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Allen v. State (7/26/2002) ap-1815

Allen v. State (7/26/2002) ap-1815

                             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


ALBERT LEE ALLEN,             )
                              )              Court of Appeals No.
A-7430
                                             Appellant,         )
Trial Court No. 3AN-94-4614 Cr
                              )
                  v.          )
                              )                       O  P  I   N
I  O  N
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1815    July 26, 2002]
                              )


          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Milton M.  Souter,
          Judge.

          Appearances:  Paul E. Malin, Assistant Public
          Defender,   and  Barbara  K.  Brink,   Public
          Defender, Anchorage, for Appellant.   Kenneth
          M.  Rosenstein,  Assistant Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Bruce M.  Botelho,  Attorney
          General, Juneau, for Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.


          In the early morning of June 15, 1994, Albert Lee Allen

was  visited by Devron Labat and two female friends.   The  visit

was  not  friendly:   Allen  had  been  dating  Labats  long-time

girlfriend, Michelle Aquino, while Labat was in prison.  Now that

Labat  had been released from prison, he wanted to convince Allen

to stay away from Aquino.

          After  Labat explained his position to Allen,  he  left

Allens  apartment and walked over to Allens truck.   Allen  could

see  Labat  kneeling by the truck, and he thought that Labat  was

trying  to  disable  the vehicle.  Allen  armed  himself  with  a

butcher  knife,  crawled out of his apartment through  a  bedroom

window,  and approached Labat.  When Labat saw Allen  coming,  he

started  to run away, but Allen gave chase.  Allen caught  up  to

Labat,  stabbed him in the stomach, then banged his head  on  the

pavement and kicked him.

          Labat  died from the stab wound, and Allen was indicted

for first-degree murder.  At Allens trial, the jury convicted him

of the lesser offense of second-degree murder.  Allen now appeals

his  conviction and his resulting sentence.  Allen contends  that

several  errors  occurred  at  his  trial,  beginning  with  jury

selection and continuing through jury deliberations.  We  discuss

each  of these claims below.  For the reasons explained here,  we

conclude  that Allens trial was fair and that his conviction  and

sentence should be affirmed.



     Allens claim that the prosecutor tainted the jury panel
     during  the  jury selection process by suggesting  that
     Allen  would  receive  a lesser  sentence  if  he  were
     convicted of second-degree murder


          During  jury  selection, one of the prospective  jurors

stated that she had philosophical issues that might not make  her

a  good  juror.   When the prosecutor asked her to explain  these

issues,  the  juror  replied that she  tended  to  root  for  the

underdog.   She  also expressed doubt whether anyone  could  ever

truly  know another persons [state of] mind or know their intent.

This, she said, would make it difficult for her to decide whether

a defendant was guilty.

          In  response,  the prosecutor asked the juror  how  she

would  react  in  a hypothetical situation:  what  if  the  juror

believed  that  a  defendant  was truly  guilty  of  first-degree

murder,  but she also had sympathy for the defendant and believed

that  he would receive a lesser, more appropriate penalty if  the

jury  convicted him of second-degree murder?  In presenting  this

hypothetical,  the  prosecutor remarked that most  people  [know]

that  the  sentence for first-degree murder has got to  be  worse

than the sentence for second-degree murder.

          When   the  prosecutor  made  this  remark  about   the

disparity between sentences for first- and second-degree  murder,

Allens  attorney  immediately  objected.   The  defense  attorney

argued   that  the  prosecutor  should  not  be  speaking   about

sentencing at all, and he challenged the factual accuracy of  the

prosecutors  remark  that sentences for first-degree  murder  are

more  severe than sentences for second-degree murder.  The  trial

judge,   Superior  Court  Judge  Milton  M.  Souter,   told   the

prosecutor:  [G]et to your point without [getting] into all  this

sentencing stuff.

