author: BOLGER, Chief Justice.

text:
    Craig Wm. BLACK and Camille R. Brill, Appellants, v. WHITESTONE ESTATES CONDOMINIUM HOMEOWNERS' ASSOCIATION, Donald Jurewicz and Mary E. Jurewicz, Appellees.
    Supreme Court No. S-16986
    Supreme Court of Alaska.
    August 16, 2019
    Craig Wm. Black, Eagle River, for Appellants.
    Ralph B. Cushman, Law Office of James H. McCollum, LLC, Anchorage, for Appellee Whitestone Estates Condominium Homeowners' Association.
    No appearance by Appellees Donald and Mary E. Jurewicz.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   BOLGER, Chief Justice.

I. INTRODUCTION

For several years two condominium owners withheld a portion of their dues in protest. Then beginning in 2014, they sent the condominium association several payments, with instructions to apply them to recent debts and current dues. In this appeal the owners argue that they accrued no debts within the statute of limitations because their payment directives were binding. But we agree with the superior court's conclusion that these payment directives were not effective because the governing declaration allowed the association to apply any payments to "the oldest balance due." We affirm the superior court on this issue and on the other issues the owners raise in this appeal.

II. FACTS AND PROCEEDINGS

A. Facts

Whitestone Estates is a ten-unit condominium, adjacent to Ptarmigan Boulevard, a public street, in Eagle River. The condominiums are single-family homes on large parcels of land. Units 1 and 2 access Ptarmigan Boulevard by a short, paved drive; units 3 through 10 access Ptarmigan Boulevard by a longer drive.

Craig Black, a member of the Alaska Bar who has represented himself and his wife, Camille Brill, (collectively the Blacks) throughout this litigation, purchased unit 1 in May 2002. Whitestone has assessed monthly dues of $100 to pay for the maintenance of both drives, mostly snow removal, since before the Blacks purchased their unit. In 2004, relying on a legal opinion he obtained as president of the board of the condominium association, Black claimed that this arrangement violated the condominium's governing declaration. He proposed an alternative approach: that each unit owner pay the percentage of the annual snow removal expenses that corresponded to the portion of paved area within the association that serviced his or her unit. The unit owners voted to reject this proposal in 2005. But the Blacks nonetheless began withholding a portion of their assessed dues, paying only what their share would have been under the rejected formula.

In 2011 Whitestone sought an opinion from a second attorney about its dues structure. This attorney concluded that the main drive was a common element and that the association's dues structure was permissible under the declaration. Nonetheless the Blacks continued to withhold a portion of their assessed dues until 2014.

On February 6, 2014, the Blacks sent a letter to all unit owners announcing their intent to end their dues protest. The letter explained that an enclosed check for $3,554.56 and an earlier check for $265.44 "equal the sum of all monthly association assessments for the 50 months from January 2010 through this month, with our intention being to resume regular $100 monthly payments for the foreseeable future." The Blacks clarified to the association's treasurer in an email that they intended these payments "to cover the $3,800.00 that'[d] been assessed beginning January 2010."

The treasurer then sent an email to all unit owners on March 22, 2014, shortly before that year's annual meeting, saying that his "records show everyone is paid through 12/31/2013 or further." At the annual meeting later that month, the owners voted to disregard the Blacks' directive and instead apply the lump-sum payment to the couple's oldest debts first. The Blacks did not object, either at the meeting or afterwards.

From then on the Blacks sent monthly $100 checks to Whitestone with instructions that they be applied to their current dues. Whitestone cashed these checks until sometime after litigation began, at which point they started returning them to the Blacks.

B. Proceedings

1. Pre-trial motions

Whitestone filed a complaint for lien foreclosure in March 2016, seeking to recover $4,714.08 in unpaid assessments and fees from the Blacks, interest on the unpaid amounts, and "full attorney's fees."

In their answer the Blacks asserted a statute of limitations defense, alleging that they had fully paid all debts owed to Whitestone for the previous three years and that recovery on any debt older than that was time-barred. The Blacks also filed numerous counterclaims. They alleged that Whitestone had amassed surplus funds that it was required to distribute to unit owners, that Whitestone had held meetings without giving the Blacks proper notice, and that Whitestone had not prepared and approved minutes for its board meetings, all in violation of the declaration. The Blacks requested that the court invalidate every action taken at a meeting for which "ample advance notice was not first given," direct Whitestone to "generate and approve minutes" for each of its meetings since January 1, 2009, and award money damages in the amount of the Blacks' pro rata share of the alleged surplus. The Blacks also requested attorney's fees and punitive damages, alleging that Whitestone willfully failed to comply with the requirements of Alaska's Common Interest Ownership Act.

Whitestone filed an amended complaint in which it explicitly addressed Black's statute of limitations defense, claiming that the Blacks' payment directives were ineffective, that it had applied their payments to their oldest debts first, and that the debts on which it sought to recover were thus not older than three years.

Whitestone also sought declaratory judgment to determine whether the owners of units 1 and 2 could legally be required to pay assessments for the upkeep of the main drive. It alleged that the Blacks had "asserted for years" that they were not required to pay for the maintenance of the drive, while also asserting that Whitestone should be responsible for the maintenance of the smaller drive that served units 1 and 2. The Blacks moved to dismiss this claim for declaratory relief, arguing that no actual controversy existed over the drives issue because they had abandoned their dues protest in 2014. The superior court denied this motion. Whitestone then filed a motion for partial summary judgment on its declaratory judgment claim, which the superior court eventually granted.

2. Trial and post-trial orders

The case proceeded to a five-day bench trial on the remaining issues in late August 2017. Whitestone presented the testimony of multiple unit owners, while the Blacks called a former unit owner who had been Whitestone's treasurer when they made their 2014 payment. Both Black and Brill also testified. In their closing argument, the Blacks agreed to the dismissal of their counterclaims for an injunction, based on the failure to provide notice of meetings, and for punitive damages, saying that they did not "believe there's evidence sufficient to award either of those."

After the parties gave their closing arguments, the court issued a decision on the record. The court stated that "[t]his isn't a close call" and resolved all the issues in Whitestone's favor, awarding it $11,518.20 in damages. It explained that this was "largely a credibility case," and found "every one of [Whitestone's] witnesses to be very, very credible." On the other hand, the court said that it did not find Black's explanations of his actions to be credible and found that Black was "trying to sneak up on the association," which the court considered an act of bad faith.

The court found that Black had "created ... a decade of animosity and mistrust amongst [himself] and [his] neighbors and ... w[as] simply not willing to abide by the declaration" and accept the 2005 vote that rejected his alternative dues structure. It explained that it concluded from testimony that Black had "bullied everybody with [his] position as a lawyer" and that this demeanor was evident in his filings and presentation before the court. The court further explained that despite Black's posturing, his legal arguments were not as strong as he believed: "[T]he facts establish that [he was] very assertive and self-confident with the association, but under the light of day here in this courtroom, [he] had no substance to that assertion."

The Blacks filed a motion for reconsideration, which the superior court denied with a written order. In it the court explained the basis for its decision that Whitestone's claims were not time-barred. It concluded that the Blacks' payment directives were not binding on the association for two reasons: first that they could not override a provision of the declaration that gave "Whitestone ... the right to apply payments received to the oldest debts first," and second that Black had breached a fiduciary duty to the association by not "warn[ing] his fellow board members and unit owners what the effect of ignoring his payment directives might be" while he was a board member from 2005 to 2009. For these reasons, the superior court found that "while the Blacks may have made payment directives, they made no effective payment directives." (Emphasis in original.)

The superior court issued its final judgment and a decree of foreclosure in October 2017 and granted Whitestone full attorney's fees in January 2018. In all, it granted Whitestone a total monetary judgment of $132,670.16: $11,518.20 for unpaid assessments, associated late fees, and interest (less $4,382, which the Blacks had already paid into the court registry) and $125,533.96 in attorney's fees and costs. The court placed a foreclosure lien in that amount on the Blacks' property.

The Blacks appeal.

III. DISCUSSION

The Blacks argue that the superior court erred when it determined that their payment directives were ineffective, found that they were not entitled to recover alleged surplus funds from the association, denied their motion to dismiss the declaratory judgment claim, included a disputed special assessment in Whitestone's award, and determined that Whitestone's attorney's fees were reasonable. We address these arguments in turn.

A. The Superior Court Did Not Err When It Concluded That The Blacks' Payment Directives Were Not Binding On Whitestone.

The superior court concluded that the Blacks' payment directives to Whitestone were ineffective. It concluded that Whitestone thus had the authority to apply the couple's payments to their earliest accrued debts, meaning that its claims were not time-barred by the statute of limitations. The court explained that the declaration gave Whitestone "the right to apply payments received to the oldest debts first" and that the Blacks "did not have the right to override that provision with payment directives." The superior court also found, in the alternative, that Black had breached a fiduciary duty to Whitestone while a board member, from 2005 to 2009, by not warning it about the effect of disregarding his payment directives. We conclude that Whitestone had the authority to disregard the Blacks' payment directives under the express terms of the declaration. We affirm the superior court's order on this basis and thus need not address its finding that Black breached a fiduciary duty.

