Opinion
Court of Appeals No. A-10063.
November 4, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-05-4002 CR.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. James Fayette, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Wayne A. Ross, Attorney General Designate, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Joseph Clarke was convicted at a jury trial of first-degree assault for stabbing David Fox. On appeal, Clarke argues that Superior Court Judge Michael L. Wolverton erred when he refused to instruct the jury on self-defense, and instead instructed the jury that it should not consider self-defense in reaching its verdict. Clarke also argues that Judge Wolverton erred when he prohibited Clarke's attorney from arguing self-defense to the jury. We conclude that Judge Wolverton did not err in refusing to instruct the jury on self-defense and instructing the jury that it could not consider self-defense in reaching its verdict. We also conclude that Judge Wolverton did not unduly limit Clarke's ability to argue his case to the jury.
AS 11.41.200(a)(1).
Factual and procedural background
At trial, no one testified to observing how Fox got stabbed. Fox testified that he had gone to the park to carve wood and drink alcohol with two of his friends, Andrew Moore and Ruth Carter. He did not remember seeing Clarke at the park and did not remember how he ended up with a stab wound because he had blacked out from intoxication. Fox's blood alcohol level was measured at .336 at the hospital immediately after the stabbing. While he was being treated, Fox told a police officer, "he stabbed me," but Fox was not able to tell the officer who had stabbed him. Andrew Moore and Ruth Carter did not testify at trial. Neither did Clarke.
At trial, witness Dana Atafua testified that he was at Springer Park on May 7, 2005, practicing volleyball with his church group when a man approached him asking for help. The man, Fox, was holding his chest and bleeding. Atafua asked someone in his church group to call 911 and attempted to assist Fox. Fox told Atafua that someone had stabbed him. Another church member asked Fox who had stabbed him, and Fox pointed at Clarke, who was "trying to leave the scene." Atafua asked two young men from the church group to stop Clarke and hold him until the police arrived. When the police arrested Clarke, they found a folding knife in his pocket that had blood on the blade. There were two samples of DNA found on the knife blade, and the "major component" matched Fox's DNA. (The crime lab technician testified that one Yupik person out of fifteen trillion would have the same type of DNA markers.)
Near the end of the State's case, Brown Faaaliga testified. Faaaliga was one of the young people who was playing volleyball in the park at the time of the stabbing, and he helped hold Clarke until the police arrived. Faaaliga testified that about thirty to forty-five minutes before the stabbing, Fox and Clarke were standing near the bench and "pulling something back and forth." Faaaliga stated, "I don't know, there was no swinging or anything, they were pulling something back and forth. And to me that seemed like they were arguing." Faaaliga stated that he stopped paying attention to Fox and Clarke and that Fox walked over to the church group about thirty to forty-five minutes later with the stab wound. Faaaliga and his friend then grabbed Clarke to stop him from leaving the park. Clarke had blood on his left hand and was trying to lick it off.
Over Clarke's objection, Judge Wolverton refused to instruct the jury on self-defense and instead instructed the jury that self-defense was not an issue in the case. He also precluded Clarke's attorney from arguing that Clarke might have been acting in self-defense.
Why we conclude that Judge Wolverton did not err in refusing to instruct the jury on self-defense
On appeal, Clarke argues that Judge Wolverton erred when he refused to instruct the jury on self-defense, and instead instructed the jury that it should not consider self-defense in reaching its verdict. When a trial court is not required to give an instruction on self-defense, it may tell the jury that the defense is not available. Therefore, the real issue in this case is whether Judge Wolverton was required to instruct the jury on self-defense.
See Jordan v. State, 681 P.2d 346, 349 (Alaska App. 1984).
A trial court "is obliged to instruct the jury on self-defense only when the record contains `some evidence . . . which places in issue the defense. . . .'" A self-defense instruction should be given if, viewing the evidence in the light most favorable to the defendant, "there is evidence from which a reasonable juror could entertain a reasonable doubt as to the defendant's guilt." "Some evidence" means "more than a scintilla," but it does not have to be "so substantial as to require, if uncontroverted, a directed verdict of acquittal." If there is a doubt about whether the defendant raised sufficient evidence of self-defense, it should be resolved in the defendant's favor.
Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984) (quoting AS 11.81.900(b)(15)(A)).
Id.
Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982) (quoting Christie v. State, 580 P.2d 310, 314-15 (Alaska 1978)).
Id. at 113, 114 n. 3.
The use of non-deadly force in self-defense is justified when the person "reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the other person." Likewise, a person can use deadly force in self-defense if he "reasonably believes the use of deadly force is necessary" to defend himself against death, serious physical injury, kidnapping, sexual assault in the first or second degree, sexual abuse of a minor in the first degree, or robbery.
AS 11.81.330(a).
AS 11.81.335(a).
