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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PATRICK DALE BURTON-HILL,
Court of Appeals No. A-13223
Appellant, Trial Court No. 4FA-18-00521 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2713 — November 5, 2021
JERALD DWAYNE BURTON JR.,
Court of Appeals No. A-13262
Appellant, Trial Court No. 4FA-18-00520 CR
v.
STATE OF ALASKA,
Appellee.
MARCUS DJAUN HOWARD,
Court of Appeals No. A-13263
Appellant, Trial Court No. 4FA-18-00525 CR
v.
STATE OF ALASKA,
Appellee.
Motion for reconsideration of this Court’s order directing the
parties to file supplemental briefs in the underlying appeals.
Appearances: Marilyn J. Kamm and Margo Knuth, Anchorage,
for Appellant Burton-Hill; Michael Horowitz, Kingsley, Michi
gan, for Appellant Burton; and Elizabeth D. Friedman, Redding,
California, for Appellant Howard — all under contract with the
Office of Public Advocacy. Donald Soderstrom and Eric A.
Ringsmuth, Assistant Attorneys General, and Tamara DeLucia,
Solicitor General, Office of Criminal Appeals, Anchorage, and
Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Wollenberg, Judge, and
Mannheimer, Senior Judge.*
PER CURIAM.
Following a joint trial, the defendants in these three appeals — Patrick Dale
Burton-Hill, Jerald Dwayne Burton Jr., and Marcus Djaun Howard — were convicted
of riot, AS 11.61.100(a), and third-degree criminal mischief, AS 11.46.482(a), based on
an incident that occurred at the Fairbanks Correctional Center. Each defendant’s appeal
has been briefed, and all three appeals are currently pending before this Court.
Each of the three co-defendants has raised issues which require this Court
to interpret the statutory definition of riot — to identify and clarify the elements of that
crime under the definition codified in AS 11.61.100(a). The specifics of the defendants’
claims, and why those claims require this Court to interpret Alaska’s riot statute, are
described in the following footnote. 1
*
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
1
All three defendants argue that the jury should not have been instructed on the
principles of “accomplice liability” — i.e., the principles of vicarious liability codified in
AS 11.16.110(a) — because, according to the defendants, the riot statute defines the offense
(continued...)
–2– 2713
Based on our review of the trial proceedings, and based on our preliminary
research into the legislative history and meaning of the riot statute, we concluded that the
issues raised by the defendants present unanswered foundational questions about the
meaning of the terms and phrases used in Alaska’s riot statute — and that, depending on
the answers to these questions of statutory interpretation, the jury at the defendants’ trial
may have been misinformed regarding the elements of riot. We further concluded that
1
(...continued)
in such a way that the normal principles of vicarious liability do not apply. In particular, the
defendants argue that when AS 11.61.100(a) speaks of six or more persons “participating”
with each other in “tumultuous and violent conduct”, the statute requires proof that six or
more offenders each personally engaged in “tumultuous and violent” conduct at the same
time.
In addition, defendant Burton argues that the riot statute requires proof, not only that six
or more people engaged in tumultuous and violent conduct at the same time and place, but
also that these people were knowingly working in concert.
Defendant Burton-Hill argues that the evidence presented at trial, even when viewed in
the light most favorable to the jury’s verdict, fails to support the jury’s finding that he
engaged in conduct that was “tumultuous and violent” within the meaning of the riot statute,
AS 11.61.100(a).
Defendant Howard argues that the riot statute’s reference to “tumultuous” conduct is
unconstitutionally vague, and that the trial court’s jury instruction on the meaning of
“tumultuous” defined this term so broadly that it encompassed innocent conduct. Howard
also argues that, even viewing the evidence in the light most favorable to the jury’s verdict,
the State failed to prove that he engaged in “violent” conduct as that term is used in the riot
statute — or, that if his conduct fell within the statutory definition of “violent”, then that
statutory definition is unconstitutionally vague.
