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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LAMMAR DAVID BURNEY,
Court of Appeals No. A-13327
Appellant, Trial Court No. 3AN- 14-02889 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee.
JAMAL KAREEM TOWNSEND,
Court of Appeals No. A-13344
Appellant, Trial Court No. 3AN- 14-02888 CR
v.
STATE OF ALASKA,
Appellee. No. 2794 - January 3, 2025
Appeals from the Superior Court, Third Judicial District,
Anchorage, Jack W. Smith and Erin B. Marston, Judges.
Appearances: Jane B. Martinez, Law Office of Jane B.
Martinez, LLC, Anchorage, under contract with the Office of
Public Advocacy, for Appellant Burney. Brooke Berens,
Assistant Public Advocate, and James Stinson, Public
Advocate, Anchorage, for Appellant Townsend. Elizabeth T.
Burke, Assistant Attorney General, Office of Criminal
----------------------- Page 2-----------------------
Appeals, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
Judge ALLARD, writing for the Court.
Judge TERRELL, concurring in part and dissenting in part.
Lammar David Burney and Jamal Kareem Townsend were convicted,
under a theory of principal or accomplice liability, of first-degree murder for shooting
into a darkened apartment window and killing a fifteen-year-old girl who was asleep in
her bed. 1 Both defendants were also convicted, under a theory of principal or
accomplice liability, of second-degree assault and second-degree weapons misconduct
for conduct related to the shooting.2 Townsend was also separately convicted of first-
degree weapons misconduct for firing shots towards that same apartment eleven days
3
prior to the murder.
Both men now appeal, raising two claims of error. First, they argue that
the trial court erred in failing to sever their cases based on their mutually antagonistic
defenses. Second, they argue that the trial court erred in denying their motion for a new
trial following a post-trial allegation of juror misconduct and jury tampering.
For the reasons explained in this opinion, we conclude that the trial court
should have severed the cases based on the defendants' mutually antagonistic defenses.
However, we also conclude, based on the overwhelming strength of the State's case for
second-degree murder, that the error was prejudicial only as to the jury's guilty verdict
1 AS 11.41.100(a)(1)(A). The jury also found Burney and Townsend guilty of second-
degree murder, which merged with their convictions for first-degree murder.
2 AS 11.41.210(a)(1) and AS 11.61.195(a)(3)(B), respectively.
3 AS 11.61.190(a)(2).
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for first-degree murder rather than second-degree murder. In other words, we conclude
that the remedy for the trial court's failure to sever is limited to vacating the first-degree
murder convictions and entering judgment for second-degree murder. Lastly, we
conclude that the trial court erred in denying the defendants' motion for a new trial
based on juror misconduct and jury tampering and that further proceedings are required
to resolve that claim.
Background facts
We begin by presenting the underlying facts of this case. We note that the
parties sometimes presented conflicting versions of events, which will be indicated
where appropriate.
Fifteen-year-old P.A. was shot and killed while she was sleeping in her
bedroom in the early morning hours of April 1, 2014. Eleven days earlier, on March 21,
Townsend had gotten into a physical altercation with Quentin Hargrove, P.A.'s father,
that ended with Townsend firing shots into the building where the family lived.
The altercation arose because Townsend's girlfriend, Desiree Rilatos, was
unhappy with the marijuana that she had purchased from Hargrove. After Rilatos
complained to Townsend that the marijuana she had purchased was just "stems,"
Townsend had Rilatos drive him back to the apartment building to confront Hargrove.
When Hargrove refused to give Townsend his money back, the two men got into a
physical fight in front of the apartment building. A crowd gathered to watch the fight.
Prior to fighting Hargrove, Townsend handed Rilatos a 10mm handgun
that he was carrying. The two men grappled and traded punches and, according to
Hargrove, Hargrove seemed to have the upper hand. Hargrove also testified that P.A.
hit Townsend while Hargrove choked Townsend. However, Townsend testified that
"nobody" won the fight.
After the fight ended, Rilatos gave the gun back to Townsend. As Rilatos
and Townsend drove away, Townsend fired seven shots at the upper floor of the
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apartment building. No one was hit, but several bullets struck the building. At trial,
Townsend admitted that he fired the shots and he testified that his goal was to bring the
police to the house.
Hargrove did not report the shooting because he did not want police
attention. However, the next day, Hargrove posted on Facebook that he had beaten up
Townsend, and that Townsend had shot at his kids. At trial, Townsend denied ever
seeing the post. But Rilatos testified that Townsend and his family felt threatened by
this incident. She also testified that Townsend was holed up for about a week at her
apartment, and then at a Motel 6.
Eleven days later, Townsend was at a small party with his friend, Burney.
The party was at the apartment Burney shared with his girlfriend, Karlie West. West
later told a detective that, during the gathering at her apartment, "the boys were in the
kitchen" talking about someone "doing something to [Townsend]." At trial, West
testified that her impression was that Townsend wanted "to get back [at] them for doing
what they did to him."
In the early morning hours of April 1, at around 3:00 a.m., Burney asked
West for a ride. When West asked where he wanted to go, Burney said he needed her
to take him somewhere but did not specify where. West could tell that Burney was
drunk and she did not want him to drive her car while drunk, so she agreed. Burney
then looked at Townsend and said, "Let's go." West later testified that Townsend said
something like "right now?" - indicating that he was surprised when Burney said they
were leaving.
Before they left the apartment, Burney went to the apartment's lower level
(where the bathrooms and bedrooms were located) for a few minutes.4 West drove the
two men, with Townsend in the front passenger seat and Burney in the back seat.
4 Townsend's attorney argued during closing that Burney went to retrieve a gun. The
testimony at trial, however, was that it was Townsend who was known to carry a gun.
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Townsend gave West directions to Mountain View. At trial, West testified that she was
not told where they were going but she "figured out that it was obviously a trip for
[Townsend] since he was the one giving [her] directions."
According to Townsend's testimony at trial, while they were in the car,
Burney asked to see where the fight on March 21 took place. Townsend then directed
them to the building and pointed out the apartment where Hargrove and his family lived.
Security camera footage shows West's Jeep driving by the apartment four times: at
2:58 a.m., 3:03 a.m., 3:08 a.m., and 3:10 a.m. Townsend testified that, while in the car,
Burney asked if there was anything in the apartment that could be taken. Townsend
replied that the family did not have anything valuable. Burney then told West to stop
the car.
What occurred over the next couple of minutes was the main subject of
dispute at trial. Security camera footage suggested that only one man got out of the car.
However, it was impossible to tell from the footage which man got out of the car and
which man stayed in the car.
In her initial interview with the police, West said that both Burney and
Townsend got out of the car. However, she later retracted this statement and told the
police that only Burney got out of the car. She told the police that she had originally
said that Townsend also got out of the car because it did not seem fair that her boyfriend
would be the only one to get into trouble. She agreed that, in her mind, this was
"[Townsend's] issue" or "[Townsend's] beef," and if Burney was going to get into
trouble, "[Townsend] should get in trouble as well."
At trial, West was adamant that only Burney got out of the car. This
testimony was consistent with Townsend's testimony. Townsend testified that Burney
got out of the car, and he claimed that he did not know why Burney got out of the car
or what Burney was going to do.
Burney did not testify at trial. However, when he was arrested, Burney
told the police that he had passed out drunk in the back seat of the car, that he never got
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out of the car, and that he only woke up when the officers pulled the car over. At trial,
Burney's attorney argued that this version of events occurred and that Townsend, acting
alone, had committed the shooting.
Although the identity of the man who got out of the car was disputed, it is
undisputed that the man fired six gunshots in rapid succession through the basement
apartment window. The apartment was dark and the window was closed with curtains
that were slightly open. Two of the shots hit P.A. while she was asleep in her bed, killing
her. Another minor, D.S., was also in the room and was shot in the foot.
Police officers in the area heard the shots. The police dispatch also
received a 911 call at 3:14 a.m. reporting that shots had been fired through a window
and that a girl had been shot. Responding officers found casings and bullet holes from
six shots that had been fired from a .40 caliber pistol.
One of the officers who heard the shots saw West's Jeep pull out of a
nearby alley shortly after the shots were fired. When the officers stopped the Jeep, West
was driving, Townsend was in the front passenger seat, and Burney was in the rear
driver's side seat. Townsend immediately told the officers that he had an outstanding
warrant and that he had a small amount of marijuana in his pocket. He also texted his
girlfriend that he was going to jail.
Burney, Townsend, and West gave conflicting and false statements to the
officers about where they were coming from and where they were going. Townsend
said he had just been picked up at his girlfriend's nearby house. West said they were
going to pick up a friend at a party. Burney said they had been coming from Boniface
Parkway, but he then changed his story to say he had been picked up on Muldoon Road.
When an officer pressed Burney and said, "Your friend already said you guys were in
Mountain View," Burney responded - without having been directly accused of any
particular criminal act - "I had nothing to do with it." Burney also claimed not to know
Townsend.
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Townsend was taken into custody on the warrant. Burney and West were
also taken into custody.
The officers searched the vehicle and found a .40 caliber pistol under the
front passenger seat. At trial, there was testimony that the pistol, based on its
orientation, was most likely placed under the seat from the back (Burney's location),
but that it could have been placed there from the front (Townsend's location). West
testified that Townsend passed something to Burney during the car ride, although she
did not see what it was. West testified that it was possible that either Burney or
Townsend had moved the gun under the seat and she did not notice at the time because
she was driving.
West was interviewed multiple times by detectives from the Anchorage
Police Department, and changed her story over time. As already mentioned, West
initially told the detectives that both Burney and Townsend got out of the car, and she
stuck to that version of events for two years. But after entering a plea agreement to
manslaughter where she agreed to testify truthfully, West retracted this statement and
told the police that only Burney got out of the car.
In his interview, Townsend denied involvement in the shooting, and said
he had not gotten out of the Jeep. He did not incriminate Burney.
Burney told the officers that he did not know Townsend. As previously
mentioned, he also told the officers that he was passed out drunk in the back seat of the
car, that he never got out of the car, and that he woke up when the officers pulled the
car over.
Burney and Townsend were charged, under a theory of principal or
5 6
accomplice liability, with first- and second-degree murder for the death of P.A., first-
5 AS 11.16.110(2).
6 AS 11.41.100(a)(1)(A) and AS 11.41.110(a)(1)-(2), respectively.
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7
degree attempted murder and second-degree assault for the injury to D.S., and second-
8
degree weapons misconduct for discharging a firearm in the direction of the apartment.
Both were individually charged with third-degree weapons misconduct,9 but these
charges were later dismissed. Townsend was also charged with first-degree weapons
10
misconduct for the March 21 shooting incident.
West was originally charged with second-degree murder, third-degree
assault, and second-degree misconduct involving weapons. West ultimately pleaded
guilty to manslaughter. Her plea agreement required her to testify truthfully at Burney
and Townsend's trial.
The pretrial motion to sever
Two months before trial, Burney filed a motion to sever his case from
Townsend's.11 Burney argued that the men's defenses were "mutually exclusive" and
"actually irreconcilable" because each man intended to argue that the other man got out
of the car and acted alone in shooting into the apartment building window. 12 Burney
7 AS 11.41.100(a)(1)(A) & AS 11.31.100(a) and AS 11.41.210(a)(1), respectively.
8 AS 11.61.195(a)(3)(B).
9 AS 11.61.200(a)(1).
10 AS 11.61.190(a)(2).
11 Burney also filed an earlier motion to sever, two years before trial. But that motion
was based on the joinder of his case with Townsend's weapons charge arising from the
March 21 incident, not their irreconcilable defenses, and therefore is not relevant to the
issues presented on appeal.
12 See Miller v. State, 778 P.2d 593, 595 (Alaska App. 1989) (internal citation omitted)
("[S]everance should be granted when the defenses are actually irreconcilable. Defenses
are irreconcilable when they are 'mutually exclusive to the extent that one must be
disbelieved if the other is to be believed[.]'" (quoting Aldulbaqui v. State , 728 P.2d 1211,
1219 (Alaska App. 1986))).
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argued that the defenses were actually irreconcilable because "[i]n order for Jamal
Townsend's defense to be believed Lam[m]ar Burney's defense must be disbelieved
13
and vi[ce] versa."
The State opposed the motion to sever, asserting that there was some
14
conflicting evidence that both men got out of the car and participated in the shooting.
The State also argued that its position at trial would be that "Burney and Townsend are
both guilty, either by personally committing the crime or by aiding and abetting the
other." The State noted that Burney had not pointed to any evidence that could be
admitted at a joint trial that would not be admitted at separate trials.
The trial court denied Burney's motion to sever "for the reasons set forth
in the State's opposition." In a handwritten note on the order, the court acknowledged
that West's testimony at trial "may be that only one person left the vehicle," but the
court indicated its belief that "the evidence/witnesses may contradict that anticipated
testimony."
The first renewed motion to sever
The first renewed motion to sever came in the middle of opening
statements. The prosecutor's opening statement previewed the State's theory of the
case: that both men planned the shooting together even though it was likely that only
one man (Burney) got out of the car. Immediately following the prosecutor's opening,
Townsend's attorney began his opening statement by stating the following:
13 Id.
14 There was some confusion prior to trial regarding whether D.S., the other person in
the bedroom when the shooting occurred, had stated that he saw two men at the window
that night. This statement would have been consistent with West's original statement to the
police but inconsistent with West's trial testimony and with the security camera footage.
Regardless, D.S. ultimately did not testify at trial.
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Ladies and gentlemen, there is a killer sitting amongst us in
this courtroom. And it's not Jamal Townsend. The killer is
Lammar Burney.
Townsend's attorney then went on to describe Townsend's version of events:
In the early morning hours, about 3:00 in the morning,
[Burney] went up, and with this gun fired - stood outside a
window, and went bang, bang, bang, bang, bang, bang,
drunk out of his mind, mad at the world, upset, whatever.
The attorney asserted that the victim P.A. "didn't have a chance," that Burney "snuffed
out the life of [P.A.] like it was a cheap cigarette," and that Burney "shattered" the
victim's family like a "tidal wave." The attorney further asserted that Burney had
decided to do a home invasion, and that he brought a ski mask to conduct the invasion
but then forgot it in the car:
So what he decides to do is he's just so pissed off, so
disgusted with the situation that he just walks up and just
says - yeah, he's mad at the world, he's mad - he just says
- striking out and he just says take that. He doesn't care. He
doesn't care if there's people in there or not. And that's why
it's murder. . . . He had a choice and what - instead he
decided to take his disgust or whatever, drunk on ever - on
her and just ripped the souls out of a lot of people. And he
didn't care.
After Townsend's attorney finished his opening statement, the court
15
adjourned for the day.
The next day, Burney's attorney renewed his motion to sever, arguing that
Townsend's opening statement demonstrated why the court needed to sever the cases.
