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Dana Lee Hilbish V. State (3/10/95) ap-1398
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
DANA LEE HILBISH, )
) Court of Appeals No. A-4866
Appellant, ) Trial Court No. 1KE-S92-335CR
v. ) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 1398 - March 10, 1995]
Appeal from the Superior Court, First
Judicial District, Ketchikan, Thomas M.
Appearances: Mary P. Treiber, Chenhall &
Treiber, Ketchikan, and Brant McGee, Public
Advocate, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
BRYNER, Chief Judge.
Dana L. Hilbish appeals her conviction of first-degree
murder and two counts of tampering with evidence. She argues
that the superior court erred in denying her motion to suppress
evidence, in allowing the victim's skull to be used as evidence
at trial, in instructing the jury on reasonable doubt and failing
to instruct on self-defense and heat of passion, and in denying a
motion for judgment of acquittal based on insufficient evidence.
Charles Dalby disappeared from Ketchikan on or about
June 3, 1991; approximately ten weeks later, on August 13,
Dalby's decomposed body was found under a green tarp in the lower
west yard of his house at 142 Austin Street. Dalby had been shot
twice in the head. Hilbish was eventually charged and tried for
the shooting. The evidence at her trial disclosed the following
In 1991, Dalby lived with Dana Hilbish and their four
young daughters at 142 Austin Street in Ketchikan. Although
Dalby and Hilbish had enjoyed a long relationship, they had never
married. Dalby worked as a diesel mechanic at a logging camp in
Thorne Bay. In the spring of 1991, while Dalby was at camp,
Hilbish became involved with another man; Dalby found out about
it. He flew from Thorne Bay to Ketchikan on May 30 to resolve
Because Dalby did not have the money to pay for the
flight from Thorne Bay, he told the gate agent at Ketchikan,
Connie Smith, that he would return later that day with a check.
After Dalby failed to return with the payment, Smith called Dalby
the next day. Hilbish answered the phone. When Smith identified
herself and asked for Dalby, Hilbish told Smith, "The son-of-a-
bitch is not here," and immediately hung up.
On May 31, Dalby called Pastor Bill White and asked him
to counsel Dalby and Hilbish, in order to strengthen their
relationship and keep their family together. Dalby told the
pastor that Hilbish was seeing someone else. When White
suggested that marriage would give them something to build on,
Dalby responded in a positive manner.
Dalby called his mother on June 1, 1991, and asked her
to talk to Hilbish about Hilbish's affair. Dalby told his mother
that he and Hilbish had spoken to a minister, who had suggested
marriage. Upon telling his mother this, Dalby gave the telephone
to Hilbish. While speaking with Dalby's mother, Hilbish said
that she loved another man and did not want a commitment.
Hilbish also said that she did not love Dalby; that she "hated
him so much she didn't care what happened to him."
The next day, June 2, Thomas Friesen, an employee at
the Derby Room Tavern, saw Dalby come into the bar at around 4:30
in the afternoon, "very angry," looking for a man he claimed was
spending a lot of time with his wife. Friesen, attempting to
"defuse the situation," told Dalby that his behavior was
inappropriate and suggested that Dalby leave. Dalby left, but
returned a half hour later and apologized to Friesen and the bar
patrons for his behavior.
That same day, Benita See, a friend of Hilbish's,
called Hilbish to confirm her plans to stay at the house for two
weeks. Hilbish said that See could stay at the house beginning
June 4, since Dalby would be returning to Thorne Bay on that day.
Hilbish told See that she was seeing another man, had told Dalby
about it, and had asked him to move out.
At about 1:30 p.m. on June 3, 1991, Dalby returned to
the Derby Bar; he again apologized for his conduct the previous
day. He then had a soft drink.
No other witness saw Dalby alive after that. Mike
McColley lived within 100 feet of Dalby and Hilbish's house. In
early June of 1991, McColley heard a loud argument at Dalby's
house between two men who were in the yard: "[I]t was, `stay away
from my daughter or my wife.' One man was saying. And the other
man said . . . something to the effect, `You don't know me. I'll
kill you.'" McColley said that fifteen to twenty minutes later
he heard a gunshot.
Smith, the airline gate agent, telephoned Dalby's house
again on June 3 to ask about the airfare Dalby owed. She spoke
with Hilbish, who, "at that time, . . . was screaming; she was
very rude, vulgar. She said that the son-of-a-bitch had left
town." Dalby never paid the airfare.
Benita See arrived to stay at Hilbish's house on June
4, as she had previously arranged to do. Dalby was not there.