To raise the issue of self-defense at trial, a defendant must present some evidence "from which the fact finder might conclude there was justification for the act." The defendant has to present some evidence that would "satisfy both [the] objective and subjective standard[s]" for self-defense. Under the objective standard, the question is whether the defendant "made a sufficient showing to raise a jury question as to whether a reasonable person would have acted in self-defense under the circumstances." Under the subjective standard, the question is whether the defendant "made a sufficient showing that he actually believed self-defense was necessary." Evidence that the objective standard has been met is also circumstantial evidence of the defendant's subjective state of mind.
Toomey v. State, 581 P.2d 1124, 1126 n. 6 (Alaska 1978).
Weston, 682 P.2d at 1121.
Id.
Id. at 1122.
Id.
Clarke argues that there was "some evidence which, viewed in a light most favorable to Clarke, fairly called self-defense into issue." Clarke points out that there were no witnesses who could testify to the actual stabbing (including the victim himself), and that Faaaliga testified that he had seen Fox and Clarke arguing and pulling something back and forth about thirty to forty-five minutes before the stabbing, and Faaaliga did not see whether the argument ended or not. In addition, Clarke points out that the evidence indicated that "prior to the stabbing, [Fox] was at the park carving with a knife." Clarke argues that the evidence about the argument, "combined with the evidence that Fox had been carving with a knife, viewed in a light most favorable to Clarke, fairly called into question self-defense."
Clarke's case involves entirely circumstantial evidence. No one testified about what actually happened when Fox was stabbed. Clarke's defense at trial was that the State had failed to meet its burden of proof because no one really knew what had happened. For example, Clarke argued that someone else could have stabbed Fox and left the scene before anyone noticed. Clarke also argued that Fox might have fallen on the knife or had some other type of accident. And Clarke wanted to argue, based on Faaaliga's testimony, that he might have stabbed Fox in self-defense.
In Hilbish v. State, the State's case against Hilbish — though strong — was mainly circumstantial. Hilbish was the long-term girlfriend of Charles Dalby. Hilbish was having an affair with another man, which Dalby was upset about. Hilbish had stated that she hated Dalby and did not care what happened to him. Dalby went missing on the day Hilbish told her friend he would be going out of town. Hilbish had the carpets cleaned that same day, and they later tested positive for blood. Hilbish repeatedly lied about Dalby's whereabouts and tried to collect his paycheck after his disappearance. Dalby's body was discovered under a tarp in Hilbish's back yard, where it had been for about ten weeks. The weapon and bullets that had killed Dalby were found hidden in Hilbish's house.
891 P.2d 841 (Alaska App. 1995).
Id. at 844.
Id.
Id.
Id.
Id. at 845, 847.
Id. at 845.
W. at 847.
Id.
No one testified to having witnessed Dalby's death. One neighbor had overheard "an angry argument" outside Hilbish's house on the day of Dalby's death, followed by the sound of a gunshot fifteen to twenty minutes later. Based on this testimony and evidence that Dalby "was at times angry and threatening in the days before his death," Hilbish argued that the trial court should have instructed the jury on self-defense.
Id. at 852.
Id. at 851-52.
We rejected Hilbish's argument and stated that Dalby's angry and at times threatening behavior in the days before his death "suggest[ed] nothing more than motive and a possible willingness on Dalby's part to use deadly force at some future time." We noted:
Id. at 851.
None of the evidence concerning the circumstances surrounding the shooting itself supports the conclusion that Dalby's prior expressions of anger culminated in an actual use or threat of deadly force by Dalby, or that Dalby's killer acted in the reasonable belief that the use of deadly force in self-defense was necessary to protect against Dalby.
Id.
As to the testimony of the neighbor that he had overheard an angry argument followed by a gunshot fifteen to twenty minutes later, we concluded that nothing that the neighbor heard "suggest[ed] that Dalby was shot in self-defense." To the contrary, the argument overheard by the neighbor involved someone, presumably Dalby, saying something like "Stay away from my daughter or my wife"; the other voice responded, "You don't know me. I'll kill you." This suggested that it was Dalby who was being threatened, not the other way around.
Id. at 852.
Id.
Id.
We concluded that, although the evidence did not rule out the possibility of self-defense, any argument that Hilbish shot Dalby in self-defense would be based on pure speculation. We reasoned that the evidence Hilbish relied on to support her claim of self-defense was "essentially neutral, that is, merely compatible with a theory of self-defense." While one could "certainly conjure scenarios involving self-defense . . . that would arguably be consistent with the evidence at trial," the State was not obligated to disprove self-defense "until there was some evidence affirmatively suggesting that what might have happened actually did happen."
Id.
Id.
Id.