The court noted that it was under the impression that the State had a witness (D.S.) who
would testify to seeing two men at the bedroom window, which was one of the reasons
why it denied the pretrial motion to sever. The attorneys for both Burney and Townsend
15 Burney's attorney objected only once on hearsay grounds during Townsend's
opening statement.
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correctly stated that no such evidence would be introduced. The trial court then stated
that it was taking the renewed motion to sever under advisement.
In his opening statement, Burney's attorney disparaged the opening
statement made by Townsend's attorney, referring to the attorney as "very passionate"
and his version of events as "fantasy."
Townsend's attorney objected to these remarks, arguing that Burney's
attorney was "making this personal." The trial court sustained the objection, and
instructed Burney's attorney to "focus on a normal opening." Burney's attorney then
proceeded with his opening statement, arguing that Townsend was the shooter because
Townsend had the motive, the opportunity, the willingness, and the means to commit
the crime. Burney's attorney emphasized the State's burden of proof beyond a
reasonable doubt but then ended his opening statement as follows:
Remember that from my perspective, the only person in this
courtroom who gets the benefit of any and all reasonable
doubts is Lammar Burney. If you do all that, in the end, you
[will] find that Lammar Burney is not guilty.
The defendants' renewed motions to sever
The defense attorneys continued to seek severance multiple times during
trial. At the end of the first week of trial, Townsend's attorney argued that his client's
due process rights were being eroded by the joint trial because of the "tension" between
Burney's and Townsend's defenses. Townsend's attorney also argued that the tension
between the two defenses was only going to get worse as the trial proceeded, and that
the trial would be "basically Armageddon" if one of the defendants decided to testify.
The court continued to take the severance motion under advisement,
stating that the issue was "very close" and that it did not know what its ruling on the
motion would be.
The defense attorneys subsequently renewed their motions to sever
multiple times during Karlie West's testimony. Townsend's attorney argued that the
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prosecutor's direct examination of West was abbreviated because the prosecutor was
relying on the defense attorneys to elicit the most incriminating evidence against the
other defendant. For example, the prosecutor did not ask West whether she felt
threatened by Townsend and his family; instead, this information was elicited by
Burney's attorney. The prosecutor acknowledged that he was trying the case differently
than he would have if severance had been granted, but he asserted that there was
ultimately no difference in the evidence that the jury heard.
The trial court continued to take the motion under advisement, noting that
it still needed to see "what other evidence the State intend[ed] to offer."
The court's ruling on the severance motion
The court finally ruled on the severance motion at the close of the State's
evidence. In its ruling, the court recounted the evidence that had been admitted, and
concluded that the same evidence would probably have been admitted if the cases had
been severed. The court acknowledged that the two defendants had antagonistic
defenses, but concluded that severance was not necessary because there was a "third
alternative" - that both defendants were guilty, as the State argued. The court found
"no prejudice to either defendant based on a joint trial of these facts," and denied the
motion to sever.
Burney's defense case
After the State rested, Burney's attorney called two witnesses. The first
witness was a cousin of P.A.'s who was sleeping in the same room as P.A. and who
testified that the lights in the bedroom were off when the shooting occurred. The second
witness was an Alaska State Crime Lab forensic scientist who testified that Burney's
blood alcohol content the afternoon after he was arrested was .029. The scientist also
explained that retrograde extrapolation could be used to determine Burney's blood
alcohol content at the time of the shooting. The forensic scientist agreed with Burney's
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attorney that Burney's blood alcohol content at the time of the shooting could have been
as high as .304.
Townsend's defense case
Townsend testified in his own defense. In his testimony, Townsend
admitted to shooting the upper floor of the Hargrove apartment on March 21. He said
that he fired the shots at the upper floor because he thought it was empty (the apartment
had a "for rent" sign in the window). Townsend testified that he was not angry after the
March 21 incident and that he bought marijuana the next day from a member of
Hargrove and P.A.'s family.
Townsend testified that Burney and West were giving him a ride to his
girlfriend's house in Mountain View. He said that Burney asked him where the "fight"
had taken place. (Townsend also testified, somewhat contradictorily, that he never
mentioned the March 21 incident to Burney.) According to Townsend, Burney asked if
there was anything in the apartment that could be taken and Townsend responded that
he did not think the family had anything to take.
Townsend testified that Burney got out of the car but Townsend did not
think that he would do anything. When asked why he did not walk the four to five
blocks to his girlfriend's apartment, Townsend testified that he "didn't want to mess up
[his] shoes." Townsend had brand new white sneakers on and it was breakup season.
Townsend testified that he did not hear any gunshots, and that they were playing music
in the car. According to Townsend, Burney was calm when he returned to the car.
Townsend testified that he suspected Burney had done something criminal when the
police pulled over the car, and that after detectives told him that a girl had been killed,
he thought Burney was to blame. Townsend stated that he did not tell the police that
Burney got out of the car because he did not want to be a "snitch." Townsend denied
ever talking about revenge or passing Burney a gun, and he reiterated that he had no
idea what Burney planned to do after exiting the car.
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Townsend was cross-examined by both the prosecutor and Burney's
attorney about previous statements he had made and about the altercation on March 21.
Townsend was also cross-examined by both the prosecutor and Burney's attorney about
his drug dealing.
The defendants' renewed motion to sever and closing arguments
After Townsend rested his case, Burney's attorney renewed his motion to
sever based on Townsend's testimony that Burney was the shooter. Townsend's
attorney joined the renewed motion. The trial court denied the renewed motion to sever.
At the end of trial, the parties made their closing arguments. The State's
closing argument discussed accomplice liability and how the jurors did not have to
agree with each other about who pulled the trigger. The prosecutor argued, "By far the
most likely scenario is that Jamal Townsend came up with the plan [and] Lammar
Burney got out of the Jeep and fired the shots himself."
Burney's attorney argued that Burney was highly intoxicated and
therefore could not have had the "conscious objective" to kill someone, and that
Townsend had committed the shooting instead. He argued that West lied about Burney
getting out of the car because she was afraid of Townsend. Burney's attorney also
argued that the shooter could not have had the "conscious objective" to kill because
they could not see into the window of the apartment.
Townsend's attorney asserted that Burney committed the shooting alone.
The attorney argued that Burney retrieved a gun before leaving West's house, and that
Burney "emptied the clip" when he shot into the apartment. The attorney argued that
Burney knew that he would blame it on Townsend and that Burney was "going to ruin
everyone's life." Townsend's attorney argued that "whatever happened in that car is not
accomplice liability. You know, they were driving around. This man, Lammar Burney,
just went nuts and he tried to pull off something and what happened was it was supposed
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to be a robbery." The attorney also argued that the shooting was second-degree murder,
not manslaughter, because "six shots really negates the manslaughter."
In rebuttal, Burney's attorney attacked Townsend's closing argument.
Burney's attorney argued that Townsend's attorney was trying to distract the jury from
the truth "because that's what he has to do. But don't let him do that."
The State's rebuttal argument focused on accomplice liability. The
prosecutor argued the two men had to work together to commit the crime because
Townsend had the motive and Burney was the one to get out of the car. According to
the prosecutor, "This was a plan, this was an event, this was a process that required
contributions from both of them and that's whichever one fired the shots at the end of
the plan, they're both guilty." The prosecutor also pointed out that Townsend's attorney
had said in his closing argument that the shooting was murder, not manslaughter.
After closing arguments, Burney renewed his motion to sever based on
Townsend's closing. Townsend again joined the motion. The trial court denied the
motion.
Following deliberations, the jury found Burney and Townsend guilty of
first-degree murder, second-degree murder, second-degree assault, and second-degree
weapons misconduct. The guilty verdicts for second-degree murder were merged with
the guilty verdicts for first-degree murder for both defendants. Townsend was also
convicted of first-degree weapons misconduct for the events on March 21.
The post-verdict issue with the jury foreperson
After the verdicts were read and the jury was dismissed, the jury
foreperson approached the judge who had taken the verdicts (the judge who presided
over trial was unavailable when the verdicts were returned). The jury foreperson, T.S.,
informed the judge that he had experienced what he believed was an attempt at jury
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intimidation a week earlier, but he had not said anything before because "he did not
want anything to distract the jury or mess up the trial."
An evidentiary hearing was held before the judge who presided over trial.
T.S. testified that he was outside smoking with two women from the jury when a man
that T.S. believed to be Townsend's brother approached him and lifted up his waistband
as though trying to show the foreperson a firearm.16 T.S. testified that he believed that
the man's intent was to intimidate the jury. He testified that he did not feel personally
threatened because "[he] spent most of [his] life in the military, and [he had] been
around individuals like that quite a bit of the time." But somewhat conflictingly, T.S.
later testified that the incident "intimidated" him.
T.S. acknowledged that the judge had instructed the jurors that they were
to report any external contact with anyone involved with the case. He testified that he
did not talk to anyone about the incident until the trial was over because nothing came
of the incident and he did not want to delay the trial. He also testified, however, that he
thought it was "important" to inform the judge about the incident after the trial was
over. T.S. testified that the incident did not affect his deliberations.
Based on T.S.'s testimony, Burney and Townsend moved for a new trial,
alleging juror misconduct, jury intimidation, and jury tampering. Following a second
evidentiary hearing, a different judge denied the defendants' motion for a new trial,
ruling that the encounter had been too "innocuous" to be prejudicial.
Sentencing
Burney was sentenced to 67 years to serve, with no time suspended.
Townsend was sentenced to 87 years to serve, with no time suspended.
This appeal followed.
16 On appeal, the parties appear to agree that whoever the man was, he was not
Townsend's brother.
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The two issues on appeal
Burney and Townsend raise two issues on appeal. They argue first that the
trial court abused its discretion by failing to sever their cases and they assert that they
were actually prejudiced by the failure to sever. Burney and Townsend argue second
that the trial court abused its discretion when it denied their motion for a new trial based
on the alleged jury tampering incident. We address each argument in turn.
Why we conclude that the trial court should have severed the cases but
nevertheless conclude that Burney and Townsend have not shown actual
prejudice as to any conv iction other than their convictions for first-degree
murder
We begin by describing the basic law governing joinder and severance.
Alaska Criminal Rule 8 provides that "[t]wo or more defendants may be charged in the
same indictment or information if they are alleged to have participated in the same act
or transaction . . . constituting an offense or offenses."17 There is no dispute that Burney
and Townsend were properly charged together under Criminal Rule 8.
Alaska Criminal Rule 14, however, gives the trial court discretion to sever
properly joined cases when the court concludes that joinder is unfairly prejudicial:
If it appears that a defendant or the state is unfairly
prejudiced by a joinder of offenses or of defendants in an
indictment or information or by such joinder for trial
together, the court may order an election or separate trials of
counts, grant a severance of defendants, or provide whatever
[18]
other relief justice requires.
"This [C]ourt will only overturn a trial court's denial of a motion to sever if the
19
defendant can show both an abuse of discretion and actual prejudice."
17 Alaska R. Crim. P. 8(b).
18 Alaska R. Crim. P. 14.
19 Pease v. State, 54 P.3d 316, 322 (Alaska App. 2002).
- 17 - 2794
----------------------- Page 18-----------------------
Burney and Townsend argue that the court was required to grant severance
because their defenses were mutually exclusive. We have previously said that
"[a]lthough antagonistic defenses do not ordinarily require severance, severance should
be granted when the defenses are actually irreconcilable."20 "Defenses are
irreconcilable when they are 'mutually exclusive to the extent that one must be
21
disbelieved if the other is to be believed.'"
The joinder of defendants advocating mutually exclusive defenses can
have a prejudicial effect on the fairness of a trial in a number of ways. Chief among
them is the problem of the "second prosecutor."22 As the Ninth Circuit explained:
Defendants who accuse each other bring the effect of a
second prosecutor into the case with respect to their
codefendant. In order to zealously represent his client, each
codefendant's counsel must do everything possible to
convict the other defendant. The existence of this extra
prosecutor is particularly troublesome because the defense
counsel are not always held to the limitations and standards
imposed on the government prosecutor. Opening statements
20 Miller v. State , 778 P.2d 593, 595 (Alaska App. 1989) (citing Abdulbaqui v. State ,
728 P.2d 1211, 1219 (Alaska App. 1986)).
21 Id. (quoting Abdulbaqui , 728 P.2d at 1219); see also United States v. Holcomb, 797
F.2d 1320, 1324 (5th Cir. 1986) ("The prototypical example [of mutually exclusive
defenses] is a trial in which each of two defendants claims innocence, seeking to prove
instead that the other committed the crime.").
22 See, e.g., Zafiro v. United States, 506 U.S. 534, 543-44 (1993) (Stevens, J.,
concurring) ("Joinder is problematic in cases involving mutually antagonistic defenses
because it may . . . introduce what is in effect a second prosecutor into a case, by turning
each codefendant into the other's most forceful adversary."); State v. Cavazos, 94 So. 3d
870, 880-81 (La. App. 2012) ("A severance is necessary if the defenses of the co-
defendants are mutually antagonistic to the extent that one co-defendant attempts to blame
the other, causing each defendant to defend against both his co-defendant and the State."
(citing State v. Prudholm, 446 So. 2d 729, 741 (La. 1984))); State v. Kinkade, 680 P.2d
801, 804 (Ariz. 1984) (en banc) (noting that a trial involving truly antagonistic defenses
"is more of a contest between the defendants rather than between the defendants and the
prosecution").
- 18 - 2794
----------------------- Page 19-----------------------
. . . can become a forum in which gruesome and outlandish
tales are told about the exclusive guilt of the "other"
[23]
defendant.
There are also other benefits to the prosecution in a joint trial of defendants
with mutually exclusive defenses. As the Ninth Circuit explained, "Joinder in these
24
cases can make a complex case seem simple to the jury: convict them both."
The government's case becomes the only unified and
consistent presentation. It presents the jury with a way to
resolve the logical contradiction inherent in the defendants'
positions. While the defendants' claims contradict each
other, each claim individually acts to reinforce the
government's case. The government is further benefited by
the additive and profound effects of repetition. Each
important point the government makes about a given
defendant is echoed and reinforced by the codefendant's
[25]
counsel.
In Miller v. State , this Court identified two tests used by different
jurisdictions for determining "when defenses are mutually exclusive and therefore
irreconcilable."26 In the first test, defenses are treated as irreconcilable "if the jury, in
order to believe the core of testimony offered on behalf of [one] defendant, must
necessarily disbelieve the testimony offered on behalf of his codefendant."27 In the
23 United States v. Tootick, 952 F.2d 1078, 1082 (9th Cir. 1991); see also State v.
Sauls, 356 N.W.2d 516, 518 (Iowa 1984) ("We think unfairness exists when the core of
the defense of two defendants is that the other defendant committed the crime, and the State
forces the defendants to stand trial together and convict each other.").
24 Tootick, 952 F.2d at 1082.
25 Id. ; see also 2 Crim. Prac. Manual § 32:18 (2024) ("There is a great risk that a jury,
when faced with two inconsistent, mutually exclusive defenses, may simply decide that
both defendants must be lying.").
