2226; 53 L. Ed. 2d 187 (1977) (stating that if                                                                   

offenses are separate under the Blockburger test, then they are separate offenses for double                         

jeopardy purposes, "notwithstanding a substantial overlap in the proof offered to establish  

the crimes.").  



             Alaska law inherited this federal approach to lesser included offenses, and this was  

the governing law when the Alaska Legislature enacted AS 12.20.040 in 1962.  See SLA  

 1962, ch. 34,  1.14.  But seventeen years later, in 1979, the Alaska Supreme Court rejected  

the federal "statutory elements" approach in favor of the "cognate" approach.                                                                   See  Elisovsky  

v. State , 592 P.2d 1221, 1226 (Alaska 1979).   



             Under the cognate approach, the question of whether a lesser offense is "necessarily  

                                  

included" in the charged offense is not answered merely by looking at the statutory elements  

                                                              

of the two offenses.   Rather, a trial judge is to identify necessarily included offenses by  

 (1) evaluating the government's theory of prosecution in the defendant's particular case (as  

                                                                                                                                        

 shown  by  the  allegations  in  the  indictment  and  the  evidence  presented  at  trial),  and  by  

 (2) evaluating the defendant's theory of defense.  Elisovsky , 592 P.2d at 1225-26.   



             Under this approach, a lesser offense is necessarily "included" in the charged offense  

                                                      

if, given the facts of the case, it would be impossible for the defendant to commit the charged  

                                                                                                                                                     

offense  without  also  committing  the  lesser  offense,  and  when  conviction  of  the  greater  

offense requires the jury to find a disputed fact that is not required for conviction of the  

                                                 

lesser.   



                                                                               -  11 -                                                                          2644
  


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

            Dere's argument that the judge at his first trial should not have allowed the         

           jury to return verdicts on the assault and theft charges  



                        Dere argues that it was unlawful for the judge at his first trial to allow the         



jury to continue deliberating on the charges of assault and theft after the judge declared   



the jury to be hung on the robbery charge (                                     i.e., after the judge found that there was  



no probability that the jury could reach a unanimous decision regarding the robbery  

charge). 11  

                    Dere's argument has two components.   



                        First,  Dere  asserts  that  the  assault  and  theft  charges  were  necessarily  



included in the charge of robbery.  Second, Dere asserts that whenever a lesser crime is  



necessarily included in a greater crime, it is unlawful for the jurors to return a verdict on  

                                                                                                                     



the lesser crime if they are unable to reach unanimous agreement on the greater crime.  

                                                                                                                          



            The  relationship  between  the  charge  of  first-degree  robbery  and  the  

            separate charges of theft and assault  



                        Dere  is  mistaken  when  he  asserts  that  his  theft  charge  was  necessarily  

                                                                         



included in his robbery charge.   



                        Colloquially, one might describe the crime of robbery as the combined act  

                                                 



of assaulting someone and taking their property.  Thus, seemingly, a defendant who  



commits a robbery has necessarily committed a theft.  But as a legal matter, this is not  

                                                                                                                                               



the case.   



                        As defined in AS 11.41.510(a), the crime of robbery consists of taking or  

                                                                                                       



attempting to take property from the immediate presence and control of another person  

                                                                                                      



      11    See  Koehler v. State , 519 P.2d 442, 448-49 (Alaska 1974) (holding that there is a  



manifest necessity for declaring a jury hung, and for discharging the jury, when "there is no     

probability that a unanimous verdict will be reached").  



                                                                       -  12 -                                                                  2644
  


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

if, during the course of the taking or attempted taking, the defendant "uses [force] or  



threatens the immediate use of force upon any person with [the] intent to ... prevent or  

                                                                                                           



overcome resistance to the taking of the property or the retention of the property after  

                                                                           



[the] taking."   



                    For purposes of analyzing the relationship between a charge of robbery and  

                                                                 



a charge of theft, the important aspects of this definition are that a charge of robbery does  

                                                                                              



not require the State to prove (1) that the defendant actually succeeded in taking the  



property, nor does a robbery charge require the State to prove (2) that the defendant took  

                             



the property with the intent to permanently deprive the victim of the property.   



                    See Nell v. State , 642 P.2d 1361, 1365-66 (Alaska App. 1982), where this  

                                                                                   



Court expressly rejected the contention that a charge of robbery requires the State to  



prove that the defendant intended to permanently deprive the victim of the property.  



                    Because a charge of theft requires the State to prove that the defendant  

acted with the intent to permanently deprive the victim of the property, 12 and because a  



charge of robbery does not require proof of this intent, one may commit robbery without  

                                                                                       



committing theft.  For this reason, the Alaska Supreme Court held in State v. Minano,  



710 P.2d 1013, 1016 (Alaska 1985), that theft is not a lesser included offense of robbery.  

                                                                                        



                    (In Dere's case, for instance, Dere no longer had Grafft's mobile phone in  

                                                                                       



his possession when he was apprehended.  Rather, the police found Grafft's phone when  

                                                                                                                



they searched the woods. This evidence was at least consistent with the theory that Dere  

                                        



only wanted the phone for a short time, and that he discarded it in the woods when he  

                                                                                                    



was done with it.  This view of the evidence would suggest that Dere was guilty of  



robbery but not theft.)  



     12   State v. Minano , 710 P.2d 1013, 1016 (Alaska 1985); AS 11.46.100 (the definition of  



theft).  



                                                            -  13 -                                                       2644
  


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

                     In sum, under Alaska law, theft is not a lesser included offense of robbery.          



Dere's theft of the mobile phone had to be charged separately, and the jury had to resolve        



that charge separately, regardless of its verdict - or its inability to reach a verdict - on         



the robbery charge.   



                     Turning to Dere's fourth-degree assault charge, the Alaska Supreme Court  



has not definitively resolved the issue of whether assault is a lesser included offense of  

                                                                                                            



robbery.  However, the supreme court's decision in  Woods v. State, 667 P.2d 184, 187- 



88  (Alaska  1983),  strongly  suggests  that  a  charge  of  fourth-degree  assault  under  



AS 11.41.230(a)(1) is not a lesser included offense of robbery.  



                     The defendant in Woods was convicted of first-degree sexual assault, and  

                                                                     



a question arose as to whether the superior court could impose an aggravated sentence  

                                                                                



based on the fact that Woods inflicted physical injury on his victim.   



                     Under   AS   12.55.155(c)(1),   a   felony   defendant   who   is   subject   to  

                                                                                                                   



presumptive sentencing can receive an aggravated sentence if "a person, other than an  

                                                                                                                      



accomplice, sustained physical injury as a direct result of the defendant's conduct".  



However, another section of the same statute - AS 12.55.155(e) - declares that "if a  

                                                                                                               



factor in aggravation is a necessary element of the [defendant's] offense, ... that factor  



may not be used to impose [an aggravated] sentence".   



                     Woods pointed out that the charge of first-degree sexual assault required  



the State to prove that Woods used force or threat of force to coerce his victim to engage  

                                    

in sexual penetration. 13  

                                       Based on this requirement of forcible coercion, Woods argued  



                                                                                                    

that the infliction of physical injury was a necessary element of his charge of first-degree  



            

sexual assault - and thus, under AS 12.55.155(e), the superior court would be forbidden  



from aggravating Woods's sentence based on the fact that he injured his victim.   



