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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN A. RHAMES, )
) Court of Appeals No. A-5277
Appellant, ) Trial Court No. 3AN-88-6012 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1446 - November 9, 1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Joan M.
Woodward, Judge.
Appearances: Blair McCune, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
L. Herren, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
John A. Rhames appeals his convictions for attempted
murder, AS 11.41.100(a), second-degree assault, AS 11.41.210(a),
third-degree assault, AS 11.41.220(a), and first-degree burglary,
AS 11.46.300(a). We affirm.
Rhames's convictions all arose from a single incident
that occurred on September 16, 1988. Rhames and his estranged
wife, Carrie, were in the final stages of a divorce proceeding.
On the morning of September 16th, Carrie obtained a restraining
order to keep Rhames away from her. That afternoon, Carrie
visited the apartment of Charles Patrick to retrieve a television
set that she had lent him. While she was at Patrick's apartment,
Carrie telephoned Rhames to inform him that the court had issued
the restraining order. Upon hearing that a restraining order had
been issued, Rhames exclaimed, "What restraining order? A
restraining order doesn't mean anything to me!"
Within minutes of this telephone conversation, Carrie
observed Rhames's car pass by Patrick's apartment. A few minutes
later, Rhames's car again drove in front of the apartment. When
Carrie alerted Patrick that Rhames was outside, Patrick went to
the front window to look out onto the street. Patrick saw Rhames
pull his car into the apartment building parking lot and then
drive up in front of Patrick's apartment.
Carrie dialed 911 and reported that Rhames was at the
apartment in violation of the restraining order. Meanwhile,
Rhames got out of his car. Patrick yelled to Rhames not to come
into the apartment. In response, Rhames went to the rear of his
car and knelt down behind the vehicle.
Carrie retrieved a .22 caliber pistol from her purse
and handed it to Patrick, who was still standing at the window.
At about this time, Rhames emerged from behind his car with a .38
revolver in his hand. He fired a shot from this weapon; the
bullet struck the apartment building above Patrick's window,
entering the upstairs apartment and shattering a large aquarium.
When Rhames began shooting, Patrick backed away from
the window. Rhames continued to approach Patrick's apartment,
and he climbed into the apartment through the window. As he came
through the window, Rhames fired a second shot from his revolver.
This bullet hit the living room wall and came to rest in a
closet. Patrick and Carrie fled down a hallway toward the rear
bedroom. As he ran, Patrick apparently dropped the .22 pistol.1
Rhames pursued Patrick and Carrie. He fired a third
shot, this one hitting the ceiling in the hallway. Patrick and
Carrie reached the bedroom, but Rhames forced his way in, firing
two more shots as he did so. Rhames and Patrick struggled, while
Carrie attempted to crawl under the bed.
Rhames was able to get Patrick down. Rhames pointed
his .38 at Patrick and told him, "You're dead." Rhames then
pulled the trigger, but the gun did not fire.2 Finding himself
unable to shoot Patrick, Rhames ran from the rear bedroom toward
the living room, where he attempted to leave the apartment
through the window. Patrick chased Rhames and the two men again
struggled. To make his escape, Rhames struck Patrick several
times over the head with the revolver. Rhames then exited
through the window and drove away.
A description of Rhames's car was relayed to police
officers in the field, and Rhames was stopped a few minutes
later. The police found the .38 revolver under the driver's seat
of Rhames's car. Patrick was brought to the site of the stop,
where he identified Rhames as the man who had assaulted him and
Carrie Rhames.
At trial, Rhames conceded that he had committed
burglary and assault. His sole defense was to the charge of
attempted murder. Rhames contended that, when he aimed his
weapon at Patrick in the bedroom, he had committed merely an
assault, not an attempted murder. Rhames asserted that he had
never intended to actually shoot Patrick, but had intended only
to scare him. The jury rejected this defense.
On appeal, Rhames challenges his convictions on a
number of grounds. First, Rhames contends that he was not
brought to trial within the time limits of Alaska's speedy trial
rule, Criminal Rule 45. Under the version of Rule 45 in effect
at the time of Rhames's prosecution, the speedy trial "clock"
began to run on September 17, 1988 (the day following Rhames's
arrest). Rhames was brought to trial 131 days later, on January
25, 1989.
Generally speaking, Criminal Rule 45 directs that a
criminal defendant must be brought to trial within 120 days.
However, the rule also directs that several time periods be
excluded from this 120-day calculation. One of these exclusions
is for any "period of delay resulting from an adjournment or
continuance granted at the timely request or with the consent of
the defendant and the defendant's counsel". Criminal Rule
45(d)(2). In Rhames's case, 14 days were excluded from the Rule
45 calculation very early in the proceedings.