26 Miller v. State , 778 P.2d 593, 595 (Alaska App. 1989).
27 Id. at 595-96 (alteration in original) (quoting United States v. Berkowitz, 662 F.2d
1127, 1134 (5th Cir. 1981)) (collecting cases).
- 19 - 2794
----------------------- Page 20-----------------------
second test, defenses are irreconcilable "when the conflict between competing defenses
is so great that it gives rise to 'a danger that the jury will unjustifiably infer that this
conflict alone demonstrates that both [defendants] are guilty.'"28 Although Miller was
29
decided more than three decades ago, these two tests are still in common usage today.
Indeed, a review of current case law reveals that there are jurisdictions that use both
30
tests, in combination or interchangeably.
We begin our analysis of this case with the first test articulated above:
whether in order to believe "the core of testimony" offered on behalf of one defendant,
the jury was necessarily required to disbelieve the testimony offered on behalf of the
other. The core testimony offered on behalf of Burney, put simply, was that Townsend
was the shooter and that Burney was drunk and asleep in the back seat. The core
28 Id. at 596 (alteration in original) (quoting Rhone v. United States, 365 F.2d 980, 981
(D.C. Cir. 1966)) (collecting cases).
29 See, e.g., State v. Bol, 9 N.W.3d 783, 789-90 (Iowa App. 2023) (applying first test);
State v. Jaramillo, 460 P.3d 321, 333-34 (Ariz. App. 2020) (applying first test); People v.
Daveggio, 415 P.3d 717, 741 (Cal. 2018) (applying second test); State v. Emery, 278 P.3d
653, 660 (Wash. 2012) (en banc) (applying second test).
30 See, e.g., United States v. Chavez, 894 F.3d 593, 606 (4th Cir. 2018) (holding that
severance is required for antagonistic defenses if there is "such a stark contrast presented
by the defenses that the jury is presented with the proposition that to believe the core of
one defense it must disbelieve the core of the other, or that the jury will unjustifiably infer
that this conflict alone demonstrates that both are guilty" (quoting United States v. Lighty,
616 F.3d 321, 348-49 (4th Cir. 2010))); United States v. Hawkins, 796 F.3d 843, 861 (8th
Cir. 2015) (applying both tests when evaluating whether co-defendants' defense theories
were "irreconcilable or prejudicially antagonistic"); People v. Colon , 113 N.Y.S.3d 389,
393 (N.Y. App. Div. 2019) ("By seeking to implicate each other, [the co-defendants']
defenses were clearly antagonistic, mutually exclusive and irreconcilable, and created 'a
significant possibility that the jury unjustifiably concluded by virtue of the conflict itself
that both defenses were incredible and gave undue weight to the [State's] evidence.'"
(quoting People v. Mahboubian, 543 N.E.2d 34, 40 (N.Y. 1989))).
- 20 - 2794
----------------------- Page 21-----------------------
testimony offered on behalf of Townsend was the opposite - that Burney was the
shooter and that Townsend was neither aware of nor shared Burney's plan.
It is obvious that these two defenses are irreconcilable in the sense that in
order to believe one defendant, the jury was necessarily required to disbelieve the other.
In other words, to acquit Burney, the jury would have to believe that Townsend was the
shooter and that he acted alone, and to acquit Townsend, the jury would have to believe
that Burney was the shooter and that he acted alone.
The State argues that Burney's and Townsend's defenses were not
mutually exclusive because Burney did not testify or directly claim that Townsend was
the shooter, and because, "at least in theory," the jury could have reconciled Burney's
and Townsend's versions of events by acquitting them both.31 According to the State,
the jury could have believed both "that Burney left the SUV as Townsend claimed
(perhaps 'to take a piss' as Townsend suggested during his police interview) and that
Burney was being truthful about his lack of participation in the murder but was simply
too drunk to remember that he left the vehicle briefly to relieve himself."
The State's argument is flawed for two reasons. First, as the State
acknowledges, this version of events would be "highly implausible" given the rest of
the evidence presented at trial. There is nothing in the record to support a theory of a
third unknown shooter. To the contrary, the State introduced forensic evidence at trial
that showed that the bullets that killed P.A. were fired from the gun found under
Townsend's seat in the car.
Second, it does not matter that Burney largely denied involvement, rather
than directly accusing Townsend. As the Ninth Circuit observed in United States v.
Tootick, "Mutual exclusivity may exist when only one defendant accuses the other, and
31 Cf. Commonwealth v. Ramos, 25 N.E.3d 849, 858 (Mass. 2015) (explaining that
defenses were not mutually exclusive because "[a]cceptance of [the co-defendant's]
defense . . . would not have precluded acquittal of the defendant," but rather "could have
led to the conclusion that the defendant, too, should be acquitted").
- 21 - 2794
----------------------- Page 22-----------------------
the other denies any involvement."32 A defendant's denial of any involvement
constitutes an accusation of their co-defendant when the facts are "closed in a fashion
33
that does not suggest the intervention of some unknown actor."
The situation in Tootick is similar to what occurred in this case. There,
Tootick was tried jointly with his co-defendant for an assault resulting in serious bodily
harm.34 Tootick (like Burney) argued that he was "highly intoxicated" and either
"asleep" or "passed out" when the assault occurred.35 Conversely, Tootick's co-
defendant (like Townsend) argued that Tootick "surprise[d]" him by committing the
36
assault while the co-defendant remained in the car, "watch[ing] in horror."
In holding that the defenses were mutually exclusive, the Ninth Circuit
explained that, because Tootick and his co-defendant were the only people present when
the attack occurred, and because there was no evidence suggesting the victim attacked
himself, "[e]ach defense theory contradicted the other in such a way that the acquittal
of one necessitate[d] the conviction of the other."37 That is, the jury could have only
acquitted Tootick by disbelieving his co-defendant's defense.
Here, as in Tootick, Burney's denial of any involvement in the shooting
made his defense mutually exclusive of Townsend's because there was no credible
evidence that any person other than Burney or Townsend was the shooter. Thus, to
acquit Burney, the jury would have to believe that Townsend was the shooter (and that
32 United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991) (internal quotations
omitted) (quoting United States v. Romanello, 726 F.2d 173, 177 (5th Cir. 1984)).
33 Id.
34 Id. at 1080.
35 Id. at 1081.
36 Id.
37 Id.
- 22 - 2794
----------------------- Page 23-----------------------
Townsend acted alone). Alternatively, to acquit Townsend, the jury would have to
believe that Burney was the shooter (and that Burney acted alone). In other words, to
believe one defense, the jury would have to disbelieve the other defense.
The State argues that any conflict between Burney's defense and
Townsend's defense does not matter because the jury had a third option - to convict
them both under the State's aiding and abetting theory. We agree that there is support
in the case law for the proposition that the strength of the State's aiding and abetting
case can help mitigate the prejudice that mutually exclusive defenses can otherwise
create.38 Courts have therefore affirmed a trial court's failure to sever defendants with
allegedly mutually exclusive defenses in cases where the State's evidence of both
39
defendants' guilt was particularly strong.
The case law from other jurisdictions further establishes that mutually
exclusive defenses are not prejudicial per se .40 In Tootick, the Ninth Circuit concluded
that the defendants had mutually exclusive defenses because "[e]ach defense theory
38 Miller v. State, 778 P.2d 593, 596 (Alaska App. 1989) (noting that "the prosecution
presented compelling evidence indicating that [the defendants] both actively participated
in the murder," making it "unlikely that the jury would have viewed this as a case in which
the 'conflict alone demonstrate[d] that both defendants [were] guilty'" (quoting Rhone v.
United States, 365 F.2d 980, 981 (D.C. Cir. 1966))); People v. Winbush, 387 P.3d 1187,
1229 (Cal. 2017) ("If the moving party's guilt can be established by sufficient independent
evidence, 'it is not the conflict alone that demonstrates . . . guilt,' and severance is not
required." (quoting People v. Coffman, 96 P.3d 30, 41 (Cal. 2004))); People v. Hana, 524
N.W.2d 682, 697 (Mich. 1994) (internal citation omitted) ("The risk of prejudice is reduced
even more in these cases by the significant fact that the prosecutor charged defendant . . .
as an aider and abettor and did not contend that he fired the fatal shot.").
39 See, e.g., Miller, 778 P.2d at 596; Hana, 524 N.W.2d at 697; see also Ex parte
Hardy, 804 So. 2d 298, 304-05 (Ala. 2000) (noting that although it was "judicially risky"
for the court not to sever co-defendants with mutually antagonistic defenses, the joint trial
ultimately did not prejudice Hardy because of the strength of the State's case).
40 See, e.g., Zafiro v. United States, 506 U.S. 534, 538 (1993); Tootick, 952 F.2d at
1083.
- 23 - 2794
----------------------- Page 24-----------------------
contradicted the other in such a way that the acquittal of one necessitate[d] the
conviction of the other."41 But the Ninth Circuit rejected the defendants' argument that
a finding of mutually exclusive defenses necessarily required reversal of their
convictions on appeal.42 Instead, the court noted that reversal of a decision denying
severance was appropriate only when the defendant proves they suffered "clear,
manifest, or undue prejudice from the joint trial."43 The court ultimately concluded that
the defendants in Tootick had demonstrated clear and manifest prejudice because the
court determined, based on the "number and types of prejudicial incidents that were not
corrected by instructions from the court," that the jury "[w]ould not have been able to
assess the guilt or innocence of the defendants on an individual and independent
44
basis."
The Ninth Circuit's rejection of a per se prejudice standard in Tootick
45
preceded the United States Supreme Court's 1993 decision in Zafiro v. United States.
In Zafiro, the Supreme Court similarly rejected a per se prejudice rule for mutually
exclusive defenses and instead held that severance was mandated (and reversal was
required) "only if there is a serious risk that a joint trial would compromise a specific
41 Tootick, 952 F.2d at 1081.
42 Id. at 1083.
43 Id. (cleaned up) (quoting United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.
1980)); see also Abdulbaqui v. State, 728 P.2d 1211, 1219 (Alaska App. 1986) ("A trial
court's decision to deny severance can be overturned only for an abuse of discretion and
only where there has been a showing of prejudice." (internal citation omitted)); Potts v.
State, 2020 WL 362699, at *2 (Alaska App. Jan. 22, 2020) (unpublished) (same).
44 Tootick, 952 F.2d at 1083.
45 Zafiro, 506 U.S. 534.
- 24 - 2794
----------------------- Page 25-----------------------
trial right of one of the defendants, or prevent the jury from making a reliable judgment
46
about guilt or innocence."
The Zafiro test is similar to the second test identified in Miller . Under that
test, severance is mandated "when the conflict between competing defenses is so great
that it gives rise to 'a danger that the jury will unjustifiably infer that this conflict alone
47
demonstrates that both [defendants] are guilty.'"
On appeal, the State argues that the second Miller test is not satisfied
because the State "presented overwhelming evidence that Burney and Townsend were
both participants in the shooting, regardless of who pulled the trigger." Thus, according
to the State, it was not the "conflict alone" that demonstrated both defendants were
guilty, but rather the strength of the State's evidence that the defendants acted in
concert.
We agree with the State that it presented overwhelming evidence that
Burney and Townsend acted in concert. It was undisputed at trial that Burney had no
reason to target Hargrove's family, and that it was only Townsend who had any kind of
motive to cause them harm. As the prosecutor observed during closing argument, what
happened does not make much sense unless there was some sort of plan between the
two men to seek retaliation for the events of March 21. In other words, the evidence
does not support the conclusion that Townsend was the shooter, but it also does not
support the conclusion that Burney would act on his own to harm a family that he had
no "beef" with.
There was also significant evidence presented that there was some sort of
retaliatory plan in action. West testified that Townsend was talking about getting back
at Hargrove, and she testified that her impression was that Burney and Townsend were
46 Id. at 538-39.
47 Miller v. State , 778 P.2d 593, 596 (Alaska App. 1989) (alteration in original)
(quoting Rhone v. United States, 365 F.2d 980, 981 (D.C. Cir. 1966)) (collecting cases).
- 25 - 2794
----------------------- Page 26-----------------------
looking for retaliation. West also testified that Townsend passed something to Burney
before Burney got out of the car, and that while Townsend was known to carry a gun,
she had never known Burney to carry a gun.
That said, while the State's evidence for some form of homicide was
strong, its evidence for first-degree murder (the highest charge for which both
defendants were convicted) was far from overwhelming. A person commits first-degree
murder under AS 11.41.100(a)(1)(A) if, "with intent to cause the death of another
person, the person . . . causes the death of any person."48 A person acts "intentionally"
49
with respect to a result when the person's "conscious objective is to cause that result."
In other words, to prove that the shooter was guilty of first-degree murder, the State was
required to prove beyond a reasonable doubt that the shooter's conscious objective as
he shot into the darkened basement apartment window was to kill a person.
But there was relatively little evidence introduced at trial to support such
an inference. Although the dissent speculates that the shooter could see into the window
and was targeting the king-size bed inside the room, there was no clear evidence that
the shooter could see into the room that early morning. To the contrary, the testimony
at trial was that the curtains were at least partially drawn and the lights in the room were
off.
Moreover, there was evidence at trial that Burney was unfamiliar with the
apartment and the family who lived in it, so there was relatively little reason to believe
50
that (assuming Burney was the shooter) he knew he was shooting into a bedroom.
48 AS 11.41.100(a)(1)(A).
49 AS 11.81.900(a)(1).
50 The dissent speculates that Townsend may have been aware that the basement
window looked into a bedroom from his past visits to the apartment, but there was no
evidence that Townsend ever communicated such knowledge to Burney.
- 26 - 2794
----------------------- Page 27-----------------------
There was also evidence that Burney was highly intoxicated, arguably making him
51
incapable of forming an intent to kill.
The evidence for first-degree murder under an accomplice theory was
even weaker. To prove first-degree murder under an accomplice theory, the State was
required to prove, beyond a reasonable doubt, that the person remaining in the car
"solicited, encouraged, or assisted" the shooter "with the intent to promote or facilitate"
the intentional killing of another person.52 That is, assuming Burney was the shooter,
the State had to prove that Townsend aided or abetted Burney with the specific intent
that Burney would kill a person. But, while there was evidence of a retaliatory plan,
there was no evidence of an actual plan to kill someone. There was little in West's
testimony or any of the other evidence at trial to suggest that the two men actually
conspired to kill someone.
Certainly, there was strong evidence that the two men seemingly did not
care whether their actions killed someone. There is little question that shooting six
bullets into a darkened basement window in the middle of the night constitutes the
extreme indifference to human life that is the hallmark of second-degree murder.53 But
51 Although voluntary intoxication is not a defense to crimes with a knowing or
reckless mens rea, like second-degree murder, it is a defense to first-degree murder, which
requires proof beyond a reasonable doubt of the specific intent to kill. AS 11.81.630
("Voluntary intoxication is not a defense to a prosecution for an offense, but evidence that
the defendant was intoxicated may be offered whenever it is relevant to negate an element
of the offense that requires that the defendant intentionally cause a result."); see also
Santillana v. State, 1999 WL 1260851, at *4 (Alaska App. Nov. 17, 1999) (Mannheimer,
J., concurring) (unpublished) ("Voluntary intoxication is a defense if the crime requires
proof that the defendant acted 'intentionally' with respect to a result.").