The superior court's order relies on the terms of the declaration. We review the "interpretation of contract language de novo." Under this standard of review, we assess the expectations of the parties to the contract by "examining the language used in the contract, case law interpreting similar language, and relevant extrinsic evidence, including the subsequent conduct of the parties."

The superior court's analysis of the effectiveness of the Blacks' payment directives is based on § 258 of the Restatement (Second) of Contracts. In particular it relied on comment a to § 258, which states that "[t]he obligor cannot, however, effectively direct an application in breach of a contract with the obligee as to how performances should be applied if the contract is specifically enforceable." The Blacks argue in their briefing that the declaration is not specifically enforceable, and thus the Restatement's rule does not apply.

We find it unnecessary, however, to decide whether the declaration is a specifically enforceable contract such that the comment applies. Although we have favored the Restatement's approach to payment directives, it provides only the default rule; where an express term of the contract conflicts with the general rule of the Restatement, the contract controls. And here the express terms of the declaration control how payments may be directed.

The Whitestone declaration provides that "[a]ny payments received by the Association in the discharge of a Unit Owner's obligation may be applied first to interest, late charges, collection costs, fines, and fees, and then to the oldest balance due from the Unit Owner for Common Expense assessments." The Blacks argue that the declaration's use of the word "may" means that the ability to apply payments received to a debtor's earliest obligation is discretionary, not mandatory. They thus contend that the declaration does not allow Whitestone to disregard payment directives, but rather gives it flexibility only when the debtor has provided no instructions. We disagree. The declaration's use of the word "any" indicates that Whitestone's authority extends over all payments, even those accompanied by payment directives. This grant of authority would be meaningless under the Blacks' construction; the declaration would merely restate the default rule that creditors may apply a payment as it wishes absent direction from the debtor.

Extrinsic evidence, in the form of the parties' conduct, supports this interpretation. Multiple unit owners testified that Whitestone had always applied payments to the oldest debts first. And in a 2011 email, Black himself said that Whitestone's policy was to always apply payments to the oldest debt first. We conclude, therefore, that the declaration granted Whitestone the authority to disregard the Blacks' directives and apply their payments to their earliest accrued debts first. And because the Blacks' payment directives were not binding, their debts were not beyond the statute of limitations.

B. The Superior Court Did Not Err When It Concluded That Leftover Funds In Whitestone's Account From 2005 To 2014 Were Reserves.

Alaska Statute 34.08.450 states:

Unless otherwise provided in the declaration, surplus funds of the association remaining after payment of or provision for common expenses and prepayment of reserves must be paid to the unit owners in proportion to common expense liabilities or credited to them to reduce future common expense assessments.

The Whitestone declaration provides that the association "shall establish a reserve fund in an amount at least equal to the projected assessments for a two-month period for each Unit in the Common Interest Community." It further provides: "The Association shall maintain the reserve funds in a segregated account to meet unforeseen expenditures or to acquire additional equipment or services for the benefit of the Unit Owners. Any payments to this fund shall not be ... refundable." Neither the declaration nor the statute defines surplus or reserve funds.

Whitestone closed the separate account it maintained for reserves in 2005, and from that year to 2015, it had only one bank account. After being served with Whitestone's complaint, the Blacks filed a counterclaim alleging that the association maintained no reserves during those years, and that it should have distributed any leftover funds to the owners as surplus. The superior court found that any funds left over at the end of budget years 2005 through 2014 were reserve funds, even though they were in a commingled account, and that the Blacks were not entitled to their distribution.

The Blacks argue that this finding was erroneous. This issue turns on the definition of "reserves" as used in the declaration. We "review the superior court's interpretation of contract language de novo." The declaration specifies that the purpose of reserve funds is to "meet unforeseen expenditures or to acquire additional equipment or services for the benefit of the Unit Owners." Any funds set aside for that purpose are therefore reserves under its terms. This is the case regardless of whether they were segregated in a separate account.

We must next ask, then, whether the excess funds in Whitestone's single account from 2005 to 2014 were set aside to pay for unforseen expenditures or to buy equipment or services to benefit the owners. The superior court found that they were set aside to pay for road maintenance, a service to benefit the owners. We review this factual finding for clear error.

The superior court's finding is supported in the record. The court explained that "[e]very single witness testified about how the purpose of the extra funds ... in the bank account" was to pay for "future road maintenance, heavy duty road maintenance." Whitestone's witnesses consistently testified that the leftover funds were for road repairs. The superior court found "each and every one of [Whitestone's] witness[es] to be very, very credible," and did not credit Black's testimony about the challenged funds.

The Blacks argue that five resale certificates introduced at trial prove that Whitestone had no reserve funds during the relevant period, and contend that it was clear error to disregard them. Only two of these resale certificates support the Blacks' argument. The remainder merely say, "For the Associations reserves for capital expenditures, see the attached financial statement," which lists the association's sole account.

Under "Capital Reserves," a 2010 resale certificate says: "At present, the balance of the Association's bank account is not reserved or designated for any particular purpose or specified project, including capital expenditures." And a 2014 resale certificate says that "[i]n the past, the Association members have opted to keep any reserve account(s) at a minimum." While these two certificates support the Blacks' argument, they are not so overwhelming as to leave us with a definite and firm conviction that the superior court made a mistake. We thus conclude that the superior court did not err when it found that the funds in question were reserves.

C. The Superior Court Did Not Err When It Denied The Blacks' Motion To Dismiss Whitestone's Claim For Declaratory Relief.

In addition to its contract damages, Whitestone sought declaratory relief, asking the superior court to determine whether the drives were common elements or limited common elements under the declaration. Whitestone alleged that a controversy existed as to this question because the Blacks had premised their dues protest on their belief that the drives were limited common elements. The Blacks moved to dismiss this claim, asserting that Whitestone had failed to plead the existence of an actual controversy.

The superior court denied this motion and eventually granted Whitestone declaratory relief. And in its fee-award order, the superior court stated that it "has no doubt that, as Whitestone argues, absent that successful [declaratory judgment claim] Black would have continued avoiding paying his Association obligations." The Blacks argue that no controversy existed and that it was legal error to deny their motion to dismiss. We review the denial of a motion to dismiss de novo. "Under our case law, the 'actual case or controversy' language [in the statute providing for declaratory relief] encompasses a number of more specific reasons for not deciding cases, including lack of standing, mootness, and lack of ripeness."

The Blacks argue that because they abandoned their dues protest in 2014, Whitestone's claim for declaratory judgment was both moot and unripe. But they continued to dispute Whitestone's position on the drives even after they made the 2014 payment. Whitestone introduced evidence that Brill stated at a 2016 owners' meeting that she thought a special assessment to pay for repairs of the main drive was "in contradiction to the Declaration and will probably be a matter of litigation."

Whitestone also introduced two 2016 letters sent to its attorney by Black. In the first, Black said that the "common element/limited common element distinction becomes an issue when it comes to the maintenance of the[ ] drives." Referring to the main drive, Black said: "We object to being assessed to pay for non-common features of other owners' units. As a result, the declaration, state law, prior history, and fundamental fairness should, at a minimum, excuse ... us ... from having to contribute toward that work." In the second letter, Black, again referring to a special assessment to pay for maintenance of the main drive, said: "[Whitestone] should not expect us to pay [for] an assessment like the one it imposed last month. If work needs to be done, it should be paid for by the homes that will benefit from that work, and that's not us."

These statements by Black and Brill show that they were threatening action over the drives issue even after the onset of litigation in this case. If a defendant had the power to moot a case by simply disavowing the challenged conduct in the course of litigation, "the courts would be compelled to leave the defendant free to return to [their] old ways." Given this, we conclude that the superior court did not err when it denied the Blacks' motion to dismiss and proceeded to the merits of Whitestone's claim for declaratory relief.

D. The Superior Court Did Not Err By Including In Whitestone's Judgment A $1,100 Special Assessment Not Listed In A Statement Provided To The Blacks.

Alaska Statute 34.08.470(h) provides that a condominium association "shall furnish to a unit owner a statement setting out the amount of unpaid assessments against the unit" upon written request. It also provides that "[t]he statement ... is binding on the association, the executive board, and each unit owner." On October 31, 2016, Black requested such a statement from Whitestone. Whitestone levied a $1,100 special assessment from each owner on November 1, to be due on November 19. Whitestone supplied Black with a statement on November 7, which did not include the special assessment.

The Blacks argued in their motion for partial summary judgment and at trial that Whitestone could not collect this assessment because it was not included in the November 7 statement. The superior court included the $1,100 special assessment and associated late fees in Whitestone's judgment. The Blacks argue that its inclusion was erroneous under the clear language of AS 34.08.470(h).

The minutes of the November 1 meeting at which the assessment was levied show that Black was present, and the owner who chaired the meeting sent an email afterwards to all the owners announcing the new assessment. Black testified that he received this email. We must determine, then, whether AS 34.08.470(h) relieves a unit owner of the obligation to pay an assessment that is omitted from a statement provided by the association even when that owner has actual knowledge of the assessment. This is a question of statutory interpretation, to which we apply our independent judgment. "We construe statutes according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose."

