Howell v. Municipality of Anchorage (5/31/96) ap-1470
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTOPHER M. HOWELL, )
) Court of Appeals No. A-5333
Appellant, ) Trial Court No. 1KE-S92-214CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1470 - May 31, 1996]
______________________________)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Thomas E. Schulz, Judge.
Appearances: David M. Seid, Assistant Public
Defender, Ketchikan, and John B. Salemi, Public
Defender, Anchorage, for Appellant. James L.
Hanley, 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
Mannheimer, Judges.
BRYNER, Chief Judge.
Christopher M. Howell was convicted by a jury of first-
degree murder. Superior Court Judge Thomas E. Schulz sentenced
Howell to sixty-five years with fifteen years suspended. Howell now
appeals his conviction, the denial of his motion for judgment of
acquittal or new trial, and his sentence. We reverse.
On the night of February 19, 1992, Howell shot and killed
George Michael Church. The shooting occurred just outside a trailer
Howell shared with his girlfriend, Frankie Peterson, in a trailer
park in Thorne Bay, Alaska. As a result of the shooting, Howell
was charged with murder in the first degree, in violation of AS
11.41.100(a)(1)(A). (EN1)
At trial, the state sought to prove that Howell and Church
had been engaged in an argument at Howell's trailer just before the
shooting, that Church left the trailer, got into his truck, and
began to drive away, but that Howell, still upset over the argument,
picked up his rifle and fired two shots as Church headed toward the
trailer park's exit. The first shot grazed Church's forehead; the
second struck him in the back of the neck, near the base of his
skull, severing his spine and killing him.
To prove its case, the state relied primarily on the
testimony of two couples who were neighbors of Howell: Terry and
Carol Smith, and Nancy and Charles Bish. Their description of the
events leading up to the shooting and of the shooting itself can be
briefly summarized. At about 9:30 on the night of the shooting,
Church's truck, a loud black Chevy pickup, dropped Frankie Peterson
off at the trailer park. Peterson appeared to be drunk. Between
11:00 and 11:30, the same loud truck again stopped in front of
Howell's trailer; Howell, Church, and Peterson got out. They talked
loudly, possibly arguing, until a neighbor yelled at them to be
quiet. (EN2)
Howell, Church, and Peterson remained together at the
trailer for about 45 minutes to one hour. The neighbors heard
arguing and a gunshot from within the trailer. Charles Bish
ventured outside his own trailer to record the truck's license plate
number after hearing the gunshot. He peeked into Howell's window
and saw Howell, Peterson, and Church, sitting at the kitchen table,
not arguing. Several times after this gunshot, Church left Howell's
trailer, got into his truck, and revved his engine; he then returned
to the trailer, at least once banging on the door to get in.
At about 10 or 15 minutes after midnight, all four
neighbors heard and/or saw Church leave the trailer, get into his
truck, and begin driving. As Church left, Howell said, "This isn't
over yet -- you can't leave." Church's truck had been parked facing
away from the trailer park entrance, toward the end of the trailer
park's road. Church drove to the end of the road, turned around,
and headed slowly toward the park's entrance, a maneuver that
brought him by Howell's trailer again. As the truck passed Howell's
trailer, Nancy Bish heard two shots; the Smiths and Charles Bish
heard two or three.
Nancy Bish was the only witness who actually saw the
shooting. According to her, after Church left Howell's trailer,
Howell "opened up his trailer door and [Peterson] screamed 'No,
don't do that, leave that here.' And when he shut the door he had
a rifle in his hand." When Church's truck passed back by the
trailer, Howell "raised the rifle and he shot." "Then . . . he took
a step and he steadied his two feet here and he pointed the rifle
again and shot again." The truck rolled to a stop; Church was dead.
In response to the state's evidence, Howell claimed self-
defense. Howell testified that on the afternoon and early evening
of the shooting he and Frankie Peterson had spent their time
relaxing, drinking and watching TV with Church and several other
people at the Leslie Cutting bunkhouse. By 9:00 p.m., the members
of the group were evidently intoxicated. Howell eventually left the
bunkhouse and walked down to the local dock, where, according to
Howell, he met a man who threatened him with a gun. Howell ran
away; as Howell ran, the man fired several shots at him. Howell was
badly frightened. He was convinced that the man who had fired at
him was a drug dealer who would hunt him down and kill him. Howell
ran back to the bunkhouse, called his boss, James Leslie, and told
Leslie about the incident, saying that he was too frightened to go
home or call the police. Eventually, Howell agreed to return to his
trailer.