          Despite   Judge  Souters  suggestion,  the   prosecutor

returned  to  the  issue  of  sentencing.   He  again  asked  the

prospective  juror  to  imagine a  situation  in  which  a  juror

believed  that a defendant was guilty of first-degree murder  but

also  believed  that the defendant would receive a more  lenient,

more  appropriate sentence if the jury convicted him  of  second-

degree  murder.  The prosecutor asked the prospective  juror  if,

given  her  philosophical bent, she herself would be inclined  to

engage in this kind of decision-making if she was selected  as  a

juror.   When  the prospective juror indicated that she  was  not

sure what the prosecutor was asking, Judge Souter interrupted and

told  the juror that the question was, Would you compromise  your

verdict with the idea [of] trying to get a lesser sentence for  a

defendant that you found to be guilty ... ?

          The  judge  then  added, for the  benefit  of  all  the

prospective  jurors,  that it was not ... necessarily  true  that

first-   and  second-degree  murder  [defendants]  get  different

sentences.  He also instructed the jurors:

          
     The  Court:  Under our system, the judge
decides  the  sentence[;]  the  jury  decides
guilt   or   [innocence].   [The   defendants
sentence]  is left up to the judge,  after  a
further hearing ... .  So the jury is  always
instructed  [that]  you cannot  consider  the
sentence in deciding the guilt question.

On  appeal, Allen contends that the prosecutor, through

his  questions  to  this  prospective  juror,  directly

injected  the  impermissible  subject  of  penalty   or

punishment.   He  argues  that [o]nce  this  topic  was

discussed  [in front of] the jury, its influence  could

not   be   erased.   He  further  suggests   that   the

prosecutors comments about murder sentences  influenced

the  jurys decision to find Allen guilty of the  lesser

offense of second-degree murder.

We   do  not  share  this  view  of  the  matter.   The

prosecutor was pursuing a valid goal when he  made  his

comments  regarding  murder sentences:   his  questions

were designed to see whether the prospective juror, who

had   expressed  a  philosophical  sympathy   for   the

underdog, would knowingly support a compromise  verdict

if  she  thought that, by doing so, she could obtain  a

lesser sentence for a defendant.  The implicit point of

the   prosecutors  remarks  was  to  make   the   juror

understand that this kind of decision-making  would  be

improper.

This implicit point was made explicit when Judge Souter

interrupted the voir dire.  The judge told  the  jurors

that  sentencing was a decision for the judge, not  the

jury,  and  that jurors could not consider a defendants

potential  sentence when deciding the defendants  guilt

or  innocence.   Judge Souters instructions  cured  any

potential problem.

          Finally,  we  note  that  even though  Allens  attorney

objected to the prosecutors remarks, she never asked Judge Souter

to  declare  a  mistrial  or to dismiss  the  existing  panel  of

prospective  jurors  and summon a new  one.   Thus,  even  if  we

thought  that  the prosecutors remarks potentially called  for  a

more  drastic  remedy than Judge Souters clarifying instructions,

the error would be waived.  When a defense attorney believes that

an  error  requires  early termination  of  the  trial  or  other

extraordinary  relief (such as summoning a new jury  panel),  the

defense  attorney  must ask the trial judge to take  action  when

action is still possible.  The claim of error can not be deferred

until appeal.1



     Allens  claim that the prosecutor violated a protective
     order  that  prohibited any mention of  the  fact  that
     Allen had served time in jail


          Allens theory of defense at trial was a combination  of

self-defense  and  accident.  Early in  the  proceedings  against

Allen,  the trial judge issued a protective order that prohibited

the prosecutor from eliciting evidence that Allen had been jailed

on   a  prior  assault  conviction.   Allen  contends  that   the

prosecutor  violated  this protective  order  during  his  cross-

examination of two defense witnesses, Benjamin Briggs and William

J. Toney.

          Briggs testified that he had spent time in prison  with

Labat  and that he heard Labat repeatedly threaten to kill Allen.

During  cross-examination, Briggs asserted that he had  not  seen

Allen  since 1997.  The prosecutor then asked Briggs to  describe

the  circumstances  of his last meeting with Allen.   Briggs  was

beginning to answer, I was serving ... when the defense  attorney

interrupted him and requested a bench conference.

          In  the bench conference, the defense attorney notified

Judge  Souter that the meeting between Briggs and Allen had taken

place  while  Allen  was in jail on this charge.   She  therefore

asserted  that Briggss impending answer was going to violate  the

protective   order.   To  avoid  this  problem,  the   prosecutor

announced  that he would rephrase his question.  When the  cross-

examination  resumed, the prosecutor asked Briggs if his  meeting

          with Allen was ... a face-to-face meeting.  The defense attorney

asked for nothing more.