Hilbish told See that Dalby had moved out the day before because
See was arriving. Hilbish also told See to be careful about the
carpet, because she and Dalby had just cleaned it. See stored
some boxes on the porch at Hilbish's house. During her visit,
See noticed a smell coming from the porch and a large number of
flies. Hilbish told See that she did not know where the odor was
coming from, and that it might be a dead fish or cat.
Sonja Powers, Dalby's adult daughter by a prior
relationship, lived in Kasaan with her husband, Adrian Powers,
and their children. Sonja and Adrian would stay at the house
with Dalby and Hilbish when they came to Ketchikan. During the
first week of June, Adrian visited the house. Hilbish told him
that Dalby had moved to the YMCA or was fishing on the Bering
Sea. Adrian noted that a .22 caliber handgun Dalby had kept
above his bed was gone.
In mid-June, Sonja stayed at Hilbish's house for a
night. Hilbish told Sonja that Dalby was fishing, either in
Hawaii or on the Bering Sea. Sonja noticed a blanket on the end
of the porch and that the end of the porch was blocked off. She
commented on the stench coming from the area and the large number
of flies. Hilbish told her that a cat or dog had crawled
underneath the house and died. That evening, Sonja noticed that
the .22 caliber handgun was no longer over the bed in Hilbish and
On See's birthday, June 16, Donny Bell and his friend,
Joe Kuharich, stopped by Hilbish's house and noted the smell of
rotting fish. Kuharich told Hilbish that he and Bell would clean
up the fish. Hilbish told them "it wasn't necessary, not to
worry about it."
On the Fourth-of-July weekend, Gary Lake went to
Hilbish's residence to inquire where Dalby was, because Dalby was
supposed to do some work on Lake's truck over the weekend.
Hilbish told Lake that Dalby had been fired, "that she didn't
know where he was, and that he was gone for good." Then one of
Dalby and Hilbish's children asked, "Daddy coming home?," to
which Hilbish responded, "No, he [is] gone for good."
Ketchikan Police Officer Andrea Jacobson stopped by
Hilbish's house on July 17 and 29. Jacobson did not see Dalby;
when she asked Hilbish where Dalby was, Hilbish replied that he
was "probably in Hawaii." Jacobson recalled seeing a tarp in the
yard on at least one of her visits.
Brett Pearce, who lived across the street from Hilbish,
noticed the tarp lying in Hilbish's yard sometime in July because
one night, at around 10:30, he looked out his window and saw
Hilbish next to the tarp. Hilbish "looked up . . . kind of
hysterically." As soon as Hilbish saw Pearce watching her, she
"just started picking up sticks off the ground, like she was
gardening." In late July, Pearce and his wife started to notice
Steve Boehlert, paymaster of the mill that employed
Dalby, stated that Hilbish came to the mill at the end of July to
pick up Dalby's last paycheck. Boehlert told her that company
policy required a signed authorization from the employee.
Hilbish told him that Dalby was "south," and she left.
On August 2, 1991, Hilbish spoke to Brett Pearce and
his wife and asked Pearce to drive her back to the mill, so that
she could pick up Dalby's paycheck. The Pearces asked where
Dalby was; Hilbish answered that he had left and gone to Hawaii.
Pearce drove Hilbish to the mill. On the way to the mill,
Hilbish said that she and Dalby had argued because Dalby
suspected her of having an affair with another man and that Dalby
had then gone to Hawaii. Hilbish also told Pearce that she had
forged a letter with Dalby's signature and was hoping to get his
Upon arrival, she told Boehlert that Dalby was still
"south," and gave Boehlert a note stating:
I, Charles Dalby, release my paycheck and
belongings from Ketchikan Pulp Company to
Dana Hilbish. Thank you. [Signed] Charles E.
Boehlert referred Hilbish to Michael Barron, the personnel
director for the mill; when Barron checked the signature against
signatures on file in the personnel office, it did not appear to
match Dalby's. Barron told Hilbish that he could not release
Dalby's check without a notarized signature. Hilbish told him
that it was hard for her to contact Dalby and that she would have
to go through a friend of a friend to get word to Dalby. She
left without the money and did not return.
Late in the day on August 12, 1991, the Powers family -
- Sonja, Adrian and their children -- stopped at Hilbish's house
on their way from Kasaan to Oregon. The Powers asked Hilbish if
they could camp in the front yard; Hilbish agreed, and she helped
Sonja set up tents. Sonja noticed that a green tarp she had
previously left at the house was on the ground near the basement
in the lower west yard, covering a large item. She also noticed
a strong odor coming from the direction of the tarp.
That evening, Hilbish saw the children playing on the
tarp and told them to get off. Sonja asked about the tarp, but
Hilbish did not want to talk about it. The following day was
hot; the odor from the tarp grew much worse. Sonja asked the
children what was there, and they told her "something dead."