Following Rhames's arrest, but before his case was
presented to the Anchorage grand jury, the Public Defender Agency
was appointed to represent Rhames and a pre-indictment hearing in
Rhames's case was scheduled for September 20, 1988. At the
September 20th pre-indictment calendar, when Rhames's case was
called, Rhames's attorney asked the district court for a one-week
continuance of the pre-indictment hearing. Pursuant to Rhames's
request, his hearing was rescheduled for September 27th. The
judge presiding over the pre-indictment hearings that day
(District Court Judge Elaine M. Andrews) announced that this time
would "run against the defendant" for Rule 45 purposes C that is,
the 7 days would be excluded from the Rule 45 calculation.
On September 27th, Rhames again requested a week's
continance of the pre-indictment hearing. The district court
rescheduled Rhames's pre-indictment hearing for October 4, 1988,
and again stated that the time would run "against [the] defense".
At the hearing on October 4th, Rhames's attorney and the
assistant district attorney informed the court that Rhames had
rejected the district attorney's plea offer, and that therefore
the State would be presenting Rhames's case to the grand jury.
The prosecuting attorney requested a continuance until November
3, 1988 (to allow the case to be presented to the grand jury),
with this time to run against the State (that is, the running of
the Rule 45 clock would no longer be tolled).
Rhames argues that, even though he requested 14 days of
continuance, these days should not be excluded from the Rule 45
calculation. Rhames points out that pre-indictment hearings
occur in district court before a felony defendant has been
formally arraigned. The event that is being continued is not the
defendant's trial, but rather the preliminary hearing that the
district court must hold if a felony defendant is not indicted
within the time limits of Criminal Rule 5(e)(4).
We reject Rhames's argument. Both the supreme court
and this court have consistently interpreted Rule 45(d)(1) in a
literal manner: the running of the Rule 45 clock is tolled by any
proceeding involving the defendant, whether or not it results in
an ascertainable delay of the defendant's trial. See State v.
Clouatre, 516 P.2d 1189, 1190-91 (Alaska 1973); State v. Angaiak,
847 P.2d 1068, 1072-73 (Alaska App. 1993). In particular, the
supreme court has held that a continuance of a defendant's
preliminary hearing in district court is excluded from the Rule
45 calculation. See Peterson v. State, 562 P.2d 1350, 1359 n.13
(Alaska 1977).
Such a rule makes sense; any continuance of a
defendant's pre-indictment hearing clearly delays the procedural
progress of the case, since any continuance of the pre-indictment
hearing will delay presentation of the defendant's case to the
grand jury. Rhames's suggestion that Rule 45 should not be
tolled during such continuances is meritless. With these 14 days
excluded from the Rule 45 calculation, Rhames was brought to
trial within the 120 days allowed by the rule.
Moreover, another period of time was tolled under Rule
45 because, in superior court, Rhames requested a continuance of
his trial. Rhames was arraigned in superior court on November 4,
1988. At that time, his trial was set for December 19, 1988.
One week later, on November 10th, Rhames's attorney filed a
motion seeking a continuance of this trial date, requesting a
trial in "late January or early February, 1989". Superior Court
Judge Joan Woodward granted Rhames's motion to continue the trial
(finding good cause because of defense counsel's recent
assignment to the case and because the original trial date
conflicted with the defense attorney's trial and travel
schedules). The judge rescheduled Rhames's trial for January 16,
1989. Under Criminal Rule 45(d)(2), this 28-day continuance is
excluded from the Rule 45 calculation.
Rhames asserts that this 28 days should not be excluded
because, on November 28, 1988 (18 days after the motion for
continuance was filed and just one day before it was granted),
Rhames told his attorney that he no longer consented to a
continuance of trial. However, Rhames admits that this attorney-
client conversation was never reported to the superior court.
Because the superior court was never apprised that Rhames no
longer consented to a continuance of his trial, the entire period
of the requested continuance is excluded from the Rule 45
calculation. State v. Jeske, 823 P.2d 6, 10 (Alaska App. 1991).
Rhames asks us to overrule Jeske. We decline to do so.
We note, moreover, that when Rhames told his attorney that he no
longer consented to a continuance of trial, the defense motion
for a continuance had been pending for 18 days. Thus, even if
Rhames's attorney had immediately reported his client's change of
heart to the superior court, 18 days would still have been
excluded from the Rule 45 calculation C sufficient to reduce the
Rule 45 calculation below 120 days. For these reasons, we hold
that Rhames was brought to trial within the time limits of
Criminal Rule 45.