Generally, AS 34.08.470 governs the authority of a condominium association to attach liens to and recover against units with unpaid assessments. Under AS 34.08.470(a) the association automatically has a lien on a unit when an assessment becomes overdue. The legislative history shows that this section was intended to grant condominium associations greater power and streamline the process by which they could collect unpaid assessments from unit owners. Given this streamlined process, AS 34.08.470(h) ensures that unit owners have the ability to obtain reliable information about their potential liability. That subsection's assurance that the statement given to an owner is "binding on the association" prevents the association from surprising that owner by collecting on an assessment of which he or she had no knowledge. Taken as a whole, this statutory scheme serves the dual purpose of empowering the condominium association to easily collect on its debts and protecting the unit owner by making accurate information about his or her unit available on demand.

However, when a unit owner already has actual knowledge of an assessment, this protection is unnecessary. It would be contrary to the purpose of AS 34.08.470 to allow a unit owner who already knows about an assessment to use its omission from a statement provided by the association as a means to relieve himself or herself of the obligation to pay it. The Blacks do not argue that the November 1 special assessment was improperly levied. And the record shows that Black had actual knowledge of that assessment when Whitestone sent him a statement omitting it on November 7, and conceded at oral argument that its omission did not prejudice him and Brill. Under these circumstances we conclude that the association's failure to list the assessment in the statement did not void the Blacks' obligation to pay it, and hold that the superior court did not err when it included the $1,100 special assessment and associated late fees in Whitestone's judgment.

E. The Superior Court Did Not Abuse Its Discretion When It Determined That Whitestone's Attorney's Fees Were Reasonable.

The superior court awarded Whitestone full attorney's fees in the amount of $124,043. It found that a full fee award was warranted both under the declaration, which entitles the prevailing party to "recover ... actual attorneys' fees," and as an enhanced fee award under Alaska Civil Rule 82(b)(3). The Blacks do not dispute that the declaration entitles the prevailing party to full fees, but they argue on appeal that Whitestone's fees were unreasonable. "We review an attorney's fee award for abuse of discretion, reversing the award only if it is 'arbitrary, capricious, manifestly unreasonable, or the result of an improper motive.' "

The Blacks argue that Whitestone's fees were not reasonable because they were much higher than the amount in dispute. Whitestone's fee award is many times larger than the judgment it received, but the amount in dispute does not impose an upper limit on the amount the prevailing party may recover in fees. The superior court made an express finding that the Blacks' litigation conduct was the cause of Whitestone's high fees. It explained that "Black ... seemed to be taking affirmative, repeated, consistent steps to maximize the fees Whitestone was having to incur." (Emphasis in original.) For example, it noted that the Blacks had rejected two pretrial settlement offers from Whitestone, explaining that "it appears to this court that Black seemed intent on litigating regardless of any offer, almost as if he was getting enjoyment from raising every possible issue and every argument, no matter how strained, no matter how unworthy of litigation." (Emphasis in original.) The superior court eventually found that "the Blacks engaged in non-stop vexatious and bad faith litigation."

The superior court's characterization of the Blacks' approach to the litigation is supported by the record. For example, the couple filed various counterclaims in response to Whitestone's complaint. Among these were claims that Whitestone failed to provide proper notice of its board meetings and that the Blacks were entitled to punitive damages for Whitestone's "willful failure to comply" with the statute governing condominium associations. But the Blacks produced no evidence to support these claims and eventually abandoned them in their closing argument at trial.

We have previously upheld an award of full fees where the superior court found that "the action was 'frivolous and brought to harass the defendants' " because the plaintiffs produced no evidence to support their claim. Moreover, we have explained that "the superior court [is] in the best position to evaluate the defendants' demeanor and credibility" in the fee-award context. Finally, because the Blacks maintained the punitive damages claim until the close of trial, it would have been reasonable for Whitestone to assume that there was more at stake than its contract claims. The superior court's discussion of the Blacks' litigation conduct provides an adequate basis for its determination that Whitestone's fees were reasonable; we conclude that it did not abuse its discretion.

IV. CONCLUSION

We AFFIRM the superior court's decision in all respects.

      Black was a board member from 2003 to March 2009.

      Alaska Statute 09.10.053 provides that "[u]nless the action is commenced within three years, a person may not bring an action upon a contract or liability, express or implied" with limited exceptions.

      See AS 34.08.670.

      Miller v. Fowler , 424 P.3d 306, 311 (Alaska 2018). Both parties agree that the declaration is a contract.

      Norville v. Carr-Gottstein Foods Co. , 84 P.3d 996, 1004 (Alaska 2004) (quoting Municipality of Anchorage v. Gentile , 922 P.2d 248, 256 (Alaska 1996) ).

      See Jalasko Assocs., Inc. v. Newbery Energy Corp. , 663 P.2d 946, 948 (Alaska 1983) (citing § 259 of the Restatement for the general rule that "permits a creditor to apply a debtor's payment to any of the debtor's obligations, absent direction by the debtor").

      Cf., e.g. , In re Grigsby , 127 B.R. 759, 766 (E.D. Pa. 1991) ("This provision [of the contract providing for repayment of interest before principal] need not 'overcome' the general rule, because the general rule applies only in the absence of such a provision."); United Orient Bank v. Lee , 208 N.J.Super. 69, 504 A.2d 1215, 1217 n.1 (1986) ("An exception arises [to the general rule reflected in § 258 of the Restatement] where there is a preexisting agreement with the obligee or a third party directing the application.").

      See Restatement (Second) of Contracts § 259 ( Am. Law Inst. 1981). Cf. All. of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough , 273 P.3d 1128, 1139 (Alaska 2012) ("We will construe a statute 'so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.' " (quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 46:6 (7th ed. 2007) )).

      "[E]xtrinsic evidence may always be received on the question of meaning." Mahan v. Mahan , 347 P.3d 91, 94-95 (Alaska 2015) (quoting Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist. , 778 P.2d 581, 584 (Alaska 1989) ); see also Casey v. Semco Energy, Inc. , 92 P.3d 379, 384 (Alaska 2004) ("The intent of the parties is the primary issue, and their intent can be drawn from extrinsic evidence, especially their express attempts to comply with the contract as they understood it.").

      The email reads:
      Gang,
      My head's spinning.
      Since we've always first applied new payments towards past arrearages, I don't see the difference: a person can't be up to date on December 31 and at the same time have an arrearage from a prior year. It's impossible.
      Craig[.]

      See AS 34.08.990.

      Miller v. Fowler , 424 P.3d 306, 311 (Alaska 2018).

      The Blacks argued at trial that since the declaration required reserves to be kept in a segregated account, any funds not kept in a segregated account could not be reserves. But Black agreed, when questioned by the superior court, that this argument was circular. The structure of the declaration undercuts this argument as well. It first commands that the association "shall establish a reserve fund," and then in the next paragraph instructs it to "maintain the reserve funds in a segregated account." This indicates that the reserve fund has some defining characteristic other than the fact that it is kept in a separate account.

      See Nautilus Marine Enters. v. Exxon Mobil , 305 P.3d 309, 315 (Alaska 2013) ("Where the superior court considers extrinsic evidence in interpreting contract terms ... we will review the superior court's factual determinations for clear error ...." (quoting Villars v. Villars , 277 P.3d 763, 768 (Alaska 2012) )).

      "[I]t is the function of the trial court, not of this court, to judge witnesses' credibility ...." Burton v. Fountainhead Dev., Inc. , 393 P.3d 387, 392 (Alaska 2017) (quoting Lentine v. State , 282 P.3d 369, 375-76 (Alaska 2012) ).

      See Nautilus Marine Enters ., 305 P.3d at 315 ("A clearly erroneous finding is one which leaves us with a 'definite and firm conviction on the entire record that a mistake has been made.' " (quoting Municipality of Anchorage v. Gentile , 922 P.2d 248, 256 (Alaska 1996) )).

      Alaska Statute 22.10.020(g) grants the superior court jurisdiction over declaratory judgment claims only "[i]n [the] case of an actual controversy." See also Jacko v. State , 353 P.3d 337, 340 (Alaska 2015).

      Catholic Bishop of N. Alaska v. Does 1-6 , 141 P.3d 719, 722 (Alaska 2006).

      Ruckle v. Anchorage Sch. Dist. , 85 P.3d 1030, 1034 (Alaska 2004).

      Slade v. State, Dep't of Transp. & Pub. Facilities , 336 P.3d 699, 700 (Alaska 2014) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ).

      AS 34.08.470(h).

      See State v. Groppel , 433 P.3d 1113, 1116 (Alaska 2018).

      Id. (quoting Alaska Airlines, Inc. v. Darrow , 403 P.3d 1116, 1121 (Alaska 2017) ).

      Testimony of Gurdon H. Buck, Cmty. Ass'n Inst., Am. Bar Ass'n at 54:3556:34, Hearing on S.B. 44 Before the Sen. Judiciary Comm., 14th Leg., 1st Sess. (Feb. 5, 1985). For example, AS 34.08.470(d) provides, "The recording of the declaration constitutes record notice and perfection of the lien. Further recording of a claim of lien for assessment under this section is not required."

      A witness who testified before the Senate Judiciary Committee on behalf of the bill that enacted this section expressed particular concern about the need to inform prospective purchasers about liability associated with units for sale. See Testimony of William L. McNall, Cmty. Ass'n Inst. at 59:09-59:52, Hearing on S.B. 44 Before the Sen. Judiciary Comm., 14th Leg., 1st Sess. (Feb. 5, 1985). Although AS 34.08.590(a)(2) more directly addresses this concern by requiring the seller of a unit to produce a resale certificate disclosing any debts associated with the property, this testimony underscores the importance of making accurate information available.