Howell arrived home shortly after 10 p.m. Peterson was
already there. Howell grabbed both of his guns, gave one to
Peterson, and tried to get her to lie on the floor with him. She
accused him of being drunk, discounted his story, and tried to
leave. He finally forced her to lie on the floor with him; once on
the floor, Howell fell asleep. He awoke some time later and heard
several men outside yelling. Fearing it was the man who had shot
at him earlier, he fired a warning shot through a closed window.
After the shot, Howell heard Peterson saying that she and Church
were outside -- until that point Howell had not realized that
Peterson was no longer in the trailer.
Howell told them to come in. Church said that he had come
to the trailer park because he was worried about Peterson. Howell
replied that there was no need to worry; he was not the type to hurt
her. Howell then began to describe the incident at the dock.
Church and Peterson were skeptical and said they believed that no
one had shot at Howell. After a while, Church began "taunting"
Howell. He told Howell that he loved Peterson and that she was too
good for Howell. Howell replied, "Fuck you, you're drunk." This
angered Church, who, according to Howell,
blew up, I mean it went from like instant
Doctor Jekyll/Mr. Hyde; I mean he went "Fuck
you, fuck you" [at the top of his voice], I
mean spit just comes out of his mouth and he
comes out and I stood up and he come at me, he
pushed me up against the wall and I stick my
leg behind him and I push him off me, and I get
right on him. And he scared me, he was -- he
went down and I was right on him, I mean just -
- I was right on him and I got right over him,
I held on to his shoulders right here so he
couldn't swing, and I was straddling him, and
I got down like this so he couldn't knee me in
the groin.
After Church stopped struggling, Howell let him up.
Howell then told Church, "I don't care what you believe, I know what
happened down at the docks. All you're doing is getting me riled
up and . . . we're not getting anywhere. Why don't you just go
home." Church went outside, but did not leave. About five minutes
later he came back and banged on the door. Howell let him in.
Church said, "Just forget it ever happened, just forget the whole
thing."
Howell claimed that this statement made him suspicious;
he began to fear that Church was trying to protect "his friends" --
an apparent reference to the gun-wielding stranger at the dock.
Howell told Church he just could not forget about someone trying to
kill him and that he did not think it was over yet. Church
continued to say "Forget it." Howell continued to say he could not.
Church went to his truck; Howell followed him outside, saying, "I
don't care what you believe, . . . I don't think this is over yet."
Church turned and gestured toward Howell like he was a lost cause.
Church then got into his truck and drove away from Howell's trailer.
Howell testified that, at this point, he sensed something
was wrong -- that someone might be watching him -- so he got his
rifle. Church had stopped at the far end of the trailer park
driveway with his dome light on; Howell thought that he was getting
a cigarette or something. Then Church turned around and began
driving slowly toward Howell's trailer and the trailer park exit.
As Church passed by, Howell heard gunfire and thought that Church
had tried to shoot him:
I'm standing just like this . . . and he's
coming back up, he's driving slow, and as soon
as the pickup gets right here a shot sounds
out, I mean it's close, I could feel the
concussion (sic) and I -- throw myself away
from the shot and I pull up and I just shoot,
I just throw myself and I land on the trailer
and I shoot like that, and I run after him and
I get up like this, I run after him. . . . and
he just made that jog like he was going to get
ready for a U-turn, I mean he shifted into that
next lane, I mean he was already in the
incoming lane as he was going out but he
shifted into the next lane over . . . like he's
getting room for a U-turn . . . and that's when
I shot. I didn't want to shoot but I didn't
want him coming back either. I actually
believed that he was shooting at me.
Based on this and other defense evidence, (EN3) Howell
requested and was granted an instruction on self-defense. Howell
additionally requested an instruction on heat of passion. In
support of this request, Howell pointed out that fear is an emotion
included within the heat of passion defense. Citing the evidence
of Church's disagreement with Howell immediately before leaving
Howell's trailer, the shots fired at Howell earlier that night,
Howell's fear that Church was trying to protect whoever had fired
the prior shots, and "the incoming shot that [Howell] felt," Howell
argued that the jury could find that he had acted out of fear (and
therefore in the heat of passion), even if it rejected his self-
defense claim.
The trial court rejected Howell's argument, observing that
"[w]hatever dispute those two had was over with and Church was
leaving. And I don't think you can make a heat of passion argument
legally on that set of facts." The trial court believed that, under
these circumstances, the only potentially viable justification for
Howell's shooting of Church was Howell's testimony that he "felt a
muzzle blast" and acted in self-defense. For this reason, the court
declined to instruct the jury on heat of passion.