Rhames next asserts that his trial jury should have
been instructed on self-defense. Rhames contends that, as he
approached Patrick's apartment and looked through the window, it
is conceivable that he might have seen Carrie hand her .22 pistol
to Patrick, thus leading Rhames to conclude that he might have to
defend himself.
Rhames's argument overlooks the fact that, under all
versions of the events being litigated, Rhames was the initial
aggressor. It was Rhames who broke into Patrick's apartment,
.38 revolver in hand, knowing that he was violating a restraining
order, and intending to assault the two people inside. Even
assuming that Rhames saw Patrick holding a weapon, and even
assuming that Rhames apprehended some danger from this, self-
defense is not available to the initial aggressor in a
confrontation. AS 11.81.330(a)(3); Bangs v. State, 608 P.2d 1, 5
(Alaska 1980).
Moreover, even if Rhames had not been the initial
aggressor, he still would not have been authorized to use deadly
force against Patrick and Carrie unless he had no opportunity to
safely retreat from the encounter. See AS 11.81.335(b). Even
assuming that Rhames looked through the window and saw Patrick
holding the .22 pistol, the fact remains that Rhames proceeded to
break into the apartment. Rhames suggests no reason why he could
not have avoided the encounter by simply refraining from breaking
into the apartment and, instead, driving away.
Finally, even assuming that Rhames saw Patrick holding
the .22 pistol, the evidence unambiguously demonstrates that it
was Patrick who was entitled to use deadly force upon Rhames, not
vice versa. See AS 11.81.350(c)(2) (a property owner may use
deadly force when necessary to terminate a burglary). For these
reasons, the superior court properly denied Rhames's request for
a jury instruction on self-defense.
Rhames challenges a portion of Carrie Rhames's
testimony at his trial. During direct examination, Carrie
explained that she had obtained a restraining order against
Rhames, that she had telephoned Rhames to inform him of the
existence of this restraining order, and that Rhames had replied,
"A restraining order doesn't mean anything to me!"
Rhames asserts that this testimony violated the terms
of a protective order issued at the beginning of his trial.
According to Rhames, this protective order prohibited any mention
of restraining orders. Rhames is mistaken. The protective order
prohibited the State from introducing evidence of Rhames's past
convictions for violating previous restraining orders (unless the
State first obtained court approval for this evidence).3 There
was no order preventing Carrie Rhames from testifying about the
restraining order issued on the morning of the episode being
litigated.
Rhames's trial attorney in fact made no objection to
Carrie Rhames's testimony that she "dialed 911 and told them that
my husband ... was after me, and ... told them that I had a
restraining order, a domestic violence order". Nor did Rhames's
attorney object when Carrie elaborated on her reason for calling
Rhames and informing him of the restraining order: "Because he
had threatened me, and I wanted to tell him that I had a
restraining C another domestic violence order against him, and to
just leave me alone."
Rhames's attorney objected only when Carrie started to
explain that a restraining order "is when somebody's been
aggravating your, threatening you, or beating up on you ... ." A
bench conference ensued. At the end of this conference (which
has not been transcribed for appeal), Judge Woodward instructed
the jury that restraining orders are entered "ex parte C that
means, without the other side being present and having an
opportunity to say anything".
Following this explanation, Carrie Rhames continued her
testimony:
PROSECUTOR: And when you called Mr.
Rhames up, what did you say to him?
CARRIE RHAMES: I just told him that I
had a restraining order, and I wanted him to
-- you know, I wanted to live peaceably with
him if I could. That's what I was telling
him. I just said, you know, just ... stay
away from me, John.
PROSECUTOR: Did he tell you whether he
understood what a restraining order was?
CARRIE RHAMES: He said, "What
restraining order? A restraining order
doesn't mean anything to me."
Rhames's attorney made no objection to this testimony.
Thus, the trial record indicates that Rhames never
objected to Carrie's testimony concerning the existence of the
September 1988 restraining order or Rhames's reaction when he
found out about it. Rather, the objection was to evidence of
Rhames's prior acts of violence or harassment that had led the
court to issue restraining orders against Rhames or, in prior
criminal litigation, to find that Rhames had violated earlier
restraining orders.
Because no objection was raised at trial to Carrie
Rhames's testimony concerning the existence of the restraining
order, Rhames must now show that admission of this testimony was
plain error. It was not.
