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.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TRACY S. McCRACKEN, )
) Court of Appeals No. A-5427
Appellant, ) Trial Court No. 3AN-93-8038 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1466 - April 12, 1996]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karl S.
Johnstone, Judge.
Appearances: Herman G. Walker,
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.
Tracy S. McCracken appeals his conviction for second-
degree murder, AS 11.41.110(a). He contends that the superior
court should have suppressed certain statements that he made to
the police, and he also contends that the superior court should
have allowed him to present more evidence concerning the victim's
character for violence. We uphold the superior court's ruling
concerning the admissibility of McCracken's statements to the
police, but we agree with McCracken that he should have been
allowed to present the evidence concerning the victim's character
for violence. We therefore reverse McCracken's conviction.
McCracken and Brian Ritchie lived together in
McCracken's home. McCracken, who is a paraplegic, provided
Ritchie with room and board in exchange for Ritchie's cooking,
cleaning, and general assistance with household tasks that
McCracken found difficult or impossible because of his
disability. The two men apparently got along well at first, but
in October 1993 the relationship began to sour.
On October 23, 1993, Ritchie and McCracken got into a
verbal altercation. Laura Miller (a friend of McCracken's) and
her two children were temporarily staying at McCracken's house.
By the early evening, the adults were upstairs drinking alcohol
and the children were downstairs watching television. Ritchie
and McCracken began to argue.
According to McCracken's trial testimony, Ritchie began
to berate him, complaining that McCracken did not pay him enough
and that McCracken did not appreciate him. Ritchie threatened to
leave, and he began to call McCracken names. Other than telling
Ritchie that he was free to leave, McCracken ignored Ritchie's
words. Eventually, Ritchie left the room and went downstairs.
After Ritchie left the room, McCracken retrieved a
handgun from the bedroom. He placed the gun next to his leg in
his wheelchair, and then he wheeled himself back into the living
room. A little later, Ritchie returned from downstairs and sat
next to Miller on the loveseat in the living room. After sitting
quietly for a few minutes, Ritchie again began shouting that he
was going to leave. Miller attempted to calm Ritchie, but she
was unsuccessful. Ritchie shouted at McCracken that he was
"going to knock [him] out of that fucking wheelchair". Then
Ritchie leaned forward as if to stand up. McCracken pulled out
his gun and shot Ritchie while Ritchie was still on the loveseat.
Ritchie died almost immediately.
Miller's children heard the gunshot, and they came
upstairs. Both children saw McCracken put the handgun under his
bathroom sink. In the meantime, Miller dialed 911 and reported
that there had been a shooting. McCracken eventually got on the
line; he told the 911 dispatcher that he had no knowledge of who
shot Ritchie, and then he hung up on the dispatcher. When the
dispatcher called back, McCracken hung up again.
Anchorage Police Officer Timothy McCulley responded to
the 911 call. When he arrived, Miller and the two children were
outside the house. McCulley entered the house and found
Ritchie's body still on the loveseat; McCracken was also in the
living room, sitting nearby in his wheelchair. McCulley asked
McCracken what had happened, but McCracken did not respond. A
few minutes later, Officer Douglas Pickerel arrived on the scene.
When Pickerel asked McCracken what had happened, McCracken said
only, "I was here, he was here."
Officer McCulley went back outside to talk with Miller
and her children. Miller told McCulley that McCracken and
Ritchie had argued for about twenty minutes, and then McCracken
shot Ritchie. When McCulley radioed Pickerel that McCracken might
be armed, Pickerel searched McCracken and his wheelchair, but he
found nothing. At this point, the two children told McCulley
that McCracken had put the gun under the bathroom sink.
Paramedics arrived at McCracken's house and attempted
to revive Ritchie. Pickerel moved McCracken into the kitchen to
give the paramedics more space in the living room. McCracken
asked to be moved back to the living room, but Officer Pickerel
refused to move him while the paramedics were working.
While they were in the kitchen, Pickerel asked
McCracken how Ritchie had been shot. McCracken responded, "I
don't know." Pickerel then asked McCracken what he had seen;
McCracken responded that he "didn't see anything".
Another officer told Pickerel to remain in the kitchen
with McCracken. When McCracken attempted to leave the kitchen
area, Pickerel ordered him to stay in the kitchen and wait for
the detectives to come question him. When the detectives
arrived, they handcuffed McCracken and placed him under arrest.
After being placed under arrest, McCracken was
transported to the police station, where Detective Greg Baker
attempted to interview McCracken. Baker began by asking
McCracken preliminary questions such as his name and date of
birth. Baker then asked McCracken how intoxicated he was, to
which McCracken responded, "Very little." The conversation then
continued:
BAKER: Okay. Now what I'd like to do
is, I'm kind of tryin' to investigate this
situation that happened over there at
Foraker.