In Hamilton v. State, Hamilton was charged with the murder of his best friend, Dixon. Hamilton had apparently entered Dixon's house in the middle of the night wearing a bandana to cover his face and had repeatedly stabbed Dixon. Hamilton argued at trial that there was some evidence of self-defense because: (1) Hamilton had a wound on his leg when he was arrested immediately after stabbing Dixon; (2) Dixon's wife saw Hamilton and Dixon "struggling"; (3) Dixon and Hamilton were best friends and there was no apparent reason for Hamilton to attack Dixon; and (4) there was no evidence of a forced entry.
59 P.3d 760 (Alaska App. 2002).
Id. at 770.
Id.
We rejected Hamilton's argument, finding that, as in Hilbish, the evidence cited by Hamilton in support of his self-defense theory was "essentially neutral" and "merely compatible with a theory of self-defense." We emphasized that the evidence cited by Hamilton had no "material bearing" on the necessary elements of self-defense.
Id. at 771.
Id.
Neither Hamilton nor any other witness offered an explanation for Hamilton's violence or gave testimony suggesting that [the victim] had initiated or provoked the attack. It is true that Hamilton was bleeding from a wound to his thigh when the police stopped his car. But there was no evidence presented as to when Hamilton received this wound or how it was inflicted. Even assuming that the wound was a knife wound received while Hamilton was inside the [victim's] residence, there was no evidence that [the victim] was armed at any time during his struggle with Hamilton. Given this evidence, any argument that Hamilton acted in self-defense . . . would be based on pure speculation.
Id. at 770.
Similarly, in Frank v. State we rejected Frank's claim that a self-defense instruction should have been given. Frank stabbed his victim while he was in an alcoholic blackout and had very little memory of what had happened. In support of his self-defense claim, Frank pointed to the testimony of a witness who stated that Frank and his victim had been involved in a pushing match before the stabbing. Someone told Frank and his victim to take their argument outside, and then the witness "heard a thump against the door that could have been one of them pushing the other against the door." We agreed with the trial court that "there was no evidence that [the victim] did anything, or at least not anything that would justify Frank's use of deadly force against him."
Memorandum Opinion and Judgment No. 4698 (Alaska App., April 30, 2003), 2003 WL 1987850.
Id. at *1.
Id.
Id.
Id.
Here, as in Hilbish, Hamilton, and Frank, no one testified as to the actual circumstances of the stabbing. Like the evidence in those three cases, the evidence here — that Fox had a carving knife and that Fox and Clarke were arguing and pulling something back and forth thirty to forty-five minutes before the stabbing — was compatible with a theory of self-defense, but was essentially neutral. There was no evidence to suggest that the argument escalated into a fight. There was no evidence to suggest that Fox, not Clarke, was the first aggressor. There was no evidence that Fox used unlawful force against Clarke, or that Clarke stabbed Fox in the reasonable belief that it was necessary to protect himself from Fox. We simply do not know what happened in the thirty to forty-five minutes between the argument and the stabbing. In other words, as in Hilbish, Hamilton, and Frank, any theory of self-defense here was purely speculative. There was no "evidence affirmatively suggesting that what might have happened actually did happen." Judge Wolverton did not unduly restrict Clarke's ability to argue his case to the jury
Hilbish, 891 P.2d at 852.
At trial, Clarke's main strategy was arguing that the prosecution had failed to meet its burden of proof, particularly on the element of recklessness. Clarke asked permission to "give examples of . . . what could have accounted for the injury and would not have been reckless," including a scenario involving self-defense. Judge Wolverton denied Clarke's request, stating that he could use other examples of what might have happened, but not self-defense because the jury was not allowed to speculate on self-defense.
On appeal, Clarke argues that this ruling was erroneous because, even if Judge Wolverton properly denied Clarke's request to instruct the jury on self-defense, he should have still allowed Clarke's attorney to argue any "reasonable inference from the evidence" in closing.
The trial court has the discretion to limit the scope of closing argument when appropriate. Moreover, counsel may not make arguments that are inconsistent with the jury instructions. The court may forbid counsel from arguing legal theories that are not supported by the jury instructions, theories that might "distract or confuse the jury." In this case, the jury was instructed not to consider the theory of self defense. Accordingly, the trial judge had the discretion to prevent defense counsel from arguing that theory.
Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555, 45 L. Ed. 2d 593 (1975); Shane v. Rhines, 672 P.2d 895, 901 (Alaska 1983).
Cave v. State, 476 So.2d 180, 186 (Fla. 1985) (closing argument may not contravene the jury instructions); State v. Oates, 12 S.W.3d 307, 312 (Mo. 2000) (improper for counsel to argue questions of law inconsistent with the jury instructions); State v. Perez-Cervantes, 6 P.3d 1160, 1164 (Wash. 2000) (argument must be confined to the law as set forth in the jury instructions).
Shane, 672 P.2d at 901.
The judgment of the superior court is AFFIRMED.