52 Riley v. State, 60 P.3d 204, 207 (Alaska App. 2002); see also AS 11.16.110(2)(A).
53 AS 11.41.110(a)(2). We note that, in addition to the extreme indifference theory,
the grand jury also indicted Burney and Townsend on second-degree murder under the
theory that they engaged in conduct "substantially certain to cause death or serious physical
- 27 - 2794
----------------------- Page 28-----------------------
there was relatively little evidence from which to discern a specific intent to kill,
particularly with regard to the accomplice who did not leave the car.
The dissent argues that a reasonable juror could nevertheless conclude that
both men committed first-degree murder based on the totality of circumstances,
including the number of bullets and Townsend's retaliatory motive. The dissent also
cites to cases where first-degree murder convictions have been upheld against legal
sufficiency challenges. But the relevant question is not whether the evidence was legally
sufficient to convict on charges of first-degree murder, but rather whether the joint trial
resulted in prejudice. We do not disagree that the evidence is legally sufficient to
support a first-degree murder conviction, and the State is thus entitled to retry the
defendants for first-degree murder if it wishes. Instead, the question is one of prejudice
- whether there is reason to believe that the jury's decision to convict on the first-
degree murder charges, despite the absence of any strong evidence of an intent to kill,
was influenced by the overt antagonism generated by the defendant's mutually
exclusive defenses.
In his treatise on criminal law, Professor LaFave refers to the joint trial of
defendants who truly have antagonistic defenses as "most unfair," and he states that the
remedy of severance is needed to prevent the kind of trial described by one appellate
court as follows:
The trial was in many respects more of a contest between the
defendants than between the people and the defendants. It
produced a spectacle where the people frequently stood by
and witnessed a combat in which the defendants attempted
[54]
to destroy each other.
injury." AS 11.41.110(a)(1). In a subsequent information replacing indictment, however,
the State dropped this theory.
54 5 Wayne R. LaFave et al., Criminal Procedure § 17.2(d) (4th ed. 2024) (quoting
People v. Braune, 2 N.E.2d 839, 842 (Ill. 1936)).
- 28 - 2794
----------------------- Page 29-----------------------
Courts have therefore reversed convictions in cases where the co-defendant's counsel
55
acts as "an overly aggressive adversary . . . , in effect becoming a second prosecutor."
The Illinois Supreme Court put it aptly: "Where one defendant accuses his codefendant,
an antagonism arises which requires separate trials; otherwise, the alternative is a
56
'circus.'"
Here, the fear that a joint trial of defendants with mutually exclusive
defenses could devolve into a "spectacle" or a "circus" was at least partially realized.
Both defense attorneys engaged in aggressive tactics that a prosecutor would not have
been permitted to engage in. Townsend's attorney began his opening statement with the
outlandish declaration that Burney was a "killer," and much of his argument was an
attack on Burney's character.57 For his part, Burney's attorney derided Townsend's
55 People v. Forbes, 203 A.D.2d 609, 612 (N.Y. App. Div. 1994) ("The record
demonstrates that Roberts' counsel was an overly aggressive adversary toward defendant
throughout, in effect becoming a second prosecutor. We find under these circumstances
that there was a 'significant possibility that the jury unjustifiably concluded by virtue of
the conflict itself that both defenses were incredible and gave undue weight to the
government's evidence' and that it was therefore error to have ordered a joint trial."
(citations omitted) (quoting People v. Mahboubian, 74 N.Y.2d 174, 186 (N.Y. 1989))); see
also People v. McGuire, 148 A.D.3d 1578, 1579-80 (N.Y. App. Div. 2017) (reversing
convictions "because the codefendants' respective attorneys 'took an aggressive
adversarial stance against [defendant at trial], in effect becoming a second [and a third]
prosecutor '" (alteration in original) (quoting People v. Cardwell, 78 N.Y.2d 996, 998 (N.Y.
1991))); State v. Jaramillo, 460 P.3d 321, 329-30 (Ariz. App. 2020) (reversing convictions
and noting that jury instructions requiring the jury to treat each defendant separately
"provides no remedy for the primary harm arising from co-defendants presenting
antagonistic defenses: defendants are forced to defend against two adverse parties rather
than one").
56 People v. Byron, 506 N.E.2d 1247, 1251 (Ill. 1987) (citing Braune, 2 N.E.2d at 840-
41).
57 See, e.g., People v. Bean, 485 N.E.2d 349, 355 (Ill. 1985) ("[The co-defendant's]
trial strategy of depicting [the defendant] as the 'murderer' and of producing testimony
damaging to [him] which was not elicited by the State from its own witnesses unfairly
- 29 - 2794
----------------------- Page 30-----------------------
opening statement as "fantasy," and repeatedly emphasized Townsend's drug dealing
and how dangerous Townsend was.
When evidentiary issues arose, the two defense attorneys were more
aggressive than the prosecutor in seeking to have prejudicial evidence admitted, and
some of the most incriminating evidence at trial was elicited by the other defense
attorney rather than the prosecutor. The State meanwhile obtained the unfair benefit of
having a second prosecutor help litigate its case, and was able to take advantage of the
fact that both defense attorneys spent so much time trying to make the other defendant
appear unlikable and dangerous.
At the same time, although it is true that the defense attorneys were
frequently at "loggerheads" with one another, we do not find that the trial devolved into
the "Armageddon" that the attorneys warned of. For the most part, the same evidence
was admitted at the joint trial that could have been admitted at separate trials, and the
theatrics were mainly limited to the opening statements and some parts of the closing
arguments. We also note that when Burney's attorney began using inflammatory
language in his opening statement, Townsend's attorney objected, and Burney's
attorney was instructed to stay within the bounds of a "normal" opening statement,
which he largely did. In contrast, Burney 's attorney only objected once to Townsend's
opening statement (on hearsay grounds) even though it was Townsend's attorney who
engaged in the more outlandish rhetoric during opening statement.
This is a difficult case to resolve. On the one hand, there were clear
grounds to sever the case based on the mutually exclusive defenses, and it certainly
would not have been an abuse of discretion for the trial court to grant the pretrial motion
even before the potential problems associated with the second prosecutor became
placed [him] in the position of having to defend against two accusers, the State and his
codefendant.").
- 30 - 2794
----------------------- Page 31-----------------------
apparent.58 On the other hand, the strength of the State's case makes it questionable
whether the defendants were actually prejudiced by the joint trial. As we have
explained, to obtain reversal based on a failure to sever, defendants must show not only
that the trial court should have severed their cases (i.e., abused its discretion), but also
59
that the failure to do so resulted in actual prejudice.
Here, we conclude that the only actual prejudice that Burney and
Townsend have shown is that the mutual antagonism demonstrated by the defense
attorneys may have unfairly influenced the jury to convict Burney and Townsend of
first-degree murder when the evidence for first-degree murder (as opposed to second-
degree murder) was relatively weak.60 Thus, if there were no other issues in this case,
we would vacate Burney's and Townsend's convictions for first-degree murder and
remand the case to the superior court to allow for either a retrial on the first-degree
murder charges, if the State so elects, or entry of judgment on the second-degree murder
charges and resentencing.
However, before such a remand can take place, we must first address the
other issue on appeal related to the allegations of jury tampering and juror intimidation.
58 Cf. 5 Wayne R. LaFave et al., Criminal Procedure § 17.2(g) (4th ed. 2024) (noting
the problem with severance requests is that it is "difficult to ascertain the degree of
prejudice in advance of trial" and that "once the trial is under way there is great reluctance
to grant a severance").
59 Abdulbaqui v. State , 728 P.2d 1211, 1219 (Alaska App. 1986) ("A trial court's
decision to deny severance can be overturned only for abuse of discretion and only where
there has been a showing of prejudice." (internal citation omitted)); see also People v.
Coffman, 96 P.3d 30, 64 (Cal. 2004) ("Even if a trial court abuses its discretion in failing
to grant severance, reversal is required only upon a showing that, to a reasonable
probability, the defendant would have received a more favorable result in a separate trial.").
60 Jaramillo , 460 P.3d at 338 (reversing convictions for failure to sever mutually
antagonistic defenses because evidence against defendant, while "substantial," was not
"overwhelming").
- 31 - 2794
----------------------- Page 32-----------------------
Additional details about the alleged jury tampering and juror intimidation
On the day that the jury reached its verdicts, the trial judge, Superior Court
Judge Jack Smith, was unavailable. A different judge, Superior Court Judge Patrick
McKay, presided over the return of the verdicts.
Judge McKay later sent Judge Smith an email about an off-the-record
exchange he had with the jury foreperson, T.S., after the verdicts were returned. The
email stated:
[T]he foreperson, [T.S.], pulled me aside and recounted an
instance which occurred a week ago yesterday, 9/28/17, in
which a brother/family member of one of the defendants (I
did not ask which defendant) approached him while outside
the courthouse on a break. The person made a gesture that
[T.S.] felt could indicate that the person was armed. [T.S.]
indicated he did not feel concern for his own safety and made
a conscious decision not to report the encounter. My
understanding is that he reported it to no one, not even other
jury members until after the verdict. He relayed to me that
he did not want anything to distract the jury or mess up the
trial.
Judge Smith informed the parties of this email and scheduled an
evidentiary hearing so that T.S. could be questioned under oath about what he
experienced.
At the evidentiary hearing, T.S. testified that an individual approached
him while he was outside smoking with two other jurors. T.S. believed that the
individual was Townsend's brother because, during trial, one of the attorneys identified
where Townsend's family was sitting. T.S.'s initial impression was that the man "was
trying to show [T.S.] something that he had in his waistband." T.S. testified that, in
response, he first made sure the two female jurors smoking with him were out of harm's
way and then "stepped forward in an attempt to block anything that might be coming
of it." T.S. testified that his attention was focused on the man's hands because he was
worried that he had a gun. But T.S. testified that he did not feel personally threatened
- 32 - 2794
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from the encounter because he spent "most of [his] life in the military" and had "been
around individuals like that quite a bit of the time." T.S. denied telling any other jurors
what had happened.
T.S. was then questioned by the court and the defense attorneys. In
response to a question from the court, T.S. testified that the event did not impact his
evaluation of the evidence with regard to either defendant.61 In response to questioning
by the defense attorneys, T.S. elaborated on his perception of this encounter and its
aftermath.
T.S. confirmed that his impression was that the man was "trying to
intimidate" him about what his decision in the case was going to be. He testified that
the incident did not affect his decisions in any way, even "unconsciously."62 T.S.
testified that he did not report the incident to anyone at the time because "it came of
nothing so [he] didn't do anything about it." However, he testified that after the trial
was over, he thought it was "important" to tell the judge what happened. T.S. testified
that during the encounter, he never "felt threatened" although he did feel "intimidated."
In response to a defense attorney's question about whether T.S. thought that jury
tampering could "mess up" the trial, T.S. stated that he did not know what the man's
61 As the trial court later acknowledged, it was improper for the court to ask the juror
about the effect of the incident on his deliberations. See Swain v. State, 817 P.2d 927, 932
(Alaska App. 1991) (recognizing that under the plain language of Alaska Evidence Rule
606(b), "jurors may be questioned only as to whether extraneous matters were brought to
their attention, and not as to what the effect of any such matter may have been [on their
deliberations]"); Larson v. State , 79 P.3d 650, 654 (Alaska App. 2003) (recognizing that
Alaska Evidence Rule 606(b) "bars juror testimony and affidavits offered to prove the
effect of these events on the jurors' mental processes").
62 This answer was in response to a question from the defense attorney about whether
T.S. had been "unconsciously" affected by the event. As explained, it was improper under
Alaska Evidence Rule 606(b) to ask T.S. about whether the incident directly affected his
deliberations.
- 33 - 2794
----------------------- Page 34-----------------------
intention was, but he acknowledged that the jury had been instructed to report any
external contact with anyone involved in the case.
At the conclusion of the evidentiary hearing, Judge Smith invited the
parties to submit written briefing on what should happen next. Burney filed a motion
for a new trial alleging juror misconduct, jury intimidation, and jury tampering, which
Townsend joined. They argued that a presumption of prejudice attached under federal
law to this type of threatening contact with a juror. And they both argued that no weight
should be given to T.S.'s testimony that the incident had no effect on his deliberations
because Alaska case law required the court to assess the effect of such an encounter
63
objectively, from the perspective of a reasonable juror.
Judge Smith subsequently distributed a handwritten note to the parties
indicating that it had been improper to ask the juror whether the incident had an effect
on his deliberations, noting that the law required an objective assessment of how a
reasonable person in the juror's position could have been affected.
In briefing that Townsend filed after this hearing, he noted that had the
juror reported this contact when it occurred, as he was required to do under the court's
instructions, steps could have been taken to limit any prejudicial effect.64 Townsend
requested that the court hold a second evidentiary hearing so that the two female jurors
present during the incident could be questioned to determine whether they had any
knowledge of what had occurred.
63 See Swain, 817 P.2d at 932-33 (noting that Evidence Rule 606(b) prohibits juror
testimony from being offered to prove "the effect of any matter or statement upon [that
juror' s] or any other juror's mind or emotions as influencing [the juror] to ascent to or
dissent from the verdict" (internal citation and quotations omitted)).
64 Cf. United States v. Cheek, 94 F.3d 136, 144 (4th Cir. 1996) ("We cannot condone
[the juror's] decision not to report immediately the extrajudicial contact to the trial judge
as instructed. . . . Had he told the judge what he told [a friend], an alternate juror could
have been substituted . . . [and] [t]he cloud on the verdict that this extrajudicial contact
caused would not exist.").
- 34 - 2794
----------------------- Page 35-----------------------
Judge Smith granted Townsend's request for an evidentiary hearing, but
did not personally preside over this hearing. Instead, the second evidentiary hearing
occurred before a new judge, Superior Court Judge Erin Marston.65 Four different
female jurors who the parties believed may have been present during the encounter were
called to testify. The hearing confirmed that none of these women had heard or seen
anything, and that T.S. had not discussed the incident with any of them.
Judge Marston subsequently issued a written order denying the motion for
a new trial. In the order, Judge Marston characterized T.S.'s testimony from the first
evidentiary hearing (which Judge Smith had presided over) as follows:
The third party contact was described as lasting just a couple
of seconds. No words were exchanged and the juror did not
report any subsequent attempts at contact or recall seeing the
individual in the courtroom again after that day. The entirety
of the contact was described as an individual approaching
the juror outside of the courthouse and pulling up their jacket
in a way that displayed their waistband. The juror did not
report actually seeing any weapons when the third party
made the motion. Furthermore, the juror's own testimony
regarding how he interpreted the contact is somewhat
conflicting. The juror stated he did not feel threatened, but
also stated he was intimidated or at the least thought the
action was meant to intimidate him. Then in yet another
response, the juror said he thought it was just another
encounter and was unsure of the other individual's
intentions.