      The Blacks also request that we remand to the superior court to reconsider which party prevailed at trial. It is not necessary to reevaluate the designation of Whitestone as the prevailing party because we affirm the superior court's judgment on damages.

      State, Dep't of Health & Soc. Servs. v. Okuley , 214 P.3d 247, 251 (Alaska 2009) (quoting Hughes v. Foster Wheeler Co. , 932 P.2d 784, 793 (Alaska 1997) ).

      See Alaska Bar R. 35(a)(4) (identifying "the amount involved and the results obtained" as a factor "to be considered in determining the reasonableness of a fee"); see also Okuley , 214 P.3d at 251 n.13.

      See Valdez Fisheries Dev. Ass'n, Inc. v. Froines , 217 P.3d 830, 833 n.19 (Alaska 2009) (explaining that "[w]e have never adopted ... a bright-line rule" that fees in excess of the amount in dispute were unreasonable).

      Garrison v. Dixon , 19 P.3d 1229, 1235 (Alaska 2001).

      Crook v. Mortenson-Neal , 727 P.2d 297, 306 (Alaska 1986).


source: Caselaw Access Project

author: Judge WOLLENBERG, writing for the Court. Judge ALLARD, concurring. Judge ALLARD, concurring.

license: Public Domain

text:
    Marquinn JONES-NELSON, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-11966
    Court of Appeals of Alaska.
    July 19, 2019
   Judge WOLLENBERG, writing for the Court.

Following a jury trial, Marquinn Jones-Nelson was convicted of first-degree murder in connection with the shooting death of Devante Jordan. Jones-Nelson now appeals his murder conviction.

On appeal, Jones-Nelson raises two claims. First, Jones-Nelson argues that the superior court improperly limited his cross-examination of three of the State's witnesses. Specifically, Jones-Nelson contends that the court erred when it refused to allow his attorney to elicit testimony from these witnesses about Jordan's reputation for violence or about Jordan's prior violent acts until the defense attorney had first presented "some evidence" of self-defense - i.e. , other evidence (apart from the anticipated testimony of these three witnesses) to support each of the elements of a claim of self-defense. Jones-Nelson acknowledges that the "some evidence" test is the standard that governs whether a self-defense instruction is warranted, but he argues that this same test does not govern a judge's decision whether to admit evidence.

The State concedes that the trial court was wrong to require this foundational showing as a prerequisite to the admission of evidence of Jordan's reputation for violence or Jordan's prior violent acts. We agree. However, for the reasons explained in this decision, we conclude that the error was harmless.

Second, Jones-Nelson argues that the superior court gave an incorrect instruction to the jury on the law of self-defense. We agree with Jones-Nelson that this instruction was incomplete and potentially misleading: it failed to explicitly tell the jurors that, when they evaluated whether Jones-Nelson's use of deadly force was reasonable, they were required to judge his decision under the circumstances as they reasonably appeared to Jones-Nelson at the time (rather than under the circumstances as they turned out to be in retrospect).

But after carefully reviewing the record (in particular, the other jury instructions on self-defense and the final arguments of the parties), we conclude that this error did not appreciably affect the jury's verdict.

Background facts and proceedings

On the evening of March 23, 2011, Jones-Nelson and two of his friends attended a party at an Anchorage apartment. Jordan and some of his friends attended the same party.

At some point, Jordan confronted Jones-Nelson in a bedroom, accusing him of spreading the rumor that Jordan was a police snitch. During this confrontation, Jordan came within three feet of Jones-Nelson, and he was acting aggressively. However, Jordan ultimately left the room and returned to sit with his friends in the kitchen.

One of Jordan's friends who lived in the apartment, Nikita Sanders, could see that Jordan was angry. She asked him if he was "good," and Jordan replied that he was. But Jordan then asked another friend, Parrish Harris, whether he should "drop" Jones-Nelson. Sanders heard this comment, and she told Jordan, "Not in my apartment."

(Because Jones-Nelson was still in the bedroom, he did not hear Jordan's comment.)

A little later, Jones-Nelson called Harris into the bedroom and told him to fetch Jordan. Harris did so; moments later, Jordan came into the bedroom.

According to the testimony later given by Jones-Nelson and two of his friends (Dorian Topps and Dionte Wren), Jordan approached Jones-Nelson in an aggressive manner. He came within a foot and a half of Jones-Nelson, stood over him, and asked, "What's up?" (Jordan, who was about 6 foot 3 inches tall and weighed 170 pounds, was significantly bigger than Jones-Nelson, who was 5 foot 7 inches tall and weighed about 135 pounds.)

According to the defense witnesses, Jordan looked like he was going to hit Jones-Nelson. In addition, Topps (one of Jones-Nelson's friends) testified that he saw Jordan reaching for a handgun in his waistband as he approached Jones-Nelson. However, Wren (Jones-Nelson's other friend) testified that he did not see Jordan with a firearm, nor did he see Jordan actually try to hit Jones-Nelson.

Regardless of this discrepancy in the testimony, it is undisputed that Jones-Nelson pulled out a handgun and started shooting at Jordan. Jones-Nelson fired two shots in quick succession, at which point Jordan turned and ran toward the kitchen. As Jordan ran away, Jones-Nelson fired four more shots. Jordan died as a result of his wounds.

Following the shooting, Jones-Nelson fled the apartment, accompanied by Wren and Topps. Jones-Nelson's girlfriend was waiting outside in a car, and the four drove away from the apartment. When Jones-Nelson's girlfriend asked him what happened, Jones-Nelson replied that he had just "smoked" Jordan. Jones-Nelson later disposed of the handgun by tossing it over a bridge.

The next day, Jones-Nelson contacted a person to obtain a fake birth certificate and other false documents so that he could leave Alaska under a false identity. The person that Jones-Nelson contacted was secretly a federal informant, and she alerted the authorities to Jones-Nelson's plan. The police arrested Jones-Nelson when he went to retrieve the false documents. When Jones-Nelson was interviewed following his arrest, he denied being at the scene of the shooting.

At trial, there was no dispute that Jones-Nelson shot and killed Jordan. The only question was whether this shooting was justified by self-defense.

In his opening statement, Jones-Nelson's counsel asserted that Jones-Nelson shot Jordan in self-defense, after Jordan approached Jones-Nelson in an aggressive and threatening manner. The defense attorney told the jury that it would hear evidence of Jordan's reputation for violence, as well as specific incidents of Jordan's violent behavior. The defense attorney asserted that this evidence would show the reasonableness of Jones-Nelson's perception that Jordan was going to hurt him, and the reasonableness of Jones-Nelson's decision to use deadly force in response to this perceived threat.

Both Jones-Nelson and his friend Topps testified that Jordan approached Jones-Nelson in an aggressive manner, and that Jordan reached into his waistband for a gun. (As we noted earlier, Jones-Nelson's other friend, Wren, testified that he did not see Jordan reach for a gun.) Jones-Nelson testified that when he saw Jordan reaching for a gun, he was afraid that he would be pistol-whipped or shot, so he grabbed a revolver from the window ledge and started shooting at Jordan. Jones-Nelson conceded that, after the first few shots, Jordan dropped his gun and ran, but Jones-Nelson testified that he kept firing because he was afraid that Jordan's friends might have guns and might come to Jordan's aid.

The prosecutor argued that neither Jones-Nelson nor his friend Topps were credible witnesses, and that their testimony about Jordan reaching for a gun was false. The prosecutor asserted that Jones-Nelson never subjectively believed that he needed to use deadly force to repel an imminent attack.

The jury ultimately rejected Jones-Nelson's claim of self-defense and convicted Jones-Nelson of first-degree murder.

The court's limitation on the defense attorney's introduction of evidence regarding Jordan's reputation for violence and Jordan's prior violent acts

Prior to trial, Jones-Nelson's attorney filed notice of his intent to support Jones-Nelson's claim of self-defense by introducing evidence of several prior violent acts by Jordan, as well as evidence of Jordan's reputation for violence. At trial, the defense attorney initially sought to introduce some of this evidence through his cross-examination of three witnesses who either saw or overheard the shooting: Dionte Wren, Nikita Sanders, and her sister, Andronika Sanders.

The prosecutor objected to this proposed cross-examination on the ground that the defense attorney had not yet offered "some evidence" on every element of self-defense. In particular, the prosecutor argued that the proposed cross-examination would be improper until the defense attorney first offered evidence that Jones-Nelson subjectively believed that he was about to be killed or subjected to serious physical injury. (At that point in the trial, no witness had testified to seeing Jordan with a gun.)

The trial judge adopted the prosecutor's view of the law, and he sustained the prosecutor's objection to the proposed cross-examination. The judge ruled that Jones-Nelson's attorney could not elicit any testimony about Jordan's reputation for violence, or about Jordan's past acts of violence, until the attorney presented "some evidence" to support each element of Jones-Nelson's self-defense claim. Only later, after Topps testified that he saw Jordan reaching for a handgun as he approached Jones-Nelson, did the trial judge permit the defense attorney to introduce evidence of Jordan's prior acts of violence and reputation for violence.