Defendant Burton raises the additional argument that, given the definitions of “riot” and
“criminal mischief” under Alaska law, if a person commits both riot and criminal mischief
during the same incident, Alaska’s double jeopardy clause prohibits a court from imposing
separate convictions and sentences for these two crimes.
–3– 2713
the parties’ briefs fail to adequately address key aspects of the legislative history of the
riot statute.
We therefore issued an order which summarized our preliminary research
and which directed the parties to file supplemental briefs on these questions of statutory
interpretation.
The State now asks us to rescind our order for supplemental briefing.
According to the State, if the discussion in the three defendants’ briefs is insufficient to
decide these issues of statutory interpretation, then — as a matter of law — this Court
is required to rule that the defendants have waived all of these issues due to inadequate
briefing.
The State’s contention is incorrect. Our authority to order supplemental
briefing on questions implicitly raised but not directly addressed in the parties’ briefs is
well-established under existing Alaska case law. Indeed, under Alaska law, an appellate
court may even address issues beyond those raised by the parties, if the resolution of
those issues is necessary to a proper and just decision of the case.
The leading case on this point of law is the Alaska Supreme Court’s
decision in Vest v. First National Bank of Fairbanks, 659 P.2d 1233 (Alaska 1983). In
Vest, the superior court granted First National Bank’s motion for summary judgment and
dismissed Vest’s cause of action, after finding that this cause of action was governed by
a two-year statute of limitations and that Vest’s lawsuit had been filed outside this
limitation period. 2 On appeal, Vest did not dispute that the two-year statute of
limitations was applicable to his case; instead, he argued that the bank was estopped from
2
Vest, 659 P.2d at 1234.
–4– 2713
raising a statute of limitations defense because (according to Vest) the bank had
fraudulently concealed the facts that gave rise to Vest’s cause of action. 3
Rather than decide the case on the issues presented by the parties on appeal,
the Alaska Supreme Court directed the parties to file supplemental briefing on whether
Vest’s cause of action was actually governed by a different, six-year statute of
limitations. 4 After receiving that briefing, the supreme court held that Vest’s cause of
action was governed by the six-year statute of limitations, and the supreme court
therefore reversed the superior court’s grant of summary judgment. 5
In reaching this resolution of the case, the supreme court acknowledged
that, ordinarily, an appellate court “will not consider an issue unless it [was] argued in
the trial court and properly raised on appeal.” 6 But the supreme court explained that
when the unraised issue “involves a question of law that is critical to a proper and just
decision,” an appellate court “will not hesitate to consider it, particularly after calling the
matter to the attention of the parties and affording them the opportunity to brief the
issue.” 7
Thus, Vest expressly recognizes that appellate courts have the authority to
raise and resolve an issue of law that has not been raised by the parties, when resolution
of this issue “is critical to a proper and just decision” and when the court gives the parties
3
Ibid.
4
Id. at 1234 n. 2.
5
Id. at 1234.
6
Id. at 1234 n. 2.
7
Id.
–5– 2713
an opportunity to address the issue. Both the supreme court and this Court have invoked
this principle numerous times since Vest was decided. 8
Even when the members of the supreme court have disagreed as to whether
the court should exercise this authority in a particular case, the dissenters have never
disputed the existence of this authority. 9
8
See, e.g., Martin v. Martin, 303 P.3d 421, 426–27 (Alaska 2013) (holding that the
superior court committed plain error in allowing a parent to deduct his insurance premium
from his gross income, even though this ruling was not challenged on appeal); Cragle v.