Based on this characterization, Judge Marston ruled that "the encounter
was not sufficient to present a credible risk of influencing the verdict." The judge
concluded that "[u]nder an objective analysis, the contact was so short and the conduct
by the third party was such an innocuous gesture [that] the court believes there is no
65 It is not clear why Judge Smith did not preside over the second evidentiary hearing
and why Judge Smith did not issue the ruling on the motions for a new trial. The record
indicates that Judge Smith retired soon after but he was nevertheless brought back to
preside over Burney's and Townsend's sentencings.
- 35 - 2794
----------------------- Page 36-----------------------
credible risk that an objective and typical juror would have been influenced by the
contact." The judge therefore concluded that the contact did not "trigger a presumption
of prejudice," as the defense attorneys claimed. The judge also ruled, in the alternative,
that even if a presumption of prejudice was triggered, the State had rebutted that
presumption by conclusively establishing that there was "no reasonable possibility" that
the encounter had any effect on the jury's verdict.
Judge Marston also rejected the defense attorneys' argument that the
foreperson had not reported the contact because he did not want to risk being removed
from the jury. Instead, the judge concluded that T.S.'s explanation that he did not report
the incident because he did not want to delay the trial was plausible.
Why we conclude that a remand for further proceedings is required
The Sixth Amendment of the United States Constitution and Article I,
Section 11 of the Alaska Constitution guarantee a criminal defendant the right to be
66
tried before an impartial jury.
To help safeguard this right, the United States Supreme Court, in Remmer
v. United States, created a rebuttable presumption of prejudice that applies to contacts
or communications between third parties and jurors concerning the matter pending
before the jury.67 Thus, when faced with certain allegations of improper contact
between a juror and an outside party, most federal courts apply a settled two-step
framework:
66 U.S. Const. amend. VI; Alaska Const. art. I, § 11; see also Godoy v. Spearman, 861
F.3d 956, 958 (9th Cir. 2017) ("One of the most fundamental rights in our system of
criminal justice is the right to trial before an impartial jury.").
67 Remmer v. United States (Remmer I), 347 U.S. 227, 229 (1954); see also Mattox v.
United States, 146 U.S. 140, 150 (1892), ("Private communications, possibly prejudicial,
between jurors and third persons, . . . are absolutely forbidden, and invalidate the verdict,
at least unless their harmlessness is made to appear.").
- 36 - 2794
----------------------- Page 37-----------------------
At step one, the court asks whether the contact was "possibly
prejudicial," meaning it had a "tendency" to be "injurious to
the defendant." If so, the contact is "deemed presumptively
prejudicial" and the court proceeds to step two, where the
"burden rests heavily upon the [state] to establish" the
contact was, in fact, "harmless." If the state does not show
harmlessness, the court must grant the defendant a new
[68]
trial.
The first step presents a "low threshold."69 A defendant cannot rely merely
on "'[t]hreadbare or speculative allegations' of misconduct" or "'allegations involving
prosaic kinds of jury misconduct,' such as 'chance contacts between witnesses and jury
members'" (as when passing in a hallway or in an elevator).70 But the defendant need
only present "evidence of an external contact that has a 'tendency' to be 'injurious to
the defendant.'"71 In order to trigger the presumption of prejudice, the contact need only
72
"raise a credible risk of influencing the verdict."
Courts have held that a suspected incident of jury tampering necessarily
raises a presumption of prejudice under Remmer .73 As the Ninth Circuit explained in
68 Godoy, 861 F.3d at 959 (internal citations omitted). But see United States v. Lawson,
677 F.3d 629, 643-44 (4th Cir. 2012) (discussing circuit split with regard to whether the
Remmer presumption still applies following later Supreme Court caselaw).
69 Godoy, 861 F.3d. at 967 (quoting Tarango v. McDaniel, 837 F.3d 936, 949 (9th Cir.
2016)).
70 Id. (citations omitted) (quoting Tarango, 837 F.3d at 947, 951).
71 Id. (quoting Tarango, 837 F.3d at 947).
72 Id. (quoting Tarango, 837 F.3d at 947).
73 See, e.g., United States v. Henley, 238 F.3d 1111, 1115 (9th Cir. 2001) ("Since the
Remmer cases, it has been clear that jury tampering creates a presumption of prejudice and
that the government carries the heavy burden of rebutting that presumption."); United
States v. Dutkel, 192 F.3d 893, 894 (9th Cir. 1999); see also Remmer I, 347 U.S. 227, 229
(1954) ("In a criminal case, any . . . tampering directly or indirectly[] with a juror during a
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----------------------- Page 38-----------------------
United States v. Dutkel, "Because jury tampering cuts to the heart of the Sixth
Amendment's promise of a fair trial, [courts] treat jury tampering cases very differently
from other cases of jury misconduct."74 There are a number of concerns that arise from
an incident of suspected jury tampering. As the trial court noted, there is the possibility
that the juror's actions could be influenced by fear or resentment.75 There is also
concern that the incident may have been distracting and may have prevented the juror
76
"from thinking about the evidence or paying attention to the judge's instructions."
And there is a concern that the incident may have affected the juror's actions and
demeanor during deliberations.77 Thus, as a general matter, "[o]nce tampering is
established, [courts will] presume prejudice and put a heavy burden on the government
78
to rebut the presumption."
In the current case, the trial court ruled that the presumption of prejudice
did not apply because it found that T.S.'s contact with the unknown man was so
"innocuous" that it presented "no credible risk that an objective and typical juror would
have been influenced by the contact." Burney and Townsend argue that in reaching this
trial about the matter pending before the jury is, for obvious reasons, deemed presumptively
prejudicial[.]").
74 Dutkel, 192 F.3d at 894.
75 See id. at 897 ("Where the intrusion is (or is suspected to be) on behalf of the
defendant raising the claim of prejudice, the presumption arises automatically because
jurors will not doubt resent a defendant they believe has made an improper approach to
them.").
76 Henley, 238 F.3d at 1117.
77 Remmer v. United States (Remmer II), 350 U.S. 377, 381 (1956) (expressing
concern that the alleged tampering may have affected the juror's "freedom of action").
78 Dutkel, 192 F.3d at 894.
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----------------------- Page 39-----------------------
conclusion the trial court mischaracterized the nature of the third-party contact. We
agree.
In its order, the trial court focused primarily on what it viewed had
"objective[ly]" occurred, concluding that the encounter involved little more than a man
"pulling up their jacket in a way that displayed their waistband." The State does the
same on appeal, arguing that the encounter may have been nothing more than a man
"adjusting his jacket" or "pulling up his pants."
But the central flaw with this reasoning is that it does not account for
T.S.'s own understanding of what occurred. While it may be true that T.S. was mistaken
about the identity of the man, the fact remains that T.S. apparently believed that the
man was Townsend's brother.79 Thus, T.S. entered into deliberations under the
80
impression - accurate or not - that Townsend's brother had tried to intimidate him.
The same is true with regard to the presence of a gun. While one might doubt whether
the man actually had a gun, the fact remains that T.S. was worried that the man might
81
have had a gun.
79 See United States v. Rutherford, 371 F.3d 634, 642-43 (9th Cir. 2004) (explaining
that in determining whether the presumption of prejudice should apply, courts do not look
to the intent of the individual alleged to have tampered with the jury, but rather to the
jurors' perceptions of the conduct at issue").
80 See id. at 641-43 (recognizing that the presence of a large number of IRS agents and
other government agents at trial that were allegedly glaring at the jury may have
intimidated the jury even if that was not the agents' intentions); United States v. Angulo ,
4 F.3d 843, 846-47 (9th Cir. 1993) (noting that the jurors' perception of an anonymous
phone call was the relevant consideration rather than the actual intent of the caller).
81 See, e.g., United States v. Cheek, 94 F.3d 136, 142 (4th Cir. 1996) (noting that the
facts that the juror never saw any money, that no money was offered to him, and that he
was not threatened were relevant but did not negate the presumption of prejudice that
attached to an incident of suspected jury tampering).
- 39 - 2794
----------------------- Page 40-----------------------
The trial court's focus on the "objective" evidence of what occurred
appears to be based on a misreading of this Court's holding in Swain v. State.82 In Swain,
we held that a trial court should not inquire into a juror's subjective assessment of the
83
effect that potentially prejudicial external contact may have had on their deliberations.
Instead, the test for prejudice is an objective one.84 The question is how such a contact
85
would likely have affected the deliberations of an objectively reasonable juror.
But while Swain prohibits a trial court from considering a juror's post-
verdict assessment of whether an external contact influenced their deliberations, it does
not prohibit a trial court from considering a juror's subjective assessment of the nature
of the external contact.86 Indeed, it would be impossible for a trial court to apply the
objective "reasonable juror" Swain test without first determining what the juror actually
experienced.
Accordingly, the trial court erred when it viewed the encounter as entirely
"innocuous." Instead, the court was required to consider T.S.'s own subjective
understanding of what had occurred. T.S.'s subjective view was that he had experienced
an apparent incident of juror intimidation by a man he believed to be Townsend's
brother. Under federal law, the Remmer presumption of prejudice attaches to a
suspected incident of jury tampering if the contact has a "credible risk of influencing
the verdict."87 In the present case, T.S.'s testimony that he believed Townsend's brother
82 Swain v. State, 817 P.2d 927 (Alaska App. 1991).
83 Id. at 933.
84 Id.
85 Id.
86 Id.
87 Godoy v. Spearman, 861 F.3d 956, 967 (9th Cir. 2017) (internal quotations omitted)
(quoting Tarango v. McDaniel, 837 F.3d 936, 947 (9th Cir. 2016)).
- 40 - 2794
----------------------- Page 41-----------------------
was trying to intimidate him as a juror was more than sufficient to meet this "low
88
threshold."
Having established that the first step of the Remmer test was met, we turn
to the second step - whether the State can rebut the presumption of prejudice that
arises when an incident of suspected jury tampering has occurred. As the United States
Supreme Court made clear in its sequel to Remmer (Remmer II), this assessment
requires the court to examine the "entire picture" for harmlessness, including the factual
circumstances and the impact of the event on the juror.89 "Harmlessness in this context
means 'that there is no reasonable possibility that the communication . . . influence[d]
90
the verdict.'"
On appeal, Burney and Townsend argue that the State failed to rebut the
presumption of prejudice because, according to them, an objective, reasonable juror
would necessarily have had their deliberations impacted by an incident of suspected
jury tampering. But the facts here are not so simple.
In Remmer II, the United States Supreme Court reversed the defendant's
convictions and granted a new trial because it concluded that, based on the totality of
the evidence, the State had not rebutted the presumption of prejudice.91 Central to its
decision, however, was the fact that the juror testified that he felt he was under "terrific
88 Tarango, 837 F.3d at 949.
89 Remmer II, 350 U.S. 377, 379 (1956); see also United States v. Cheek, 94 F.3d 136,
143 (4th Cir. 1996) (noting that a "probing factual inquiry" is necessary in these situations,
although Federal Evidence Rule 606(b) precludes "all inquiry into a juror's mental process
in connection with the verdict" (quoting Haley v. Blue Ridge Transfer Co., Inc., 802 F.2d
1532, 1535 n.1 (4th Cir. 1986))).
90 Godoy, 861 F.3d at 968 (quoting Caliendo v. Warden of Cal. Men's Colony, 365
F.3d 691, 697 (9th Cir. 2004)).
91 Remmer II, 350 U.S. at 382.
- 41 - 2794
----------------------- Page 42-----------------------
pressure" as a result of the tampering incident and subsequent FBI investigation.92 That
is, the Court found that it was "quite evident" from the juror's testimony that he was a
"disturbed and troubled man from the date of the [extrajudicial] contact until after
trial."93 Other courts have likewise emphasized that incidents of suspected jury
tampering left jurors "devastated and fearful" 94 or "extremely scared."95
Here, the testimony is more conflicting. Although T.S. testified that he felt
"intimidated" by the encounter, he also testified that he did not feel personally
threatened because of his military background. Likewise, while he testified that he
viewed the encounter as an attempt to intimidate him as a juror, he also testified that he
did not actually know the man's intentions, and that he did not report it because it was
"just another encounter" and "it came of nothing." T.S. also denied feeling "on edge"
because of the incident.
Typically, when there is conflicting testimony at an evidentiary hearing,
we look to the trial court to resolve the conflict because the trial court is in the best
position to evaluate the witness's affect and demeanor and to come to a conclusion as
to what really happened.96 But here, we have the added complication that the judge who
92 Id. at 381.
93 Id.
94 Cheek, 94 F.3d at 140, 144 (juror testified that he did not report an incident of
suspected jury tampering because he was "very afraid of retaliation by the defendants").
95 United States v. Henley, 238 F.3d 1111, 1116 (9th Cir. 2001) (juror testified that he
was "extremely scared"); see also United States v. Elias, 269 F.3d 1003, 1019-21 (9th Cir.
2001) (affirming the trial court's denial of a motion for a new trial where the defendant
asked a juror "what it would take to buy her off" because the jurors testified at an
evidentiary hearing that they believed the defendant was joking).
96 See Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 178 (Alaska 2009) ("[Appellate
courts] grant especially great deference when the trial court's factual findings require
weighing the credibility of witnesses and conflicting oral testimony." (citing Vezey v.
Green, 171 P.3d 1125, 1128-29 (Alaska 2007))).
- 42 - 2794
----------------------- Page 43-----------------------
heard T.S.'s testimony is not the judge who rendered the decision on the defendants'
motion for a new trial. The judge issuing the order was therefore not well positioned to
resolve the conflicting testimony, and he did not do so, instead simply noting that there
was conflicting testimony.
There are also other errors in the trial court's order. Although the judge
who conducted the evidentiary hearing later issued an order acknowledging that he
could not consider T.S.'s testimony that the encounter had not affected his deliberations,
the judge who ultimately ruled on the motion for a new trial referred to this fact twice
in his order and appeared, at least in part, to rely on it in his analysis.
Both federal and state law are clear that a court cannot consider a juror's
post-verdict reassurances that an external contact did not affect their deliberations. This
prohibition is derived from Evidence Rule 606(b), which is similar under both federal
and state law.97 As we explained in Larson v. State :
Evidence Rule 606(b) declares that juror testimony and juror
affidavits can not be offered for any of these purposes: (1) to
prove "any matter or statement occurring during the course
of the jury's deliberations", or (2) to prove "the effect of any
matter or statement upon that [juror's] or any other juror's
mind or emotions as influencing the juror to assent to or
dissent from the verdict", or (3) to prove "the juror's mental
processes in connection therewith" [i.e., in connection with
the juror's decision to assent to or dissent from the
verdict].[98]
Evidence Rule 606(b) contains two exceptions to the prohibition against
considering a juror's post-verdict statements about the jury's deliberations.99 First, juror
97 Compare Fed. R. Evid. 606(b), with Alaska R. Evid. 606(b); see also Swain v. State,
817 P.2d 927, 932 (Alaska App. 1991) (observing that Alaska Evidence Rule 606(b) was
modeled after Federal Evidence Rule 606(b)).