      13   See AS 11.41.470(8).  



                                                                -  14 -                                                            2644
  


----------------------- Page 15-----------------------

                       The Alaska Supreme Court rejected this argument. The court noted that the                               



element of "without consent" can be established by "mere threat of imminent physical         



                                                                                               14  

injury", and that "no actual physical injury need occur".                                                                

                                                                                                   Because  of this, the supreme  



court declared that "physical injury is not a necessary element of the crime of sexual  



assault in the first degree" - and, thus, "the superior court could properly consider [the  

victim's] physical injuries as an aggravating factor in sentencing Woods." 15  



                       Although the decision in  Woods is not necessarily dispositive of Dere's  



                                      

claim that assault is a lesser included offense of robbery, the supreme court's analysis in  



                             

Woods strongly suggests that Dere's charge of fourth-degree assault under AS 11.41.- 



230(a)(1) was not included in his charge of robbery.   



                       Under AS 11.41.230(a)(1), a charge of fourth-degree assault requires the  

                                                                          



State to prove that the defendant "recklessly caus[ed]  physical injury to another person".  



(In this context, "physical injury" means "physical pain or an impairment of physical  

condition". 16                                                                                   

                       )  In contrast, a charge of robbery requires the State to prove only that the  



                             

defendant  used  force,  or  threatened  the  immediate  use  of  force,  for  the  purpose  of  



                                                                                                            

obtaining possession (or retaining possession) of property.  A robbery charge does not  



require the State to prove that the defendant inflicted physical injury on anyone.   



                       Under the reasoning in  Woods, it would appear that a charge of robbery  



                                                                                                         

does not necessarily include a charge of fourth-degree assault under AS 11.41.230(a)(1).  



                                                                                                            

However, there is no appellate decision directly resolving this point, and the parties do  



                                                                                                                             

not discuss the  Woods decision.  For this reason, we will analyze Dere's case under the  



      14    Woods, 667 P.2d at 187.  



      15   Id. at 188.  



      16   AS 11.81.900(b)(47).   



                                                                     -  15 -                                                                 2644
  


----------------------- Page 16-----------------------

debatable assumption that his fourth-degree assault charge was a lesser included offense  



of his robbery charge.    



                    To summarize our discussion thus far:  Dere argues that it is unlawful to  

                                                                                          



allow a jury to return a verdict on a lesser included offense if the jury is deadlocked on  

                                    



the greater offense.  But this argument is not relevant to Dere's theft charge, because our  



supreme court has held that theft is not a lesser included offense of robbery, and Dere's  

                                                                                                                   



argument is only debatably relevant to his assault charge, because the supreme court's  

                                                                                         



decision in Woods suggests that assault may not be a lesser included offense of robbery  

                                                                          



either.  



          After  Dere's  trial  judge  declared  the  jury  to  be  hung  on  the  robbery  

          charge, the judge properly allowed the jury to continue deliberating on the  

                                                                                              

          fourth-degree assault charge  



                    We now turn to the legal merits of Dere's contention that, when a defendant  

                                                          



faces a greater charged offense and one or more lesser included offenses, and when the  

                                                 



trial judge declares the jury to be hung on the charged offense, it is unlawful for the  

                                                                                                          



judge to allow the jury to continue deliberating and return a verdict on a lesser included  



offense.  



                    This Court has, in fact, already rejected this argument:  see Hughes v. State ,  

                                                                                                                        



668 P.2d 842 (Alaska App. 1983).  We discuss the Hughes decision in the next section  

                                                                                           



of this opinion.   



                (a) This Court's decision in Hughes v. State  



                    Hughes v. State involved a situation like Dere's case:  the defendant in  

                                                             



Hughes was charged in separate counts with crimes that stood in the relation of greater  

                                                                                      



                                                             -  16 -                                                        2644
  


----------------------- Page 17-----------------------

offense and lesser included offense.   After the case was submitted to the jury, the jurors       



informed the trial judge that they were deadlocked with respect to the greater charge, but  

they were able to reach a verdict on the lesser charge. 17  

                                                                                      



                     Like the trial judge in Dere's case, the trial judge in Hughes ultimately  



declared a mistrial on the greater charge, but he accepted the jury's verdict on the lesser  

                                  



charge.  And, like the judge in Dere's case, the judge in Hughes did not immediately  

                                                                                                           



enter judgement against the defendant and sentence him for the lesser crime. Instead, the  

                                                                                                                    



judge simply received the jury's verdict, allowed the State to retry the defendant on the  

                                         



greater charge, and then - after all of the charges were finally resolved - the judge  

entered judgement and sentenced the defendant. 18  

                                                                               



                                                                      

                     On appeal, Hughes argued that it was a violation of the double jeopardy  



clause for the State to retry him on the greater charge, given that Hughes had already  



                                                                                    

been found guilty of a lesser included charge.  But this Court rejected Hughes's double  



jeopardy  argument,  and  we  upheld  the  result  of  Hughes's  second  trial  -  that  is,  

we upheld Hughes's conviction for the greater offense. 19  



                     The  wording  of  the  Hughes  opinion  is  a  little  nebulous  regarding  our  



                                                            

reasons for rejecting Hughes's double jeopardy argument, but our decision in Hughes  



ultimately  rested  on  one  of  the  tenets  of  double  jeopardy  law  that  we  have  already  



discussed:  the rule that when the jury is hung, or when there is some other manifest  



necessity for ending a criminal trial before the jury has reached a verdict, a retrial does  

                                                                                                                 



      17  Hughes , 668 P.2d at 843.  



      18  Id. at 843, 846-47.  



      19  Id. at 846-48.  



                                                             -  17 -                                                         2644
  


----------------------- Page 18-----------------------

not subject the defendant to a "second" jeopardy.                            Rather, the retrial is a continuation of  



                                                                                                                         20  

the defendant's initial jeopardy.  The retrial is not a "successive prosecution".                                             



                     Even though the jury at Hughes's first trial found him guilty of the lesser  



included offense, Hughes's retrial on the greater offense did not violate either the double  

                                                                           



jeopardy clause or the analogous statutory rule codified in AS 12.20.040 - because both  

                                                                                                               



of these rules prohibit only successive prosecutions for a greater or lesser offense.  



                     We discussed this point of law more explicitly in Staael v. State, 697 P.2d  

                                                                              



 1050 (Alaska App. 1985):  



                       

                               Brown [v. Ohio] and the line of cases it relies upon ...  

                     reach  a  result  which  in  Alaska  is  required  by  statute.  

                     AS 12.20.040.  [But as] the supreme court noted in Mead v.  

                     State,  489  P.2d  738,  741  (Alaska  1971),  this  statute  only  

                                                               

                     applies  to  successive  separate  prosecutions,  not  multiple  

                     convictions in the same continuing prosecution.  Accord Ohio  

                                                                                                          

                     v. Johnson , 467 U.S. [493, 501-02], 104 S.Ct. [2536,] 2542,  

                                                                              

                     81  L.Ed.2d  [425,]  435  [(1984)].    See  also  Richardson  v.  

                                                                                           

                     United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242  

                     (1984), where the Supreme Court ... reaffirmed that jeopardy  

                     does not terminate when the jury is discharged because it is  

                                                                                                            

                     unable  to  agree.    The  government,  like  the  defendant,  is  

                                                                               

                     entitled to resolution of the case by a verdict from the jury.  



Staael, 697 P.2d at 1056.   



                     Thus,  Hughes's  second  trial  did  not  subject  him  to  a  second  jeopardy.  

                                                                                            



Rather, Hughes's second trial was the culmination of his first jeopardy.  



     20    Staael v. State, 697 P.2d 1050, 1055-56 (Alaska App. 1985); Richardson v. United   



States, 468 U.S. 317, 325; 104 S.Ct. 3081, 3086; 82 L.Ed.2d 242 (1984) ("[T]he failure of     

the jury to reach a verdict is not an event which terminates jeopardy.").  