Gray, 206 P.3d 446, 450–51 (Alaska 2009) (deciding whether a particular statute applied to
the case, even though neither party argued that the statute applied; the supreme court
concluded that the applicability of the statute was a “question of law that is critical to a just
and proper resolution of this case”, and the court gave the parties an opportunity to file
supplemental briefs on this issue); Morgan v. State, unpublished, 2005 WL 901769 at *9
(Alaska App. 2005) (ordering supplemental briefing when the resolution of certain questions
was “crucial to a fair decision” in the defendant’s case); Garner v. Division of Medical
Assistance, 63 P.3d 264, 268 n. 21 (Alaska 2003) (deciding whether the administrative
agency failed to follow its own regulations, even though this claim had not been briefed on
appeal, when the issue had been briefed in the superior court, and when this issue was
“potentially determinative” of the case); Gilmore v. Alaska Workers’ Compensation Board,
882 P.2d 922, 925 (Alaska 1994) (explaining that the supreme court ordered supplemental
briefing on potential issues of equal protection and due process presented by AS 23.30.220(a)
after the court concluded that these constitutional issues were “critical to a proper and just
decision” in the case); Hickel v. Halford, 872 P.2d 171, 175 (Alaska 1994) (explaining that
the supreme court ordered supplemental briefing because “sound reasons require[d]
the consideration of an issue not raised by the parties”); Bubbel v. Wien Air Alaska, Inc., 682
P.2d 374, 377 (Alaska 1984) (addressing the propriety of the superior court’s ruling on a
breach of contract claim, when the resolution of this claim was “critical to a proper and just
decision”, and when the parties had addressed the issue in supplemental briefs).
9
See, e.g., Burke v. Houston NANA, L.L.C., 222 P.3d 851, 873 (Alaska 2010)
(Matthews, J., dissenting); Matter of C.A.S., 882 P.2d 1266, 1269 (Alaska 1994) (Compton,
J., dissenting); Puhlman v. Turner, 874 P.2d 291, 297 (Alaska 1994) (Matthews, J.,
dissenting); Clark v. Greater Anchorage, Inc., 780 P.2d 1031, 1038 (Alaska 1989) (Compton,
J., dissenting); Principal Mutual Life Insurance Co. v. Division of Insurance, 780 P.2d 1023,
(continued...)
–6– 2713
The cases cited in the preceding two footnotes represent only those cases
in which Vest was explicitly cited by the appellate court. But there have been numerous
other occasions when the Alaska Supreme Court and this Court have ordered or
requested supplemental briefing without citing Vest. For two recent examples, see
Division of Elections v. Recall Dunleavy, 491 P.3d 343, 365 (Alaska 2021) (explaining
that, after the supreme court heard oral argument, the court requested supplemental
briefing on a new legal issue); State v. Myers, 479 P.3d 840, 844 (Alaska App. 2020)
(noting that this Court asked the parties to file supplemental briefing “on the proper
interpretation of [a relevant] statute” when neither party “cited or discussed [this] statute
in their original briefs”).
Although this Court did not explicitly invoke Vest when we called for
supplemental briefing in the three present cases, we wrote that “[the] defendants in these
cases raise several issues that hinge, either directly or implicitly, on the definition of the
offense of riot as codified in AS 11.61.100(a).” This was just another way of saying that
the proper interpretation of AS 11.61.100(a) is — in the words of Vest — “critical to a
proper and just decision” of these three cases.
For example, to obtain a conviction under the riot statute, the State must
prove that at least six persons who were “participating” with each other engaged in
“tumultuous” and “violent” conduct. As we explained earlier in footnote 1, the three
defendants in the present cases argue that when AS 11.61.100(a) speaks of six or more
9
(...continued)
1031 (Alaska 1989) (Compton, J., dissenting); Vest, 659 P.2d at 1235 (Compton, J.,
dissenting).
In particular, see Burke, 222 P.3d at 873, and Clark, 780 P.2d at 1038, where the dissent
ing members of the court agreed that the supreme court was empowered to consider an issue
of law that had not been argued if the resolution of this issue was critical to a proper and just
decision of the appeal, but contended that this test had not been met.