On appeal, Jones-Nelson argues that the trial court improperly limited his attorney's cross-examination of Wren and the Sanders sisters. He argues that, even though the defense had not yet presented affirmative evidence that Jones-Nelson subjectively feared a deadly attack, the trial judge nevertheless should have allowed the defense attorney to elicit evidence regarding Jordan's reputation for violence and his prior violent acts.

The State concedes that the trial judge was wrong to require this foundational showing. We agree. While the "some evidence" test governs the question of whether a defendant is ultimately entitled to have the jury instructed on self-defense at the end of the trial, this test does not govern the admissibility of evidence supporting a claim of self-defense during the trial.

In particular, there is no rule that a defendant must first introduce evidence to support each element of self-defense before the defendant may introduce evidence of a decedent's prior acts of violence or their reputation for violence. Indeed, the defendant may rely on such evidence to establish the "some evidence" threshold for a self-defense instruction at the end of the trial. Thus, the trial judge was wrong to require Jones-Nelson's attorney to introduce independent evidence on each element of self-defense before the judge allowed the attorney to introduce evidence of Jordan's reputation for violence or his prior violent acts.

We disavow any contrary implication in Gottschalk v. State , 881 P.2d 1139, 1143 (Alaska App. 1994) and Deacon v. State , 1993 WL 13156808, at *1 (Alaska App. June 23, 1993) (unpublished).

Although the trial judge was wrong to require this "some evidence" foundational showing, it is important to note that there are other foundational requirements that a defendant must meet before presenting this kind of evidence. These requirements differ depending on whether (1) the defendant is claiming that, as a matter of historical fact, the victim was the first aggressor, or (2) the defendant is claiming that he reasonably believed that he was about to be attacked with deadly force.

To prove the question of historical fact - i.e. , that the victim was actually the first aggressor - a defendant may introduce evidence of the victim's character for violence, and he need not establish that he was actually aware of the victim's violent character at the time of the altercation. However, this evidence must take the form of reputation or opinion evidence; the defendant may not introduce evidence of prior specific acts of violence.

In contrast, when the defendant seeks to prove the reasonableness of his fear that the victim was about to attack, the defendant can introduce any evidence pertaining to his contemporary knowledge of the victim's violent propensities. This includes not only what the defendant had personally observed about the victim's violent propensities in the past, but also what the defendant had heard from others about the victim's reputation for violence or the victim's specific prior acts of violence - provided that the defendant was aware of this information at the time of his altercation with the victim.

We discussed these principles at length in Allen v. State , 945 P.2d 1233, 1239-43 (Alaska App. 1997) and McCracken v. State , 914 P.2d 893, 898-99 (Alaska App. 1996).

Moreover, there may be other foundational requirements that prevent or limit the introduction of this type of evidence.

For instance, in the present case, Jones-Nelson's attorney sought to cross-examine Wren about a 2008 altercation in which Jordan purportedly confronted Jones-Nelson, knocked him unconscious with a single punch, and pulled a gun on him. This evidence was offered to establish the reasonableness of Jones-Nelson's belief that he needed to use deadly force against Jordan. But Wren did not have personal knowledge of this prior incident, so the trial judge properly excluded his testimony as hearsay.

Finally, we acknowledge that there may be instances where there is a significant question whether the defendant will ultimately be entitled to a self-defense instruction, and where the trial judge is unable to resolve this question at the time the defense attorney seeks to introduce evidence of the victim's character for violence or the victim's prior acts of violence. In such instances, a trial judge retains the discretion to regulate the order of proof, so as to avoid the danger of prejudicing the jury with evidence that ultimately turns out to be inadmissible.

In Jones-Nelson's case, however, we conclude that even if the trial judge should have allowed the defense attorney to cross-examine Wren and the Sanders sisters about Jordan's reputation for violence, or about Jordan's past violent acts, any error was rendered harmless later in the trial, when the defense attorney was able to introduce the same evidence through other witnesses.

Later in the trial, Jones-Nelson's attorney introduced testimony from a number of witnesses that Jordan was a violent person who often carried a gun, that Jordan was a "person of interest" in two prior shootings, and that he was involved in a third shooting. In addition, the defense attorney introduced evidence of the 2008 incident in which Jordan knocked out Jones-Nelson (the evidence that the judge excluded on hearsay grounds when the defense attorney sought to offer it through the testimony of Wren).

Indeed, at oral argument, Jones-Nelson conceded that he was ultimately able to introduce all of the evidence of Jordan's prior acts of violence and Jordan's character for violence that his trial attorney had initially sought to introduce through the cross-examination of Wren and the Sanders sisters. Jones-Nelson nevertheless contends that he was prejudiced by the trial judge's ruling because Wren and the Sanders sisters would have been particularly credible witnesses on the topic of Jordan's history of, and character for, violence.

But during the trial, Jones-Nelson's attorney acknowledged on several occasions that he could recall these three witnesses during the defense case - and yet he did not do so. In fact, the defense attorney later affirmatively declined to recall Nikita Sanders. We therefore reject Jones-Nelson's claim that the trial judge prevented him from eliciting the testimony of these three witnesses.

Jones-Nelson's defense attorney ultimately presented all of the evidence he wished regarding Jordan's character for violence and Jordan's prior specific acts of violence, and the defense attorney chose not to recall and question Wren and the Sanders sisters about these matters. For these reasons, we conclude that any error in the trial judge's initial ruling - the trial judge's refusal to allow the defense attorney to elicit this evidence by cross-examining Wren and the Sanders sisters during the State's case - did not affect Jones-Nelson's ability to present his defense.

The self-defense jury instruction

Jones-Nelson's jury was given two pattern jury instructions on the use of force in self-defense. One of these instructions described the law that governs the use of non-deadly force in self-defense, and the other instruction described the law that governs the use of deadly force. The instruction on the use of deadly force correctly informed the jurors that a defendant who would be justified in using non-deadly force in self-defense may use deadly force when and to the extent that "the defendant reasonably believes" that deadly force is necessary to prevent imminent death or serious physical injury (or to prevent certain specified felonies).

However, at the prosecutor's request, the trial judge gave the jury a third instruction on self-defense that was intended to supplement the two pattern instructions. Jones-Nelson challenged this third instruction. Here is the language of that instruction:

A basic tenet of the doctrine of self-defense is that [the] use of deadly force is unreasonable ... if non-deadly force is obviously sufficient to avert the threatened harm. Even in circumstances when a person is permitted to use deadly force in self-defense[,] that person may still not be authorized to employ all-out deadly force because such extreme force is not necessary to avert the danger.

On appeal, Jones-Nelson argues that this instruction is incorrect because it suggests that the jury should retrospectively evaluate a defendant's use of deadly force to determine whether deadly force was in fact objectively necessary , rather than having the jury assess whether the defendant's use of deadly force was reasonable under the circumstances known to the defendant at the time .

Jones-Nelson correctly notes that a defendant may be justified in using deadly force (even "all-out" deadly force) if, under the circumstances known to the defendant, the defendant reasonably believed that this amount of force was necessary - even if it later turns out that this belief was mistaken, and that lesser force would have sufficed.

We agree with Jones-Nelson that the wording of the challenged instruction failed to unambiguously recite the concept of "reasonableness" that is central to the law of self-defense. As we said in McCracken v. State :

When a homicide defendant asserts that he or she acted in self-defense, the law does not require the defendant to prove that he or she actually faced imminent deadly attack. Even if the defendant's fear turns out to have been mistaken, the defense still may be established if the defendant proves that, under the circumstances, he or she reasonably feared imminent deadly attack at the hand of the victim.[ ]

The question is not whether a defendant's use of force, and the level of force used, was necessary in hindsight (or, using the language of the challenged instruction, whether some lesser amount of force can now be seen to be "obviously sufficient to avert the threatened harm"). Rather, the question is whether the defendant's use of force, and the level of that force, was reasonable under the circumstances as they were known to the defendant at the time.

It is true, as the State argues, that the supplemental instruction correctly captured the concept that the defendant's use of force must be proportionate to the perceived danger. But, again, the question is what danger the defendant reasonably perceived at the time, and what degree of force the defendant reasonably believed was necessary to counter that perceived danger. The challenged instruction did not explicitly tell the jurors that they were required to evaluate Jones-Nelson's use of force from the perspective of a reasonable person in Jones-Nelson's circumstances.

That being said, we conclude that when the supplemental instruction is read in conjunction with the other jury instructions on self-defense, and in the context of the parties' closing arguments at Jones-Nelson's trial, there is little chance that the jurors would have been misled on this issue. Instead, we conclude that the jurors would have understood the principle that a defendant can validly use deadly force in self-defense if the person reasonably believed at the time that this force (and level of force) was necessary, even if it later turned out that the defendant's belief was mistaken.

As we noted earlier, the jury received two pattern instructions on the use of force in self-defense. Each of these instructions stated that, under the law of self-defense, a person is justified in using force if the person reasonably believed at the time that the use of this force was necessary. (A separate instruction defined the term "reasonably believes.") And in their closing arguments, both the prosecutor and the defense attorney repeatedly referred to this aspect of self-defense law.