Under Alaska Evidence Rule 404(b), admission of
evidence of prior bad acts rests on the trial judge's balancing
of the probative value of the evidence against its potential for
unfair prejudice. Concededly, testimony concerning the
restraining order carried some potential for unfair prejudice,
because the existence of the restraining order might be construed
as an indication that Rhames had done something wrong in the past
to justify the issuance of the order. To rebut this inference,
Judge Woodward explained to the jury that restraining orders are
generally issued ex parte, so that Rhames did not have the
opportunity to present his side of the story. Moreover, the
probative force of this evidence was great. The verdicts in this
case turned on the jury's evaluation of Rhames's mental state
(his intent). Thus, evidence of Rhames's knowledge of and
reaction to the restraining order was obviously relevant and
important. Even if there had been a timely objection to Carrie
Rhames's testimony, Judge Woodward's decision to admit the
testimony would have been well within her discretion under Rule
404(b). We find no plain error.
Rhames argues that his trial jury was misinstructed on
the definition of "dangerous instrument". Rhames was charged
with second-degree assault for using his revolver as a bludgeon
to strike Charles Patrick in the head as Rhames was making his
escape from the apartment. To find Rhames guilty of second-
degree assault, the jury was required to find that Rhames, acting
with intent to cause physical injury, caused physical injury to
Patrick "by means of a dangerous instrument". See AS
11.41.210(a)(1).
Rhames asserts that, by the time he struck Patrick with
his revolver, the revolver was no longer operable, and thus the
revolver could not be considered a "dangerous instrument" unless
Rhames used it to bludgeon Patrick in a manner capable of
inflicting death or serious physical injury. Rhames contends
that the jury needed to have this point of law explicitly
explained to them. Instead, Judge Woodward instructed the jury
that any firearm, whether or not operable, was a "dangerous
weapon". This, Rhames asserts, was error.
Rhames's trial attorney did not object to this jury
instruction. Rhames must therefore demonstrate that the
"dangerous instrument" instruction contained plain error C an
error that would have been apparent to any competent judge or
attorney. Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).
In fact, as we explain below, there was no error in this
instruction.
Rhames cites Else v. State, 555 P.2d 1210, 1212 (Alaska
1976), for the proposition that "an unloaded pistol is not a
dangerous weapon within the meaning of the assault with a
dangerous weapon statute[,] [at least] when there is no present
ability to use it as a bludgeon". Rhames asserts that this same
rule should apply when a pistol is inoperable. However, Else was
a decision construing a statute in Alaska's former criminal code.
Since 1980, Alaska has been operating under a new criminal code,
and that code expressly provides that firearms remain "dangerous
instruments" even when they are unloaded or inoperable.
The legislature has defined "dangerous instrument" as
including "any deadly weapon". AS 11.81.900(b)(11). The
legislature has defined "deadly weapon" as including "any
firearm". AS 11.81.900(b)(13). And, in AS 11.81.900(b)(22), the
legislature has defined "firearm" to mean:
a weapon, including a pistol, revolver,
rifle, or shotgun, whether loaded or
unloaded, operable or inoperable, designed
for discharging a shot capable of causing
death or serious physical injury[.]
The legislature did not act inadvertently when it
included inoperable firearms within the definition of "dangerous
instrument". Rather, the legislature expressly amended the
definitions of "dangerous instrument" and "firearm" in 1980 to
make it clear that inoperable firearms were to be classified as
"dangerous instruments".
In section 29, chapter 102 SLA 1980, the legislature
amended the definition of "dangerous instrument" by revising the
reference to "deadly weapons":
"dangerous instrument" means any deadly
weapon or anything which, under the
circumstances in which it is used, attempted
to be used, or threatened to be used, is
capable of causing death or serious physical
injury; "dangerous instrument" includes
"deadly weapon";
(Underlined text indicates an addition, struck-through text a
deletion.) The commentary to this amendment declares that the
amendment was "required in order to make it specifically clear
that all 'deadly weapons' ... are 'dangerous instruments'". 1980
Senate Journal, Supp. No. 44 (May 29), p. 19.
In section 31 of the same session law, the legislature
repealed the pre-existing definition of "firearm", replacing it
with the current definition quoted above. The previous
definition did not mention inoperable firearms,4 but the current
definition expressly includes them.
In its commentary to this revised definition of
"firearm", the legislature declared that its major purpose was to
include inoperable firearms within the definition:
Definition of "Firearm": This amendment
is included to correct a potential drafting
oversight and clarif[y] that an inoperable
firearm is included within the definition of
firearm. While it [could be argued] that
inoperable firearms are already included
within paragraph (B) of the current
definition of firearm ("any weapon ...
designed for discharging a shot capable of
causing death or serious physical injury"),
it is preferable to specifically state that
inoperable firearms are included[.]