McCRACKEN: Yep.
BAKER: And what I'd like to do is, I'd
like to find out what your side of the story
is on this, so you can tell me. However,
because you're under arrest, I want to read
you these Miranda rights. Have you ever
heard of those before?
McCRACKEN: Oh, Christ.
BAKER: Well, you know, everybody's got
a job to do. You understand where I'm coming
from, don't you?
McCRACKEN: Yeah.
BAKER: Now, I want you to listen, and
if you have any question, I want you to, you
know, to ask it.
McCRACKEN: Well, I ain't gonna answer
anything.
BAKER: You're not going to answer any
questions at all?
McCRACKEN: No, none at all. ... It's
my house, I ain't gonna be put in any ...
position[.] ... The man lived with me and
... he took good care of me, but nobody --
Shit comes down to shit. And that's it.
Baker made no further inquiry into the shooting, although he did
ask McCracken if he had been treated well and if he wanted
anything to drink. McCracken said that he had been treated well,
and he asked for a cigarette. Baker then explained that the
police would be transporting McCracken to the courthouse for an
arraignment before a magistrate.
Before trial, McCracken asked the superior court to
suppress all the statements that McCracken made to the police
from the time the officers arrived at his house. Superior Court
Judge Karl S. Johnstone ruled that, even though Officer Pickerel
wheeled McCracken into the kitchen, and even though Pickerel
refused McCracken's request to return to the living room,
McCracken was not in custody at that time. Judge Johnstone
stated:
The refusal to let Mr. McCracken move
about, or smoke cigarettes, or go back into
the [living] room ... was to preserve the
crime scene. A reasonable person would not
have felt that they were in custody under the
circumstances. [The] officers had an
obligation to make sure that there was nobody
else in there. There was a gun that was
involved, and they had a duty to protect
themselves and others by ascertaining who
might be in the premises behind the door,
things of that nature. That=s all necessary
for security, and [the] defendant was in his
own home. [There is] no evidence of a
significant show of force that would lead a
reasonable person to believe that Mr.
McCracken was in custody under a Hunter
analysis[.]
See Hunter v. State, 590 P.2d 888, 895 (Alaska 1979) (adopting an
objective test for determining custody for purposes of Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).
However, Judge Johnstone ruled that McCracken had been
in custody for Miranda purposes from the time Officer Pickerel
told him that he would have to stay in the kitchen to await the
arrival of the homicide detectives. At that juncture, Judge
Johnstone found, "it appears ... [that the police were] not going
to let [McCracken] go anywhere C and not just ... to protect the
crime scene, but to de facto place him in custody."
Despite his ruling that McCracken was placed in custody
while he was still at the house, Judge Johnstone upheld the
admissibility of McCracken's statement to Baker at the police
station ("It's my house, I ain't gonna be put in any ...
position[.] The man lived with me and ... he took good care of
me, but nobody -- Shit comes down to shit. And that's it.")
Judge Johnstone found that this statement was not the result of
interrogation, but was instead volunteered by McCracken. See
Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d
297 (1980); Beagel v. State, 813 P.2d 699, 705 (Alaska App. 1991)
(the Miranda suppression rule applies only to statements that are
the product of interrogation, not volunteered statements).
On appeal, McCracken asserts that the superior court
should have suppressed all of his statements from the time the
police arrived at his house. He contends that at least some of
the officers suspected him from the beginning and were keeping an
eye on him. However, Judge Johnstone credited the police
testimony that McCracken was moved to the kitchen to protect the
crime scene and to allow the paramedics room to work. This
finding is not clearly erroneous. Given this finding, we agree
with Judge Johnstone that a reasonable person in McCracken's
circumstances would not have felt himself to be in custody when
he was told to stay out of the living room. We also note that
the early police questions to McCracken appear to have been the
kind of "general on-the-scene questioning as to facts surrounding
a crime" that does not qualify as "interrogation" for Miranda
purposes. Beagel, 813 P.2d at 705 (quoting State v. Salit, 613
P.2d 245, 257 (Alaska 1980)).
McCracken also contends that the superior court should
have suppressed the statement he made to Officer Baker after he
was taken to the police station. In the trial court, McCracken
argued that his statement to Baker should be suppressed because
he was in custody, he never received Miranda warnings, and the
statement was made in response to interrogation. (McCracken
argued that Baker's question, "You're not going to answer any
questions at all?", constituted interrogation for Miranda
purposes.) As noted above, Judge Johnstone agreed that McCracken
had been in custody and had not received Miranda warnings, but he
found that McCracken's statement was volunteered.