On appeal, Howell challenges this ruling. Arguing that
his claim of heat of passion was supported by sufficient evidence
and was not inconsistent with his claim of self-defense, Howell
contends that the trial court erred in refusing his proposed heat
of passion instruction.
Alaska law recognizes heat of passion as a defense to
certain forms of first- or second-degree murder. The defense is
described in AS 11.41.115(a), which provides that in a prosecution
for either of these crimes, "it is a defense that the defendant
acted in a heat of passion, before there had been a reasonable
opportunity for the passion to cool, when the heat of passion
resulted from a serious provocation by the intended victim." Under
AS 11.41.115(e), heat of passion is only a partial defense: a
successful claim of heat of passion cannot absolve the defendant of
guilt but will only reduce a homicide from first- or second-degree
murder to manslaughter.
As used in the heat of passion statute, "serious
provocation" means
conduct which is sufficient to excite an
intense passion in a reasonable person in the
defendant's situation, other than a person who
is intoxicated, under the circumstances as the
defendant reasonably believed them to be;
insulting words, insulting gestures, or hearsay
reports of conduct engaged in by the intended
victim do not, alone or in combination with
each other, constitute serious provocation.
AS 11.41.115(f)(2). We have consistently recognized that, in the
context of the heat of passion statute, the word "passion"
encompasses more than anger or rage; it includes fear, terror and
other intense emotions. Ha v. State, 892 P.2d 184, 196 (Alaska App.
1995) (citing LaPierre v. State, 734 P.2d 997, 1001 (Alaska App.
1987)). See also Blackhurst v. State, 721 P.2d 645, 648 (Alaska
App. 1986); Kirby v. State, 649 P.2d 963 (Alaska App. 1982).
In keeping with its designation as a partial, rather than
a complete defense to murder, "heat of passion does not require that
the act of killing be reasonable, for a reasonable killing is no
crime." Ha, 892 P.2d at 197 n.6. In this respect, heat of passion
differs markedly from self-defense, which completely justifies the
use of deadly force, but only when the defendant's use of force is
objectively reasonable -- that is, when the defendant "reasonably
believes the use of deadly force is necessary for self defense
against death, serious physical injury, [or one of several listed
felonies]." AS 11.81.335(a)(2).
This is not to say that heat of passion can be established
by a mere showing of subjective fear. The wording of AS
11.41.115(a) makes the heat of passion defense applicable only when
the defendant is provoked "by the intended victim[.]" Furthermore,
while the act of killing need not itself be reasonable, the concept
of reasonableness plays a factor in determining whether a given
defendant's emotional condition qualifies as "passion." The defense
applies only if the defendant's passion results from "serious
provocation." AS 11.41.115(a). As this term is defined in AS
11.41.114(f)(2), the existence of serious provocation must be
determined through the eyes of a reasonable (and sober) person
standing in the defendant's shoes:
[I]t is not sufficient that the defendant
experience heat of passion. Under AS
11.41.115(f)(2), the defendant's passion must
be caused by "conduct ... sufficient to excite
an intense passion in a reasonable person in
the defendant's situation[, other than a person
who is intoxicated,] under the circumstances as
the defendant reasonably believed them to be."
Moreover, under AS 11.41.115(a), the defen-
dant's use of force must occur "before there
[was] a reasonable opportunity for the [defen-
dant's] passion to cool."
Ha, 892 P.2d at 197. (EN4)
To place the heat of passion defense in issue, a defendant
need only produce "some evidence" to support the defense. AS
11.81.900(b)(15)(A). "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." LaPierre, 734 P.2d at 1000 (citations
omitted). Once there is "some evidence" of heat of passion in the
record, the state bears the burden of disproving the defense beyond
a reasonable doubt. AS 11.81.900(b)(15)(B). Either party may
request the trial court to instruct the jury on the defense when
some evidence supports it, see Blackhurst, 721 P.2d at 647; upon
request, the trial court must ordinarily give the jury an
appropriate heat of passion instruction. See LaPierre, 734 P.2d at
1000; Kirby, 649 P.2d at 968.
Viewing the record in the present case in the light most
favorable to Howell, we conclude that sufficient evidence of heat
of passion was presented below to meet the some evidence test.