1980 Senate Journal, Supp. No. 44 (May 29), pp. 20-21 (italics in
the original).
Given this legislative history, it is clear that the
legislature intended for inoperable firearms to be classified as
"dangerous instruments". Judge Woodward's instruction on this
issue correctly stated the law. If Rhames believes that
inoperable firearms should not be classified as dangerous
instruments, he must make his argument to the legislature.
Rhames next contends that Judge Woodward committed
error when she responded to a note sent by the jury during its
deliberations. In their note, the jurors referred to a firearms
examiner who had testified during trial; the jurors asked Judge
Woodward to have the firearms examiner check the empty .38 shell
casings recovered from Rhames's revolver to see if any of these
casings bore marks indicating that they had been struck more than
once by the hammer.
The prosecutor suggested that the jury be told simply
"that the evidence is closed", that the jurors "must decide [this
case] on the evidence they have heard", and that "witnesses can
not be called at this point". Rhames's attorney agreed with this
language, but he also requested that the court's response
specifically refer the jurors "to the ... the 'reasonable doubt'
and 'lack of evidence' instruction".5
Judge Woodward decided that if the court directed the
jury's attention to the reasonable doubt instruction in this
context, the jurors might wrongly infer that the judge believed
that the absence of the requested evidence might, by itself,
constitute sufficient reasonable doubt to require Rhames's
acquittal. The judge therefore responded to the jury note as
follows: "The evidence in the case is closed. Witnesses cannot
be recalled at this point."
Rhames contends that Judge Woodward should have
directed the jurors' attention to the instruction on reasonable
doubt and the government's burden of proof because "the jury
request for additional evidence betray[ed] a serious lack of
understanding of these important concepts". The record does not
support Rhames's contention. The jury note reflects the jurors'
interest in obtaining additional evidence, but it does not
suggest that the jurors were confused about any legal issue.
Judge Woodward did not abuse her discretion when she declined to
draw the jurors' attention to the instruction on reasonable doubt
and the State's burden of proof. DeGross v. State, 768 P.2d 134,
136 (Alaska App. 1989).
Finally, Rhames argues that the State presented
insufficient evidence to sustain his attempted murder conviction.
Rhames's argument depends on viewing the evidence in the light
most favorable to himself. We, however, must view the evidence
in the light most favorable to upholding the jury's verdict.
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994). Viewed
in this light, the evidence is clearly sufficient to uphold
Rhames's conviction for attempted murder.
The judgement of the superior court is AFFIRMED.
_______________________________
1 Patrick had only a hazy memory of what he did with the gun. Carrie told the
police that, after Rhames had left but before the police arrived, she found
the gun on the living room floor and hid it. She later turned the weapon
over to police.
2 The evidence suggested two possible explanations for Rhames's inability to
fire the weapon. Rhames might have loaded his revolver with only five
cartridges, and he had already fired all of them. Alternatively, the
revolver might have become inoperable: when the revolver was recovered
later, it was found to have a bent trigger guard that obstructed the action
of the trigger. Although the revolver was obviously operable when Rhames
entered the bedroom (since he fired two shots as he came into the room), it
is conceivable that the trigger guard was bent by the time Rhames wrestled
Patrick to the floor and aimed the weapon at Patrick.
3 Here is what Rhames's trial attorney requested:
THE COURT: Anything else we need to take up prior to getting the
jurors up here?
DEFENSE ATTORNEY: ... Mr. Rhames has a variety of C let me just
give you some background on what this case is about. Mr. Rhames
is charged with ... assault against his ex-wife and a male friend
of hers. Mr. Rhames has a number of harassment convictions
involving his wife, violation[s] of restraining orders, court
orders that were issued, either domestic violence writs or in
conjunction with the divorce proceedings[.] ... I would ask
[that] the State ... be precluded from making mention of those
prior convictions [unless] it comes forward out of the presence
of the jury and makes application to the Court.
PROSECUTOR: Agreed.
4 The initial definition of "firearm" enacted in 1978 read:
"firearm" means
(A) a loaded or unloaded pistol, revolver, rifle, or shotgun; or
(B) any weapon, whether loaded or unloaded, designed for
discharging a shot capable of causing death or serious physical
injury.
5 This is the instruction that the defense attorney was referring to:
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 upon
reason and common sense -- the kind of doubt that would make a
reasonable person hesitate to act in his or her important
affairs.
