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Heaps v State (05/11/2001) ap-1741
Heaps v State (05/11/2001) ap-1741
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD E. HEAPS, )
) Court of Appeals No. A-7472
Appellant, ) Trial Court No. 4FA-98-3688 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1741 May 11, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. W. H. Hawley, Jr., Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Donald E. Heaps and Debra Stevens lived together in
Fairbanks. On August 22, 1998, Heaps and Stevens became embroiled
in a violent argument. Based on Stevens's complaint to the police,
Heaps was arrested and charged with misdemeanor assault.
Three months later, on November 18th, while Heaps was
awaiting trial, he enticed Stevens to come to his home. When
Stevens entered the house, Heaps slammed the door shut and
announced, "[Since] I'm going to jail, I'm going to make it worth
my while." Heaps then assaulted Stevens. He punched her in the head
and face, breaking her nose. When Stevens broke free and ran from
the house, Heaps grabbed her by the hair and pulled some of it out.
He then hurled a large rock at Stevens; the rock fractured her right
shoulder blade. Stevens jumped into her car and locked the doors.
She was able to drive away, but not before Heaps pounded on the car
and broke one of the windshield wipers.
Based on this incident, Heaps was charged with first-
degree assault, fourth-degree assault, and interference with
official proceedings (retaliating against a witness). [Fn.
1] Following a jury trial, Heaps was convicted of the two assault
charges but acquitted of interference with official proceedings.
Heaps now appeals his assault convictions. Heaps contends
that the trial judge improperly refused to allow him to introduce
photographs that allegedly would have proved Stevens's propensity
for violence. Heaps also contends that the trial judge improperly
refused to instruct the jury regarding Heaps's potential
justification for his original assault on Stevens in August 1998.
In addition, Heaps argues that the trial judge committed plain error
by failing to instruct the jury on potential lesser included
offenses, even though Heaps's attorney did not ask for any such
instructions. Finally, Heaps contends that the prosecutor engaged
in improper argument during summation, thus prejudicing the fairness
of his trial. For the reasons explained here, we reject each of
Heaps's contentions and we therefore affirm his convictions.
The photographic evidence
At trial, Heaps asserted that Stevens had been the
aggressor in their November 18th encounter. Heaps testified that
Stevens attacked him in a jealous rage, kicking him in the groin and
pulling his hair. Heaps conceded that he broke Stevens's nose, but
he contended that he struck her only in self-defense. Heaps denied
throwing a rock at Stevens; he suggested that her shoulder blade
broke when she fell back against the door frame.
To corroborate this version of events, Heaps testified
concerning an incident that occurred in April 1998. Heaps and
Stevens had argued, and Heaps left Stevens alone at their house.
While Heaps was gone, Stevens "trashed" the house: she carried his
television outside, and she left the place in shambles. Superior
Court Judge Ralph R. Beistline allowed Heaps to testify about this
April occurrence because this episode tended to bolster Heaps's
claim of self-defense with regard to the November incident for which
Heaps was being tried.
In addition to his own testimony, Heaps wanted to
introduce over a dozen photographs of what the house looked like
after Stevens vented her anger. These photos had been taken by the
state troopers when they came to investigate the disturbance. Judge
Beistline allowed Heaps to introduce two of these photographs
(photos that depicted the television set sitting in the yard), but
he declined to let Heaps introduce the others. The judge found that
the probative value of the remaining photographs was outweighed by
their potential for unfair prejudice and confusion of the issues;
he therefore excluded these photographs under Evidence Rule 403.
On appeal, Heaps challenges this ruling. He contends that
Judge Beistline abused his discretion under Evidence Rule 403 when
he excluded the other photographs. We affirm the judge's ruling for
two reasons.
First, we doubt that Heaps has properly preserved this
claim of error. The transcript shows that the court went off-record
to discuss this evidentiary matter. Most of the parties' arguments,
as well as Judge Beistline's initial ruling on the admissibility of
the evidence, apparently occurred in chambers and were not recorded.
When the tape recording starts again, Judge Beistline is summarizing
his ruling. The tape catches him in mid-sentence:
The Court: ... the way I'll deal with
it, after, you know, weighing the probative value against the
potential prejudice, looking at the case law in the context it's
presented, [is to] allow the question to be presented in this
leading fashion. I'm not suggesting [that] this is how the answers
have to be, but this is what I presume they're going to be. It
can't go beyond this. And ...