Sonja told the children to stay away from it. She decided to
call the police.
Sonja told the dispatcher that she was Hilbish's
neighbor and that "there's something in 142 Austin's lower yard
in a tarp, it might be deer or fish or something. But it's big.
. . ." Officer Jacobson arrived at the house shortly after noon
and spoke with Hilbish. Hilbish walked Jacobson to the source of
the smell, the green tarp in the lower west yard. Hilbish told
the officer that the tarp belonged to her landlord, Victor Klose,
who had taken some fish out of the basement freezer and had left
it in the yard and forgotten about it. After glancing under the
edge of the tarp and seeing "a white goo, sort of jelly-like, and
with maggots and worms and things crawling all through it,"
Jacobson asked how to contact Klose. Hilbish told her that Klose
was out of town and could not be reached. Jacobson said that the
tarp could not be left the way it was, and Hilbish volunteered to
"bury it tonight when it's cooler."
Later that day, as Sonja Powers drove her husband,
Adrian, from town to Hilbish's house, Sonja mentioned the tarp
and confided that she thought her father might be hidden
underneath it. Adrian did not believe what Sonja was saying, and
the couple became involved in an argument as they sat in their
car in front of the house. A neighbor evidently heard the
argument and called the police, reporting a domestic assault.
Sonja and Adrian entered the house and Sonja asked
Hilbish what was in the tarp. Hilbish told her, "It's nothing.
None of your business." Sonja and Adrian went out to the yard,
where Sonja tried to convince Adrian to look under the tarp.
Adrian refused and they began arguing again. At 7:16 p.m.,
Sergeant Charles Mallott arrived in response to the reported
domestic assault. After being assured by the Powers that there
had been no assault, Mallott left.
Angered that no one took her seriously, Sonja left
Adrian, looked under the tarp and saw "[a] bunch of white slime
stuff." She started trembling and decided to go to a local bar
for some tequila. As she headed back to the house, Sonja
resolved to look under the tarp more carefully. This time, she
saw what looked like a pair of Levi's.
Now convinced that her father was under the tarp, Sonja
returned to the house and confronted Hilbish. Hilbish told Sonja
that the tarp was "none of your fucking business." When Sonja
threatened to call the police, a scuffle ensued: Hilbish bit
Sonja's finger; Sonja bit Hilbish's cheek. Adrian intervened,
attempting to grab Sonja; he received a scratch on the neck.
Someone called 911.
Corporal Jerry Seufert arrived at approximately 8:00
p.m. He encountered Sonja, who appeared to be moderately
intoxicated and who made several comments about a tarp in the
yard. She explained that Dalby had been missing for some time
and that she suspected that he might be under the tarp. Sonja
walked Seufert to the tarp, lifted up its corner, and began
yelling, "Oh, my God. It's my daddy." Seufert looked under the
tarp and saw "what appeared to be a cloth of some sort." He
returned with Sonja to the main yard, in order to escape the
Meanwhile, Sergeant Mallott had also returned to the
house; Seufert told Mallott what had happened. As Hilbish and
Sonja attempted to explain the situation to Mallott, Mallott
activated a portable tape recorder that he carried on his person.
Hilbish insisted that Sonja had been "trying to trash my house
again," and told Mallott, "This is not between me and her; this
is between the two of them. . . . As far as I'm concerned, she
didn't lay a hand on me, okay?" As Mallott began to collect
information, Sonja said to Hilbish, "We're going to look in the
tarp now, Dana." Hilbish replied, "Go ahead, why don't we?"
Mallott accompanied Sonja back to the tarp and lifted
the edge. Mallott recognized what he saw as human remains.
After instructing Seufert to secure the area, Mallott returned to
the house, completed his investigation of the domestic dispute,
and arrested Sonja in connection with that incident. He then
proceeded to have the tarp seized and removed from the yard.
Later than night, he received a search warrant authorizing a
complete examination of the tarp's contents.
The following day, Mallott spoke with Hilbish about
Dalby. Hilbish said she did not know where Dalby was, but she
thought that he may have gone to Hawaii. She told Mallott that
she last saw Dalby around the first of June. At that time she
had asked him to leave and he had done so. When asked if there
were any firearms in her house, Hilbish stated that there had
never been any firearms in their residence.
By comparing postmortem dental and skeletal x-rays of
the remains in the tarp with Dalby's dental and medical records,
the police subsequently confirmed that the remains were Dalby's.
A forensic pathologist performed an autopsy on the remains.