          Briggs finished his testimony without further incident,

and  then  the defense called William Toney.  Like Briggs,  Toney

testified that he had spent time in jail with Labat and he  heard

Labat repeatedly threaten to kill Allen.

          Toward   the  end  of  Toneys  cross-examination,   the

prosecutor  asked  Toney to specify the last  time  he  had  seen

Allen.  Toney seemed to have difficulty with this question:

          
               Prosecutor:  When was the last time  you
          saw Albert Allen?
          
               Toney:   I told you:  a couple of months
          before I went to Palmer [Correctional Center]
          on a [probation] violation.
          
               Prosecutor:  In 94?
          
               Toney:  In 94.
          
               Prosecutor:   Okay.  That was  the  very
          last   time  youd  ever  seen  Albert   Allen
          [before] today?
          
               Toney:     No,   I   seen   him   again,
          incarcerated.
          
               Prosecutor:   Okay.  When was  the  last
          time you saw Mr. Allen?
          
               Toney:   When was the last  time  I  saw
          him?
          
               Prosecutor:  Yeah.  Not where  or  under
          what  circumstances.  When was the last  time
          you saw him?
          
               Toney:  I havent seen him for a while.
          
               Prosecutor:  Okay.  Can you give  us  an
          idea of what a while is?
     Toney:  Years.

     Prosecutor:  Okay.  Its been years since
you saw him at the Alaska Club.  Thats 94.

     Toney:  Uh-huh.

     Prosecutor:   Have you  seen  him  since
that time?

     Toney:  Have I seen him since that time?

     Prosecutor:  Yeah.

     Toney:  Yeah, I seen him incarcerated.

At  Toneys second mention of Allens incarceration,  the

defense  attorney objected.  Out of the jurys presence,

she  accused the prosecutor of purposely violating  the

protective order  by posing questions to Toney when  he

knew  that Toneys answers would include the information

that  Allen  had  spent time in jail.   Based  on  this

alleged  misconduct, the defense attorney asked  for  a

mistrial, but Judge Souter denied this request.

On   appeal,  Allen  renews  his  contention  that  the

prosecutor knowingly violated the protective order  and

that Judge Souter should have declared a mistrial.  But

the record does not support Allens assertion of knowing

misconduct.

Toney twice mentioned the fact that he had spoken  with

Allen  in jail.  As shown by the excerpt quoted  above,

Toneys  first mention of this fact was not a responsive

answer  to the prosecutors question (That was the  very

last time youd ever seen Albert Allen [before] today?).

Rather, Toney volunteered this information.

          Even  though Allens attorney did not object  to  Toneys

first  mention of Allens incarceration, the prosecutor took steps

to make sure that Toney did not repeat this answer.  He explained

to Toney that he was not seeking information about where or under

what  circumstances the meeting occurred.  Rather, the prosecutor

told Toney, he was only asking Toney to describe when the meeting

took  place.   In response, Toney again volunteered that  he  and

Allen saw each other when they were incarcerated.

          Given  this record, Judge Souter could properly  reject

the  defense attorneys assertion that the prosecutor had  engaged

in  misconduct.   The judge could reasonably  conclude  that  the

problem  was caused by a defense witness who ignored the  wording

of  the  prosecutors  questions  and  volunteered  non-responsive

information  on  his own.  Under these circumstances,  the  issue

confronting Judge Souter was whether to grant a mistrial  because

of Toneys non-responsive answers.

          Allens  attorney told Judge Souter that,  to  make  the

best  of  a  bad  situation, she might later  ask  the  judge  to

instruct the jurors not to hold Allens incarceration against him.

But the defense attorney contended that no cautionary instruction

would be sufficient to cure the prejudice to Allens case  that  a

mistrial [was] the only appropriate remedy.  Allen takes the same

position on appeal.

          Generally,  an appellate court will defer  to  a  trial

judges   decision  as  to  whether  a  particular  reference   to

inadmissible   evidence  can  be  cured  with  a  clarifying   or

cautionary instruction or whether, instead, a mistrial is needed.