Defense Attorney: Judge ...
The Court: You have the pictures here?
Defense Attorney: I have the pictures
here.
The Court: Okay.
Defense Attorney: But you're not letting
me show any of the pictures? [sic]
The Court: Yes.
Defense Attorney: Just the TV?
The Court: Right.
Defense Attorney: Why?
The Court: Well, that's my ruling.
Given the context, it appears that Judge Beistline's
remarks were intended to summarize a more detailed ruling that he
had just issued during the in-chambers discussion. If that
in-chambers discussion was recorded, Heaps has not designated the
recording for transcription. [Fn. 2] If the in-chambers discussion
was not recorded, Heaps has not attempted to reconstruct that
discussion to create a record for appeal. [Fn. 3]
Thirty years ago, our supreme court warned litigants that
it would refuse to review trial court rulings when the parties
allowed the issue to be litigated off-record. In Pope v. State
[Fn. 4], the court held that a party could not base a claim of error
on an objection that was made off-record during an in-chambers
conference. The court stated, "[W]e are of the view that basic
fairness to all parties to an appeal requires that we limit our
review to matters appearing in the record." [Fn. 5]
In Heaps's case, Judge Beistline's initial ruling and the
arguments he heard before making that ruling are not part of the
record. Further, there is no indication that Heaps's attorney
objected to holding this discussion off-record. Given these
circumstances, Heaps has failed to properly preserve his challenge
to Judge Beistline's evidentiary ruling.
In addition to this procedural ground, we also affirm
Judge Beistline's ruling on its merits. We have examined the
photographs at issue (in light of Heaps's offer of proof); Judge
Beistline could reasonably conclude that these photographs added
little of substance to Heaps's testimony, supplemented by the two
photographs that were admitted.
We note that Heaps was allowed to introduce copious
evidence of Stevens's propensities for aggression and irrationality.
In addition to his own testimony, Heaps called twenty-three
witnesses to testify about his relationship with Stevens. Many of
these defense witnesses testified that Stevens was possessive,
controlling, aggressive, and "nuts".
Under these circumstances, Judge Beistline did not abuse
his discretion under Evidence Rule 403 when he allowed Heaps to
introduce only some of the photographs. [Fn. 6] And because Judge
Beistline did not abuse his discretion under Evidence Rule 403, his
ruling did not deprive Heaps of his constitutional rights to
confront the witnesses against him or to present evidence on his own
behalf. [Fn. 7]
Heaps's requested jury instruction on the use of force to
defend property
Heaps was on trial for assaulting Stevens in November
1998, but this November assault was related to an incident that
occurred three months earlier, in August 1998. As explained above,
the State contended that Heaps assaulted Stevens in November in
retaliation for what happened in August when Heaps was arrested
and charged with misdemeanor assault following a domestic dispute
with Stevens.
Toward the end of trial, when the parties and the trial
judge were discussing jury instructions, Heaps's attorney asked
Judge Beistline to give the following instruction to the jury:
You've heard evidence regarding an alleged
assault in August, 1998. Although Heaps is not on trial for [this]
assault, you should be aware that the following defense would be
applicable:
A person may use non-deadly force upon
another person when and to the extent he or she reasonably believes
it necessary to terminate what is reasonably believed to be the
commission or attempted commission by the other person of an
unlawful taking or damaging of property or services.
Judge Beistline stated that he was not inclined to give
this instruction because it appeared to be unnecessary. The judge
pointed out that another instruction already told the jurors that
Heaps was not on trial for the August incident, and the defense
attorney conceded that it was "pretty clear" that the jurors were
not to deliberate on that earlier charge. Nevertheless, the defense
attorney urged Judge Beistline to give the proposed instruction
because it offered the jury "a little more law [relating to] that
allegation", and because "too much knowledge isn't a bad thing".
Judge Beistline then reiterated his view that the proposed
instruction was unnecessary because another instruction already
informed the jurors that Heaps was not being tried for the August
incident.
Given the offer of proof made by the defense attorney,
Judge Beistline could reasonably reject Heaps's proposed
instruction. The defense attorney agreed with Judge Beistline that,
for purposes of assessing Heaps's guilt or innocence of the November
charges, it was irrelevant whether Heaps was guilty of assault in
the August incident. The primary significance of the August
incident was that Stevens had complained to the police and that, as
a result, Heaps was arrested and charged with a crime. This,
according to the State, prompted Heaps to retaliate against Stevens
by assaulting her in November.