There were two bullet holes in the skull. Two .22 caliber
bullets were discovered inside it. One bullet had entered just
above the right brow, and the other "about where the sideburns
would be." Another partially deformed bullet was discovered in
the area of the torso; its point of entry could not be
determined. From the generations of flies on Dalby's body, a
forensic entomologist estimated that Dalby had been dead
approximately ten weeks before his body was discovered and
The police conducted a thorough search of Hilbish's
house and yard. Although the police found no gun, they did find
nineteen .22 caliber bullets in a bathroom cabinet. In the
living room, the police found "quite a bit" of blood spattered on
the south wall, the stereo cabinet, the television cabinet, the
lamp shade, and a drop on the windowsill of the south wall.
Above the couch was a three-inch long elongated drop of blood
that looked as if "it had dripped straight down on the wall."
Someone had apparently attempted to wipe the wall clean. When
questioned about the blood spatter, Hilbish explained that one of
her daughters had cut her finger and that Hilbish had tried to
clean it off the walls with "409" cleaner.
Luminal testing on the living room carpet revealed the
presence of blood; efforts had apparently been made to wash it
from the carpet. There was also a very strong luminal reaction
on the couch. A stained area was visible on the couch; the foam
cushion was examined and found to be blood soaked. Pooled blood
was discovered on the underside of the couch. DNA testing
established that the blood was Dalby's to "a certainty of over
The state filed charges of murder and tampering with
evidence against Hilbish in April of 1992. A month or two later,
a carpenter working on Hilbish's house removed the bathtub and
found a box of .22 caliber magnum shells hidden in the underlying
plumbing. FBI testing revealed one of Hilbish's fingerprints on
the inside of the ammunition box. Further testing established
that the bullets recovered from Dalby's skull either came from
the box of ammunition found under the tub or from another box of
ammunition manufactured by the same company on the same day.
Hilbish and Dalby's seven-year-old daughter, Mary
Dalby, confirmed that her father kept a handgun and bullets in
the house. Mary knew the difference between a toy gun and a real
gun and that her father's gun was real. She stated that the gun
and bullets were kept on a shelf above her parents' bed and the
bullets were in a plastic yellow box. Mary identified the box
that had been found under the tub as her father's.
Prior to trial, Hilbish filed a motion to suppress
evidence stemming from Mallott's warrantless search of the tarp
in her yard. The state responded, arguing that Mallott's lifting
of the tarp and observation of its contents were permissible
under a variety of theories. The superior court denied Hilbish's
motion, finding Mallott's warrantless inspection of the tarp
sustainable on three alternative grounds: (1) that Mallott acted
upon consent given by Sonja Powers; (2) that his actions were
justified by exigent circumstances; and (3) that Dalby's body
inevitably would have been discovered. On appeal, Hilbish
challenges the superior court's ruling as to each of these
grounds. Our review of the record convinces us that the superior
court correctly concluded that Mallott acted with Sonja Powers'
consent; accordingly, we need consider no other theory.
Trial court factual findings concerning the validity of
a warrantless search are reversible only for clear error. Fox v.
State, 825 P.2d 938, 939 (Alaska App. 1992); State v. Bianchi,
761 P.2d 127, 129 (Alaska App. 1988). Whether the facts, as
found by the trial court, constitute an illegal warrantless
search is a question of law upon which this court is entitled to
make an independent evaluation. Wilburn v. State, 816 P.2d 907,
911 (Alaska App. 1991).
"A warrantless . . . [search] is per se unreasonable
and violative of the state and federal constitutions unless it
falls within one of the limited exceptions to the warrant
requirement." Harrison v. State, 860 P.2d 1280, 1283 (Alaska
App. 1993) (citations omitted); see also Woods & Rohde, Inc. v.
State Dep't of Labor, 565 P.2d 138, 149 (Alaska 1977). Since no
warrant was obtained prior to Mallott's looking under the tarp,
the state bore the burden of proving that this search was
reasonable. Bell v. State, 519 P.2d 804, 806 (Alaska 1974).
Consent to search given by a person with authority to
consent has long been recognized as one of the exceptions that
can justify a warrantless search. Schikora v. State, 652 P.2d
473, 476 (Alaska App. 1982). A person may consent to a search if
that person has joint access to or control of the place to be
searched. Phillips v. State, 625 P.2d 816, 817-18 n.5 (Alaska
1980) (citing Robinson v. State, 578 P.2d 141, 144-45 (Alaska
1978)). Actual authority to consent is not required, so long as
the person has the apparent authority to consent. Nix v. State,
621 P.2d 1347, 1349 (Alaska 1981). The police cannot, however,
proceed on apparent consent without inquiry in ambiguous
circumstances. Nor can they proceed based on the consenting
party's unreasonable assertions of authority. Id. at 1350.
Nevertheless, when a "guest is more than a casual visitor and
`ha[s] the run of the house,' [the guest's] lesser interest in
the premises is sufficient to render that limited consent
effective." Id. at 1350 (quoting 2 Wayne R. LaFave, Search and
Seizure 8.5(e), at 759 (1978)).