Howell testified that he and Church had argued over whether Howell
had been shot at earlier in the evening; by the time Church left,
Howell was beginning to suspect that Church was involved with the
drug-dealers at the dock. Howell also testified that, shortly
before the shooting, Church had attacked him physically and that he
had fought with Church over Howell's treatment of his girlfriend,
Peterson. Testimony of Howell's neighbors established that Howell
was still visibly upset and arguing with Church when Church left
Howell's trailer and got into his truck. Even more significant is
Howell's testimony that, as Church drove past, he felt and heard a
bullet fly by his head. Two of Howell's neighbors testified that
they heard two or three shots fired after Church had gotten into his
truck -- testimony consistent with Howell's claim that one shot was
fired immediately before he fired twice at Church.
In opposition to Howell's heat of passion argument, the
state points out -- as Howell himself acknowledges -- that the post-
shooting investigation in this case conclusively established that
Church was unarmed and could not have fired at Howell from his
truck. Thus, according to the state, even if Howell thought he
heard a shot, and even if the shot induced intense terror or fear
that might qualify as heat of passion, "[t]here was simply no
evidence of 'serious provocation' by Church, other than Howell's
mistaken and unreasonable belief that Church shot at him." The
state argues that Howell was barred from claiming heat of passion
because "no reasonable juror could have found 'serious provocation'
by the victim." The state goes on to argue that all prior Alaska
cases finding sufficient evidence to justify a heat of passion
instruction have involved situations in which "the deceased actually
committed some serious act against the defendant."
These arguments call into question the meaning of the heat
of passion statute's requirement that a defendant's passion resulted
from "serious provocation by the intended victim." AS 11.41.115(a).
As we have already noted, AS 11.41.115(f)(2) defines "serious
provocation" by reference to an objective standard of reason-
ableness; under this provision, the pertinent inquiry is whether the
defendant's passion was triggered by "conduct which is sufficient
to excite an intense passion in a reasonable person in the
defendant's situation, other than a person who is intoxicated, under
the circumstances as the defendant reasonably believed them to
be[.]" In requiring "serious provocation" to be caused "by the
intended victim," AS 11.41.115(a) is ambiguous, for it fails to
specify whether the issue of who caused the defendant's heat of
passion must be determined by the reasonable person standard
specified in AS 11.41.115(f)(2)'s definition of "serious
provocation."
On its face, the statutory language leaves room for
argument that the phrase, "by the intended victim" should be
construed to mean heat of passion can be claimed only when the
intended victim actually engaged in serious provocation. The state
seems to assume that the language should be so construed. Yet the
statutory language also leaves ample room for argument that
subsections (a) and (f)(2) should be read together and construed to
allow "serious provocation by the intended victim" to be based on
the defendant's reasonable belief -- in other words, to allow heat
of passion to be claimed when a reasonable person in the defendant's
situation would have concluded that the victim engaged in an act of
serious provocation.
When we look beyond the face of the heat of passion
statute, we find that this ambiguity must be resolved in favor of
the latter construction, not the former. Alaska Statute 11.15.115
was adopted in 1978, as part of Alaska's revised criminal code. In
enacting the heat of passion statute, the legislature indicated its
intent to "codif[y] the 'heat of passion' defense to murder." Apart
from pointing out that the heat of passion statute defined "serious
provocation" in a manner that would "preclude consideration of
whether the defendant was intoxicated[,]" the legislature made no
mention of changing the traditional scope of the defense. See
Senate Journal Supp. No. 47 at 11-12, 1978 Senate Journal.
The legislature based the language of AS 11.41.115 on the
heat of passion statute recommended to it by the Criminal Code
Revision Commission in February 1977. See Alaska Criminal Code
Revision, Part I, at 18-20 (Tent. Draft 1977). In particular, the
"by the intended victim" requirement embodied in subsection (a) of
AS 11.41.115 tracks verbatim the language embodied in the Tentative
Draft's sec. 11.41.110(b). In commenting on the Tentative Draft's
heat of passion provision, the Commission made clear its intent to
adopt the traditional approach to the defense:
The [Tentative Draft's heat of passion]
defense is a restatement of the common law
doctrine of "voluntary manslaughter" which has
been recognized and codified in most American
jurisdictions and recognized, but not codified,
in Alaska. The doctrine provides that murder
is reduced to manslaughter by a mitigating
factor variously termed "heat of passion,"
"sudden passion," "provocation," and the like.
The theory of the principle is one of extending
a degree of mercy to a defendant who, though
intending to kill, acted after a serious
provocation in a heat of passion rather than in
"cold blood".
Alaska Criminal Code Revision, Part I, at 30 (Tent. Draft 1977).