On appeal, McCracken has abandoned his Miranda argument
and advances two different contentions.1 First, he asserts that
admission of his statement violated Gunnerud v. State, 611 P.2d
69, 75-76 (Alaska 1980), and Doyle v. Ohio, 426 U.S. 610, 96
S.Ct. 2240, 48 L.Ed.2d 91 (1976), because the statement informed
the jury that McCracken had exercised his right to remain silent.
This would have been be true if the jury had heard Officer
Baker's question, "You're not going to answer any questions at
all?", but the jury heard only McCracken's answer. Thus,
McCracken's statement, "No, none at all" did not convey an
invocation of his right to remain silent.
Second, McCracken asserts that the rest of his
statement to Baker should be suppressed because McCracken made
the remainder of the statement after he had invoked his right to
silence (by telling Baker, "No, none at all"). This contention
is answered by Judge Johnstone's finding that the remainder of
McCracken's statement was volunteered. McCracken uttered the
remainder of the statement immediately after he said that he
would answer no questions. There was no intervening question put
by Baker; McCracken simply continued speaking.
For these reasons, we uphold Judge Johnstone's rulings
concerning the admissibility of McCracken's statements to the
police. We now turn to the superior court's rulings on evidence
of Ritchie's propensity for violence.
After McCracken took the stand and testified that he
shot Ritchie because he feared that Ritchie was about to attack
him, Judge Johnstone ruled that McCracken would be allowed to
introduce evidence of Ritchie's character for violence; the judge
ruled that this evidence was relevant because it tended to
establish that Ritchie had been the first aggressor in the
conflict. The remaining question, as Judge
Johnstone phrased it, was whether McCracken would "be able to go
beyond opinion and reputation" evidence C whether McCracken was
entitled to introduce evidence of specific instances in which
Ritchie had acted violent. McCracken's attorney told Judge
Johnstone that McCracken wished to testify concerning (1)
Ritchie's acts of violence that he had personally observed, as
well as (2) Ritchie's acts of violence that Ritchie had told him
about, and (3) Ritchie's acts of violence that other people had
told him about. The prosecutor responded that she did not object
to McCracken's testifying about incidents he had personally
observed, but she objected to McCracken's testifying about what
Ritchie or other people had told him.
Judge Johnstone adopted the prosecutor's position. He
ruled:
I=ll permit Mr. McCracken to testify
about the observations of Brian Ritchie=s
drinking and any observations he had of Mr.
Ritchie=s violence in his presence. I=ll let
Mr. McCracken testify ... about the
reputation for violence that Mr. Ritchie may
have. I will not allow him to testify to the
hearsay comments made by Mr. Ritchie. I find
that that has the capacity to confuse the
real issues and consume unnecessary time in
this case. It's unduly prejudicial, its
probative value is outweighed by those
factors, and I note [that although] the case
law in general provides for admissibility of
opinion and reputation evidence for violence
to show who was the first aggressor, it=s
generally very limited in allowing specific
acts unless they go to the real issue here;
and in this court=s opinion, they do not. To
the extent they go to any issue in this case,
the presentation of that evidence is
outweighed by the unnecessary consumption of
time [and] it=s outweighed by all the factors
that prohibit admissibility under 403. So
specific acts at this time from this witness
concerning what Mr. Ritchie told him are not
admissible.
This ruling was in error.
When a homicide defendant raises the defense of self-
defense, evidence concerning the victim's character for violence
is potentially admissible for two reasons. First, it may tend to
demonstrate who was the initial aggressor in the confrontation.
Second, it may tend to demonstrate that the defendant's fear of
imminent deadly force at the victim's hand was reasonable.
Amarok v. State, 671 P.2d 882, 883-84 (Alaska App. 1983).
When evidence of the victim's character for violence is
introduced for the first purpose (to show who was the initial
aggressor), the evidence is introduced for the very purpose
normally barred by the evidence rules: to prove that the victim
acted in conformity with his or her trait for violence. As
Amarok notes, 671 P.2d at 883-84, when evidence of the victim's
character is used in this way, "[the] defendant's [prior]
knowledge of the [victim's character] is immaterial" because the
purpose of the evidence is to circumstantially prove a question
of historical fact: was the victim the initial aggressor during
the encounter between the defendant and the victim?
On the other hand, when evidence of the victim's
character for violence is introduced for the second purpose (to
prove the reasonableness of the defendant's fear of imminent
deadly attack), it is not being used as "character evidence" in
the usual sense. Although evidence of a victim's reputation for
violence or a victim's past acts of violence may, indeed, tend to
show that the victim had a violent character, the primary
relevance of the evidence is not to prove the victim's violent
character, nor to prove that the victim acted in conformity with
a violent character at the time of the incident in question.
Rather, the primary relevance of this evidence is to prove the
defendant's state of mind when he or she used deadly force
against the victim C in particular, the reasonableness of the
defendant's fear that the victim was about to attack with deadly
force.