We defer to the trial judge because the judge has the opportunity

to  hear  the tainted evidence as it is presented and to  observe

the impact it has on the jury.2

          In  several prior cases, both this court and the Alaska

Supreme  Court  have upheld trial judges when  they  declined  to

order  a mistrial under similar circumstances.  For example,  see

Hines  v. State3, in which a prosecution witness referred to  the

defendants  prior  offenses, and Preston v. State4,  in  which  a

prosecution  witness referred to the fact that the defendant  was

on probation.5

          Here,  the  challenged  testimony  did  not  refer   to

specific criminal activity by Allen, but rather to the fact  that

Allen had been incarcerated some years before, for an unexplained

reason.  Judge Souter could reasonably conclude that a cautionary

instruction  if such an instruction was requested  would  suffice

to  cure  any potential prejudice.  In other words, Judge  Souter

could  reasonably reject Allens argument that a mistrial was  the

          only proper course of action.  We therefore hold that Judge

Souter did not abuse his discretion when he denied Allens request

for a mistrial.6



     Allens claim that the trial judge refused to grant  him
     a  continuance  to  prepare to  answer  newly-disclosed
     evidence


          Allen  took  the stand at trial and testified  that  he

acted  in self-defense.  One of the subjects that Allen addressed

in  his  testimony was the fact that he called the 911  emergency

operator  just  after Labat left his apartment.   In  this  phone

call,  Allen  explained to the 911 operator that a man  had  just

come  to his apartment and threatened him.  But when the operator

told  Allen  that  he would send the police to Allens  apartment,

Allen replied that he would handle the situation himself.

          To  explain  why he armed himself and approached  Labat

rather than waiting for the police to arrive, Allen told the jury

that,  based  on past experience, he believed that he  could  not

afford to wait for the police.  Allen described how, in 1993,  he

had  called 911 when someone shot out the window of his car,  and

the  police did not arrive until almost two hours later.  He also

described  another incident in which someone broke the window  of

his vehicle and, although the police responded more quickly, they

still took a long time to arrive.

          Allen  gave this testimony toward the end of the  trial

day.   Shortly after the trial recessed, the prosecutor disclosed

new  information  to  Allens attorney:  copies  of  three  police

reports  that were prepared after the police responded to reports

of  vandalism from Allen in 1992, 1993, and 1994.  (Two of  these

reports described the window-breakage incidents described in  the

previous  paragraph; the third dealt with an  incident  in  which

Allen reported that his tires had been slashed.)

          When court reconvened the next morning, Allens attorney

did  not  object  to the fact that this material  had  just  been

disclosed.   However, she did object that the  material  was  not

          complete.  The defense attorney pointed out that the police

report  from  1992 was accompanied by a copy of the 911  dispatch

(the  computer-generated  memo or log  describing  the  call  for

assistance),  but the police reports from 1993 and 1994  did  not

have this supporting paperwork.  The defense attorney asked Judge

Souter to order the prosecutor to produce the 911 dispatches from

1993 and 1994.

          But  Judge  Souter  was not inclined to  interrupt  the

trial until the two 911 dispatches were produced.  He pointed out

that  the  trial  was nearing its end, and he declared  that  the

defense attorney should have foreseen that this material might be

relevant  and  should  have requested it  earlier.   Given  these

circumstances, Judge Souter said, The question is whether, on the

last  day of trial, ... were going to have a continuance for  you

to get ... this information.  I dont think so.

          In  reply, the defense attorney clarified that she  was

only seeking the two 911 dispatches from 1993 and 1994  documents

that  were,  in all likelihood, readily available  to  the  State

(since  the State had already produced the 911 dispatch from  the

earliest  incident, 1992).  When Judge Souter heard  the  defense

attorneys  explanation, he indicated that he now  understood  the

limited nature of her request:

          
               The Court:  Okay.  So your point ...  is
          that you believe the 911 computer information
          from these two later calls would probably  be
          available ...
          
               Defense Attorney:  Right.
          
               The   Court:   ...  because   you   have
          [already] received [the] computer information
          relating to an older 911 call.
          