                                                              -  18 -                                                         2644
  


----------------------- Page 19-----------------------

                     As  we  acknowledged  in  Hughes ,  the  situation  might  have  been  more  



problematic if the trial judge, rather than simply accepting the jury's guilty verdict on the  

                                    



lesser included offense, had proceeded to enter judgement on that verdict and to sentence  

                                       



Hughes  for  the  lesser  included  offense  (instead  of  waiting  for  the  results  of  the  



             21  

retrial).                                                                                                          

                 In that circumstance, even though the double jeopardy clause would not bar  



              22 

a retrial,                                                                                             

                 Hughes might potentially have claimed that his retrial for the greater offense  



                                                                                             23  

was barred by the statutory rule codified in AS 12.20.040.                                        



                     But in both Hughes's case and Dere's case, the trial judge did not enter  



                               

judgement against the defendant until all of the charges were resolved.  Thus, there was  



                                                                  

neither a constitutional impediment nor a statutory impediment to holding a retrial on the  



greater offense.  



                (b) This Court's decisions in Staael v. State and Dresnek v. State  



                     On April 12, 1985 (nineteen months after this Court issued our decision in  

                                                                                       



Hughes),  this  Court  decided  a  pair  of  appeals  in  which  the  defendants  challenged  



different aspects of the Hughes decision.  



                     One of these cases was Staael v. State, 697 P.2d 1050 (Alaska App. 1985).  

                                  



Like Hughes , Staael presented a situation where the jury was asked to consider both a  



      21   Hughes , 668 P.2d at 846-47.  



      22   See  People v. Fields , 914 P.2d 832, 838 (Cal. 1996); Mauk v. State                                  , 605 A.2d 157,  



 170-71 (Md. App. 1992); State v. Henning , 681 N.W.2d 871, 883-86 (Wis. 2004).  See also  

 United States v. Bordeaux, 121 F.3d 1187, 1192-93 (8th Cir. 1997);                                    People v. Kettler , 446  

N.E.2d 550, 555 (Ill. App. 1993);                  State v. Snellbaker, 639 A.2d 384, 387 (N.J. App. 1994).       



      23  

                                                         

           See People v. Fields , 914 P.2d 832, 839-840 (Cal. 1996); Middleton v. State , 569 A.2d  

 1276, 1280-81 (Md. 1990) (both cases applying rules similar to AS 12.20.040).  



                                                                -  19 -                                                          2644
  


----------------------- Page 20-----------------------

greater charged offense (attempted murder) and a number of lesser included offenses,   



and where the trial judge ultimately declared the jurors hung as to the greater offense.  



But unlike the trial judge in Hughes , the trial judge in Staael declared a complete mistrial  

                                                              



and discharged the jury, without giving the jurors a further opportunity to see if they  

                          



                                                                                                   24  

could reach unanimous agreement on a lesser included offense.                                           



                     Staael was brought to trial a second time, and this time he was convicted  



                                                                             25  

of the charged greater offense, attempted murder.                                  



                                       

                     On appeal, Staael conceded that the trial judge correctly found that the jury  



                                                                                          26  

at his first trial was hung on the attempted murder charge.                                          

                                                                                              But Staael noted that there  



                                                                      

was at least a possibility that, if the jury had been allowed to continue its deliberations,  



                                                              

the jury might have found him guilty of one of the lesser included offenses - and Staael  



                           

contended that, if the jury had indeed found him guilty of a lesser offense, then the  



                                                                                  

double jeopardy clause would have prohibited  the State from bringing him to trial a  



                                                                      27  

                                                           

second time on the attempted murder charge.                                Based on this reasoning, Staael argued  



                                                                                        

that there had been no manifest necessity for declaring a mistrial at the first trial, and  



therefore the result of the second trial (i.e., Staael's conviction for attempted murder)  



                               28  

should be nullified.     



     24   Staael, 697 P.2d at 1051-52. 
 



     25   Id. at 1052. 
 



     26   Id. at 1053.
  



     27   Ibid. 
 



     28   Ibid. 
 



                                                               - 20 -                                                          2644
  


----------------------- Page 21-----------------------

                     Staael acknowledged that his argument was inconsistent with this Court's   

decision in Hughes , but he argued that Hughes was wrongly decided.                                           29  

                                                                                                                  This Court  



concluded that Staael's argument was based on a misreading of double jeopardy law.  



                     In particular, we re-affirmed our holding in Hughes that, even if the jury  

                          



might be able to reach a verdict on a lesser included offense, the State is still entitled to  

have the jury decide the greater charged offense. 30  

                                                                                In Staael's case, because the trial  



                                                                                                          

judge properly found that the jury was hung as to that greater offense, Staael's retrial on  



                                              

the greater offense was not a "successive prosecution".  Rather, it was a continuation of  



                                      31  

 Staael's initial jeopardy.      



                                         

                     On the same day that this Court decided Staael, we also decided Dresnek  



v. State, 697 P.2d 1059 (Alaska App. 1985), affirmed 718 P.2d 156 (Alaska 1986).   



                                   

                    Dresnek  involved only a single trial (not a mistrial and a retrial), but the  



                                                                                                                

defendant in Dresnek challenged one of the basic premises of the Hughes decision:  the  



                                                                               

rule that the government is entitled to a jury verdict on the greater charged offense, even  



when the jury is able to reach a unanimous verdict on a lesser included offense.   



                    Under Hughes , a criminal prosecution cannot  come to an end with the  

                                



defendant's conviction of a lesser included offense unless the jury has unanimously  

concluded  that  the  defendant  is  not  guilty  of  the  greater  charged  offense. 32                                     The  



defendant in Dresnek challenged this aspect of Hughes .  



                    Dresnek was charged with manslaughter stemming from a motor vehicle  



                                                               

accident.  The jury at Dresnek's trial was instructed on both manslaughter and the lesser  



     29   Ibid.    



     30   Id. at 1055-56.  



     31   Id. at 1056.  



     32   Dresnek , 697 P.2d at 1062-63.   



                                                             - 21 -                                                          2644
  


----------------------- Page 22-----------------------

included offense of criminally negligent homicide, but the jurors were told that they  



could  not  return  a  verdict  on  the  lesser  charge  (negligent  homicide)  unless  they  



unanimously found that Dresnek was not guilty of the greater charge (manslaughter).  

                                                                                                   



The  jury  ultimately  concluded  that  Dresnek  was  guilty  of  the  charged  offense,  

                 

manslaughter. 33  

                            



                                                                        

                     On appeal, Dresnek argued that the trial judge committed error by telling  



                                             

the jurors that, before they  could return a verdict on the lesser offense of criminally  



                                                                                              

negligent homicide, the jurors had to unanimously agree that the State had failed to prove  



                                                                                    34  

that Dresnek was guilty of the charged manslaughter.                                     



                                                                                     

                     Specifically, Dresnek argued that it was error for the judge to include the  



                                                   

word "unanimously" in this jury instruction.  Dresnek took the position that, even if only  



                                                 

some of the jurors thought that the State had failed to prove the charge of manslaughter,  



                                                                   

the jury should be able to return a verdict on the lesser offense of criminally negligent  



                                   

homicide - and that, based on this verdict, the prosecution against Dresnek would end  



                                                                                  35  

(with Dresnek convicted of only this lesser offense).      



                              

                     This Court rejected Dresnek's position and we re-affirmed this aspect of  



                                                      

Hughes . In particular, we rejected Dresnek's argument that a criminal prosecution could  



                                                               

be terminated without a jury verdict on the charged offense, so long as the jurors were  



able to reach a verdict on a lesser included offense:  



                       

                     [W]e rejected [the] premises [of this argument] in Staael v.  