Moreover, neither attorney referenced the challenged jury instruction during their closing arguments. In closing, the prosecutor primarily challenged the credibility of Jones-Nelson's claim that Jordan had a gun. He argued that Jones-Nelson never subjectively believed that it was necessary for him to use deadly force against Jordan. The prosecutor also argued that, regardless of Jones-Nelson's subjective belief, it was unreasonable for Jones-Nelson to continue shooting Jordan after Jordan turned and ran back toward the kitchen.

We acknowledge that, at two points during his argument, the prosecutor used language that potentially suggested that the question was whether deadly force was "necessary," as distinct from whether deadly force was "reasonable." But read in the larger context of the prosecutor's argument, we interpret the prosecutor as properly asking the jurors to evaluate the reasonableness of Jones-Nelson's purported belief that he had to use deadly force, given the circumstances.

(We note that Jones-Nelson does not challenge, or even mention, these two segments of the prosecutor's argument.)

On appeal, Jones-Nelson points to the fact that the jury requested clarification of the self-defense instructions. He argues that this indicates that the supplemental jury instruction was prejudicial. But in a follow-up question, the jury explained that they were seeking clarification of two of the exceptions to the valid use of self-defense - namely, the provisions that preclude a claim of self-defense in instances of "mutual combat," or when deadly force is used "in revenge for, retaliation for, or response to actual or perceived conduct by a rival or perceived rival." These exceptions are statutory, and they were set out in one of the pattern instructions that the court gave to the jury - not in the supplemental instruction.

Viewing the jury instructions and the attorneys' arguments as a whole - including the attorneys' repeated references to the correct test as stated in the pattern jury instructions, and the fact that the attorneys never referred to the challenged supplemental jury instruction - we conclude that the error in the supplemental instruction did not appreciably affect the jury's verdict.

Conclusion

We AFFIRM the judgment of the superior court.

Judge ALLARD, concurring.

Judge ALLARD, concurring.

I write separately regarding the supplemental jury instruction on self-defense that the jury received in this case.

As explained in Judge Wollenberg's lead opinion, this jury instruction was intended to inform the jurors that, when a person uses force in self-defense, the amount or degree of this force must be proportionate to - i.e. , a reasonable response to - the danger that the person reasonably believed they confronted .

The flaw in the challenged jury instruction was that it failed to include the principle stated in the italicized portion of the preceding sentence: the principle that the lawfulness of the defensive force must be judged in light of the circumstances as the defendant reasonably perceived them at the time. Instead, the instruction told the jurors that a person's use of force will be deemed unreasonable if a lesser degree of force was "obviously sufficient to avert the threatened harm," or if the person used an amount of force that was "not necessary to avert the danger."

The State notes that the wording of this jury instruction was drawn from a jury instruction on self-defense that this Court upheld in Wilkerson v. State .

It is true that the jury instruction in Jones-Nelson's case was drawn, essentially verbatim , from the final two sentences of the jury instruction that we upheld in Wilkerson . But the jury instruction in Wilkerson contained an additional sentence that expressly reminded the jury that a defendant's use of force must be judged from the defendant's reasonable perception of the circumstances.

Jones-Nelson's case illustrates the danger of lifting language from appellate court decisions and then asking jurors to interpret and apply this language without the benefit of its original context. The fact that a jury instruction contains a verbatim quote from one of this Court's decisions does not guarantee that the instruction is an accurate or complete statement of the law. Thus, even when the language of a proposed jury instruction is drawn from an appellate court decision, trial judges and lawyers must still analyze the proposed instruction to make sure that it properly conveys the law.

      AS 11.41.100(a)(1)(A). Jones-Nelson was also convicted of evidence tampering, AS 11.56.610(a)(1), and two counts of third-degree weapons misconduct, AS 11.61.200(a)(1). He does not appeal these convictions.

      See Loesche v. State , 620 P.2d 646, 650 (Alaska 1980) ; Johnson v. State , 268 P.3d 362, 365-66 (Alaska App. 2012) ; Allen v. State , 945 P.2d 1233, 1241-42 (Alaska App. 1997) ; McCracken v. State , 914 P.2d 893, 898-99 (Alaska App. 1996).

      See AS 11.81.900(b)(19) ; Weston v. State , 682 P.2d 1119, 1121 (Alaska App. 1984).

      See Savo v. State , 382 P.3d 1179, 1181 (Alaska App. 2016) (noting that the determination of whether the defendant has presented "some evidence" to warrant a self-defense instruction "applies at the conclusion of the trial, after all the evidence has been received").

      See Lewis v. State , 469 P.2d 689, 697 (Alaska 1970) (although the court generally has discretion to control the presentation of evidence, the court cannot exclude evidence based on the misconstruction or misapplication of a legal rule).

      See Alaska Evid. R. 611(a) (vesting court with authority to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence").

      See the pattern jury instructions for AS 11.81.330 and AS 11.81.335.

      See Weston v. State , 682 P.2d 1119, 1121-22 (Alaska 1984) ; McCracken v. State , 914 P.2d 893, 898 (Alaska App. 1996).

      McCracken , 914 P.2d at 898.

      See State v. Miller , 281 Neb. 343, 798 N.W.2d 827, 831 (2011) (noting, in analyzing a similarly flawed instruction, that "[w]hat the jury believes is actually necessary in response to such a threat with the benefit of calm hindsight is not the inquiry, because '[d]etached reflection cannot be demanded in the presence of an uplifted knife' " (quoting Brown v. United States , 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921) )).

      See AS 11.81.330(a).

      Id.

      See our extended discussion of this principle in State v. Walker , 887 P.2d 971, 978 (Alaska App. 1994).

      Wilkerson v. State , 271 P.3d 471 (Alaska App. 2012).

      See id. at 474-75.


author: JUSTICE BOLICK, opinion of the Court: GOULD, J., concurring.

text:
    STATE of Arizona, Appellee, v. Philip John MARTIN, Appellant.
    No. CR-18-0380-PR
    Supreme Court of Arizona.
    Filed August 9, 2019
    Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Linley Wilson (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona
    Aaron M. Demke, Mohave County Legal Advocate Attorney, Jill L. Evans (argued), Deputy Legal Advocate Attorney, Kingman, Attorneys for Philip John Martin
    JUSTICE BOLICK authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, GOULD, LOPEZ, BALES (Retired), and PELANDER (Retired) joined. JUSTICE GOULD filed a concurring opinion.
   JUSTICE BOLICK, opinion of the Court:

¶1 Philip John Martin was tried for first-degree murder in 2013, but the jury marked the verdict form "[u]nable to agree" on that charge and instead found him guilty of the lesser-included offense of second-degree murder. After successfully appealing that conviction, Martin was retried and convicted of first-degree murder. We hold that double jeopardy barred Martin's retrial for first-degree murder because the State had a full and fair opportunity to try him on that charge in the first trial and the jury, after full deliberation, refused to convict.

BACKGROUND

¶2 Martin shot and killed his neighbor with a single shotgun blast as the neighbor approached Martin's house to speak with him. Martin admitted that he shot his neighbor, contending he believed the victim was armed and coming to harm him after the victim ignored his demands to leave. The State charged Martin with premeditated first-degree murder under A.R.S. § 13-1105(A)(1).

¶3 At Martin's first trial for first-degree murder, the trial court provided the jury with a standard instruction on the lesser-included offense of second-degree murder. See State v. LeBlanc , 186 Ariz. 437, 924 P.2d 441 (1996). The court advised:

You may find the defendant guilty of the less serious crime if all of you agree that the state has failed to prove the defendant guilty of the more serious crime beyond a reasonable doubt, or if after reasonable efforts you are unable to agree unanimously on the more serious crime, and you do all agree that the state has proven the defendant guilty of the less serious crime.

The jury returned the verdict form with the box marked "[u]nable to agree" on the first-degree murder charge but found Martin guilty of second-degree murder. He was sentenced to sixteen years in prison.

¶4 Martin appealed on procedural grounds, and the court of appeals reversed the conviction and remanded for a new trial. State v. Martin , No. 1 CA-CR 13-0839, 2014 WL 7277831, at *5 ¶ 19 (Ariz. App. Dec. 23, 2014) (mem. decision).

¶5 Before the second trial, the trial court granted the State's motion to retry Martin for first-degree murder, over Martin's objection that doing so would violate double jeopardy. The court ruled that no "implied acquittal" occurred in the first trial, that the jury was genuinely deadlocked, and that the State demonstrated a "manifest necessity" for continuing Martin's jeopardy for first-degree murder. Therefore, jeopardy did not terminate on the first-degree murder charge. The court expressed its misgivings over the ruling, however, observing that the State had the opportunity to convict Martin of first-degree murder and failed, that the State could not have retried Martin for first-degree murder had he not appealed the second-degree murder conviction, and that by doing so Martin essentially forfeited his sixteen-year sentence and was now exposed to a life sentence by having exercised his appellate rights.

¶6 In the subsequent retrial, the jury found Martin guilty of first-degree murder and the court sentenced him to natural life in prison. The court of appeals affirmed Martin's conviction and sentence. State v. Martin , 245 Ariz. 42, 46 ¶ 18, 424 P.3d 443, 447 (App. 2018).