               Defense Attorney:  Yes, Your Honor.
          
Judge  Souter  then  addressed Detective Leo Brandlen,  the  lead

investigator in the case:

          
               The  Court:  Can you make a call and get
          those  [two  911  dispatches]  for  us   very
          quickly   so we can have them today,  do  you
          think?
          
               Det. Brandlen:  Yes, sir.
          
               The Court:  [By] later this morning?
          
               Det. Brandlen:  Hopefully, Id be able to
          access  the computer at [the Anchorage Police
          Department]  warrants  [office  in]  the  old
          building  [i.e.,  the Boney courthouse],  and
          [so  the  documents] may be available earlier
          than that, Your Honor.
          
               The Court:  Will you, right now, do what
          you can?
          
     Det. Brandlen:  Yes, sir.

At  this  point, Judge Souter asked the  attorneys,  Is

there  anything else we need to take up?   The  defense

attorneys  only  request was for a minute  to  talk  to

Mr.  Allen,  to explain to him what the courts  rulings

are.  Judge Souter announced that the court would stand

in recess for two or three minutes.

When the court reconvened, the prosecutor continued his

cross-examination of Allen.  Allens attorney never made

another request regarding the 911 dispatches from  1993

and 1994.  Presumably, she received them.

On  appeal, Allen characterizes this incident in a very

different  way.   He asserts that the State  failed  to

make  timely disclosure of police reports under  Alaska

Criminal  Rule  16(b)  and  then,  when  the  discovery

violation   came  to  light,  Judge  Souter   summarily

rejected   the   defense  attorneys   request   for   a

continuance of the trial so that she could  prepare  to

meet this tardily disclosed evidence.

This  is  simply  not true.  As just explained,  Allens

trial  attorney never asserted that the State  violated

Criminal  Rule 16 with regard to the police reports  or

the 911 dispatches, nor did the defense attorney seek a

continuance  of the trial (other than the short  recess

that  was granted by Judge Souter).  This short  recess

was  apparently all that was needed for  the  State  to

produce  copies of the two documents that  the  defense

attorney  wanted:   the 911 dispatches  from  1993  and

1994.  In other words, the record of Allens trial fails

to support his claim of error.



Judge Souters ex parte contact with the jurors during
their deliberations


          Allens case went to the jury on March 8, 1999.  On  the

afternoon of March 10th, the jury announced that they had reached

a  decision,  and  the parties assembled in  court  to  hear  the

verdict.   But  before the jury was brought into  the  courtroom,

Judge  Souter  informed  the parties  of  an  incident  that  had

occurred earlier that afternoon:

          
               The  Court:   During deliberations  this
          afternoon, the bailiff informed me  that  the
          jurors  could  not get the video  machine  to
          work.  I said, ... Why dont we just have  one
          of  the jurors come out of the jury room  and
          Ill  show them how to work the video machine.
          ...   So the juror came out and said, Oh, no;
          the  machine is working.  We just  cant  find
          the  spot  on  the  videotape  [that  we  are
          looking for].  I said, Well, Ill find it  for
          you. ...
          
               [It] was the videotape of the defendants
          interview  at  the police station,  and  [the
          jurors] had the videotape [positioned] in the
          middle of the [tape].  Thats where they  were
          looking for [the interview:] in the middle of
          the  videotape.  Apparently, thats where [the
          tape]  was when they got it, so they  thought
          [that  that was] where the interview was   in
          the middle of the tape.
          
               Defense Attorney:  Was there any ...
          
               The  Court:  Well, I searched around and
          looked.   I couldnt find it anywhere  in  the
          middle  of  the tape, so I went and  did  the
          usual  thing[:  I] went back to the beginning
          of the tape, and thats where it was.  ...  So
          then  I  sent the [video machine]  back  into
          them, and they took it from there.  So ...
          
               Defense  Attorney:  Was  there  anything
          else on the video but ... what weve seen?
          
               The   Court:   No,  thats  the  admitted
          exhibit.
          
               Defense Attorney:  Okay.
                    .  .  .
     The Court:  So thats what occurred.  And
I  presume [there are] no objections to that.
Thats   a  ministerial  thing   getting   the
exhibit [positioned] so they could find it.