                                              

                     State, 697 P.2d 1050 (Alaska App. 1985), where we held that  

                                                                                                   

                     the  trial  court  may  find  manifest  necessity  and  declare  a  



     33   Id. at 1060.  



     34   Ibid.  



     35   Id. at 1061-62.  



                                                               - 22 -                                                          2644
  


----------------------- Page 23-----------------------

                    mistrial permitting retrial on a greater offense even if a jury  

                                   

                    which is deadlocked on the greater offense might be able to  

                    return  a  unanimous  verdict  convicting  the  defendant  of  a  

                                                                                     

                    lesser-included offense.  See also Hughes v. State , 668 P.2d  

                    842 (Alaska App. 1983).  



Dresnek ,  697  P.2d  at  1061-62.    In  the  footnote  immediately  following  this  passage  



                          

(footnote 6), we noted that there was no provision of the Alaska Criminal Rules, nor any  



                                                                                          

provision of our criminal statutes, that "precludes a mistrial in a case in which the jurors  



                                                                                                       36  

cannot agree on a greater offense but can agree on a lesser offense."                                       



                    Of course, courts do not normally instruct jurors that, if they are hung, they  



may return a verdict on a lesser included offense.  This is because, even when jurors are  

                                                                            



having difficulty reaching agreement, the jurors are not authorized to declare themselves  

                                                                                   



hung.  Only a judge can make that determination.   



                    Instead, jurors are initially instructed that it is their duty to reach unanimous  

                                                 



agreement - and that they may not return a verdict on a lesser included offense unless  

                      



they unanimously find the defendant not guilty of the charged offense.   



                    But as this Court held in Hughes , if the trial judge ultimately concludes that  



the jurors are unable to reach unanimous agreement on the charged offense, the judge  



can  declare  a  mistrial  as  to  that  offense  and  then  authorize  the  jurors  to  continue  

                                                                                 



deliberating, to see if it is possible for them to reach a verdict on the lesser offense.   



                    If the jurors continue deliberating and find the defendant guilty of the lesser  

                                                                                                                      



offense, Hughes , Staael, and Dresnek hold that such a verdict will not terminate the  



prosecution.  The proper procedure is for the trial judge to accept the verdict, but to  

                                                            



refrain  from  entering  judgement  until  the  greater  charge  is  resolved.                                 The  State  is  

                                                                                                                



authorized to bring the defendant to trial again on the greater charged offense (although  

                                                                                            



     36   Id. at 1062 n. 6.  



                                                             - 23 -                                                         2644
  


----------------------- Page 24-----------------------

the State retains the option of not pursuing a second trial, and instead simply asking the       



court to enter judgement on the lesser offense).   



                  (c) This Court's decision in  Whiteaker v. State  



                        The three decisions that we have discussed so far - Hughes , Staael, and  

                                                                                                         



Dresnek - all involve the question of what a trial judge should do in situations where  

                                                                                          



(1) a jury is asked to consider a greater charged offense and one or more lesser included  

                                                                                                 



offenses, and (2) the judge concludes that the jurors are hung on the greater charged  



offense.    



                        There is another, separate issue that sometimes arises in situations where  



a jury is asked to consider a greater charged offense and one or more lesser included  

                                                    



offenses.  This issue arises when the jurors tell the court that they are deadlocked, but the  



jurors neglect to tell the court whether they are deadlocked with respect to the greater  

                                                                                                          



charged offense or, instead, with respect to some lesser included offense.    



                        That  was  the  situation  presented  in  Whiteaker  v.  State,  808  P.2d  270  

                                                                                                                                       



(Alaska App. 1991), where this Court reversed a murder conviction on double jeopardy  

                                                                                                   



grounds.   



                        The defendant in Whiteaker was charged with first-degree murder, and the  

                                                                         



jury was also instructed on the three lesser degrees of criminal homicide (second-degree  

                 



murder, manslaughter, and criminally negligent homicide), on the theory that these were  



                                            37  

lesser included offenses.                        



                        Following deliberations, the jurors announced that they were deadlocked  



- but the jurors did not indicate which charge they were deadlocked on.  Whiteaker's  

             



      37    Whiteaker, 808 P.2d at 274.  



                                                                       - 24 -                                                                  2644
  


----------------------- Page 25-----------------------

defense attorney argued that, at least potentially, the jurors had unanimously voted to  



acquit Whiteaker of first-degree murder, and they were deadlocked on one of the lesser  

                                                              



degrees of criminal homicide.  For this reason, the defense attorney urged the trial judge  



to poll the jurors, or to otherwise inquire whether the jurors had reached a verdict on any  

                               



of the charges before them.  But the trial judge refused to conduct this inquiry; he instead  

                                         



                                                                 38  

declared a mistrial and discharged the jury.      



                                                              

                    (The judge was apparently persuaded by the prosecutor's argument that,  



                                                                                            

because the jury had been instructed not to return a verdict on any of the lesser offenses  



until  they  had  reached  a  verdict  on  first-degree  murder,  the  jurors  must  have  been  



                                                     39 

deadlocked on first-degree murder.                     )  



                                                                                                          

                    The State brought Whiteaker to trial a second time, and at this second trial  



                                                                                    40  

Whiteaker  was  found  guilty  of  second-degree  murder.                                 Whiteaker  then  appealed,  



                                                                                                                         

arguing that the State had violated the double jeopardy clause by bringing her to trial a  



second time.  



                                                                                                                       

                    This Court held that the judge committed error at Whiteaker's first trial by  



declaring a mistrial without ascertaining whether the jurors had reached a unanimous  



                                                                     

verdict on any of the offenses before them.   For this reason, this Court held that the  



double  jeopardy  clause  prevented  the  State  from  retrying  Whiteaker  on  any  charge  



except criminally negligent homicide - the least serious charge on which the jury might  



                                                   41  

potentially have been deadlocked.  



     38   Id. at 272-73.  



     39   Id. at 272.  



     40   Id. at 271.  



     41   Id. at 277-79.  



                                                            - 25 -                                                        2644
  


----------------------- Page 26-----------------------

                     As the United States Supreme Court explained in                                Green v. United States,  



355 U.S. 184, 190-91; 78 S.Ct. 221, 225; 2 L.Ed.2d 199 (1957), there are actually two   



constitutional theories that potentially support this result.   



                     The first theory is based on the premise that juries are normally told that  



they should not return a verdict on a lesser included offense unless they have found the  

                                                   



defendant  not  guilty  of  the  charged  offense.    Thus,  if  the  jurors  had  indeed  been  

                                                                                                                     



deadlocked on a lesser offense, this would impliedly mean that the jurors had already  

                                                                                                                      



unanimously decided that the defendant was not guilty of the greater offense - even if  

                                                



                                                    42  

they neglect to explicitly say so.                      



                     The second theory is based on the constitutional rule that, once a jury has  



                                                                                        

been sworn and jeopardy has attached, the defendant is entitled to have that jury decide  



                                

the case unless (1) the jury is discharged with the defendant's consent or (2) there is a  



                                                                                                                43  

manifest necessity to discharge the jury before it has reached a verdict.                                             



                     In  Whiteaker,  the  trial  judge  discharged  the  jury  without  ascertaining  



                                                                                                                  

whether the jurors had reached a verdict on any of the charges before them.  All the  



                                                                                                         

judge knew was that the jurors were deadlocked, and he failed to take any affirmative  



step to identify which charge they were deadlocked on.  



                                                                                                 

                     If, in fact, the jurors had reached agreement on one or more of the greater  



                                                                                            

charges, and they were deadlocked with respect to one of the lesser degrees of criminal  



                                                                                      

homicide, then with respect to every charge except the one that led to the jury deadlock,  



there was no manifest necessity to discharge the jury short of a verdict.  And if the jury  



                                                                                                      

was discharged over Whiteaker's objection when there was no manifest necessity for  



      42   Green, 355 U.S. at 190-91, 78 S.Ct. at 225.   



      43   Ibid.  



                                                                - 26 -                                                           2644
  


----------------------- Page 27-----------------------

doing so, then the double jeopardy clause prohibited the State from bringing Whiteaker  



to trial a second time on those charges.   