Here, it is undisputed that Mallott lifted and peered
into the tarp with Sonja Powers' actual consent. The issue in
dispute is whether Powers had either actual or apparent authority
to give her consent. The record establishes that Hilbish kept
the tarp in open view in her yard. As Dalby's daughter, Sonja
frequently visited Hilbish and stayed at Hilbish's house. On
August 13, 1991, Sonja was staying there with her husband and
children. The Powers family was camped in Hilbish's yard and had
the run of the area. In fact, the children had earlier played on
and about the tarp. The tarp itself belonged to Sonja; she had
left it with Hilbish on an earlier visit. In speaking with the
police, both Sonja and Adrian referred to the tarp as "my tarp."
Given these circumstances, the superior court
characterized Sonja Powers as a temporary occupant of Hilbish's
residence who had actual authority over the portion of the yard
examined by Mallott. In the superior court's view, the yard was
"clearly not [Hilbish's] `exclusive personal domain.'" This
finding is not clearly erroneous.
Hilbish nevertheless maintains that, prior to the
search, she had plainly revoked Sonja's authority to consent;
Hilbish argues that, in the course of her altercation with Sonja
and their ensuing contact with the police officers who had been
summoned to the scene, Hilbish made it clear that Sonja was no
longer a welcome visitor at her house. However, Hilbish's own
recorded comments to the police belie this assertion. As Hilbish
stated in Mallott's presence:
You two are going to have to settle this
somewhere else. Okay?
. . . .
This is not between me and her; this is
between the two of them. She was trying to
drive, okay? She would not give me the keys.
. . . she would not listen. As far as I'm
concerned, she didn't lay a hand on me, okay?
That's not what it's all about.
These comments establish that Hilbish viewed the
altercation as one between Sonja and Adrian Powers, not one
between Sonja and herself. At no point in Mallott's recording of
the incident did Hilbish expressly or implicitly tell Sonja or
Adrian that they would no longer be welcome as guests. Even more
significant is the fact that, immediately prior to Mallott's
warrantless inspection of the tarp, Hilbish appears to have
expressly authorized Sonja to allow the inspection. When Sonja
told Hilbish, "We're going to look in the tarp now, Dana,"
Hilbish promptly replied, "Go ahead, why don't we?"1
The superior court considered and rejected Hilbish's
claim of revoked authority to consent, finding: "While [Sonja's]
`authority' to fight with her husband, within the confines of the
house, may have been revoked by Hilbish, her authority to access
common areas on the premises had not been revoked." Because this
finding is not clearly erroneous, the superior court could
properly conclude that Sonja Powers had actual authority to
consent to Mallott's search.2 Cf. Loper v. State, 330 So.2d 265,
267 (Miss. 1976) (person with access to the backyard "available
for the common use of every occupant" could consent to the yard's
DISPLAY OF SKULL AT TRIAL
Hilbish next argues that the trial court erred in
permitting the state to display Dalby's skull during the trial.
The skull -- which had been cleaned of all tissue and was
contained in a sealed and odorless plastic bag -- was used to
assist the jury in understanding the precise location of the
gunshot wounds to Dalby's head. It did not go to the jury room
during deliberations. Hilbish acknowledges that the skull was
relevant on the issue for which it was admitted but claims that
its probative value was outweighed by unfair prejudice. Although
conceding that the vast majority of cases uphold the admission of
similar exhibits under like circumstances, Hilbish proposes that
we adopt the rigorous standard of admission articulated by the
Pennsylvania Supreme Court in Commonwealth v. Chacko, 391 A.2d
999 (Pa. 1978). There, the court indicated that evidence "likely
to inflame the passions of the jury" should be admitted only if
essential to the prosecution's case. Id. at 1000-01.
As the state correctly notes, however, the Chacko
standard is at odds with Alaska Rule of Evidence 403, which
specifies that relevant evidence is admissible when its probative
value outweighs its potential for prejudice. This court has
consistently applied A.R.E. 403 in passing on the admissibility
of potentially gruesome exhibits. See, e.g., Miller v. State,
778 P.2d 593, 598 (Alaska App. 1989); Ridgely v. State, 705 P.2d
924, 932 n.5 (Alaska App. 1985), rev'd on other grounds, 732 P.2d
550 (Alaska 1987); Sheakley v. State, 644 P.2d 864, 869-70
(Alaska App. 1982). Hilbish has advanced no cogent basis for
abandoning the rule.