¶7 We granted review because whether double jeopardy prevents a retrial on the greater offense in these circumstances presents a recurring question of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution. Whether double jeopardy bars retrial is a question of law that this Court reviews de novo. State v. Moody , 208 Ariz. 424, 437 ¶ 18, 94 P.3d 1119, 1122 (2004).

DISCUSSION

¶8 "The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States , 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) ; see U.S. Const. amend. V ("No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb ...."). The protection embraces a defendant's "valued right to have his trial completed by a particular tribunal" wherever possible to prevent prolonged or repeated proceedings. Arizona v. Washington , 434 U.S. 497, 503-04, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (internal quotation marks omitted). The "general rule" is that the prosecution is entitled to only one complete opportunity to prove the case, but retrial on the same charge may be permissible if the "proceeding is terminated without finally resolving the merits of the charges against the accused." Id. at 505, 98 S.Ct. 824.

¶9 Martin primarily relies on Green v. United States to argue that the first trial fully resolved his guilt on the first-degree murder charge such that the State could only retry him for second-degree murder at his subsequent trial. In Green , the United States Supreme Court barred retrial on a first-degree murder charge after the first jury was silent on that charge but returned a guilty verdict on the lesser-included offense of second-degree murder, and that conviction was overturned on appeal. 355 U.S. at 186, 198, 78 S.Ct. 221. Martin contends that by checking "[u]nable to agree" on the verdict form here, the jury, as in Green , impliedly acquitted him on the first-degree murder charge, thus preventing retrial on that charge.

¶10 By contrast, the State cites Richardson v. United States for the proposition that "a retrial following a 'hung jury' does not violate the Double Jeopardy Clause." 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). In Richardson , the Court permitted retrial on two narcotics charges when the jury was unable to reach verdicts and the trial court declared a mistrial on those counts because "a trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy." Id. at 318-19, 326, 104 S.Ct. 3081. When the jury in Martin's first trial indicated it was unable to agree on the first-degree murder charge, the State argues, it reflected a hung jury, thus entitling the State to retry that offense.

¶11 We agree with Martin that Green guides the analysis here. The Court observed that it is not "essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge." Green , 355 U.S. at 188, 78 S.Ct. 221. Granted, the jury in Green was silent on the first-degree murder charge; whereas here it specified that it was "[u]nable to agree." But in Green , as here, there were no unforeseeable circumstances, such as mistrial, that made completion of the first trial impossible. Id. Rather, the jury considered both the greater and lesser offense and "refused to find [the defendant] guilty" of the greater charge. Id. at 190, 78 S.Ct. 221.

¶12 The Court in Green observed that in such circumstances, "the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder," but the Court concluded that a finding that jeopardy for first-degree murder terminated upon conviction of the lesser-included offense "need not rest alone" on the implied-acquittal assumption. Id. at 190-91, 78 S.Ct. 221. Rather, jeopardy ended when the jury "was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so." Id. at 191, 78 S.Ct. 221. Thus, the defendant's jeopardy for first-degree murder "came to an end when the jury was discharged [after entering a verdict] so that he could not be retried for that offense." Id. The rule of Green is that where the state had a full and fair opportunity to try the defendant on a charge and the jury refused to convict, jeopardy terminates when the jury is dismissed following its verdict, and therefore the state may not place the defendant in jeopardy again for that same charge.

¶13 The Court expressly reaffirmed Green 's holding in Price v. Georgia , 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). The Court acknowledged the "concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course." Id. at 326, 90 S.Ct. 1757. In Price , the defendant was indicted for murder, and while remaining silent as to the charge of murder, the jury returned a guilty verdict on the lesser-included crime of voluntary manslaughter. Id. at 324, 90 S.Ct. 1757. As here, the defendant appealed based on procedural grounds and the conviction was overturned. Id. He was retried for murder and again found guilty of voluntary manslaughter. Id. While the Court held that double jeopardy did not bar retrial on the lesser offense as the defendant had successfully appealed the conviction, it stated that "the first verdict, limited as it was to the lesser included offense, required that the retrial be limited to that lesser offense." Id. at 327, 90 S.Ct. 1757.

¶14 The Court further clarified the applicable principles in Arizona v. Washington . In that case, the trial judge declared a mistrial because of defense counsel's improper remarks during opening statements. 434 U.S. at 498, 98 S.Ct. 824. The Court rejected the defendant's argument that another trial would be barred by double jeopardy. Id. at 515-16, 98 S.Ct. 824. The Court noted the "general rule" that "the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial." Id. at 505, 98 S.Ct. 824. That rule is grounded in the defendant's right to have the trial completed by a particular tribunal and can apply "[e]ven if the first trial is not completed." Id. at 503, 98 S.Ct. 824. However, "retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused." Id. at 505, 98 S.Ct. 824. Specifically, a prosecutor may seek a mistrial over a defendant's objection if a "manifest necessity" exists to do so, which the Court characterized as a "heavy" burden. Id. The Court concluded that defense counsel's inappropriate comments could have led to a jury "tainted by bias," which satisfied the prosecutor's burden and justified retrial following the mistrial. Id. at 516, 98 S.Ct. 824.

¶15 The Court also observed that the general rule of a single opportunity to prosecute a charge does not apply where a trial court declares a mistrial based on a finding of "a genuinely deadlocked jury." Id. at 509, 98 S.Ct. 824. In that circumstance, the court may "require the defendant to submit to a second trial" because of "society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws." Id. ; cf. Richardson , 468 U.S. at 323-24, 104 S.Ct. 3081 (emphasizing that "failure of the jury to agree on a verdict" constitutes a "manifest necessity" justifying a mistrial).

¶16 The State here insists it did not have a full and complete opportunity to convict Martin of first-degree murder in the first trial because the jury indicated it was unable to agree to a verdict on that charge. The State correctly notes that "[u]nable to agree" does not equate to an implicit acquittal. Cf. Richardson , 468 U.S. at 325, 104 S.Ct. 3081 (holding a hung jury is not the equivalent of acquittal). But as Green emphasizes, an implied acquittal is sufficient but not necessary for jeopardy to terminate. 355 U.S. at 190-91, 78 S.Ct. 221. Rather, the general rule is that where the state had a complete opportunity to prosecute the defendant and failed to obtain a conviction on the greater charge, retrial on that charge is barred. Id. at 191, 78 S.Ct. 221 ; see also Washington , 434 U.S. at 505, 98 S.Ct. 824. That is exactly what happened in this case as the State fully prosecuted the first-degree murder charge but was unable to persuade the jury to convict. See Green , 355 U.S. at 190, 78 S.Ct. 221 (noting that jeopardy terminates where the jury "refused to find [the defendant] guilty" on the greater charge and that charge was "in no way involved in his appeal"). Such a situation, where the jury is unable to agree on one charge and convicts on the lesser offense, cannot alone justify a finding of "extraordinary circumstances" or "genuine deadlock" required to meet the state's heavy burden to continue jeopardy. See Gusler v. Wilkinson , 199 Ariz. 391, 394-95 ¶¶ 17-18, 18 P.3d 702, 705-06 (2001) (requiring that the state demonstrate "manifest necessity" to overcome the defendant's right to have his fate decided by the impaneled jury).

¶17 The only exception applicable here would be if the State had demonstrated a "manifest necessity" to support the trial court declaring a mistrial and discharging the jury because it was deadlocked. See Washington , 434 U.S. at 509, 98 S.Ct. 824. The absence of that situation here distinguishes this case from Richardson , on which the State relies, where the prosecutor successfully sought a mistrial based on a hung jury. 468 U.S. at 326, 104 S.Ct. 3081 ("[A] trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected."); see also Sattazahn v. Pennsylvania , 537 U.S. 101, 114, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (permitting second capital-sentencing proceeding after defendant moved to discharge deadlocked jury). Here the jury was not discharged because of a mistrial based on jury deadlock, but only after it had returned a complete verdict on the original indictment. See Brazzel v. Washington , 491 F.3d 976, 984 (9th Cir. 2007) ("Genuine deadlock is fundamentally different from a situation in which jurors are instructed that if they 'cannot agree,' they may compromise by convicting of a lesser alternative crime ...."); State v. Espinoza , 233 Ariz. 176, 179 ¶ 10, 310 P.3d 52, 55 (App. 2013) ("[A] jury's mere statement that it has been unable to reach a verdict after persistent deliberations-and after proceeding to consider a lesser offense in the context of a LeBlanc instruction-does not, without further inquiry by the court, demonstrate a true deadlock." (footnote omitted)).

¶18 The process for fully and completely prosecuting a criminal case in Arizona is set forth in LeBlanc , which established a unitary process for jury consideration of greater and lesser-included offenses. 186 Ariz. 437, 924 P.2d 441. Before LeBlanc , the approved instruction required jurors to first acquit the defendant on the charged offense before considering lesser-included offenses. State v. Wussler , 139 Ariz. 428, 430, 679 P.2d 74, 76 (1984). LeBlanc changed the instruction to allow jurors to "render a verdict on a lesser-included offense if, after full and careful consideration of the evidence, they are unable to reach agreement with respect to the charged crime." 186 Ariz. at 438, 924 P.2d at 442. Thus, the jury may render a verdict on the lesser-included offense if it either acquits the defendant on the greater offense or cannot agree on a verdict after reasonable efforts. Id.