                    Since it was impossible to know for sure which charge had led to the jury  

                                                                                



deadlock in Whiteaker's case, this Court concluded that Whiteaker would be unlawfully  



placed in jeopardy a second time if, upon retrial, she was  prosecuted for any crime  



                                                                                                                           44  

greater than the least serious of the lesser offenses - criminally negligent homicide.  

                                               



                                                                                                              

                   In the present appeal, Dere analogizes the events at his first trial to the  



situation in Whiteaker.  But as we have just explained, Whiteaker presented a situation  



that was materially different from Dere's case.   



                   The problem in Whiteaker was that, because the judge failed to ask the jury  



to clarify the status of their deliberations, the judge declared a mistrial and discharged  



the jury when the only thing he knew for sure was that the jurors were deadlocked on one  



unspecified charge, and when the judge did not know whether the jurors had reached a  

                                                                                                           



decision on one or more of the other offenses before them.  For this reason, this Court  



concluded that the defendant in  Whiteaker would be unlawfully placed in jeopardy a  



second time if, upon retrial, she was prosecuted for any crime greater than criminally  

                        



negligent homicide.   



                   This was not the situation in Dere's case.  At the end of Dere's first trial,  

                                                                         



it was clear where the jurors stood:  they were unable to reach a verdict on the robbery  

                                                                                                              



charge, but they unanimously agreed that Dere was guilty of assault and theft.  We  

                                                                                             



therefore reject Dere's attempt to analogize his case to the facts of  Whiteaker.  



                   Dere  also  argues  that  there  is  a  footnote  in  Whiteaker  which  overrules  

                                                                    



Hughes sub silentio (that is, it overrules Hughes without mentioning the case by name).  

                                                                       



     44   The California Supreme Court adopted the same approach to this double jeopardy  



problem in Stone v. Superior Court, 646 P.2d 809, 818-820 (Cal. 1982).  



                                                           - 27 -                                                      2644
  


----------------------- Page 28-----------------------

Dere points to footnote 6 of the Whiteaker opinion - a footnote which states that Alaska  

                                                                                   



law does not allow a jury to return a verdict on a lesser included offense if the jury is  

                



"deadlocked" on the greater charged offense.  Here is the text of that footnote:  



                      

                                Whiteaker  does  not  argue  that  she  is  entitled  to  a  

                    verdict   on   lesser-included   offenses   where   the   jury   is  

                                                                

                    deadlocked on the greatest offense.  We concur with other  

                    jurisdictions which hold that such partial verdicts are often  

                                                                                    

                    compromise  verdicts  and  should  not  be  considered  final  

                    verdicts.   Dresnek , 697  P.2d  at  1062; Staael v. State, 697  

                                                          

                    P.2d 1050, 1056 (Alaska App. 1985).  Jurisdictions which  

                    allow such verdicts often have legislation or court rule which  

                                                                                   

                    authorizes them. ... Alaska has no such law or court rule and  

                                                                     

                    our decision in Dresnek , 697 P.2d at 1062 n. 6, precludes  

                                                                               

                    such an approach.  



Whiteaker, 808 P.2d at 274 n. 6.  



                    Dere suggests that this footnote is irreconcilable with this Court's earlier  



decision in Hughes , and he argues that this footnote represents the true state of Alaska  

                                                                                



law on this subject.  We reject Dere's argument for several reasons.  



                    First, this footnote is completely dictum .  As the footnote itself acknow- 

                                                                                                             



ledges, Whiteaker's appeal did not raise the issue of whether a court can allow a jury to  

                                                



continue deliberating and return a verdict on a lesser included offense after the jury  



announces that it is deadlocked with respect to the greater offense.   



                    Second, it is all but inconceivable that this Court would overrule Hughes  

                                     



in a case that did not raise the issue decided in Hughes .  It is even more inconceivable  

                                                                                                      



that this Court would overrule Hughes in a footnote that does not mention Hughes - but  

                                                                                    



which  does mention two other decisions (Staael and Dresnek) which affirm various  



aspects of the Hughes decision.  



                                                             - 28 -                                                         2644
  


----------------------- Page 29-----------------------

                    Third, the footnote cites Staael and Dresnek as standing for the proposition  

                                                                                        



that "partial verdicts are often compromise verdicts and should not be considered final  

                    



verdicts".  This is wrong.  Hughes expressly authorizes a court to accept such verdicts  

                                                                                      



- and, contrary to what the Whiteaker footnote says, neither our decision in Staael nor  



our decision in Dresnek precludes the procedure that this Court explicitly endorsed in  



Hughes .  



                    In short, after a trial judge concludes that the jury is hung on the greater  



charged offense, Alaska law allows the judge to direct the jurors to continue deliberating  

                                                                                              



and potentially return a verdict on a lesser included offense.  To the extent that the  



 Whiteaker footnote might be interpreted as saying that this procedure is unlawful, the  



footnote is wrong.  



                    Because of all this, we conclude that when the Whiteaker footnote refers to  

                                                                                                                    



a  "partial  verdict"  returned  by  a  "deadlocked"  jury,  the  footnote  is  referring  to  the  



proposition that this Court expressly rejected in Dresnek  -  i.e., Dresnek's contention  



that a jury should be allowed to return a litigation-ending verdict on a lesser included  



offense if the jurors believe that they cannot reach unanimous agreement on the charged  

                               



offense.  



                    In this context, "deadlocked" does not mean the same thing as "hung".  The  

                                                                                                             



jurors may believe that they are "deadlocked" in the sense that they do not perceive any  

                                                                    



way for them to reach unanimous agreement on the charged offense.  But the jurors are  

                                                                                                     



not yet "hung" - because that requires a judicial ruling.  



                    As our cases make clear, the fact that jurors may find themselves unable to  



agree does not mean that they are "hung" for purposes of declaring a mistrial.  A trial  

                                 



judge  can  properly  direct  the  jurors  to  continue  deliberating  if  they  have  not  yet  

                                                                                               



deliberated for an extended period of time.  The judge can also ask the jurors if there are  

                                                                                                                   



any matters of law that they would like to have clarified.  And the judge can give the  



                                                           - 29 -                                                       2644
  


----------------------- Page 30-----------------------

jurors the kind of instruction that was endorsed by our supreme court in                                       Fields v. State ,  



487 P.2d 831, 842-43 n. 37 (Alaska 1971) - an instruction urging the jurors to extend  



"a proper regard and deference to the opinions of each other" and to "consult with one  

                                                                                                 



another  and  ...  deliberate  with  a  view  to  reach[ing]  agreement",  if  that  can  be  done  



"without violence to [their] individual judgment".   



                     The jurors are "hung" on the charged offense (and a mistrial is warranted)  

                                                                                            



only if the jurors' deadlock persists to the point where the judge concludes that there is  

                                                                                      

no probability that a unanimous verdict will ever be reached. 45  

                                                                                                    In Hughes , this Court  



declared that, in such circumstances, the trial judge can declare a mistrial on the charged  

                                                                       



offense  and  authorize  the  jury  to  continue  deliberating  on  lesser  included  offenses.  

                                                                                          



Dresnek says nothing different.  



                     To the extent that footnote 6 of Whiteaker might be interpreted as endorsing  

                                                                                     



a different rule from the one we adopted in Hughes , we now formally disavow that  



interpretation.  



                (d) Conclusion:  It was proper to allow the jury at Dere's first trial to  

                                                                     

                return verdicts on the assault and theft charges  



                     At Dere's first trial, the jury was unable to reach a verdict on the first- 

                                                             



degree robbery charge.  This left two charges remaining:  assault and theft.  