Under common law, as in Alaska's statute, the defense of
heat of passion required an act of provocation by the victim; but
this requirement was deemed satisfied so long as the defendant
reasonably believed that the victim had engaged in provocative
conduct: "Traditionally, the . . . decisions usually required that
the provocation arise from some action of the deceased or at least
that the defendant reasonably so believe." Model Penal Code &
Commentaries Part II, Art. 210, sec. 210.3, p. 57 (1980). Professor
LaFave addresses this "rare and rarely addressed" issue as follows:
Sometimes the defendant intentionally
kills another in a reasonable, but erroneous,
belief that the victim has injured him. It
would seem that the provocation is adequate to
reduce the homicide to voluntary manslaughter
if the killer reasonably believes that the
injury to him exists, though actually he has
not been injured. In other words, a man's
passion directed against another person
suffices for manslaughter if (1) he reasonably
believes that he has been injured by the other,
and (2) a reasonable man who actually has
suffered such an injury would be put in a
passion directed against the other. But this
issue is rare and rarely addressed even in
modern manslaughter statutes.
2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law,
sec. 7.10(b)(9) at 659 (1986) (footnotes omitted).
Two vintage cases support LaFave's discussion: State v.
Michael, 82 S.E. 611, 614 (W.Va. 1914) (if defendant believed man
standing near provoker was acting in concert with provoker, it was
only manslaughter to kill bystander); State v. Yanz, 50 A. 37, 39
(Conn. 1901) (defendant guilty only of manslaughter if he kills man
appearing to be engaging in adultery with his wife, if defendant is
reasonably mistaken). The state cites no contrary authority, and
our own research of case law from jurisdictions having heat of
passion statutes comparable to Alaska's has disclosed no more recent
cases definitively accepting or rejecting a claim of reasonable
mistake as to provocation by the victim. (EN5)
Considering the Alaska legislature's apparent intent to
codify the traditional doctrine of heat of passion, and considering
further the sparse but clear authority indicating that the
requirement of "provocation by the victim" could traditionally be
met by evidence of a defendant's reasonable but mistaken belief that
the victim had engaged in serious provocation, we conclude that the
reasonable person standard set forth in AS 11.41.115(f)(2) governs
the determination of whether that provocation was "by the intended
victim," as required under AS 11.41.115(a).
Here, the jury heard Howell's testimony that, as
Church's car passed by Howell, he heard a shot and felt a bullet go
by his head. Three of Howell's neighbors who heard the incident
testified that they heard two or three shots fired after Church had
gotten into his truck -- testimony potentially corroborating
Howell's claim that he heard someone fire at him immediately before
he fired twice at Church. Evidence was presented that Church had
attacked Howell shortly before the shooting and that Howell was
still visibly upset when Church left Howell's trailer and got into
his pickup truck. Viewing the totality of the evidence in the light
most favorable to Howell, we think that reasonable jurors could have
found that Howell reasonably, albeit mistakenly, believed that
Church committed an act of provocation by attempting to shoot him.
The jury could thus have found an act of provocation "by the
intended victim." AS 11.41.115(a). We further think that reason-
able jurors viewing the evidence in the light most favorable to
Howell could have found the provocation "serious": that Church's
conduct, as seen from Howell's perspective, might have been found
sufficient to "excite an intense passion in a reasonable person in
[Howell's] situation, other than a person who is intoxicated, under
the circumstances as [Howell] reasonably believed them to be." AS
11.41.115(c).
The state nevertheless argues that under the circumstances
of Howell's case no heat of passion instruction was justified
because the jury could not have found that Howell was reasonably
excited to a heat of passion unless it also found that he acted
reasonably in self-defense. Thus, in the state's view, instructing
the jury on self-defense was sufficient. Conversely put, the
state's argument is that failing to instruct on heat of passion was
at most harmless error. The state posits that, by rejecting
Howell's claim of self-defense, the jury necessarily found that
Howell did not reasonably believe that Church shot at him. The
state asserts that, in light of its finding that Howell did not
reasonably believe Church had fired a shot, the jury could not
rationally have concluded that a reasonable person in Howell's
situation would have been provoked to a heat of passion.
The state's argument hinges on the validity of its own
initial premise: that the jury's rejection of Howell's self-defense
claim necessarily reflects its conclusion that Howell did not
reasonably believe that Church had fired at him. This premise is
not plausible under the specific facts of Howell's case. The
evidence at trial indicated that Howell fired twice at Church: the
first shot struck a glancing blow to the forehead; the second was
the fatal shot, striking Church in the spine, just below his skull.