98 Larson v. State , 79 P.3d 650, 653 (Alaska App. 2003).
99 Although not relevant to this case, we note that the United States Supreme Court
has created an additional exception to Evidence Rule 606(b) for discriminatory conduct.
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----------------------- Page 44-----------------------
testimony and affidavits are allowed with regard to "whether extraneous prejudicial
information was improperly brought to the jury's attention."100 Second, juror testimony
and affidavits are allowed with regard to "whether any outside influence was
improperly brought to bear upon any juror."101 In other words, a court can consider juror
testimony "to prove or disprove the occurrence of" extraneous prejudicial information
or outside influences, but it cannot consider post-verdict 102 juror testimony "when
103
offered to prove the effect of these events" on the jurors' deliberative processes.
Applying Evidence Rule 606(b) and its exceptions to the current case, the
court was permitted to consider T.S.'s testimony regarding the nature of the outside
influence that he experienced - i.e., his testimony about what he perceived had
occurred during the encounter outside the courthouse. The court was prohibited,
See, e.g., Peña-Rodriguez v. Colorado, 580 U.S. 206, 211, 225 (2017) (holding that the
Evidence Rule 606(b) "no impeachment rule" gives way "where a juror makes a clear
statement that indicates he or she relied on racial stereotypes of animus to convict a
criminal defendant").
100 Alaska R. Evid. 606(b); see also Larson, 79 P.3d at 654.
101 Larson , 79 P.3d at 654.
102 We note that the prohibitions under Evidence Rule 606(b) do not apply before the
jury begins its deliberations. As we explained in Larson v. State , "The rule prohibits the
use of juror testimony and juror affidavits in 'an inquiry into the validity of the verdict,'
but it does not restrict the use of this evidence when the court investigates potential juror
misconduct before the jury renders its decision." Larson , 79 P.3d at 653; see also Waters
v. State, 1993 WL 13156700, at *4, n.1 (Alaska App. May 26, 1993) (unpublished)
(explaining that "Swain and the authorities it relied on dealt exclusively with situations
involving retrospective inquiries into the effects of potentially prejudicial extrinsic
information on verdicts that had already been rendered").
103 Larson , 79 P.3d at 654 (citing Swain v. State, 817 P.2d 927, 932-33 (Alaska App.
1991)); see also United States v. Cheek, 94 F.3d 136, 143 (4th Cir. 1996) ("[W]hen a party
seeks to attack or support a verdict, Rule 606(b) prohibits all inquiry into a juror's mental
process in connection with the verdict." (citing Tanner v. United States, 483 U.S. 107, 117-
22 (1987))).
- 44 - 2794
----------------------- Page 45-----------------------
however, from considering T.S.'s testimony about the effect, if any, that this encounter
had on his deliberations - i.e., his testimony that the encounter did not impact his
deliberations either "consciously or unconsciously."
But what about T.S.'s testimony that he did not feel threatened because of
his military background and his testimony that he was not "on edge" because of the
encounter? Can this testimony be considered under Evidence Rule 606(b)? We
acknowledge that there is some language in our cases that suggests that Evidence
Rule 606(b) precludes any consideration of the effect of an external encounter on the
juror's "mental processes." 104 But if that language is traced back to its origin in federal
law, it is clear that the prohibition applies only to "mental processes" as they relate to a
105
juror's deliberations.
Indeed, federal law is quite clear on this matter. In United States v.
Rutherford, for example, the Ninth Circuit stated:
[A] juror cannot testify to whether an outside influence
caused him to change his vote from innocent to guilty.
However, a court can and should consider the "effect of
104 See, e.g., Swain, 817 P.2d at 932-33 (describing Ciervo v. State, 756 P.2d 907
(Alaska App. 1988), as mistaken and stating that there is a wealth of authority holding that
a reviewing court "is precluded from considering evidence concerning the subjective
impact of the extraneous matter"); Larson , 79 P.3d at 654 (stating Evidence Rule 606(b)
"bars juror testimony and affidavits when offered to prove the effect of [extraneous
prejudicial information or outside influences] on the jurors' mental processes").
105 See Swain, 817 P.2d at 932-34 (explaining that prohibition is based on Evidence
Rule 606(b) and related federal case law and clarifying that Ciervo is disavowed "to the
extent that it suggests that courts may properly consider evidence of the actual, subjective
impact of extraneous prejudicial matter on a juror's deliberations" (emphasis added));
Larson , 79 P.3d at 653 (clarifying that Evidence Rule 606(b) prohibits inquiring into jurors'
"mental processes in connection therewith [i.e., in connection with the juror 's decision to
assent to or dissent from the verdict]" (emphasis added) (citing to Tanner v. United States,
483 U.S. 107 (1987))); see also Tanner, 483 U.S. at 138, (Marshall, J., dissenting) (noting
that Evidence Rule 606(b)'s prohibition against eliciting testimony regarding the effect on
the juror's "mental processes" is limited to "the 'mental processes' of the juror in
connection with his 'assent to or dissent from the verdict.'").
- 45 - 2794
----------------------- Page 46-----------------------
extraneous information or improper contacts on a juror's
state of mind," a juror's "general fear and anxiety following"
such an incident, and any other thoughts a juror might have
about the contacts or conduct at issue.[106]
The court further explained:
In this regard, a juror's testimony concerning his fear that
individuals would retaliate against him if he voted to acquit
(or convict) would be admissible, although his statement that
he actually cast his vote one way or the other because of that
[107]
fear would not.
Similarly, in United States v. Henley, the Ninth Circuit distinguished between
"testimony regarding the affected juror's mental processes in reaching the verdict,"
which is barred by Rule 606(b), and "testimony regarding the juror's more general fear
and anxiety following a tampering incident, which is admissible for purposes of
determining whether there is a 'reasonable possibility that the extraneous contact
108
affected the verdict.'"
We therefore conclude that for purposes of determining whether the State
can rebut the presumption of prejudice established under Remmer, the trial court is
entitled to consider testimony regarding how T.S. was (or was not) emotionally affected
by the third-party contact, although it cannot consider testimony regarding the effect
(or lack of effect) that the contact may have had on T.S.'s deliberative processes.
Lastly, we note that our analysis has focused on the Remmer test and its
application to this case because that is the test on which the parties focused in the
superior court and the test on which the superior court relied. On appeal, Burney and
106 United States v. Rutherford, 371 F.3d 634, 644 (9th Cir. 2004) (quoting United
States v. Elias, 269 F.3d 1003, 1020 (9th Cir. 2001)).
107 Id. (citing United States v. Dutkel, 192 F.3d 893, 898 (9th Cir. 1999)).
108 United States v. Henley, 238 F.3d 1111, 1118 (9th Cir. 2001) (quoting Cheek, 94
F.3d at 144).
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Townsend argue that they are also entitled to relief under the state tests for jury
misconduct. As we recently explained, there are two lines of cases in our case law that
set out two slightly different standards for "jury misconduct" - a term that is used both
to describe "action by jurors that is contrary to their responsibilities and conduct by
109
others which contaminates the jury process with extraneous influence."
The first test - which addresses misconduct committed by the juror -
depends on a two-part test:
First, the evidence must establish a serious violation of the
juror 's duty - i.e., fraud, bribery, forcible coercion, or any
obstruction of justice. Second, the violation must deprive a
party of a fair trial - which may be shown by three factors:
(1) whether the juror would have been challenged for cause
had the juror disclosed the relevant information; (2) whether
the misconduct went to a collateral or material issue; and
(3) whether the probable effect of the misconduct was
[110]
prejudicial.
The State argues that Burney and Townsend have waived reliance on this
test by failing to argue the test in their trial court pleadings and failing to obtain a ruling
from the trial court. We agree. A review of the pleadings before the trial court shows
that although Burney and Townsend argued generically that T.S.'s failure to
immediately notify the court of the encounter with the man T.S. believed to be
Townsend's brother constituted "jury misconduct," they never articulated or argued any
109 Antoghame v. State , 2023 WL 29317, at *2 (Alaska App. Jan. 4, 2023)
(unpublished) (quoting 6 Wayne R. LaFave et al., Criminal Procedure, § 24.9(f), at 688-
89 (4th ed. 2015)).
110 Id. (first citing West v. State, 409 P.2d 847, 852 (Alaska 1966); then citing Fickes v.
Petrolane-Alaska Gas Serv., Inc. , 628 P.2d 908, 910 (Alaska 1981)).
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legal standard by which to evaluate such alleged misconduct and they never obtained
111
any ruling on that issue from the trial court.
The second test - which addresses when a juror has been exposed to
material outside the trial record - requires the court to grant a new trial when "the
court finds a substantial likelihood that the vote of one or more jurors was influenced
by exposure to prejudicial matter relating to the defendant or to the case itself." 112 This
test is similar to the Remmer test in that it deals with contacts and communications
between third parties and jurors. But it is seemingly less protective than Remmer
because it does not employ a presumption of prejudice standard. Instead, the burden is
on the defendant to establish a "substantial likelihood" that the vote of one or more
113
jurors was affected by the third -party contact.
As a general matter, a state constitutional test cannot be less protective
than its federal counterpart. 114 It therefore makes sense, in the context of this case where
a presumption of prejudice under the Remmer test has been established, to continue to
use the more protective Remmer test on remand, particularly given the fact that this was
the only test briefed and argued by the parties in the trial court proceedings.
We therefore remand this case to the trial court for further proceedings to
give the State an opportunity to rebut the presumption of prejudice under Remmer . If,
upon completion of those proceedings, the trial court concludes that the verdicts were
tainted, then the judgments of conviction shall be set aside and a new trial may be
111 See Marino v. State , 934 P.2d 1321, 1327 (Alaska App. 1997) (failure to obtain a
trial court ruling on an issue waives that claim for appeal).
112 Swain v. State, 817 P.2d 927, 931 (Alaska App. 1991).
113 Id.
114 Fletcher v. State, 532 P.3d 286, 307 (Alaska App. 2023) ("[U]nder the principles of
federalism, the Alaska Constitution must be at least as protective as its federal counterpart."
(citing Doe v. State, Dep't of Pub. Safety, 92 P.3d 398, 404 (Alaska 2004)))
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conducted, if the State so elects. If the court determines that the State has rebutted the
presumption of prejudice, however, the judgments of conviction (other than for first-
degree murder) shall remain.
Conclusion
For the reasons explained in this opinion, we VACATE Burney's and
Townsend's convictions for first-degree murder. We also VACATE the superior court's
order denying defendants' motion for a new trial and REMAND for further proceedings
consistent with this opinion. On remand, the superior court shall conduct a new
evidentiary hearing, as appropriate, and enter a new order on defendants' motion for a
new trial. Thereafter, the superior court may conduct a retrial, if required, or enter
judgment on Burney's and Townsend's second -degree murder convictions and proceed
to a resentencing. We retain jurisdiction.
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Judge TERRELL, concurring in part and dissenting in part.
The majority concludes that the trial court should have granted appellants'
motions to sever their cases for trial, while concluding that the denial of severance was
not prejudicial as to the charge of second-degree murder but that it was prejudicial as
to the charge of first-degree murder. I do not agree that the trial court should have
severed the cases, but because the court reaches the correct resolution with respect to
the second-degree murder charge, I concur in the result as to that charge. I dissent from
both the majority's analysis and resolution as to the first-degree murder charge.
As to the first-degree murder charge, the majority takes the view that the
State's case for intentional homicide was "far from overwhelming," and that the
evidence of this case more strongly supports a second-degree murder conviction under
the theory that the shooter was so reckless as to the possibility that his acts would cause
1
death that it amounted to acting with extreme indifference to the value of human life.
The majority concludes that the fact that the jury convicted both Burney and Townsend
of first-degree murder suggests that the jury may have been influenced to find guilt on
the higher charge due to the antagonistic nature of their defenses, as exemplified by the
rhetoric of defense counsel, who both strenuously argued that their client's co-
defendant was the real culprit. I disagree with this assessment. The State's case provided
a cohesive and unifying theory and solid evidentiary basis for the jury to convict both
Burney and Townsend of first-degree murder. In these circumstances the trial court did
2
not abuse its discretion in denying severance.
1 See AS 11.41. 110(a)(2) ("A person commits the crime of murder in the second
degree if . . . the person knowingly engages in conduct that results in the death of another
person under circumstances manifesting an extreme indifference to the value of human
life."); see also Jeffries v. State, 169 P.3d 913, 916 (Alaska 2007) (explaining the culpable
mental states applicable to AS 11.41.110(a)(2)).
2 See Middleton v. State , 577 P.2d 1050, 1052, 1054-55 (Alaska 1977).
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My discussion of the case is laid out as follows. First, I will discuss some
preliminary points about the nature of first-degree murder, and why the facts of this
case map onto the requirements for first-degree murder. Second, I will discuss why the
State put forth a solid first-degree murder case. Finally, I will conclude with some brief
thoughts about the standards and considerations that should be applied by trial judges
when evaluating motions to sever co-defendants' cases based on antagonistic defenses.
Beginning with first-degree murder, Alaska's first-degree murder statute,
AS 11.41.100, requires the State to prove that the defendant acted "with intent to cause
the death of another person."3 But as we have recognized, this statute "does not require
the State to prove that a defendant had a specific intent to cause the death of a particular
person to convict the defendant of murder."4 Thus it is sufficient, for example, if the
defendant intended to kill at the first opportunity any person who was a member of a
particular group, or any person in a particular location (such as a person that the
defendant knows is standing behind a door that he is shooting into). It is true that
shooting at a generalized target can often fit the definitions of the two main theories of
second-degree murder: causing death while either (1) acting "with intent to cause
serious physical injury to another person or knowing that the conduct is substantially
certain to cause death or serious physical injury," or (2) "knowingly engag[ing] in
conduct that results in the death of another person under circumstances manifesting an
extreme indifference to the value of human life."5 But the circumstances of such a
3 AS 11.41.100(a)(1).
4 Ramsey v. State, 56 P.3d 675, 681 (Alaska App. 2002) (emphasis added). This is in
accord with the majority view of the nature of intentional homicide. See, e.g., People v.
Stone, 205 P.3d 272, 277 (Cal. 2009) ("The requisite intent, therefore, is the intent to kill
a, not a specific, human being."); 40 C.J.S. Homicide § 81 (2024) ("[A]n intent to kill need
not be directed toward any specific person, and a conditional intent to kill, if carried into
effect on the occurrence of the condition, is sufficient." (cited cases omitted)).