The trial court in this case found that Dalby's skull,
as presented at trial, was not particularly gruesome -- arguably
less gruesome than available photographs might have been. The
state argued that the skull's three-dimensionality gave the skull
an advantage over photographs and would assist the jurors in
understanding and evaluating the testimony of prosecution
witnesses. After carefully balancing probative value against
potential prejudicial impact, the trial court ruled the evidence
admissible. Our review of the record does not persuade us that
the court abused its discretion in making this determination.
INSTRUCTION ON REASONABLE DOUBT
Hilbish further claims that the trial court erred in
instructing the jury on the meaning of "reasonable doubt."3 In
particular, Hilbish objects to language in the reasonable doubt
instruction informing the jury that proof beyond a reasonable
doubt requires "proof of such a convincing character that after
careful consideration of all relevant facts and circumstances,
you would be willing to rely and act upon it without hesitation
in your important affairs." Hilbish protests that likening the
decision on reasonable doubt in a criminal case to a decision a
juror might make in ordinary life, even an important decision,
unduly trivializes the reasonable doubt standard.
Hilbish did not object to the reasonable doubt
instruction below, however, and she advances this claim for the
first time on appeal. We thus review only for plain error: error
that is both obvious and obviously prejudicial. Martin v. State,
664 P.2d 612, 618 (Alaska App. 1983). The challenged instruction
appears to be a correct statement of the law. Davenport v.
State, 519 P.2d 452, 456 (Alaska 1974) (reasonable doubt could
perhaps best be defined as "a doubt that would cause prudent men
to hesitate before acting in matters of importance to
themselves.") (quoting 2 Charles A. Wright, Federal Practice and
Procedure 500, at 342-43 (1969)); see also 1 Edward S. Devitt et
al., Federal Jury Practice and Instructions 12.10, at 354 (4th
ed. 1992) (defining reasonable doubt in the context of a person's
"most important" affairs).
Moreover, since the instruction was based on Alaska
Criminal Pattern Jury Instruction 1.52 -- an instruction
regularly given in Alaska criminal cases -- it is difficult to
understand how the wording Hilbish complains of could be deemed
obvious error, even if Hilbish's argument persuaded us, in
hindsight, that a more forcefully worded reasonable doubt
instruction might have been appropriate.4 We find no plain
INSTRUCTIONS ON HEAT OF PASSION AND SELF-DEFENSE
In her next claim, Hilbish asserts that the trial court
improperly denied her request for instructions on heat of passion
and self-defense. Hilbish was entitled to heat of passion and
self-defense instructions if there was some evidence to place
these defenses in issue. See LaPierre v. State, 734 P.2d 997,
999 (Alaska App. 1987). The "some evidence" requirement is not a
this standard is satisfied when [heat of
passion or] self-defense has fairly been
called into issue. . . . [A]n instruction
[is] required if the evidence, when viewed in
the light most favorable to the accused,
might arguably lead a juror to entertain a
reasonable doubt as to the defendant's guilt.
Id. at 1000 (quoting Paul v. State, 655 P.2d 772, 775 (Alaska
App. 1982)). "In applying the some evidence test, neither the
credibility of conflicting witnesses nor the plausibility of the
accused's version is considered. So long as some evidence is
presented to support the defense, matters of credibility are
properly left for the jury." Id. (Citations omitted.)
The use of deadly force in self-defense is permissible
when a person reasonably believes such force to be necessary to
protect "against death, serious physical injury, kidnapping,
[certain forms of] sexual assault . . ., or robbery[.]" AS
11.81.335(a)(2). Heat of passion is an affirmative defense
reducing first- or second-degree murder to manslaughter. AS
11.41.115(a). The defense applies when the defendant acts "in a
heat of passion, before there [has] been a reasonable opportunity
for the passion to cool, when the heat of passion resulted from a
serious provocation by the intended victim." Id. "`[S]erious
provocation' means conduct which is sufficient to excite an
intense passion in a reasonable person in the defendant's
situation," but does not include "insulting words, insulting
gestures, or hearsay reports of conduct engaged in by the
intended victim[.]" AS 11.41.115(f)(2).
In the present case, the evidence did show that Dalby,
having learned about Hilbish's affair with another man, was at
times angry and threatening in the days before his death. Yet
these pre-event occurrences suggest nothing more than motive and
a possible willingness on Dalby's part to use deadly force at
some future time. 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. By
the same token, Dalby's preexisting anger does not in itself
support a reasonable inference that Dalby's killer acted in a
heat of passion after being seriously provoked by Dalby.