When Judge Beistline asked why it was necessary to
instruct the jurors on a person's right to use force to defend their
property, Heaps's attorney answered only that "too much knowledge
isn't a bad thing". But under the circumstances, Judge Beistline
could reasonably conclude that Heaps's proposed instruction would
divert the jurors from their proper task (assessing Heaps's guilt
or innocence of the November charges) by encouraging them to
speculate about the answers to irrelevant questions (whether Heaps
could lawfully be convicted of assault for the August incident, or
whether Heaps's conduct in August might have been justified by a
reasonable belief that Stevens was about to steal or damage his
property).
On appeal, Heaps advances a different reason for giving
the proposed instruction. He argues that the August incident was
admissible, not only because it provided a potential motive for the
November assault, but also because it potentially constituted
another episode of domestic violence. As an earlier episode of
domestic violence, the August incident was admissible under Evidence
Rule 404(b)(4) to prove that Heaps was the aggressor in November.
Heaps now argues that, because the jury might have viewed the August
incident as evidence of Heaps's propensity to commit acts of
domestic violence, the jury should have been informed of Heaps's
potential legal justification for using force on Stevens in August
because, if Heaps's use of force in August was justified, then
that use of force would not tend to prove his propensity to commit
domestic assault.
This argument may have some merit, but this argument was
not presented to Judge Beistline. Criminal Rule 30(a) requires a
party who disagrees with a jury instruction to object before the
jury retires to deliberate. Our supreme court, construing the
sibling provision found in Civil Rule 51(a), has stated that "[t]he
purpose of [the rule] is to enable the trial judge to avoid error
by affording him [or her] an opportunity to correct [the] charge
before it goes to the jury." [Fn. 8]
The dictates of the rule are satisfied only if
the judge is clearly made aware of the alleged error in or omission
from the instructions. Counsel's objections must be specific enough
to clearly bring into focus the precise nature of the asserted
error.
Estate of McCoy, 844 P.2d at 1134 (quoting Saxton v. Harris,
395 P.2d at 73).
If a litigant fails to make a specific and timely
objection to a jury instruction or the failure to give a jury
instruction, an appellate court's consideration of the asserted
error is limited to plain error review. [Fn. 9] In this appeal,
Heaps has presented a new rationale for his requested instruction.
Because Heaps failed to present this rationale to Judge Beistline,
Heaps must now show that it was plain error for Judge Beistline not
to give the requested instruction. In the context of jury
instructions, plain error will be found only when the erroneous
instruction (or the lack of an instruction) "creates a high
likelihood that the jury followed an erroneous theory[,] resulting
in a miscarriage of justice." [Fn. 10]
We have reviewed the evidence at trial and the parties'
arguments to the jury. The State's case was based primarily on
Stevens's testimony and the physical evidence (most notably, her
injuries) that corroborated her version of events. The prosecutor's
summation focused on these factors. It is true that, at two points
in her summation, the prosecutor spoke of the August 1998 assault
as being part of the pattern of Heaps's and Stevens's domestic
relationship. But the prosecutor's primary argument, both in
opening and rebuttal, was that the physical evidence showed that
Stevens was telling the truth and Heaps was lying about what
happened on November 18, 1998.
Given this record, we conclude that Judge Beistline did
not commit plain error when he failed to perceive, sua sponte, that
Heaps's proposed instruction might be relevant under the rationale
that Heaps advances on appeal a rationale that differs from the
one that Heaps's trial attorney offered.
Judge Beistline's failure to instruct the jury sua sponte
regarding potential lesser included offenses
The two felony charges against Heaps were interference
with official proceedings and first-degree assault. Throughout the
trial, Judge Beistline repeatedly asked Heaps's attorney if he
intended to propose any jury instructions in particular, any jury
instructions on lesser included offenses. On the morning of the
fourth day of trial, the defense attorney told Judge Beistline that
Heaps would request a self-defense instruction, but that Heaps would
probably not request jury instructions on lesser included offenses.
Heaps eventually requested three instructions (including a self-
defense instruction and the defense-of-property instruction
discussed in the previous section of this opinion), but Heaps never
asked Judge Beistline to instruct the jury on potential lesser
included offenses.