5 AS 1 1.41.110(a)(1)-(2).
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shooting can sometimes provide the basis to conclude that the shooter intended to kill
and thus committed first-degree murder.6 Courts have recognized some factors that can
provide the basis to find a shooter 's intent to kill include firing numerous shots into a
targeted area of a room, at a level or height most likely to hit a person, at a time when
it is substantially likely that persons will be in the targeted area.7 These factors have
converged in retaliatory shooting cases where the defendant seeks retribution for a past
8
harm, allowing a jury to infer intent.
6 Id. The legislative commentary to this statute gives "[s]hooting into a crowded room
without an intent to cause death or serious physical injury" as "an example of an act done
with knowledge that death or serious physical injury is substantially certain to result."
Senate Journal Supp. No. 47, at 9-10 (June 12, 1978). It gives "shooting through a tent
under circumstances where the defendant did not know a person was inside" as an example
of an extreme-indifference second-degree murder under paragraph (a)(2). Id. In the two
above examples of shooting into an enclosed structure constituting second-degree murder,
the difference between paragraphs (a)(1) and (a)(2) is the actor's knowledge that the
building is occupied, but the difference which elevates it to first-degree murder is the intent
to kill a person that the shooter knows is inside the building. And it is important to note
that under Alaska law, absolute certainty is not a requirement for a defendant to act
"knowingly." Alaska Statute 11.81.900(a)(2) provides in relevant part that "when
knowledge of the existence of a particular fact is an element of an offense, that knowledge
is established if a person is aware of a substantial probability of its existence."
7 See, e.g., Tackett v. Trierweiler, 956 F.3d 358, 368-69 (6th Cir. 2020) (noting all
these facts, and noting a conclusion that the shooting was intentional was supported
because it appeared to be in retaliation for a previous incident); Washington v. State, 376
P.3d 802, 808 (Nev. 2016) (driving to a populated area with a handgun and firing multiple
shots into an apartment building at 4:35 a.m. supported jury's finding that the defendant
acted deliberately); State v. Betancourt, 342 P.3d 916, 931 (Kan. 2015) ("[T]he evidence
viewed in the light most favorable to the State provides evidence Betancourt shot in a
pattern designed to hit someone standing on the other side of the door."). We have likewise
recognized that, in the case of homicides, "intent 'may be inferred from the circumstances
attending the killing.'" Howell v. State, 917 P.2d 1202, 1212 (Alaska App. 1996) (cited
and quoted cases omitted).
8 See, e.g., Tackett, 956 F.3d at 368-69; Betancourt, 342 P.3d at 921.
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The State argued from the outset that Burney and Townsend had not
necessarily set out to kill a specific individual, but rather targeted members of the
Hargrove household.9 In the State's opening statement, immediately after referring to
the death of P.A. as a "targeted killing," the prosecutor asked a rhetorical question,
"Why would these two men target this residence for an execution?" In describing the
conversation at West's house about retaliation, the prosecutor stated that "this is where
the two are talking about how Mr. Townsend had been stolen from and disrespected by
this family." The prosecutor described West's statements to police that "she overheard
Mr. Townsend telling Mr. Burney about how these people had robbed him, stolen from
him, jumped him," and stated that "[t]hey both agreed on a plan to retaliate to get back
at the people who had jumped, stolen from, and disrespected Mr. Townsend." The
prosecutor again referred to the Hargrove apartment as the "targeted residence."
I turn now to discuss my differences with the majority as to the strength
of the State's first-degree murder case. The record provided a solid basis from which a
reasonable juror could conclude that the State had proved that Burney and Townsend
committed first-degree murder.
9 This was consistent with the evidence, discussed in greater detail below, that
Townsend had reason to have animus against others, not just Hargrove, but also a broader
group within the Hargrove household. Not only had Hargrove fought with Townsend and
supposedly ripped Townsend off in the marijuana deal, but Demetra Alex, P.A.'s mother,
was, in Townsend's view, a participant in the rip-off and had seriously insulted Townsend's
girlfriend, Rilatos. Moreover, two teenagers associated with the household, including P.A.,
had jumped on Townsend and hit him during the fight with Hargrove. Alex testified that
after the fight, Townsend had complained that "y'all trying to jump people." Townsend
stated during a police interview that "they jumped me . . . and took my money." Rilatos
also testified that after the fight "they" (i.e., presumably the Hargrove/Alex family)
threatened to harm Townsend's family. If Townsend thought his family was being
threatened, it appears logical that he could have concluded that retaliation against not only
Hargrove but also the key members of the Hargrove household who had acted against
Townsend was appropriate.
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The evidence and circumstances surrounding the shooting supported the
view that the shooter intended to kill. The shooter used a lethal, .40 caliber semi-
automatic handgun and fired numerous (six) shots in a relatively tight pattern, as
evidenced by the holes in the bedroom window, downward into a target zone in the
bedroom in a location where persons were substantially likely to be, i.e., in the king-
size bed.10 The trial exhibits show that the bed was directly facing the window.11 Three
of the six shots hit the two persons in the bed, P.A. and D.S. (two shots hitting P.A. and
one shot hitting D.S.). Burney and Townsend point to testimony that the lights were off
in the room when the shots were fired and that the window had curtains. However, the
.40 caliber gun found in West's Jeep had a laser sight or an attached flashlight, and the
testimony and physical evidence supported the view that the curtains were partially
open and had a gap that the shooter could see through. Given all of these facts, a
reasonable juror could conclude that the shooter knew that he was shooting at persons
inside the bedroom and intended to kill them.
The majority asserts that I am speculating that the shooter could see into
the room, stating that "there was no clear evidence that the shooter could see into the
room that early morning," and that "the testimony at trial was that the curtains were at
10 Townsend had recently been inside the Hargrove apartment on multiple occasions,
to both buy marijuana from Hargrove and to smoke it with him in Hargrove and Alex's
bedroom, which was next to P.A.'s bedroom, and knew which bedroom was which.
Hargrove and Alex's bedroom windows were covered in tinfoil to block light, and thus was
distinguishable from P.A.'s bedroom from outside the apartment building. Alex testified
that "if you walk by my bedroom, you could see everything in [P.A.'s] room." Trial
exhibits support her testimony. Therefore, Townsend no doubt knew the general area to
fire into P.A's bedroom to hit a person, and could communicate that to Burney.
11 Alex testified that the bed had recently been moved (from being directly underneath
the outside window to the opposite side of the room). But, as previously noted, the bed was
king-sized, and, as seen in the trial exhibits, even assuming that the shooter thought that
the bed was against the outside window, the "strike zone" for hitting a person in the room
on that bed would still have been roughly the same.
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----------------------- Page 55-----------------------
least partially drawn and the lights in the room were off." Demetra Alex testified that
the curtains for that window, even when fully drawn, did not fully cover the window
and left a gap, such that someone standing outside the window could see the bed. She
stated at trial that this gap would be four to five inches. But the record provides several
other critical pieces of evidence that reveal that, at the time of the shooting, the curtains
had been pushed apart substantially further than four to five inches. The window
covering consisted of two separate curtains suspended from a curtain rod. When looking
from inside the apartment, the curtain hanging on the right side has no bullet holes in
it, meaning that it was not covering the lateral pattern in which the six bullet holes were
spaced.12 As to the curtain hanging on the left side, the trial testimony was that it had
only two defects in it from bullet holes. However, early crime scene photos taken from
outside the building show this curtain pulled across the window in front of where most
of the six bullet holes are concentrated, but without obvious perforations in the curtain
corresponding to all the bullet holes. An officer who was at the scene speculated at trial
that, based on the holes in the window and the limited defects in the curtain, "more of
the room was exposed" at the time of the shooting and that, after the shots were fired,
the curtain had been pulled. Moreover, as previously noted, the gun had a laser sight or
flashlight attached. The evidence provided a clear basis from which jurors could
conclude the shooter could see into the room and knew that he was shooting at people.
Additionally, although motive is technically not something the State is
required to prove, the jury in this case had been presented with strong evidence that
Townsend had a substantial motive to retaliate against Hargrove and Alex. The
majority's description of the facts of the March 21 drug-deal-gone-bad is somewhat
cursory and so I will describe it here in greater detail.
12 The curtains were removed and examined by the police, and brought into court as
an exhibit that the jurors could see for themselves.
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Townsend, by his own admission, was a small-time drug dealer.
Townsend wanted to make some money by buying an ounce of marijuana from
Hargrove and then reselling it, but was out of money. To cover the cost, he directed his
girlfriend, Rilatos, to go to the Hargrove apartment in Mountain View and buy an ounce
of marijuana from Hargrove for $350 and said that he would reimburse her later.
Hargrove was away when Rilatos arrived, but Alex was there and gave Rilatos the bag
containing marijuana that Hargrove had left for Rilatos to pick up. After Rilatos left the
Hargrove apartment, she texted Townsend that the marijuana was "nothing but stems,"
in essence stating that they had been ripped off.
Townsend had Rilatos pick him up and take him to the Hargrove
apartment. Rilatos went inside the apartment with Townsend. Multiple people were
inside the apartment, including a man referred to as "Taco," who lived nearby and from
whom Townsend had also bought drugs, and who Alex described as like a brother to
her. Townsend confronted Hargrove about the disputed marijuana transaction. During
their discussion, Townsend gave Hargrove the bag of marijuana, and Hargrove weighed
it on a digital scale, revealing a weight of 13 grams. (An ounce is 28.3495 grams, so
this weighing showed that the amount of marijuana that Townsend had in the bag was
less than half of the full, $350 ounce that he had paid for.) Alex stated that she and
Hargrove had not shorted Townsend on the transaction, called Rilatos a "dumb, fat,
white bitch," and said that Rilatos had probably taken some of the marijuana that was
purchased. Hargrove declined to return the purchase price ($350) in exchange for
Townsend giving back the bag of marijuana. Townsend then challenged Hargrove to
fight him. Hargrove initially declined, because Townsend was carrying a gun tucked in
his waistband, but Townsend said he would get rid of it and handed the gun to Rilatos.
The men went outside to fight.
A good-sized crowd of people - at least eight - watched the fight. The
men grappled and traded punches, and, according to Hargrove, Hargrove seemed to
have the upper hand. At one point however, Hargrove slipped in the snow, giving
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Townsend the ability to get on top of him and begin choking him, at which point the
later shooting victim, 15-year-old P.A., jumped on Townsend and punched him, in an
attempt to get him off of Hargrove. Eventually, Townsend and Hargrove seemed to
consider the matter sufficiently dealt with, and stopped fighting and separated.
However, after the fight ended, Rilatos returned the gun to Townsend, who fired seven
shots into the upper floor of the apartment building as he and Rilatos drove away.
The net result of this drug-deal-gone-bad is that at its conclusion,
Townsend had been embarrassed and humiliated in multiple ways. He owed money to
his girlfriend, Rilatos, who had spent $350 on his behalf, and now he was out $350 and
had been ripped off by Hargrove and Alex. Further, Alex, in front of a group of people,
both insulted Rilatos and accused her of taking some of the marijuana that was supposed
to be Townsend's. Last, there was a fight where Townsend appeared to come out on the
short end of it, again in front of multiple witnesses, and where minors piled on near the
end. Townsend, even as a small-time drug dealer, was involved in a profession where a
reputation for physical dominance is essential; as Townsend stated at trial, when a
"deal[ was] going bad," he needed to "protect [him]self" instead of turning to the
authorities. Having all of these things witnessed by multiple people was likely to be
highly damaging to his reputation. In this milieu, these events were certainly sufficient
to provide a solid motive for a revenge killing.
Burney's motive for participating in the offense was less clear, in that he
had no known current connection to Hargrove or Alex, and no reason to have animosity
towards them or their family. But the reporters that publish the decisions of our federal
and state courts are full of cases where persons have willingly joined in to criminal
endeavors where they had no personal stake in the encounter, and simply acted to assist
a friend or acquaintance with the latter's criminal objectives, or did so to gain credibility
in the criminal or gang milieu. As incomprehensible as such action is to the average
person, the lack of a weightier motive on Burney's part did not substantially weaken
the State's case, in that the evidence surrounding the shooting provided solid support
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for the view that Burney intended to kill. Moreover, as noted immediately following,
the evidence points to an agreement between Burney and Townsend; if a juror credited
the existence of an agreement, they could also reasonably conclude that the less-
motivated (in terms of direct motive to harm the victim) party to the agreement still
decided to keep their end of the bargain.
There was evidence of an agreement between Burney and Townsend to
engage in concerted criminal activity. At trial, the State played a recording of Detective
Walter Gilmour interviewing West. West told Gilmour that at the party at her apartment,
she heard "the boys" (i.e., Townsend, Burney, and the other males at the gathering) in
the kitchen talking about Townsend having been robbed, and that Burney and
Townsend asked her to drive them to the location where that had taken place. At trial,
West conceded that she had told police about overhearing Townsend say that he had
been robbed, while claiming that Townsend did not directly say anything about
retaliating against the people that had robbed him and that she just inferred that. But
West testified to actions and statements by Burney and Townsend that suggested that
they were attempting to conceal their actions or objectives and had a pre-existing
agreement. As to concealment, West testified that:
* Burney was insistent that she drive him somewhere, but would not say
where.
* When they left the apartment, Townsend told her that if she was later
asked where they had gone, to say that the group was going to pick
someone up.
* When they reached the Hargrove/Alex apartment building, Burney
told her to stop the car, got out, and then told her to come around to the
next street over (which is suggestive of a desire to avoid having the car
spotted - in turn suggestive of the fact that he knew he was going to
commit a criminal act when he got out of the car).
As to the fact of a pre-existing agreement, West testified that:
* Before she, Burney, and Townsend left her apartment, Burney turned
to Townsend and said, "okay, let's go," and was not waiting for an
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answer from Townsend (i.e., Burney's statement was the launch signal
to commence execution of their pre-existing agreement).
* Burney asked for a ride, but it was Townsend that gave her the
directions to their destination.
* "[T]hey both knew what they were going over there for."
Moreover, West's own plea to manslaughter undoubtedly underscored for
the jury that she acted culpably with respect to the duo's prospective actions. There was
sufficient evidence of a tacit agreement between Burney and Townsend, at the time they
left West's apartment, to engage in criminal activity. And they must have had the gun
with them when they left the apartment, because the group did not stop anywhere
between leaving the apartment and arriving at the location of the shooting.
The preceding facts regarding their tacit agreement do not themselves
conclusively answer the question of whether Burney and Townsend's agreement was
to try to kill a member of the Hargrove household, but they strongly suggest that they
intended to commit criminal activity that involved a firearm. And it seems unlikely that
the intent was simply to retaliate against Hargrove and Alex by shooting at their
apartment building - Townsend had already done that. Thus, the jury could reasonably
conclude that the intent was to shoot at a person.13 Of course, it is theoretically possible
that one could shoot merely with the intent to wound, not to kill. But, tying all of the
foregoing discussion together, the most obvious basis for concluding that the agreement
was to kill someone was the shooter's actions - firing six shots through a bedroom
window at 3 :00 a.m. in a manner that was highly likely to (and in fact did) result in a
mortal wound to one of the persons in the bedroom.