The testimony of Mike McColley, Hilbish's neighbor,
indicated that an angry argument occurred outside Hilbish's house
and that McColley thought he heard a gunshot fifteen or twenty
minutes later. Viewing this testimony in Hilbish's favor, the
jury could reasonably have concluded that the argument McColley
overheard involved Dalby and the man with whom Hilbish had
recently become involved. The jury could also have inferred that
the argument occurred not long before the shooting. Yet nothing
McColley heard suggests that Dalby was shot in self-defense; to
the contrary, the substance and context of the statements
overheard by McColley suggest that it was the other man who
threatened Dalby. Specifically, as we have previously noted,
McColley testified that he heard one man -- presumably Dalby --
say something like, "Stay away from my daughter or my wife," to
which the other replied, "You don't know me. I'll kill you."
Nor did McColley's testimony describe any conduct suggesting heat
of passion brought on by serious provocation; as we have already
indicated, the statutory definition of serious provocation
expressly excludes insulting words and gestures.
Hilbish points out that Dalby's blood was spattered
about the living room, "suggesting that he had traveled, while
bleeding, around the room." She argues that this shows that
Dalby was "in the presence of and engaged with his killer."
Hilbish also points out that Dalby was much larger than she is
and that no evidence shows that Dalby was alive when the head
wounds were inflicted. Hilbish concludes that, viewing the
evidence in her favor, the only logical inference is that "she
acted in either self-defense or in fear, a recognized form of
heat of passion."
But this argument misses the mark. One can certainly
conjure scenarios involving self-defense or heat of passion that
would arguably be consistent with the evidence at trial; in this
sense, Hilbish can plausibly maintain that the evidence at trial
does not rule out the possibility of self-defense or heat of
passion. Dalby's size and weight, his periodic anger, and the
blood spatters on the wall are all arguably compatible with self-
defense or heat of passion. But the state was under no
obligation to assume the burden of disproving self-defense until
there was some evidence affirmatively suggesting that what might
have happened actually did happen; nor was Hilbish entitled to
maintain that she had met her burden of establishing heat of
passion as an affirmative defense merely because the evidence at
trial did not disprove it.
Here, much of the evidence Hilbish relies on to support
her claims of self-defense and heat of passion -- such as Dalby's
size and the blood spatters on the wall -- is essentially
neutral, that is, merely compatible with a theory of self-defense
or heat of passion. Other evidence -- such as Dalby's earlier
expressions of anger or his possible involvement in an argument
outside Hilbish's house shortly before the shooting -- are so
remote in time, removed in circumstance, or both, as to have no
material bearing on the crucial issues involved in a claim of
self-defense or heat of passion: whether Dalby actually used or
threatened deadly force at the time of the shooting, whether he
was shot in defense against such force or threat, or whether he
engaged in any act of serious provocation. Allowing the jury to
consider self-defense or heat of passion could only have invited
speculation as to possibilities that find no reasonable support
in the evidence, even when the totality of the evidence is viewed
in the light most favorable to Hilbish. Under these
circumstances, the trial court did not abuse its discretion in
denying instructions on self-defense and heat of passion.
SUFFICIENCY OF EVIDENCE
Hilbish lastly contends that the circumstantial
evidence presented at trial was insufficient to support her
conviction for murder. However, the law "recognizes no
categorical distinction between direct and circumstantial
evidence." State v. McDonald, 872 P.2d 627, 653 (Alaska App.
1994). We apply the same standard of sufficiency to
circumstantial and direct evidence. Willett v. State, 836 P.2d
955, 957 (Alaska App. 1992). Taking the evidence and inferences
therefrom in the light most favorable to the state, we inquire
whether fair-minded jurors exercising reasonable judgment could
find that the state met its burden of establishing the
defendant's guilt beyond a reasonable doubt. Dorman v. State,
622 P.2d 448, 453 (Alaska 1981).
Applying this standard to the evidence in the present
case, we find no deficiency. Though circumstantial, the evidence
established that Hilbish had the motive, the means and the
opportunity to commit the crime. Hilbish also had control over
the premises where the crime was committed and over the murder
weapon. Moreover, Hilbish's prediction to her friend Benita See
that Dalby would be gone by June 4 could reasonably be
interpreted as an indication of planning. In the aftermath of
the shooting, Hilbish engaged in a pattern of conduct aimed at
concealing the crime and made numerous statements arguably
displaying her consciousness of guilt. Finally, the physical
evidence gathered from Hilbish's home cemented a compelling link
between Hilbish and the murder weapon.
Viewing this evidence and the inferences to which it
gives rise in the light most favorable to the state, a fair-
minded juror could reasonably have concluded, beyond a reasonable
doubt, that Hilbish had committed first-degree murder, either by
intentionally shooting Dalby to death or by intentionally aiding
another person in planning or commission of the murder.5
The convictions are AFFIRMED.