                     As we have explained, the Alaska Supreme Court has held that a charge of  

                                 



theft is not a lesser included offense of a robbery charge.  Thus, the trial judge was  

                       



required to have the jury decide the theft count in any event.   



                     With regard to the assault count, we are proceeding under the debatable  

                                                                          



assumption that the fourth-degree assault charge was necessarily included within the  



     45   Koehler v. State , 519 P.2d 442, 448 (Alaska 1974).  



                                                               -  30 -                                                         2644
  


----------------------- Page 31-----------------------

robbery charge.  But even so, under this Court's decision in Hughes , after the trial judge  



declared the jury hung as to the robbery count, it was proper for the judge to allow the  

                                                                                                                



jury to continue deliberating on the assault count, and to return a verdict on that crime.  

                                                                           



                    Dere argues that the dissenting opinion in Hughes is better reasoned, that  

                                                                                                             



Hughes was wrongly decided, and that it should now be overruled.  But we have twice  

                                               



                                                                                                        46 

declined invitations to overrule the double jeopardy holding of Hughes .     And under the  



                                                                          

doctrine of stare decisis, it is Dere's burden to  convince us (1) that our decision in  



                                                                               

Hughes was clearly wrong at the time it was issued, and (2) that more good than harm  



                                                                                      47  

would result from overturning this established precedent.  



                    Dere has not met this burden.  We therefore decline to overrule Hughes .  



               (e) Our roadmap for trial judges and trial advocates  



                                                                                     

                    We now take this opportunity to summarize the procedures that trial judges  



should follow when a jury is presented with both a charged offense and one or more  



lesser included offenses, and when the jurors announce that they are unable to reach  



agreement on the charged offense.   



                    As we have explained, both the government and the defendant have a right  



to insist on a verdict on the charged offense.  The jurors' mere announcement that they  

                                                                                                                     



are deadlocked on the charged offense is not sufficient, as a legal matter, to relieve the  

       



jurors of the duty of rendering a verdict on the charged offense.  A judge should take  



reasonable, non-coercive measures to see if the jurors can, in fact, reach a verdict.  But  

                                                                                  



     46   Staael v. State, 697 P.2d 1050 (Alaska App. 1985);                       Northcott v. State , unpublished,  



2001 WL 1042868 (Alaska App. 2001).  



     47   State v. Dunlop , 721 P.2d 604, 610 (Alaska 1986).  



                                                            -  31 -                                                       2644
  


----------------------- Page 32-----------------------

if the judge concludes that there is no probability that the jurors can reach a unanimous       



decision on the charged offense, then the judge can declare a mistrial on that offense.   



                        At that point, if both parties do not expressly agree to a complete discharge  

                                                                            



of the jury, the judge should ask the jurors whether they believe that they would be able  

                                                            



to reach a verdict on a lesser offense if they  resumed deliberations.  If a significant  

                                                                                      



number of jurors say yes, then the judge should direct the jurors to resume deliberations.  

                                                                                                  



But even if the jurors indicate that they do not think they would be able to reach a verdict  

                                                                                              



on a lesser offense, the judge must still independently assess whether the jurors are truly  

                                                      



hung regarding the potential lesser offenses.  



                        There  may  be  cases  -  for  instance,  a  case  where  the  sole  defense  is  

                                                                 



mistaken identity - where the jurors' inability to reach a verdict on the charged offense  

                                                                                                                            



will likely also mean that they cannot reach a verdict on lesser offenses either.  But in  



other cases, the jurors may be unable to unanimously agree on the defendant's mental  



state, or whether the defendant used a deadly weapon, or the like, and this disagreement  



might not preclude the jurors from reaching a verdict on a lesser offense.  



                        Ultimately,  the  question  is  whether  there  is  a  manifest  necessity  for  



discharging the jurors without an attempt to obtain a verdict on a lesser offense.  This is  

                                                                                                 



the judge's  decision, not the jury's - and the test is whether the jurors are at such an  



impasse that there is no probability that a unanimous verdict can be reached on the lesser  



               48  

offense.     



                                                                                               

                        Although Dere's case and the Hughes case both involved situations where  



                                                                                                  

the lesser included offense was separately charged as a discrete count, we conclude that  



                                                                

the same rules apply to situations where a lesser offense is given to the jury, not as a  



      48    Koehler v. State , 519 P.2d 442, 448 (Alaska 1974).  



                                                                          -  32 -                                                                     2644
  


----------------------- Page 33-----------------------

separately charged count, but merely because the lesser offense is necessarily included     



in the charged offense and a party has requested it.  



                     On this issue, we agree with the analysis of the California Supreme Court  

                                                                                           



in Stone v. Superior Court, 646 P.2d 809 (Cal. 1982).  In Stone, the California court  

                                                                                          



concluded that, for the purpose of delineating the scope of double jeopardy protections,  

                                                                                             



the situation where the State chooses to charge a lesser included offense in its own  



separate  count  is  "logically  indistinguishable"  from  the  situation  where  the  lesser  

included offense is given to the jury at a party's request. 49  

                                                                                              If the law treated these two  



situations differently, "such a rule would make [the parties'] substantive rights turn on  



the formality of whether [the defendant] was charged in separate counts with the greater  

                           



offense and the lesser included offense, or was charged in a single count with only the  

                                                                                                                     

greater offense." 50  

                                 



                                                                                      

                     If, after the judge has declared a mistrial on the charged offense, the jurors  



               

are able to reach a verdict on the lesser offense, the judge should accept the verdict but  



                        

should refrain from entering judgement against the defendant until the greater charge is  



                                                                                             

resolved - either by a verdict at a retrial, or by dismissal (if the State is willing to end  



the prosecution with the defendant's conviction on the lesser offense).  



                                                                                                                 

                     If, upon retrial, the defendant is found guilty of the greater offense, then the  



                                                                   

judge should merge the earlier verdict on the necessarily included offense with the later  



guilty verdict on the greater offense, and enter only a single conviction for the greater  



              51  

offense.           



      49   Stone, 646 P.2d at 819.  
 



      50   Ibid.
  



      51   Tuckfield v. State, 621 P.2d 1350, 1352-53 (Alaska 1981). 
 



                                                                -  33 -                                                           2644
  


----------------------- Page 34-----------------------

                     On the other hand, if the jury at the retrial finds the defendant not guilty of  

                                                                                    



the greater offense, then the court should enter judgement against the defendant for the  

                               



lesser included offense, based on the guilty verdict that was returned by the jury at the  

                                                                               



defendant's earlier trial.  



           Why we conclude that Dere was not prejudiced when, at his second trial,  

           the judge declined to instruct the jurors that assault and theft were lesser  

                                                                                           

          offenses included within the robbery charge  



                    Near the beginning of Dere's second trial, Dere's attorney asked the trial  



judge to instruct the jury to deliberate on, and to return new verdicts on, the crimes of  

                                                                                                           



assault and theft - even though the first jury had already found Dere guilty of those  

                                                                                                                        



crimes.  The defense attorney argued that this procedure was necessary so that the jury  



at the second trial would "have the same opportunity [as the first jury] to evaluate all  

                                                  



three counts rather than just ... robbery in the first degree."   



                     The trial judge asked the defense attorney, "So you want, in other words,  



two  bites  at  the  apple?    Having  been  found  guilty,  you  want  another  trial  ...  ?"    In  



response to the judge's question, the defense attorney agreed that he was seeking a trial  

                                                                                                               



de novo on the assault and theft charges:  "Yes, sir, two bites at the apple."  The judge  

                                                                          



rejected this request.   