Howell claimed that he fired the shots reflexively and in quick
succession. But Nancy Bish presented a different version, one
suggesting that Howell's conduct was far more deliberate. According
to Bish, Howell paused after the first shot, repositioned himself,
took aim, and shot again. (EN6)
During its final argument to the jury, the prosecution
seized on Nancy Bish's description of the shooting to argue that
Howell's second, fatal shot was not necessary, even if Howell
reasonably believed that Church fired first. At one point, the
state argued:
If you look at Christopher Howell's
testimony, that's the only place that there is
even any type of evidence of self-defense, and
when you look at it closely even it doesn't
apply to this case. The evidence proves beyond
a reasonable doubt that he did not have to fire
that second shot, the one that killed Mr.
Church, there was no justification.
Later, the state returned to this theme:
But even if you accept the fact that a
shot was fired that would explain why he shot
the first time, but he doesn't offer an
explanation of why he shot the second time,
which was the shot that killed him. The truck
was going away, going away slowly.
* * *
But the truck was driving away at that
point. There was no reason whatsoever for Mr.
Howell, under his own testimony, to fire the
second shot. He ran after the trailer -- I
mean after the truck on his own. He ran after
it and picked up the rifle and shot again.
It is apparent from this argument that the jury's refusal
to find self-defense did not necessarily reflect its rejection of
Howell's claimed belief that Church had fired at him. By accepting
the state's argument, the jury could have found that Howell
reasonably believed that Church had fired the initial shot; it could
even have accepted Howell's claim of self-defense as to the first
shot. The jury could nonetheless have reasoned that Howell was
guilty because he did not reasonably believe it necessary to fire
the second shot. Had the jury been instructed on the partial
defense of heat of passion, and had it considered the defense in
this context, it would not have had to find that Howell acted
reasonably in firing the second shot. To the contrary, if the jury
found that Howell had been provoked to a heat of passion by his
reasonable perception that Church had tried to shoot him, the jury
could have found Howell guilty of the lesser offense of
manslaughter, even if it believed the second shot to be clearly
unnecessary and unreasonable. (EN7)
We conclude, for these reasons, that the trial court
erred in refusing Howell's request for a heat of passion instruction
and that the error cannot be dismissed as harmless. This error
alone, however, does not necessarily entitle Howell to an outright
reversal of his first-degree murder conviction, since at most the
error prevented the jury from convicting Howell of the lesser
offense of manslaughter. Accordingly, although Howell's first-
degree murder conviction must be vacated, the state should be given
the option on remand to choose between a new trial on the first-
degree murder charge or entry of a judgment of conviction for
manslaughter. See LaPierre, 734 P.2d at 1001-02.
The possibility that the state may request entry of
judgment for manslaughter requires us to consider other arguments
raised by Howell that, if meritorious, would require acquittal or
a new trial.
Howell claims that the trial court erred in allowing the
jury to see autopsy photographs of the victim. The photographs were
admitted during the testimony of the state's pathologist, Dr.
Michael Stewart, who described Church's injuries and concluded that
the second bullet caused Church's death. Howell objected to the
photographs below as more prejudicial than probative. See A.R.E.
403. He renews this objection on appeal.
When gruesome photographs of a murder or assault victim
are offered as evidence, the trial court is accorded considerable
discretion in balancing their probative value against their
potential for prejudicial impact. See Miller v. State, 778 P.2d
593, 598 (Alaska App. 1989). Appellate decisions in Alaska have
traditionally accorded broad deference to trial court decisions in
this area; when genuine relevance has been established, we have
consistently upheld trial court findings that evidence of this type
is more probative than prejudicial. See, e.g., Miller, 778 P.2d at
598; Ridgely v. State, 705 P.2d 924, 932 n.5 (Alaska App. 1985)
rev'd on other grounds, 732 P.2d 550 (Alaska 1987); Valentine v.
State, 617 P.2d 751, 754 (Alaska 1980); Sleziak v. State, 454 P.2d
252, 261 (Alaska 1969); Stevens v. State, 443 P.2d 600, 604 (Alaska
1968); Watson v. State, 387 P.2d 289, 294 (Alaska 1963).
Here, by graphically illustrating the near-pinpoint
accuracy with which Howell's bullets found their mark, the disputed
photographs helped refute Howell's claim that he had fired twice in
quick succession, reflexively, without taking aim and with no
intention of killing. In the context of this murder prosecution,
there was "nothing unusually gruesome, or repulsive, or horrifying
about these photographs which would outweigh their evidentiary
value." Sleziak, 454 P.2d at 261. We find no abuse of discretion.