1. Mallott evidently did not actually hear Hilbish make
this comment, a fact the superior court relied on in concluding
that Mallott himself could not be deemed to have acted on the
basis of Hilbish's consent. On appeal, the state disputes the
correctness of the trial court's ruling on that issue. We need
not decide the point. Assuming Mallott's failure to hear
Hilbish's remark may be relevant on the issue of whether Mallott
conducted the warrantless search pursuant to Hilbish's consent,
Mallott's awareness of the remark (or, for that matter, Sonja's
own awareness of it) can have no relevance on the issue of
whether Sonja had actual authority to consent.
2. Hilbish raises a subsidiary claim that the superior
court erred in ruling on her suppression motion without
conducting an evidentiary hearing. We find no merit to this
claim. The memorandum Hilbish filed in support of her motion to
suppress did not request an evidentiary hearing. Although her
reply memorandum noted the possibility that a hearing might prove
necessary, it did not ask the court to schedule one.
Subsequently, Hilbish's counsel appeared at oral argument on the
suppression motion and neither requested a hearing nor mentioned
the need to present further evidence or information. Nor did
Hilbish object below when the superior court ruled on the
suppression motion without a hearing having been conducted.
An evidentiary hearing is required on a motion to
suppress only "if the state and the defendant have opposing
versions of the facts and the defendant's version is supportive
of his allegation of an illegal search[.]" Mattern v. State, 500
P.2d 228, 231 (Alaska 1972). As evidenced by Hilbish's own
reliance on police reports to support her suppression argument,
as well as by her failure to file an affidavit contesting the
additional facts set forth in the state's response to her motion,
the primary dispute in this case does not involve the facts
underlying Mallott's warrantless search, but rather the proper
characterization and legal significance of those facts. Given
the totality of the circumstances in this case, we find no error
in the superior court's failure to conduct an evidentiary
3. The reasonable doubt instruction given to Hilbish's
The presumption of innocence alone is
sufficient to acquit a defendant unless and
until you are satisfied beyond a reasonable
doubt of the defendant's guilt after careful
and impartial consideration of all the
evidence in the case. This last mentioned
requirement that you be satisfied beyond a
reasonable doubt of the defendant's guilt is
what is called the burden of proof.
It is not required that the prosecution
prove guilt beyond all possible doubt, for it
is rarely possible to prove anything to an
absolute certainty. Rather, the test is one
of reasonable doubt. A reasonable doubt is a
doubt based on reason and common sense, the
kind of doubt that would cause a reasonable
person to continue to hesitate in decisions
concerning his or her important affairs.
Proof beyond a reasonable doubt must
therefore be proof of such a convincing
character that after careful consideration of
all relevant facts and circumstances, you
would be willing to rely and act upon it
without hesitation in your important affairs.
A defendant is never to be convicted on mere
suspicion or conjecture.
4. Commonwealth v. Ferreira, 364 N.E.2d 1264 (Mass. 1977),
which Hilbish cites in support of her argument, is inapposite.
That case actually criticized the examples the trial judge used
to illustrate "important decisions": whether to leave school or
get a job, to get married or stay single, or to buy a house or
continue to rent. Id. at 1272-73. Likewise, neither Dunn v.
Perrin, 570 F.2d 21 (1st Cir. 1978), nor United States v. Colon-
Pagan, 1 F.3d 80 (1st Cir. 1993), supports Hilbish's argument.
The former case approved a definition likening reasonable doubt
to doubt causing hesitation in "some transaction of importance
and seriousness," Dunn, 570 F.2d at 24, and the latter found
plain error in an instruction that was not phrased in terms of
only "important" affairs. Colon-Pagan, 1 F.3d at 81. In Dunn v.
Perrin, the court merely noted that some cases had criticized
instructions likening reasonable doubt to doubt causing
hesitation in "some transaction of importance and seriousness,"
570 F.2d at 24; in Colon-Pagan, the court found plain error in an
instruction that was not phrased in terms of only "important"
affairs. 1 F.3d at 81.
5. Hilbish objects that the jury was erroneously
instructed on accomplice liability; in Hilbish's view, the
evidence was insufficient to establish her guilt as an
accomplice, even if it might have been sufficient to prove guilt
as a principal. This argument lacks merit. Under the evidence,
fair-minded jurors could reasonably have found beyond a
reasonable doubt that if Hilbish was not a principal, then she
must have been an accomplice -- that is, that Dalby had been
intentionally killed by Hilbish or by someone acting at her
behest and with her active and intentional assistance. The
distinction between an accomplice and a principal has long been
abrogated, see Miller v. State, 866 P.2d 130, 137 (Alaska App.
1994), and when proof suffices to establish the defendant's guilt
under either theory, the jury need not be unanimous in deciding
whether the defendant acted as a principal or as an accomplice.
McDonald, 872 P.2d at 655.