     Defense  Attorney:  No  objection,  Your
Honor.

Judge Souter then summoned the jury to the courtroom to announce

their  verdict.   The  jury  announced  that  they  had

acquitted   Allen  of  first-degree  murder   but   had

convicted him of second-degree murder.

On  appeal, Allen argues that Judge Souter violated his

rights  under  the  federal and state constitutions  by

having contact with the jury  or, more precisely,  with

one   juror   without  Allen  and  his  attorney  being

present.  In his brief, Allen asserts that Judge Souter

met with an individual juror privately outside the jury

room[,] spoke to this juror about the evidence  on  the

videotape[,]   ...  and  permitted  the   playback   of

testimony to the jury in [Allens] absence.

The first portion of this assertion is supported by the

record:   Judge  Souter told the parties  that  he  had

spoken  to  an individual juror outside the jury  room.

But  the record does not support the other two portions

of Allens assertion.  There is nothing in the record to

support  Allens claim that Judge Souter  spoke  to  the

juror  about the evidence on the videotape   except  in

the  limited sense of ascertaining what portion of  the

tape  the jury wished to review.  Further, there is  no

factual  basis  for  Allens  claim  that  Judge  Souter

permitted  a  playback of testimony in the  absence  of

Allen  and his attorney.  The incident under discussion

involved the jurys effort to play a videotape that  had

been  admitted  into evidence as  an  exhibit.   It  is

proper  for  a  jury to play an audio or video  exhibit

during their deliberations.

          Indeed,  during  her  summation  to  the  jury,  Allens

attorney  told the jurors that Allens interviews with the  police

were important evidence supporting his claim of self-defense, and

she  encouraged  the  jurors to play those tapes  whenever  [and]

however often you want.  Thus, the record does not support Allens

claim that Judge Souter engaged in improper conduct.

          Equally  important, Judge Souter disclosed his  contact

with  the juror to Allen and his attorney before the trial ended.

Allens  attorney  had a chance to question the  judge  about  the

incident; she also had a chance to object to the judges action or

to ask for voir dire of the juror involved.  Instead, the defense

attorney  announced  that  she had no  objection  to  the  judges

action.

          When Allens attorney declared that she had no objection

to  what  had  occurred,  she knew that the  jury  was  about  to

announce  its verdict.  In other words, rather than investigating

the matter further or requesting a mistrial, the defense attorney

chose to go forward and allow the jury to return its verdict.  By

doing  so,  she  waived any appellate objection to Judge  Souters

actions.7



Allens  claim that the jury instruction on self-defense precluded

him  from  asserting that his fear of imminent danger arose  from

the actions of more than one person



          As explained above, Allen defended the murder charge by

asserting that he acted in self-defense.  The jury was instructed

that Allen was authorized to use force upon another person to the

extent  that  Allen  reasonably  believed  he  was  about  to  be

subjected  to the use of unlawful force by the other.   The  jury

was  also  told  that [t]he law of self-defense  is  designed  to

[protect]  one who is beset by an aggressor and confronted  by  a

necessity not of his own making.

          Allens   trial  attorney  did  not  object   to   these

instructions.   However,  on  appeal,  Allen  claims  that  these

instructions  constituted plain error.  Allen argues  that  these

instructions  misled the jury because they refer to a  defendants

right  to  protect himself from another person   i.e.,  a  single

aggressor.   Allen claims that these instructions  precluded  him

from  arguing that he faced potential danger from two  aggressors

i.e., from Labat and one of his female companions, Julie Yourell.

          Because  the defense attorney did not object  to  these

jury  instructions,  Allen  must  show  that  these  instructions

constituted  plain error  i.e., that these instructions  were  so

obviously  wrong that any competent judge or attorney would  have

recognized  the  problem, and that the error in the  instructions

manifestly prejudiced the jurys deliberations.8

          Allen  relies  on a decision of the Colorado  Court  of

Appeals, People v. Cuevas, 740 P.2d 25 (Colo. App. 1987), for the

proposition that when a defendant faces potential menace  from  a

group  of attackers, the jury instructions on self-defense should

direct  the jurors to consider the total danger to the  defendant

from  all potential assailants  and not just the danger posed  by

the  victim  (i.e.,  the  particular person  whom  the  defendant

ultimately  hurts  or kills)  when gauging the reasonableness  of

the                     defendants                     response.9

    However,   the  Colorado  court  specifically   stated   that

even  though  the  typical Colorado instruction  on  self-defense

refers  only to the victim, that instruction does not  constitute

plain error.10

          Allen  also relies on State v. Irons, 4 P.3d 174 (Wash.