–7– 2713
persons “participating” with each other in “tumultuous and violent conduct”, the statute
requires proof that six or more offenders each personally engaged in “tumultuous and
violent” conduct at the same time. In addition, defendant Burton argues that when the
riot statute speaks of six or more people “participating” with each other, this means that
the State must prove that these people were knowingly working in concert.
Moreover, one of the defendants (Burton-Hill) argues that the evidence
presented at trial, even when viewed in the light most favorable to the jury’s verdict, fails
to support the jury’s finding that he engaged in conduct that was “tumultuous and
violent” within the meaning of the riot statute, AS 11.61.100(a). And another defendant
(Howard) argues that the statutory terms “tumultuous” and “violent” are unconstitution
ally vague, or else they are so broad that they encompass innocent conduct.
Accordingly, this Court must determine the correct interpretation of these
various terms as they are used in the riot statute. This inquiry is “critical to a proper and
just decision” of the defendants’ cases — and, thus, our call for supplemental briefs is
proper.
In its motion asking us to rescind our call for supplemental briefing, the
State does not dispute this Court’s conclusion that, in order to fairly resolve the issues
raised on appeal, this Court must correctly interpret the definition of riot found in
AS 11.61.100(a). Nevertheless, the State contends that we are legally forbidden from
resolving any of these issues of statutory interpretation because the defendants have
waived these issues through inadequate briefing.
But as we have just explained, the State’s position is contrary to established
Alaska law — the line of cases beginning with Vest v. First National Bank of Fairbanks.
The State’s motion contains no mention of Vest, or any of the cases that cite Vest, or any
of the other Alaska cases that deal with the topic of supplemental briefing. Indeed, most
of the cases cited in the State’s motion simply repeat established rules governing the
–8– 2713
preservation and waiver of issues, with no discussion of an appellate court’s authority
to order supplemental briefing.
To support its assertion that this Court has exceeded our authority, the State
relies heavily on the United States Supreme Court’s recent decision in United States v.
Sineneng-Smith, 140 S.Ct. 1575 (2020). In Sineneng-Smith, the Supreme Court reversed
a case where a panel of the Ninth Circuit injected a new constitutional issue (not raised
by the parties) into the appellate litigation, and named three amici curiae (who
previously had not been involved in the case) to brief and argue this new issue —
effectively relegating the parties’ attorneys to “a secondary role”. 10 The Ninth Circuit
ultimately ruled, in accord with the invited amici’s arguments, that the statute under
which the defendant was prosecuted was unconstitutionally overbroad. 11
The Supreme Court concluded that the Ninth Circuit had abused its
discretion by “depart[ing] so drastically from the principle of party presentation” — the
principle that the parties will frame the issues to be litigated, and that the courts will
serve as “neutral arbiter of [the] matters the parties present.” 12 Although the Supreme
Court acknowledged that an appellate court “is not hidebound by [the parties’] precise
arguments,” the Supreme Court concluded that the Ninth Circuit’s “radical transforma
tion” of Sineneng-Smith’s case “[went] well beyond the pale.” 13 The Court therefore
remanded the case for reconsideration by the Ninth Circuit, “shorn of the overbreadth
10
United States v. Sineneng-Smith, 140 S.Ct. at 1578.
11
Ibid.
12
Id., 140 S.Ct. at 1578–79.
13
Id., 140 S.Ct. at 1581–82.
–9– 2713
inquiry interjected by the appellate panel”, so that the litigation would again “bear[] a fair
resemblance to the case shaped by the parties.” 14
The Sineneng-Smith decision did not announce a rule of federal
constitutional law. Rather, Sineneng-Smith addressed and applied a rule of federal
appellate procedure. It is therefore not binding on the courts of Alaska when we interpret
our analogous procedural rule. 15
Moreover, the general principle described by the Supreme Court in
Sineneng-Smith — the principle that the parties to a lawsuit normally control the issues
to be litigated — is consistent with Alaska law on this topic. See, for example, the
Alaska Supreme Court’s discussion of this point in State v. Ranstead, 421 P.3d 15, 21
(Alaska 2018): “Our adversary system of justice is designed around the premise that the
parties know what is best for them, and are responsible for advancing the facts and
arguments entitling them to relief.” 16
But in its motion, the State takes the United States Supreme Court’s
explanation of this principle out of context — mistakenly suggesting that the principle
of party control means that appellate courts are prohibited from seeking supplemental
briefing on questions that are raised, but not adequately briefed, by the parties.