Now, on appeal, Heaps contends that Judge Beistline
committed plain error by failing to instruct the jury, sua sponte,
on the lesser offenses of second-, third-, and fourth-degree
assault, as well as the offense of first-degree assault under a
recklessness theory. [Fn. 11] Heaps relies on Criminal Rule 30(b),
which states that the trial court "shall instruct the jury on all
matters of law which it considers necessary for the jury's
information in giving their verdict." According to Heaps, this rule
requires trial judges to instruct the jury on all potential lesser
included offenses revealed by the evidence, even though neither
party asks for jury instructions on these lesser included offenses.
Because Heaps's trial attorney did not ask Judge Beistline
to instruct the jury on lesser included offenses, Heaps must show
that the judge's failure to instruct the jury on these offenses
constituted plain error an error that would have been obvious to
any competent judge or lawyer. [Fn. 12] Thus, to prevail in this
appeal, Heaps must demonstrate that any competent judge would have
concluded that jurors must be instructed on all potential lesser
included offenses revealed by the evidence even though neither party
asks for such instructions.
Prior Alaska decisions have construed Rule 30(b) to
require a trial judge to instruct the jury on a lesser included
offense when the lesser offense is supported by the evidence and
either the defendant or the State asks for the instruction. [Fn.
13] But no Alaska case has held that Rule 30(b) obliges a trial
judge to instruct the jury on all potential lesser included
offenses, regardless of the parties' wishes.
Our fellow states take differing positions on this issue.
Heaps cites decisions from two states (California [Fn. 14] and
Illinois [Fn. 15]) which require trial judges to instruct juries
on all lesser included offenses revealed by the evidence. But the
majority rule is otherwise. In most states, trial judges need not
instruct juries on lesser included offenses unless one or both of
the parties request it:
Even when the evidence clearly supports a
lesser-included offense ... , in most jurisdictions a judge does not
commit error in failing to charge [the jury on the lesser offense]
where no request is made for [this] charge. This position has been
justified on the grounds that the parties should be permitted to
control the course of the proceedings.
Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal
Procedure (2nd ed. 1999), sec. 24.8(f), Vol. 5, p. 591.
The history of Alaska's Criminal Rule 30(b) suggests that
the Alaska Supreme Court would favor the majority rule. Prior to
December 15, 1975, Criminal Rule 30(b) directed trial judges to give
three specified instructions in all criminal cases: (1) that a
witness willfully false in one part of their testimony might be
distrusted in other parts; (2) that the testimony of an accomplice
should be viewed with distrust; and (3) that the government is
obliged to prove the defendant's guilt beyond a reasonable doubt.
[Fn. 16] But in December 1975, the supreme court amended the rule
to its current form, changing the rule so that it no longer required
trial judges to give any particular jury instructions. The supreme
court explained its action in Alexander v. State [Fn. 17]:
The mandatory nature of the [rule] was
eliminated after our decision in Anthony v. State, 521 P.2d 486
(Alaska 1974), in which we reluctantly reversed a conviction due to
failure to give [one of the three required] instruction[s], even
though the omission was not called to the attention of the trial
court. The obvious reason for the change in the rule was ... to
prevent defendants from possibly seeking to take advantage of a
[trial] court's oversight whereby the defendant could hope for a
not-guilty verdict and be assured that error was present if the jury
returned a guilty verdict.
Alexander, 611 P.2d at 483.
Were we to construe Criminal Rule 30(b) as Heaps suggests
i.e., if we held that trial judges must instruct juries on all
lesser included offenses revealed by the evidence, even when neither
party requests it then Rule 30(b) could again be used by
enterprising defense counsel in the manner that the supreme court
condemned in Alexander. Under Alaska's cognate approach to lesser
included offenses, the range of lesser included offenses is often
not known until the defense presents its case. Even after all the
evidence is in, attorneys and judges might reasonably debate whether
an instruction on a particular lesser offense was justified by the
evidence. Thus, a defense attorney might knowingly refrain from
alerting the trial judge to a particular lesser included offense,
motivated by the desire to sow the seed of error in the event that
the jury's verdict was unfavorable. Or, even in cases where the
judge instructed the jury on all the potential lesser included
offenses that the judge and the trial attorneys could think of, an
enterprising appellate counsel might scour the record for evidence
that would have justified yet another lesser included offense, and
thus obtain a new trial.