                     Later in the trial, the defense attorney re-formulated his request.  Although  

                                                                                                                     



the defense attorney declared that Dere "would still like to have that second bite of the  

                                                                                                   



apple", the attorney now offered a separate rationale for instructing the jurors about the  

                                                      



assault and theft charges.  He told the judge that the jury should be instructed that assault  

                                                                                                                    



and theft were lesser included offenses of the robbery, so that the jury at the second trial  

                                                                



would have the same opportunity as the first jury to evaluate whether Dere's actions  



constituted robbery or, instead, merely the two lesser crimes of assault and theft.  



                                                             -  34 -                                                         2644
  


----------------------- Page 35-----------------------

                      The trial judge again denied the defense attorney's request.  The judge  



concluded that, even without jury instructions on the crimes of assault and theft, Dere's   



attorney  was  still  free  to  argue  to  the  jury  that  the  State  had  failed   to   prove  all  the  



elements of robbery - in particular, the element that Dere did not simply assault Grafft       



(the restaurant worker), but rather that Dere committed this assault for the purpose of  



taking or retaining Grafft's mobile phone.  



                      (As we explained earlier, this was the very strategy that the defense attorney  



adopted at Dere's first trial - when the attorney explicitly told the jury that they should  

                                                                                               



convict Dere of assault and theft, but he asked the jury to reject the robbery charge  



because  the  State  had  failed  to  prove  that  Dere  assaulted  Grafft  for  the  purpose  of  



facilitating the theft.)  



                      In this appeal, Dere claims that the trial judge committed error at the second  

                                                                                               



trial when the judge refused to instruct the jurors on the crimes of assault and theft.  



                      Dere no longer asserts the initial position taken by his trial attorney - the  

                                                                            



position that Dere was entitled to a trial de novo on the assault and theft charges.  But  

                       



Dere renews his trial attorney's second argument:  Dere contends that, without jury  



instructions on the lesser crimes of assault and theft, the jurors at his second trial might  

                                                                                                                



not have understood that the crimes of assault and theft do not necessarily combine to  



constitute a robbery - that robbery is committed only when the assault is done for the  

                                       



purpose of facilitating the taking (or the retention) of the property.  



                      In  making  this  argument,  Dere  relies  on  dictum  from  our  decision  in  

                           



Hughes .  In this dictum, we discussed the situation where a mistrial is granted on the  



charged greater offense, but the jury returns a guilty verdict on a lesser included offense.  

                                               



We suggested that if, in these circumstances, the State chose to pursue a retrial of the  



greater offense, the trial judge might retrospectively declare a "mistrial" in the first  trial  



- so that the second trial would be a replay of the first trial, and so that the court could  

                                                                                                          



                                                                 -  35 -                                                             2644
  


----------------------- Page 36-----------------------

avoid the potential problem of having guilty verdicts on both the greater offense and the  

                              



lesser included offense.  See Hughes v. State , 668 P.2d at 847-48 & n. 10.  

                                             



                    As we have already explained, Dere's theft charge was not a lesser included  

                                                                                      



offense within the robbery charge.  We therefore reject Dere's argument with respect to  

                                                                            



the theft charge.  Dere was not entitled to a retrial of that charge, nor was he entitled to  



have the jury instructed that theft was a lesser included offense.  We thus limit our  

                                                                 



discussion to the fourth-degree assault charge (under the assumption that this charge was  



a lesser included offense of robbery).   



                    We agree with Dere that it was important for the jurors to understand that  



the offense of robbery consists of more than an assault and a contemporaneous taking of  

                                                                                    



property - that robbery requires a nexus between the assault and the taking.  But Jury  



Instruction 13 addressed this issue of law.  In Instruction 13, the jurors were explicitly  

                                                       



told that the charge of robbery required the State to prove, not only that Dere "used or  

               



threatened the immediate use of force" upon Grafft "in the course of taking ... property  

                                                                      



from  [his]  immediate  presence  and  control",  but  also  that  Dere's  use  of  force  was  



"intended to prevent or overcome resistance to the taking of the property or the retention  

                                                                             



of the property".   



                    In other words, the jury was explicitly told that Dere's actions would not  



constitute  robbery  unless  his  assault  on  Grafft  was  committed for  the  purpose  of  



facilitating the taking or retention of Grafft's phone.  Thus, Dere's defense attorney was  

                                                                     



free to argue that, even if Dere assaulted Grafft, Dere was not guilty of robbery because  

                                                                                                        



the State had failed to prove the requisite relationship between the assault and the theft.  

                               



                    Indeed, at the conclusion of the second trial, Dere's attorney made precisely  



this argument. During the defense attorney's summation to the jury, the defense attorney  

                                                                                                       



relied on Jury Instruction 13 to argue that even if Dere took the phone from Grafft, and  

                                                                                                  



even if Dere then assaulted Grafft, Dere was still not guilty of robbery  because  the  

                                                                                                     



                                                              -  36 -                                                         2644
  


----------------------- Page 37-----------------------

assault and the taking of the mobile phone lacked the necessary relationship to each  



other.  According to  the  defense attorney, Dere did not use force  to accomplish the  

                                                                                                        



taking, and therefore there was no robbery.   



                    For these reasons, we conclude that Dere was not prejudiced when the trial  

                                                                                         



judge rejected the defense attorney's request to have the jury separately instructed on the  



crimes of assault and theft.   



                    With regard to the dictum in Hughes - the suggestion that a trial judge  

                                                                                         



might retrospectively declare a mistrial in a defendant's first trial if the State chose to try  



the defendant a second time for the greater offense - we note that footnote 10 of the  

                                                                                                        



Hughes opinion explicitly declares that the Court was not deciding whether a mistrial is  

                                                                                                                     



always required under these circumstances.  Rather, we suggested that a mistrial was  



simply one method of making sure that the defendant was not prejudiced by holding a  

                   



second trial in which the jury is only asked to decide the remaining greater offense.  

                                                                          



Hughes , 668 P.2d at 848 n. 10.   



                    In fact, footnote 10 of Hughes cites the Alaska Supreme Court's decision  

                                                                                                           



in Padie v. State , 557 P.2d 1138 (Alaska 1976), as another method of dealing with the  

                                                                



potential prejudice arising from such a second trial.  



                    The defendant in Padie was indicted for the murder of a man who had  

                                                                                                                      



disappeared more than eight years earlier.  Alaska law allowed a prosecution for murder  

                                                                                  



to be brought at any time; but by the time Padie was indicted, the statute of limitations  

                                                                 

barred the State from prosecuting Padie for any lesser degree of criminal homicide. 52  

                                                                                                                                  



                                        

                    Before trial, Padie notified the State that he intended to claim that he acted  



in the heat of passion, and that his crime was therefore manslaughter - a time-barred  



     52   Padie , 557 P.2d at 1140.  



                                                             -  37 -                                                        2644
  


----------------------- Page 38-----------------------

               53 

offense.     The trial judge ruled that, because the statute of limitations precluded Padie's   



conviction for manslaughter, it would be improper to instruct the jury on manslaughter                      



- or to even allow Padie's attorney to present evidence supporting a heat-of-passion  



               54  

defense.                                                                        

                    Padie then petitioned the supreme court to grant interlocutory review of this  



ruling.   



                       The supreme court agreed with the trial judge that it would be improper to  

                                                                                                                                   



instruct the jury to return a verdict on a charge of manslaughter if, by law, Padie could  

                                                                                                                          

not be convicted of that crime. 55  

                                                          Nevertheless, the supreme court ruled that Padie was  



                                                                                                                      

entitled to present evidence that he acted in the heat of passion, and Padie was likewise  



                                                                                               

entitled to jury instructions which informed the jurors that Padie should be acquitted of  



                                                                             

murder if they found in Padie's favor on the question of heat of passion (i.e., if the State  



                                                                                                                                          56  

failed to disprove Padie's heat-of-passion defense beyond a reasonable doubt).      