¶19 The Court reasoned that the "reasonable efforts" procedure "diminishes the likelihood of a hung jury, and the significant costs of retrial, by providing options that enable the fact finder to better gauge the fit between the state's proof and the offenses being considered." Id. at 438-39, 924 P.2d at 442-43. In other words, following a full and complete presentation of the evidence, the jury will first consider the greater offense, and if it is not convinced the evidence supports a guilty verdict, it will consider the lesser-included offense. The process is calculated to avoid the deadlocked jury that is a necessary predicate for a mistrial and for a second trial on the greater offense. The Court emphasized that "because such an instruction would mandate that the jury give diligent consideration to the most serious crime first, the state's interest in a full and fair adjudication of the charged offense is adequately protected." Id. at 439, 924 P.2d at 443. And, as a necessary corollary in applying Green and Washington , when a verdict is reached on a lesser-included offense in accord with the LeBlanc instruction, jeopardy terminates for the greater offense and the defendant may not be retried on the greater offense.

¶20 The State concedes that the verdict here was reached in accord with the LeBlanc instruction. The jury was admonished to carefully consider whether the evidence supported conviction on the greater offense, and to consider the lesser-included offense only if it acquitted him on the greater charge or was unable to agree. Either way, the State had a full and complete opportunity to prove its case for first-degree murder, and jeopardy terminated for that crime following the jury's guilty verdict for second-degree murder. See Green , 355 U.S. at 190, 78 S.Ct. 221 ("[The defendant] was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him.").

¶21 We recognize that this unitary approach toward jury deliberation over greater and lesser-included offenses does not lend itself to a ready opportunity for the prosecution to seek a mistrial based on a deadlocked jury. See Espinoza , 233 Ariz. at 180 ¶ 12, 310 P.3d at 56. However, the LeBlanc instruction is intended to expand jury options and thereby minimize the prospect of a hung jury. The State here did not ask us to reconsider LeBlanc , although we do not foreclose the possibility of doing so in a future case or rule petition.

¶22 Finally, the State argues that it was Martin who extended jeopardy by deciding to appeal his second-degree murder conviction. The State acknowledges that if Martin had not appealed his conviction for second-degree murder, double jeopardy would have prohibited a new trial on the first-degree murder charge, but it asserts that jeopardy continued once Martin appealed. The State is wrong. By appealing a conviction on a lesser-included offense, a defendant does not restart the jeopardy clock on a greater charge. Green , 355 U.S. at 193, 78 S.Ct. 221.

¶23 Indeed, the Supreme Court expressly rejected as "paradoxical" and "wholly fictional" the notion that a defendant essentially waives double jeopardy rights by appealing a conviction on a lesser charge. Id. at 191-93, 78 S.Ct. 221. The Court observed that "[t]he law should not, and ... does not, place the defendant in such an incredible dilemma" that "he must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense." Id. at 193, 78 S.Ct. 221 ; see also Price , 398 U.S. at 327, 90 S.Ct. 1757 (stating that where the first verdict was limited to the lesser-included offense and that verdict was overturned on appeal, the retrial must be limited to that offense). That dilemma is particularly pronounced where, as in Arizona, a defendant has a constitutional right to appeal. Ariz. Const. art. 2, § 24 ("In criminal prosecutions, the accused shall have ... the right to appeal in all cases ....").

¶24 For the foregoing reasons, we conclude that trying Martin a second time for first-degree murder under the circumstances here violated his constitutional right to be free from double jeopardy.

CONCLUSION

¶25 The State alternatively asks us to reinstate Martin's conviction for second-degree murder. Martin argues that retrying him for first-degree murder may have made it more likely for the jury to convict him of the lesser-included offense than if the jury had considered the second-degree murder charge alone. See Price , 398 U.S. at 331, 90 S.Ct. 1757 (stating "we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense"). We vacate the court of appeals decision and remand to the trial court to consider in the first instance whether to reduce Martin's conviction to the lesser-included offense, or, if Martin can show prejudice, to order a new trial. See Morris v. Mathews , 475 U.S. 237, 246, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986) (describing Price as suggesting "that a new trial is required only when the defendant shows a reliable inference of prejudice").

GOULD, J., concurring.

¶26 I concur in the Court's opinion. The Court faithfully applies the reasonable-efforts framework set out by State v. LeBlanc , 186 Ariz. 437, 924 P.2d 441 (1996), and correctly notes that "[t]he State here did not ask us to reconsider LeBlanc ." Supra ¶ 21. In my view, however, its conclusion that double jeopardy attaches when a jury enters an "unable to agree" verdict raises serious concerns about LeBlanc .

¶27 LeBlanc never addressed the double jeopardy consequences of a jury reaching an "unable to agree" verdict. Generally, when a jury is hung, double jeopardy does not attach.

Richardson v. United States , 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) (holding "a retrial following a 'hung jury' does not violate the Double Jeopardy Clause"). However, under LeBlanc , a verdict of "unable to agree" may, but does not necessarily , mean that the jurors are hung on the greater offense. See supra ¶ 17.

¶28 Compounding this problem is the fact that LeBlanc 's approach "does not lend itself to a ready opportunity for the prosecution to seek a mistrial based on a deadlocked jury." See supra ¶ 21. As a practical matter, LeBlanc provides no opportunity for the state to seek a mistrial. For example, in the typical case, if the jurors are truly hung on a charge, they can advise the judge that they are at an impasse. However, because LeBlanc only requires the jurors to engage in "reasonable efforts" in considering the greater charge (rather than having to actually agree on a verdict of guilty or not guilty), it seems unlikely that they would advise the judge that they are at an impasse-particularly when they can simply state they are "unable to agree" and move on to the lesser charge.

¶29 Requesting the judge to poll the jury is also not a viable option. When the LeBlanc verdict form is returned to the court, the jury has already reached a verdict on the lesser offense. Under these circumstances, why would the prosecutor request the judge to poll the jury about their "unable to agree" verdict on the greater charge? Worse yet, what if the jury responds they are not hung, and they request assistance from the court in breaking the impasse? See Ariz. R. Crim. P. 22.4 & cmt. (stating the trial judge may assist a jury at an impasse by "giving additional instructions; clarifying earlier instructions; directing the attorneys to make additional closing argument; reopening the evidence for limited purposes; or a combination of these measures"). Would the judge allow additional arguments or evidence, and then instruct the jurors to resume their deliberations on the greater charge? Obviously not. After all, given the fact that the jury has already reached a verdict on the lesser offense, any new deliberations on the greater offense are barred by double jeopardy. Brown v. Ohio , 432 U.S. 161, 168-69, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (holding that double jeopardy bars a prosecution for a greater offense after a conviction for a lesser-included offense).

¶30 As the Court notes, jeopardy attaches if the "state had a full and fair opportunity to try the defendant on a charge and the jury refused to convict." Supra ¶ 12; see Green v. United States , 355 U.S. 184, 191, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). However, is this the case when the jury states it is "unable to agree"? With such an amorphous verdict, how can we conclude the state has indeed had a full and fair opportunity to try the defendant on the greater charge, or that the jury refused to convict on that charge? See Arizona v. Washington , 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (holding that the state is entitled to one complete opportunity to prove the case, but double jeopardy does not bar retrial on the same charges if the "proceeding is terminated without finally resolving the merits of the charges against the accused").

¶31 Before LeBlanc , Arizona used the "acquittal-first" approach adopted in State v. Wussler , 139 Ariz. 428, 679 P.2d 74 (1984). Under that approach, the jury was required to acquit the defendant on the greater charge before considering the lesser charge. I understand LeBlanc 's concern with the "acquittal-first" approach, although in fairness, there are advantages and disadvantages to both the acquittal-first and reasonable-efforts approaches. See LeBlanc , 186 Ariz. at 439, 924 P.2d at 443 (discussing the advantages of the reasonable-efforts approach over the acquittal-first approach); id. at 440-41, 924 P.2d at 444-45 (Martone, J., concurring in the judgment) (compiling cases and discussing the advantages of the acquittal-first approach). Indeed, the debate about which approach is best (as well as other alternatives) existed before LeBlanc and persists to this day. See United States v. Tsanas , 572 F.2d 340, 344-46 (2d Cir. 1978) (compiling cases and discussing the advantages and disadvantages for both the government and defendant under the acquittal-first and reasonable-efforts approaches); State v. Davis , 266 S.W.3d 896, 904-08 (Tenn. 2008) (same); Michael K. Kaiser, Note, Blueford v. Arkansas: Why the United States Supreme Court's Construction of Arkansas's Criminal Transitional Jury Instructions Is Not Binding on Arkansas Courts , 66 Ark. L. Rev. 1083, 1096-1101 (2013) (discussing the various approaches to lesser-included offense instructions and compiling cases regarding the same).

¶32 Although there is room for debate on this issue, in my view the primary weakness of LeBlanc is that it never addressed the problem we face today: the double jeopardy consequences of allowing a jury to proceed to a lesser charge based on a verdict of "unable to agree." In contrast, despite its faults, the acquittal-first approach plainly and clearly resolves the double jeopardy issue.

¶33 The Court states that it does "not foreclose the possibility" of reexamining LeBlanc 's approach "in a future case or rule petition." Supra ¶ 21. For the reasons discussed above, I believe the Court's openness to this possibility is wise.