In addition to these considerations, we also note that
Heaps's suggested construction of Rule 30(b) would constitute a
substantial change in the judge's role at trial. Under Heaps's
version of Rule 30(b), a trial judge would be obliged to inject new
elements into the litigation of a criminal case even though the
parties themselves do not wish to address these elements. As former
Supreme Court Justice Robert C. Erwin noted in his dissent in Bakken
v. State [Fn. 18], one might classify jury instructions into two
groups:
(1) those basic to every criminal trial,
namely, the elements of the crime charged and the concepts involved
in due process, such as burden of proof and the presumption of
innocence; and (2) those concerning the evidence adduced and the
procedures followed in the particular trial. The former
instructions are fundamental, basic charges, the omission of which
is plain error absent an intelligent waiver. In the latter,
however, we deal with trial counsel's conduct of the case, the
elements or evidence he wishes to stress and those he wishes to
subordinate; fundamental fairness is ordinarily not involved.
Bakken, 489 P.2d at 129 (Erwin, J., dissenting).
Heaps's suggested construction of Rule 30(b) would oblige
a trial judge to offer alternative verdicts to the jury, thus
altering the parties' litigation strategies. LaFave notes that most
courts have rejected mandatory instructions on lesser included
offenses because they believe that "the parties should be permitted
to control the course of the proceedings." [Fn. 19]
Alaska decisions on this issue most notably, McGee v.
State [Fn. 20], Gilbreath v. Anchorage [Fn. 21], Jackson v. State
[Fn. 22], and Laraby v. State [Fn. 23] reflect the view that the
attorneys should decide how a case is litigated. These cases could
be read as rejecting the view of the law that Heaps proposes here.
But because Heaps is obliged to show plain error, we need not
definitely resolve this question now. It is enough to point out
that the states differ in their resolution of this issue (with the
majority rejecting Heaps's view of the law), and that the history
of Rule 30(b) demonstrates that our supreme court disfavors
mandatory jury instructions. Thus, reasonable judges could differ
regarding a trial judge's duty to instruct the jury on lesser
included offenses in the absence of a request from either party.
Because this is so, Heaps has failed to show plain error. [Fn. 24]
The prosecutor's summation
Heaps contends that the prosecutor engaged in improper
argument during her summation to the jury.
Heaps complains that the prosecutor suggested to the jury
that the defense strategy at trial had been to attack Debra
Stevens's character so that the jurors might be convinced that
Stevens was "not worthy of the protection of the laws". The
prosecutor told the jurors that "[t]rashing the victim is a defense
strategy, a tactic to make you not care about her, to make you think
[that] she does not deserve the protection of the laws like everyone
else."
Heaps contends that the prosecutor's statements
constituted an improper expression of "personal belief" in Heaps's
guilt, as well as an appeal "calculated to inflame ... the prejudices
of the jury" and an argument "based on issues other than [Heaps's]
guilt or innocence". We do not agree. As explained earlier, Heaps
contended that he had acted in self-defense after Stevens attacked
him in a fit of jealousy. To support this defense, Heaps presented
several witnesses who testified that Stevens was possessive,
controlling, aggressive, and irrational. The prosecutor's
statements were a fair comment on the defense litigation strategy.
Heaps also challenges another of the prosecutor's remarks.
During rebuttal, the prosecutor told the jurors that Stevens had
testified against Heaps in order to be "vindicated", and that Stevens
was asking the jury "to find that neither she nor anyone else
deserves to be battered the way that she was on November 18, 1998."
Heaps suggests that the prosecutor's remark could be
interpreted as an expression of the prosecutor's personal belief in
Heaps's guilt, and as a request that the jurors convict Heaps in
order to vindicate battered women in general. But it does not
appear that Heaps's trial attorney interpreted the prosecutor's
comment in that light, for the defense attorney made no objection.
In any case, because there was no objection to the prosecutor's
comments, Heaps must show plain error.
Examining the prosecutor's words closely, we conclude that
the prosecutor did not assert a personal belief concerning the facts
of the case, nor did the prosecutor ask the jurors to convict Heaps
in order to solve the larger social problem of domestic violence.
Rather, the prosecutor stated that Stevens's motive in pursuing the
case was to obtain personal vindication and to have the jury enforce
the law against people who commit domestic violence.
A prosecutor can properly comment on the potential motives
of witnesses (so long as these comments are based on the evidence).