Sineneng-Smith established no such rule. As the Supreme Court expressly
recognized in Sineneng-Smith, the principle of having the parties control the issues to be
litigated “is supple, not ironclad”, and “[t]here are ... circumstances in which a modest
initiating role for a court is appropriate.” 17
14
Id., 140 S.Ct. at 1581.
15
See West v. Buchanan, 981 P.2d 1065, 1070 (Alaska 1999).
16
Quoting Greenlaw v. United States, 554 U.S. 237, 243; 128 S.Ct. 2559, 2564 (2008).
17
Sineneng-Smith, 140 S.Ct. at 1579.
– 10 – 2713
To illustrate its point that appellate courts can properly play “a modest
initiating role”, the Supreme Court attached an addendum to its opinion in Sineneng-
Smith in which the Court detailed all of the cases between 2015 and 2020 in which the
Court itself requested supplemental briefing from the parties or appointed amici curiae
to argue legal issues that were inadequately addressed in the parties’ briefs. As the
Supreme Court explained in its addendum, the Court has often sought supplemental
briefing “to clarify an issue or argument the parties raised” — including a case in which
the Court ordered additional briefing on “the implications” of the parties’ competing
statutory interpretations. 18
Thus, even if the Sineneng-Smith decision were binding on state courts, this
Court’s order for supplemental briefing in the three present cases fully comports with the
United States Supreme Court’s supplemental briefing practices, as manifested by the
cases discussed in the Sineneng-Smith appendix. The Supreme Court has repeatedly
called for supplemental briefing on issues that expand upon, or that are logically
connected to, the issues already raised by the parties. Similarly, in the present three
cases, this Court has asked the parties to address several legal questions which seemingly
must be resolved if we are to reach a proper and just resolution of the issues that the
defendants have already raised regarding their convictions for riot.
18
Sineneng-Smith, 140 S.Ct. at 1582, citing Carpenter v. Murphy, 139 S.Ct. 626 (2018).
Carpenter was a memorandum opinion which directed the parties, as well as the U.S.
Solicitor General and the Muscogee Creek Nation, to file supplemental briefs addressing
“(1) Whether any statute grants the state of Oklahoma jurisdiction over the prosecution of
crimes committed by Indians in the area within the 1866 territorial boundaries of the Creek
Nation, irrespective of the area’s reservation status[, and] (2) Whether there are
circumstances in which land qualifies as an Indian reservation but nonetheless does not meet
the definition of Indian country as set forth in 18 U.S.C. § 1151(a).”
– 11 – 2713
All of these considerations are sufficient reason for this Court to deny the
State’s request for us to rescind our supplemental briefing order. But there is one more
consideration that needs to be addressed.
The State argues that if a criminal defendant (or their attorney) fails to
adequately brief all necessary aspects of a claim of error, this Court has no authority to
investigate the claim any further — either by asking the parties to file supplemental
briefs or even, apparently, by conducting our own legal research. Instead, according to
the State, this Court is under a legal duty to deny the defendant’s claim on the ground
that it is inadequately briefed.
Not only does the State’s position contravene Vest, but it is especially
problematic when, as in the three present cases, the claim of error concerns the
sufficiency of the evidence to support a guilty verdict or the adequacy of the jury
instructions on the essential elements of the crime.