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. AS 11.81.330-340; Weston v. State,
682 P.2d 1119, 1121 (Alaska 1984). When the trier of fact
evaluates the reasonableness of the defendant's belief that it
was necessary to attack the victim with deadly force, one
relevant circumstance is the defendant's knowledge of, or
reasonable belief concerning, the victim's propensity for
violence.
When evidence of the victim's character for violence is
introduced for this purpose (to prove the defendant's knowledge
or belief), then obviously "[the] defendant must know of the
victim's past acts of violence". Amarok, 671 P.2d at 884. But
this does not mean that the defendant is limited to acts of
violence that he or she personally observed. Because the
underlying issue is the reasonableness of the defendant's fear of
the victim, all evidence tending to reveal the defendant's state
of mind is relevant. The defendant might reasonably have come to
fear the victim if the defendant heard other people voice an
opinion concerning the victim's propensity for violence, or if
the defendant heard other people relate past instances in which
the victim acted violent, or if the defendant heard the victim
himself relate his past violent escapades. See J.H. Wigmore,
Evidence in Trials at Common Law (Chadbourn rev'n, 1979), ' 248,
Vol. 2, pp. 66-68.
When, for this purpose, a defendant offers evidence
that he or she had previously heard other people speak of the
victim's violent acts, this evidence is not "hearsay"; its
relevance is not the truth of the matters asserted, but rather
the effect of these utterances upon the hearer (the defendant).
As Wigmore explains, "the real purpose [of this evidence] is
merely to show such conduct as would naturally excite
apprehension [on the part of the defendant], whether it
objectively indicates a fixed trait of [the victim's] character
or not." Id., p. 71.
In the present case, there was essentially no dispute
concerning the events that led up to the shooting. Rather, the
prosecution's case focused on the contention that McCracken
either had over-reacted to Ritchie's blustering or had used this
verbal altercation as an excuse to murder Ritchie. McCracken's
trial presented no "first aggressor" issue. It was undisputed
that Ritchie began to rise from his seat and that McCracken shot
him before he could get to his feet. Instead, the disputed
issues at McCracken's trial were (1) whether McCracken
subjectively believed that it was necessary to shoot Ritchie to
avoid imminent death or serious physical injury at Ritchie's
hand, and (2) whether this belief was reasonable.
Evidence that Ritchie had previously told McCracken
about Ritchie's own past acts of violence, and evidence that
other people had previously told McCracken about Ritchie's
violent propensities, was just as relevant to the reasonableness
of McCracken's fear as incidents of Ritchie's violent behavior
that McCracken had personally observed. The superior court was
wrong to reject such evidence as "hearsay".
The superior court was empowered to place reasonable
limitations on McCracken's presentation of evidence on this
point. A parade of witnesses all asserting that the victim was a
violent or vicious person might well lead the jurors to reach the
conclusion that the victim was unworthy of the law's protection,
persuading them to base their verdict on emotion rather than the
law. And some of the offered testimony may have had little
probative value, either because the incident described was too
remote or because it was only tangentially related to Ritchie's
asserted propensity for life-threatening violence. But McCracken
was entitled to present evidence of what he had heard of
Ritchie's past acts of serious violence, as well as his
reputation for serious violence, so that the jury could fairly
appraise McCracken's claim that he reasonably feared imminent
death or serious physical injury when he shot Ritchie. See
Gottschalk v. State, 881 P.2d 1139, 1144-45 (Alaska App. 1994).
Judge Johnstone allowed McCracken to present various
witnesses who testified to Ritchie's reputation for violence, and
one witness (Joseph Kastrava) who testified that he had observed
Ritchie commit specific acts of violence. However, because there
was no "first aggressor" issue, the fact that Ritchie had a
reputation for violence or had committed past acts of violence
was, by itself, irrelevant. The pertinent issues were (1)
whether McCracken knew of Ritchie's reputation and Ritchie's past
acts of violence, and (2) what McCracken could reasonably
conclude from this knowledge. Judge Johnstone excluded most of
the evidence that McCracken offered on these issues; more
importantly, the excluded evidence was McCracken's most forceful
evidence on these issues.
Because the superior court's erroneous exclusion of
evidence substantially limited McCracken's ability to establish
the basis for his belief that Ritchie was about to attack him
with deadly force, we hold that McCracken is entitled to a new
trial. The judgement of the superior court is REVERSED.
_______________________________
1 McCracken returns to the Miranda argument in his reply brief, but arguments
raised for the first time in a reply brief are waived. See Alaska
Appellate Rule 212(c)(3); Petersen v. Mutual Life Ins. Co. of New York, 803
P.2d 406, 411 (Alaska 1990).