13 The Illinois Court of Appeals explained in a similar situation that a second, drive-
by shooting into a residence, which hit a person inside, "clearly demonstrates that [the first
drive-by's act of] merely shooting-up Jose's house was unsatisfactory," with "[t]he logical
inference being that defendants intended [in the second drive-by] actual harm to the
building's occupants, which, when automatic weapons are involved, may reasonably be
interpreted as intent to kill." People v. Hill , 658 N.E.2d 1294, 1298 (Ill. App. 1995).
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The majority suggests that evidence of Burney's intoxication undermines
proof of his intent to kill. At trial, State of Alaska crime lab analyst Charles Foster
testified that a blood sample was taken from Burney at 2:37 p.m. on April 1, 2014,
approximately eleven hours after the shooting, which produced a reading of .029 grams
of alcohol per 100 milliliters of blood. Foster testified that people metabolize alcohol at
different rates, and that for people with slow metabolisms, their blood alcohol level
would go down by .01 grams of alcohol per hour, while the average person metabolized
at the rate of .017 grams per hour, while people with fast metabolisms eliminated
alcohol at the rate of .025 grams per hour. Burney's counsel asked Foster to perform a
retrograde extrapolation to calculate backwards as to what Burney's blood alcohol level
could have been at the time of the shooting. Foster did so but did not expressly state a
result. Townsend's counsel stated on cross-examination of Foster that Burney's counsel
had followed along with Foster's calculations and came up with a result of .304 percent
blood alcohol reading at the time of the shooting, assuming the highest elimination rate.
(Doing the math reveals a blood alcohol reading of .216 percent using the average rate
of elimination, and a reading of .139 percent using the lowest rate of elimination.) Foster
conceded that .304 was the high possibility and that Burney's actual blood alcohol level
would fall within a spectrum, depending on how fast he metabolized alcohol, which
could in turn depend on how heavy a drinker he was in general, and how quickly he
consumed the alcohol that evening, and when he stopped drinking.
In closing argument, Burney's counsel argued that given Burney's
intoxication level (which he noted had to be based on a blood alcohol level between .15
and .3 percent), it was highly unlikely that Burney could have done everything
necessary to commit the shooting, i.e., walk from the car to the bedroom window on
the snow-and-ice covered alley and fire six shots through a gap in the curtains, or that
he formed the specific intent to kill.
These arguments did not substantially undermine the view that Burney
could form the intent to kill and was capable of committing the shooting. The prosecutor
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conceded in his rebuttal closing that Burney was intoxicated, noting that it was apparent
from the tape of his first police contact when police officers stopped West's vehicle
several minutes after the shooting, and from the fact that he still had a substantial
amount of alcohol in his system when interviewed at the police station eleven hours
later. But the prosecutor noted that Burney did a number of things reflective of his
ability to deliberately move about and to make decisions. Burney participated in a
conversation with Townsend at the party at West's apartment about Townsend recently
having been ripped off by Hargrove, made a decision to leave the party with Townsend,
walked downstairs and got in West's vehicle, was able to get out of the car at the
Hargrove/Alex apartment and again when stopped by the police, and lied to the police
when they stopped him. The prosecutor argued that "[t]his is not a person who's so
drunk he's non-functional." The prosecutor asserted that it would have been obvious to
Burney that the building he was shooting into was an apartment building, and also that
the surface conditions of the alley (as seen in trial exhibits) would not have prevented
an intoxicated person from walking to the apartment window. And the prosecutor
concluded that emptying the entire magazine of the gun demonstrated the intent to kill.
The State's argument that Burney was not too intoxicated to commit the
act of shooting into the bedroom window of the Hargrove/Alex apartment and to form
intent to kill was consistent with Alaska case law. In Simpson v. State, the jury heard
testimony that Simpson and his wife had spent the day drinking and had consumed three
cases of beer, in addition to a pint of whiskey that Simpson drank himself.14 The State's
expert witness testified that people are capable of forming specific intent up until they
reach a blood alcohol level where most people pass out, i.e., around .35 percent.15 This
Court held that the jury could properly reject Simpson's claim that he was too
14 Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
15 Id. at 1321 n.1.
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intoxicated to form intent to kill.16 And in Miller v. State , retrograde extrapolation
suggested that the two co-defendants could have had blood alcohol levels of .219 and
.148 percent, respectively, but the jury rejected their claim that they could not form
intent to kill.17 In Howell v. State, Howell spent the evening drinking with friends, and
his girlfriend accused him of being intoxicated when he returned home.18 Based on that,
Howell argued that he was too intoxicated to form intent to kill and argued that he
simply "shot blindly and did not intend to kill."19 We affirmed Howell's conviction,
recognizing that the jury could properly reject this defense and that the circumstances
of the shooting provided sufficient evidence that Howell intended to kill.20 And
Alaska's appellate courts have repeatedly recognized that arrestees and suspects may
have sufficient mental capacity to waive various legal rights, despite being
intoxicated.21 The jury in this case had an ample basis to conclude that, despite his
intoxication, Burney was sufficiently in possession of his mental faculties to form intent
to kill. Moreover, his intoxication could also be viewed as explanatory of why he
participated in this offense despite the lack of clear self-interest in doing so, i.e., why
he so willingly went along with Townsend's decision to seek further retribution against
Hargrove and Alex.
16 Id. at 1320-21.
17 Miller v. State , 778 P.2d 593, 595, 597 (Alaska App. 1989).
18 Howell v. State, 917 P.2d 1202, 1204-05 (Alaska App. 1996).
19 Id. at 1212.
20 Id.
21 Botson v. Municipality of Anchorage, 367 P.3d 17, 25-26 (Alaska 2016) (citing and
quoting Gundersen v. Municipality of Anchorage , 792 P.2d 673, 676-77 (Alaska 1990));
Hampton v. State, 569 P.2d 138, 142-44 (Alaska 1977).
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The bottom line is that while it is fair to say that the State's case for first-
degree murder was not overwhelming in that it depended in part on circumstantial
evidence and some inferential reasoning, it is still the case that the record provided a
sound basis from which a reasonable juror could conclude that the homicide in this case
was intentional. In these circumstances, I disagree with the majority's conclusion that
the supposed weakness of the State's case somehow suggests that the jury was pushed
towards a first-degree murder conviction by the antagonistic defenses and the defense
attorneys pointing the finger at each other's client. Rather, the evidence supported a
first-degree murder conviction, and in my view the factor that likely helped to
crystallize the jury's view of the facts were statements by Burney's counsel (discussed
infra) recognizing that there was a central point upon which the case turned.
In this vein, a key factor that courts have noted in evaluating juries' ability
22
to fairly adjudicate guilt among co-defendants is the relative complexity of a case.
That is to say, in cases of great complexity - whether that complexity stems from the
number of defendants, the number of criminal counts, the complexity of the legal
theories at issue in those counts, the sheer amount of physical or documentary evidence
or number of witnesses, or some combination of all of these factors - the complexity
may make it difficult for jurors to accurately attribute the evidence to the pertinent
counts and defendant(s), and make it more likely that antagonistic defenses might
prevent the jury from reliably adjudicating guilt. But at the same time, the Supreme
Court has recognized that the ability of jurors in a joint trial to reliably evaluate the
relative culpability of co-defendants may be enhanced "where . . . all the crimes charged
against the joined defendants arise out of one chain of events, where there is a single
23
victim, and where, in fact, the defendants are indicted on several of the same counts."
22 See, e.g., United States v. Weckman, 982 F.3d 1167, 1174 (8th Cir. 2020) (quoting
United States v. Nichols, 416 F.3d 811, 817 (8th Cir. 2005)).
23 Buchanan v. Kentucky, 483 U.S. 402, 418 (1987).
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In other words, where the events surrounding a crime are not particularly complex,
jurors should ordinarily not have undue difficulty in properly attributing evidence, even
where co-defendants' defenses are antagonistic.
Here, there was a clear point of contention on which the case hinged and
which focused the jury's deliberation. Specifically, surveillance video from a
neighboring apartment building showed that only one man (not clearly identifiable) got
out of West's vehicle and approached the apartment building, and the logical inference
to be drawn was that the man was the shooter. The jury's determination of the identity
of the shooter turned on whether the jury believed West's trial testimony that Burney
was the man who got out of the vehicle. Burney's counsel emphasized this point in his
closing argument. The final words of his summation were:
And I break it down again, it's Karlie West. That's it. That's
their case. That's his case. If you believe Karlie West, if
she's the type of testimony that you would act without
hesitation in your important affairs then you have to convict
Lammar Burney of one of those levels of crime
[manslaughter, second-degree murder, or first-degree
murder]. If you don't, you have to acquit him. Thank you.
West's testimony was the crucial evidence that identified Burney as the shooter. The
rest of the evidence provided the basis from which the jury could conclude that the
shooting was not merely a reckless act but rather an intentional homicide. The
majority's conclusion - that the jury's decision to convict Burney and Townsend of
first-degree murder was likely influenced by the defense attorneys' finger-pointing at
each other's clients, and that the defendants were thus unfairly prejudiced by the trial
court's denial of their motions to sever - is unwarranted.
I conclude with a few thoughts about the standard that should be used in
evaluating severance motions under Alaska Criminal Rule 14. Notwithstanding a 1991
legislative amendment that added additional language, Alaska Criminal Rule 14 is
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based on and virtually identical to Rule 14 of the Federal Rules of Criminal Procedure.24
Accordingly, although Alaska's courts are not strictly bound to adhere to federal courts'
interpretation of analogous federal court rules,25 we should follow them absent good
cause not to. The overarching standard that we should thus apply was set out by the
United States Supreme Court in 1993 in Zafiro v. United States, where the Court held
that "[m]utually antagonistic defenses are not prejudicial per se " and that a "court
should grant a severance under Rule 14 only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence."26 This standard is consistent
with the common law standard for evaluating severance requests, where the decision
whether to permit jointly charged defendants to be tried separately was vested in the
sound discretion of the trial judge,27 and where the essential condition mitigating in
favor of separate trials is when "it appears that one or more of the defendants may be
28
prejudiced by a joint trial."
Additionally, in evaluating whether defenses are sufficiently antagonistic
to warrant severance, the primary measure should be the evidence presented at trial, not
the arguments of counsel, given the basic principle that the statements and arguments
24 Cleveland v. State, 538 P.2d 1006, 1008 n.3 (Alaska 1975).
25 See, e.g., Marron v. Stromstad, 123 P.3d 992, 1004 (Alaska 2005) (evidence rules);
West v. Buchanan, 981 P.2d 1065, 1070 (Alaska 1999) (rules of civil procedure); Lewis v.
State, 565 P.2d 846, 851 (Alaska 1977) (rules of criminal procedure).
26 Zafiro v. United States, 506 U.S. 534, 538-39 (1993).
27 See United States v. Marchant, 25 U.S. 480 (1827); Ball v. United States, 163 U.S.
662, 672 (1896) (citing Marchant , 25 U.S. at 485); 1 Joel P. Bishop, Commentaries on the
Law of Criminal Procedure § 1018, at 632 & n.3 (2d ed. 1872) (citing cases).
28 Commonwealth v. James, 99 Mass. 438, 440 (1868).
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of counsel are not evidence.29 It is of course true that criminal defense counsel can
articulate a defense in closing argument based solely on counsel's interpretation of the
State's evidence - without the defense having called a single witness - and it is also
the case that defense counsel is responsible for strategy. For these reasons, the
arguments of counsel can be looked to in evaluating whether defenses are mutually
antagonistic.30 But giving primacy to the arguments and conduct of counsel in
evaluating severance incentivizes bad behavior, and in any event jurors' predominant
focus is the evidence. Accordingly, the trial evidence should be the primary measure of
whether defenses are antagonistic. Here the trial evidence was not strongly mutually
antagonistic.
Third, the majority opinion appears to strongly favor severance when
defendants assert antagonistic defenses. I agree that trial judges enjoy broad discretion
regarding severance, and should be less hesitant than they currently appear to be to grant
severance when real prejudice to the rights of one or more co-defendants is apparent.
Like my colleagues, I would not have reversed in this case had the trial judge opted to
sever the cases. But I believe we should also heed the United States Supreme Court's
long-standing recognition of the benefits of joint trials. Joint trials "conserve state
funds, diminish inconvenience to witnesses and public authorities, and avoid delays in
bringing those accused of crime to trial."31 The Supreme Court has noted that "[j]oint
29 See, e.g., United States v. Pérez-Vásquez, 6 F.4th 180, 201 (1st Cir. 2021) ("Courts
measure the level of antagonism by the evidence actually introduced at trial. And argument
by counsel is not - repeat, not - evidence.") (quoting United States v. Chisholm, 940
F.3d 119, 128 (1st Cir. 2019)); United States v. Lopez, 649 F.3d 1222, 1237-38 (11th Cir.
2011); Dancy v. United States, 745 A.2d 259, 266 (D.C. App. 2000); Commonwealth v.
Vallejo, 914 N.E.2d 22, 34 (Mass. 2009).
30 State v. Jaramillo, 460 P.3d 321, 328 (Ariz. App. 2020) ("The contents of [opening
statements and closing arguments] provide an indispensable context for evaluating whether
co-defendants' cases are antagonistic.").
31 Bruton v. United States , 391 U.S. 123, 134 (1968).
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trials have long 'play[ed] a vital role in the criminal justice system,' preserving
32
government resources and allowing victims to avoid repeatedly reliving trauma."
They "encourage consistent verdicts and enable more accurate assessments of relative
culpability," and avoid a problem with separate trials, which "randomly favo[r] the last-
tried defendants who have the advantage of knowing the prosecution's case
33
beforehand."
Last, I note that in 1991, the Alaska Legislature amended the rules
regarding joinder and severance in two pertinent ways. The legislature added language
to Alaska Criminal Rule 8(b), the rule regarding joinder of defendants for trial,
providing that joinder is also warranted "if the defendants are parties to an express or
tacit agreement to aid each other to commit an act or transaction constituting a criminal
offense or offenses," the very situation presented by this case.34 The legislature also
added language to Alaska Criminal Rule 14 making clear that severance is only
warranted if a defendant is "unfairly" prejudiced by joinder.35 For these reasons, even
in the situation of antagonistic defenses, a trial court's denial of a severance motion
should not be reversed unless there is a genuine risk that one or more defendants were
unfairly prejudiced by joint trial to such a degree that jury instructions were insufficient
to address the concern. I do not find that to be the case here.
I concur fully with the majority's resolution of the appellants' claims
related to the alleged jury-tampering incident and its effect on juror T.S.
32 Samia v. United States, 599 U.S. 635, 654 (2023) (quoting Richardson v. Marsh,
481 U.S. 200, 209 (1987)).
33 Id. (first citing Bruton, 391 U.S. at 143 (White, J., dissenting); then quoting
Richardson, 481 U.S. at 210).
34 SLA 1991, ch. 79, § 2.
35 SLA 1991, ch. 79, § 3.
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