Howell next argues that insufficient evidence was
presented at trial to support his conviction for first-degree
murder. Howell emphasizes that the evidence showed that he was
intoxicated; he also emphasizes his uncontroverted testimony that
he shot blindly and did not intend to kill. However, Howell's
argument views the evidence in the light most favorable to his own
case. When determining the sufficiency of evidence presented at
trial, we must view the record and all inferences arising therefrom
in the light most favorable to the state; we must find the evidence,
so viewed, sufficient if it would enable reasonable jurors to differ
as to whether the state met its burden of proof beyond a reasonable
doubt. Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
In a case of homicide, intent "'may be inferred from the
circumstances attending the killing.'" Gray v. State, 463 P.2d 897,
904 (Alaska 1970) (quoting Jordon v. United States, 87 F.2d 64, 66
(D.C. Cir. 1936)). "Nor does . . . uncontroverted evidence of
. . . drinking afford a basis for questioning the sufficiency of the
evidence on the issue of intent." Simpson, 877 P.2d at 1320. We
conclude that ample evidence was presented to support an inference
that Howell acted intentionally and to support his conviction for
first-degree murder.
Relying on the same arguments, Howell alternatively claims
that the trial court erred in denying his motion for a new trial on
the ground that the verdict was contrary to the weight of the
evidence. See Alaska R. Crim. P. 33; Amidon v. State, 565 P.2d
1248, 1262 (Alaska 1977). However,
in reviewing a trial court's exercise of
discretion upon a motion for new trial, [this
court] must examine the record and determine
whether "the evidence to support the verdict
was completely lacking or was so slight and
unconvincing as to make the verdict plainly
unreasonable and unjust." If [this court]
find[s] that "there was an evidentiary basis
for the jury's decision," then the denial of a
new trial must be affirmed.
Amidon, 565 P.2d at 1262 n.44 (quoting Sloan v. Atlantic Richfield
Co., 541 P.2d 717, 724 (Alaska 1975)) (citations omitted). As we
have already pointed out, ample evidence was presented below to
support the jury's verdict. The trial court did not abuse its
discretion in concluding that the verdict was not contrary to the
weight of the evidence.
Howell lastly argues that the trial court erred in failing
to grant a new trial based on prosecutorial interference with
Howell's pretrial efforts to interview various witnesses. Howell's
failure to raise this issue before the jury returned its verdict
precludes review except for plain error. Cf. Peschel v. State, 770
P.2d 1144, 1150 n.3 (Alaska App. 1989); see also Owens v. State, 613
P.2d 259, 263 (Alaska 1980). In ruling on Howell's claim of
prosecutorial misconduct, the trial court found that Howell had
failed to show prosecutorial misconduct. This finding is not
clearly erroneous. Moreover, we note that Howell has neither
claimed nor demonstrated any actual prejudice resulting from the
alleged interference. We find no error, plain or otherwise.
Accordingly, Howell's conviction for first-degree murder
is VACATED, and this case is REMANDED to the superior court. On
remand, the state should be afforded the opportunity to elect either
a retrial of the first-degree murder charge or entry of conviction
for manslaughter.
ENDNOTES:
1. Howell was also charged with three counts of assault in the
third degree as a result of his post-shooting actions. Howell was
acquitted of these charges.
2. According to Nancy Bish, as Peterson and Howell went inside,
Peterson told Howell to "stop it" and to "leave her alone";
Peterson pushed Howell off the trailer's steps and onto the ground.
Carol Smith, however, testified that she heard Peterson tell Church
to leave them alone, go away, and get out of there.
3. Other evidence presented by the prosecution and defense need
not be discussed for purposes of this appeal. It should be noted,
however, that Frankie Peterson testified as a prosecution witness.
To a large extent, Peterson was unable to recall the events leading
up to the shooting -- evidently due to her intoxication during that
night. What Peterson did recall partly corroborated the testimony
of the Smiths and the Bishes; partly, it corroborated Howell's
version.
4. We have also recognized an element of proportionality implicit
in the heat of passion statute's requirement that provocation be
"serious." Roark v. State, 758 P.2d 644, 647-48 (Alaska App.
1988).