Here, the prosecutor did not argue that Heaps should be convicted
in order to deter other people from committing domestic violence,
nor did the prosecutor argue that Heaps should be convicted to
ensure Stevens's future safety. Rather, the prosecutor's remarks
were consistent with the jury's duty to assess Heaps's guilt or
innocence based on the evidence presented at trial.
Moreover, the challenged remarks constitute only a few
moments of the prosecutor's lengthy summation. Even if the
challenged remarks were conceivably objectionable, our duty is to
evaluate the likely effect of those remarks when they are viewed in
the context of the prosecutor's entire summation. [Fn. 25] As we
have already explained, the prosecutor's summation focused primarily
on Stevens's testimony and why the physical evidence corroborated
her version of events. Having examined the record as a whole, we
do not find any likelihood that the challenged remarks affected the
jury's verdict. Heaps has therefore failed to prove that these
remarks constituted plain error. [Fn. 26]
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See AS 11.41.200(a), AS 11.41.230(a), and AS 11.56.510(a),
respectively.
Footnote 2:
See Appellate Rule 210(b)(1) (requiring parties to designate
all portions of the record that should be transcribed for appeal).
Footnote 3:
See Appellate Rule 210(i) (allowing either this court or the
trial court to supplement the record when it fails to contain
something material to the appeal).
Footnote 4:
480 P.2d 697 (Alaska 1971) (opinion on rehearing).
Footnote 5:
Id. at 698.
Footnote 6:
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980) (a trial
judge's evidentiary rulings will not be reversed unless they
constitute an abuse of discretion).
Footnote 7:
See Brown v. State, 779 P.2d 801, 804-05 (Alaska App. 1989)
(holding that proper application of Evidence Rule 403 does not
abridge a defendant's right of confrontation).
Footnote 8:
Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993) (quoting
Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964)).
Footnote 9:
See Estate of McCoy, 844 P.2d at 1134; Haskins v. Shelden, 558
P.2d 487, 492 (Alaska 1976); Colgan v. State, 711 P.2d 533, 534
(Alaska App. 1985).
Footnote 10:
Estate of McCoy, 844 P.2d at 1134 (quoting Holiday Inns of
America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska 1974)).
Footnote 11:
See AS 11.41.200(a)(1).
Footnote 12:
See Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989);
Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983); Marrone v.
State, 653 P.2d 672, 675-681 (Alaska App. 1982).
Footnote 13:
See Bendle v. State, 583 P.2d 840, 843 (Alaska 1978) (defense
request); Blackhurst v. State, 721 P.2d 645, 649-650 (Alaska App.
1986) (prosecution request).
Footnote 14:
People v. Coddington, 2 P.3d 1081, 1133 (Cal. 2000). The
Coddington holding is based on the California Supreme Court's
earlier decision in People v. Breverman, 960 P.2d 1094, 1100-01
(Cal. 1998).
Footnote 15:
People v. Garcia, 721 N.E.2d 574, 578-580 (Ill. 1999).
Footnote 16:
The complete text of the former version of Rule 30(b) is quoted
in Thessen v. State, 454 P.2d 341, 349 n.18 (Alaska 1969).
Footnote 17:
611 P.2d 469 (Alaska 1980).
Footnote 18:
489 P.2d 120 (Alaska 1971).
Footnote 19:
LaFave, Israel, and King, Criminal Procedure (2nd ed. 1999),
sec. 24.8(f), Vol. 5, p. 591.
Footnote 20:
614 P.2d 800, 803 (Alaska 1980).
Footnote 21:
773 P.2d 218, 223 (Alaska App. 1989).
Footnote 22:
750 P.2d 821, 826-27 (Alaska App. 1988).
Footnote 23:
710 P.2d 427, 428 n.3 (Alaska App. 1985).
Footnote 24:
See Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982) (a
claim of plain error fails if reasonable judges could differ as to
what the law requires).
Footnote 25:
See Darling v. State, 520 P.2d 793, 794-95 (Alaska 1974);
Tuckfield v. State, 805 P.2d 982, 987 (Alaska App. 1991); Patterson
v. State, 747 P.2d 535, 541 (Alaska App. 1987).
Footnote 26:
See Tuckfield, 805 P.2d at 987 (Alaska App. 1991) (citing Love
v. State, 457 P.2d 622 (Alaska 1969)).