                       Since the standard instruction on the elements of murder does not normally  



                                                                    

address the issue of heat of passion, the supreme court concluded that Padie's jury should  



                                                                                                                                        

receive special instructions on the elements of heat of passion, and on the fact that heat  



                                                                                        

of passion is a defense to a charge of murder.  But because of the special circumstances  



                                                                                                                            

of Padie's case, if the jurors found in Padie's favor on the question of heat of passion,  



                                                                                                                     

they were to be instructed to acquit him, rather than convict him of the lesser offense of  

manslaughter (which was time-barred). 57  



      53   Id. at 1140-41.  



      54   Id. at 1141.  



      55   Id. at 1142.  



      56   Ibid.  



      57   Ibid.  



                                                                      -  38 -                                                                 2644
  


----------------------- Page 39-----------------------

                    Returning to the facts of Dere's case, the trial judge at Dere's second trial  

                                                           



might reasonably have chosen to give the jurors an instruction tailored to the defense  

                                                                                 



theory of the case - a special instruction informing the jurors that they should acquit  

                                                                                                         



Dere of robbery if they found (1) that Dere had committed an assault and a theft, but if  

                           



they also found (2) that the State had failed to prove the required connection between the  



assault and the theft (i.e., that the assault was committed for the purpose of facilitating  

                                                                                                   



the taking or retention of Grafft's mobile phone).  



                     (In fact, if Dere's attorney had decided that it would be advantageous to let  



the jurors know that Dere had already been convicted of the assault and the theft, the  

                                                             



defense attorney might conceivably have asked the trial judge to depart from normal  



procedure by informing the jurors that Dere had been convicted of the assault and the  

                                                                                    



theft at an earlier trial.)  



                    But Dere's case is unlike Padie in one important respect.  In Padie , the  



standard instruction on the elements of murder would not alert the jurors to the potential  

                                                                                                



defense of heat of passion, so a special instruction on heat of passion was required.  

                                                 



In Dere's case, on the other hand, the jury received an instruction on the elements of  

                              



robbery which sufficiently explained the legal principle that Dere would not be guilty of  

                                                                                                                         



robbery unless his assault on Grafft was committed for the purpose of facilitating the  



taking or retention of Grafft's mobile phone.  



                    This instruction on the elements of robbery  allowed Dere's attorney to  

                                                                                           



make his chosen argument to the jury.  Thus, even though a special instruction on this  

                



matter might have been helpful, the omission of such an instruction was not error.  As  

                                                                       



our supreme court has stated, if the existing jury instructions adequately explain the law,  

                                                                                                              



a trial judge has broad discretion to give or withhold special instructions on the parties'  

                                                                                             



                                                              -  39 -                                                         2644
  


----------------------- Page 40-----------------------

theories of the case.            In such circumstances, the judge's decision "is subject to review       



                                              58  

only for abuse of discretion".      



                                                   

                     Here, because the existing jury instructions allowed Dere's trial attorney  



to argue his theory of the case, we find no abuse of discretion.  



          Dere's claim of a discovery violation  



                                                                                                                    

                     Immediately prior to the parties' opening statements at Dere's first trial, the  



prosecutor alerted the trial judge that, through inadvertence, the State had only just then  



provided the defense attorney with the audio recording of Dere's police interview in the  

                                                             



restaurant parking lot.  Dere's attorney requested that opening statements be delayed  

                                                                                                                      



until he could listen to this recording. But when the prosecutor stated that he did not plan  

                                                                 



on introducing Dere's statements to the officer unless Dere took the stand at trial, the  



judge decided to proceed with opening statements without further delay.   



                     Much later at trial, during the State's rebuttal case, the prosecutor argued  

                                                                                             



that the defense attorney had questioned the State's police witnesses in such a way as to  

                                                                                                           



open  the  door  to  admission  of  Dere's  police  interview.    The  judge  agreed,  and  the  

                             



prosecutor played the recording for the jury.   



                     Now, in the present appeal, Dere argues that the trial judge erred when he  

                                                                         



admitted the audio recording at Dere's first trial - and that, because of this, Dere is  

                                                                



entitled to a new trial on all three charges.   



                     We need not decide whether the trial judge abused his discretion when he  

                                                                                         



allowed the prosecutor to introduce the recorded interview at Dere's first trial, because  

                                          



we conclude that any error was harmless.   



      58   Chenega Corp. v. Exxon Corp., 991 P.2d 769, 776 (Alaska 1999).  



                                                               - 40 -                                                          2644
  


----------------------- Page 41-----------------------

                    As we explained earlier in this opinion, Dere's attorney expressly told the  



jurors at the first trial - both in his opening statement and in his summation - that Dere  

                                                                                                                       



should be convicted of assault and theft.  And at the end of the first trial, those were the  

                                                                



only  charges  that  Dere  was  convicted  of.    Thus,  any  error  in  the  judge's  mid-trial  



evidentiary ruling did not appreciably affect the jury's verdicts.  



                    And by the time of Dere's second  trial, the question of the State's late  

                                                                            



disclosure of the recording was entirely moot.  Dere's attorney prepared for the second  



trial with full knowledge of, and full access to, the recording of Dere's police interview.  

                                                                   



Indeed, Dere's attorney did not object to the admission of that recording at the second  



trial - and we reject any notion that the trial judge was required to exclude the recording  

                                                                                   



sua sponte, when the only ground for objection was a late disclosure that was now cured.  

                                 



          Dere's challenges to two conditions of his probation  



                    Dere challenges two of his conditions of probation.  The sentencing judge  

                                                              



imposed these conditions without discussion, but Dere's attorney did not object to them.  

                                                    



Because Dere did not object to the imposition of these conditions of probation, he must  

                                                                       



                           59  

show plain error.  



                                                                            

                     One of the challenged conditions - Special Condition 11 - requires Dere  



to obtain a mental health assessment if requested to do so by his probation officer, and  



                                                                                               

to comply with any ensuing treatment recommendations.  We find no plain error in the  



                                                        

court's imposition of this condition.  When the police contacted Dere in the parking lot  



                                                                                                          

of the restaurant, Dere was agitated and he was behaving erratically; he told the police  



     59   State v. Ranstead, 421 P.3d 15, 21-23 (Alaska 2018).  



                                                             - 41 -                                                          2644
  


----------------------- Page 42-----------------------

that he intended to start choking people.  Given these circumstances, the sentencing  



judge could reasonably conclude that a mental health assessment was appropriate.   



                    The second challenged probation condition - Special Condition 12 -  



requires Dere to ingest medication prescribed by a physician chosen by Dere's probation  

                                  



officer  or  mental  health  provider.    The  judge  heard  no  testimony  supporting  this  

                                                                                       



condition, and he entered no findings justifying it.    



                    In Kozevnikoff v. State , 433 P.3d 546 (Alaska App. 2018), we disapproved  

                                                                    



a  similar  condition  of  probation,  to  the  extent  that  it  required  the  defendant  to  take  

    



psychotropic  drugs  against  his  will.    Kozevnikoff  was  another  instance  where  the  



sentencing judge failed to hold a hearing on the need for forced medication, and failed  

to make findings to justify mandated ingestion of psychotropic drugs. 60  

                                                                                                           



                                                                                                     

                    Based on our holding in Kozevnikoff , we conclude that it was plain error for  



       

the judge to impose this condition of probation in Dere's case.  We therefore vacate  



Special Condition 12.   



          Conclusion  



                                                                                        

                    We VACATE Special Condition of Probation 12, but in all other respects  



we AFFIRM the judgement of the superior court.  



     60   Kozevnikoff , 433 P.3d at 548.  



                                                           - 42 -                                                      2644
  

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