5. At least one recent decision, however, suggests in dicta that
when a heat of passion statute requires provocation by the victim,
the defendant's reasonable belief should govern in determining
whether the victim engaged in any provocative conduct. See Vuong
v. State, 830 S.W.2d 929, 938 (Tex. App. 1992) (rejecting, under
former Tex. Penal Code sec. 19.04(a), (b) -- which required
"provocation by the individual killed" -- a heat of passion claim
asserted by a defendant who had purportedly been threatened by gang
members, since the court found "no indication in the record that
Appellant believed, at the time of the murders, that either victim
was a gang member[.]"). Cf. Foster v. State, 444 S.E.2d 296, 296
n.2 (Ga. 1994) (noting with apparent approval Model Penal Code
commentary describing traditional view that provocation must arise
from an action of the victim "or at least that the defendant [must]
reasonably so believe[].").
6. Bish testified that Howell "opened up his trailer door and
[Peterson] screamed 'No, don't do that, leave that here.' And when
he shut the door he had a rifle in his hand." He "raised the rifle
and he shot." "Then . . . he took a step and he steadied his two
feet here and he pointed the rifle again and shot again."
7. In connection with Howell's claim that terror or fear was the
"passion" motivating his conduct in the present case, the state
asserts that Howell's heat of passion argument is inconsistent with
the legislature's express repeal of imperfect self-defense,
formerly codified in AS 11.41.115(d) (a partial defense allowing
conviction for the lesser offense of manslaughter in cases of
first- or second-degree murder when the defendant acted under an
honest but unreasonable belief that deadly force was necessary).
See generally Balentine v. State, 707 P.2d 922, 929-30 (Alaska App.
1985). In the state's view, Howell's heat of passion claim amounts
to nothing more than a claim that he honestly but unreasonably
believed it necessary to kill Church. The state's argument,
however, oversimplifies the complex interplay of self-defense, heat
of passion, and the now-abolished defense of "imperfect" self-
defense.
A claim of self-defense to a charge of murder requires
evidence that the defendant reasonably believed that use of deadly
force was necessary to prevent infliction of serious physical
injury or death. See AS 11.81.335(a)(2). Self-defense does not
require proof that the defendant acted in the throes of intense
passion; an act of self-defense can be committed coolly and
deliberately. By contrast, a claim of heat of passion presupposes
that the defendant has acted unreasonably on account of intense
emotional excitement. AS 11.41.115(a), (f)(2). Heat of passion
requires no evidence that the defendant believed, reasonably or
unreasonably, that deadly force was necessary. As we pointed out
in Kirby v. State, 649 P.2d 963, 968-69 (Alaska App. 1982), self-
defense and heat of passion have specific and differing
requirements. A rejection of one ordinarily does not preclude the
other.
Nevertheless, self-defense and heat of passion are alike in
one important aspect: both require the defendant to perceive or
react to reality in an objectively reasonable way. Self-defense
requires that the defendant reasonably perceive the need for self-
defense (and that the defendant act reasonably, based on that
perception). Heat of passion, although it presupposes that the
defendant has acted unreasonably due to intense excitement,
requires that the defendant's emotional response itself be
reasonably based on a provocative event that the defendant
reasonably attributes to the victim. This point of similarity --
the requirement of an objectively reasonable basis in reality --
distinguishes both self-defense and heat of passion from imperfect
self-defense.
Under former AS 11.41.115(d), which defined imperfect
(unreasonable) self-defense, an intentional homicide was mitigated
to manslaughter upon proof that the defendant's act of killing
stemmed from a genuine but unreasonable belief that it was
necessary to use deadly force in self-defense. Imperfect self-
defense was thus subjectively based: it did not require proof that
the defendant's perception of or reaction to the situation was
objectively reasonable; the defendant's crime would be mitigated
even if the defendant's belief in the need for self-defense lacked
any basis in reality. In this sense, imperfect self-defense
differed significantly from normal self-defense and heat of
passion, both of which require that the defendant's perceptions be
reasonable. This distinction is underscored in the legislative
commentary to ch. 102, sec. 3, SLA 1980, the enactment that
abolished imperfect self-defense:
The effect of the repeal of AS 11.41.115(d) is
to make the Code consistent with the law that
existed prior to January 1, 1980, and to
provide that only reasonable beliefs as to the
right of justification will excuse what would
otherwise be a murder.
Senate Journal Supp. No. 44 at 27, 1980 Senate Journal (emphasis in
the original).
The primary policy reflected in the legislature's abolition of
imperfect self-defense appears to be the belief that no defense,
whether complete or partial, should be available for conduct that
is wholly unreasonable. Because heat of passion and normal self-
defense both require the defendant to perceive or react to reality
in an objectively reasonable way, while imperfect self-defense was
entirely subjective, there is no inconsistency in continuing to
allow homicide defendants to plead heat of passion even after the
abolition of imperfect self-defense.