As our supreme court declared more than fifty years ago in Shafer v. State,
“a miscarriage of justice [occurs] if the evidence [presented at a defendant’s trial is] not
sufficient to support [the] guilty verdict” — and thus “it is the imperative duty of a court
to see ... that [evidence] is offered which justifies a jury in finding [all] elements [of the
charged crime].” 19
The supreme court’s decision in Shafer addressed the duty of trial courts
to ensure that there is sufficient evidentiary support for a criminal conviction. Shafer
holds that trial courts have an affirmative duty to ensure that there is a sufficient legal
basis for every criminal conviction — even to the point of acting sua sponte if necessary
to prevent such a “miscarriage of justice”. 20
19
Shafer v. State, 456 P.2d 466, 467 (Alaska 1969).
20
Id. at 467–68.
– 12 – 2713
(We note that prosecutors have a similar duty. In the Comment to Alaska
Professional Conduct Rule 3.8 (“Special Responsibilities of a Prosecutor”), our supreme
court has endorsed the principle that “[a] prosecutor has the responsibility of a minister
of justice and not simply that of an advocate” — and that “[t]his responsibility carries
with it specific obligations to see that ... [a defendant’s] guilt is decided upon the basis
of sufficient evidence [to prove the crime].”)
Trial courts also have a duty to instruct the jury on “all matters of law ...
necessary for the jury’s information in giving their verdict.” 21 Indeed, as our supreme
court has explained, it is the trial judge, not counsel, who “bears the primary responsibi
lity for instructing the jury.” 22
We have previously explained that jury instructions are plainly erroneous
when “the erroneous instruction or lack of instruction creates a high likelihood that the
jury followed an erroneous theory, resulting in a miscarriage of justice.” 23 And when
this Court holds that the jury instructions in a criminal trial amounted to plain error, we
are saying, in essence, that the trial court should have acted sua sponte to correct the
instructions and thus prevent a miscarriage of justice.
In the three cases presently before this Court, we are faced with the
appellate versions of these same problems that trial courts have an affirmative duty to
notice and correct. Our preliminary research into the legislative history of Alaska’s riot
statute suggests that there is a significant possibility that the jury found the defendants
guilty of riot based on jury instructions that erroneously defined the elements of that
crime. There is also a corresponding possibility that the evidence presented at trial was
21
Alaska Criminal Rule 30(b).
22
Khan v. State, 278 P.3d 893, 900 (Alaska 2012).
23
Dobberke v. State, 40 P.3d 1244, 1247 (Alaska 2002).
– 13 – 2713
insufficient (under a correct understanding of the elements of riot) to support one or more
of the convictions in these three cases. Thus, there is a possibility that one or more of
the defendants will spend years in prison for a crime that the State has yet to properly
prove (because the jury instructions misdescribed the elements of riot).
The State urges us to ignore these problems. In fact, the State argues that
we have absolutely no authority to look into these problems — because, according to the
State, (1) if we conclude that supplemental briefing is required, then it necessarily
follows that the defendants have failed to adequately brief their claims, and (2) the law
requires us to treat inadequately briefed claims of error as waived.
But given the affirmative duty that Alaska law places on trial courts to
ensure the legal sufficiency of the evidence in a criminal case, and to properly instruct
the jury on the elements of the crime, it is implausible to assert that appellate courts lack
even the authority to look into these problems. Rather, if we are to uphold the principles
set forth in Vest, as well as the principles underlying the judicial duty to see that juries
are properly instructed and that criminal convictions are supported by legally sufficient
evidence, this Court must have the authority to call for supplemental briefing when
substantial questions are raised regarding the proper interpretation of the charging statute
and these questions are not adequately briefed.
For all these reasons, we deny the State’s motion asking us to rescind our
order for supplemental briefing. However, because the effective date of that order has
been delayed, we now revise the briefing schedule as follows:
1. The briefs of the three defendants shall be filed by December 20, 2021.
2. The State’s brief shall be filed 30 days thereafter.
3. These filing dates may be extended for good cause.
4. No reply briefs will be allowed unless ordered by this Court.
Entered at the direction of the Court.
– 14 – 2713