App.  2000), in which the Washington Court of Appeals reversed  a

criminal  conviction  because of this same flaw   a  self-defense

instruction  that directed the jury to consider only  the  danger

posed  to  the defendant by the victim, as opposed to  the  total

danger posed by all potential assailants.11  But the defendant in

Irons preserved the issue for appeal by asking the trial judge to

clarify this point of law for the jurors.12

          The  point of law that Allen raises is unexceptionable.

When a defendant claims that a charged assault or homicide was in

fact  an  act of self-defense prompted by the danger posed  by  a

group  of  attackers, the defendant is entitled to have the  jury

assess the defendants actions in light of the total danger  posed

(or apparently posed) by the group, and not just the danger posed

by the victim named in the indictment.

          But  Alaskas pattern self-defense instructions  do  not

refer to the victim.  Rather, as demonstrated by the instructions

in  Allens  case, Alaska jury instructions on self-defense  speak

about a defendants right to use force upon another person to  the

extent  that  the defendant reasonably believed  that  they  were

about  to be subjected to the use of unlawful force by the other.

Because Alaskas instructions do not focus on the victim, they  do

not  create as blatant a danger of misinterpretation as the  jury

instructions  that  were  criticized in the  decisions  from  our

sibling states.

          It is perhaps theoretically possible that Alaskas self-

defense  instructions might be misinterpreted in  the  way  Allen

suggests.  But Allen did not object to these instructions, so  he

must  show plain error.  That is, for Allen to prevail on appeal,

he   must   show   more   than  a  theoretical   possibility   of

misinterpretation.   Allen  must show that  the  challenged  jury

instructions obviously and manifestly prejudiced the fairness  of

his trial.  Here, they did not.

          Allens  attorney  did in fact argue to  the  jury  that

Allen  faced danger from more than one aggressor.  She  told  the

          jurors that [Julie] Yourell and [Devron] Labat ... were the first

aggressors[, and] Albert Allen feared for his life  ...  when  he

[was]  confronted  by  Devron Labat and  Julie  Yourell.   A  few

minutes  later,  the  defense  attorney  reiterated  this  theme,

telling  the  jurors:   [You must] decide  who  was  the  initial

aggressor.   ...  [W]e say [that it was] Devron Labat  and,  with

him, Julie Yourell.

          In his rebuttal, the prosecutor did not argue that self-

defense  only applied to aggression from the victim or  from  any

single person.  Rather, the prosecutor argued that Allen had  not

acted  in self-defense at all  that any danger to Allen was  over

when Allen decided to chase Labat and kill him.

          The  potential  flaw  in the jury  instructions  was  a

subtle  one.   Given  the  final arguments  of  the  parties,  we

conclude  that there is no reasonable possibility that  the  jury

was misled concerning Allens right to argue that his actions were

justified  by  the  danger he faced from  Labat  and  Yourell  in

combination.  We therefore conclude that Allen has failed to show

plain error.



     Allens  argument that factors employed to aggravate  or
     mitigate a second-degree murder sentence must be proved
     by  clear  and  convincing evidence rather  than  by  a
     preponderance of the evidence
     

               Normally,  factual issues at  sentencing  are

     decided   under  the  preponderance  of  the   evidence

     standard  of  proof.   That is,  the  sentencing  judge

     decides whether the disputed factual assertion is  more

     likely  true than not.  See AS 12.55.025(i) and  Brakes

     v.  State, 796 P.2d 1368, 1372 n.5 (Alaska App.  1990).

     However,  the  legislature has declared that  a  higher

     standard of proof governs certain sentencing issues.

          When the government asserts that a defendants

prior felony conviction triggers a presumptive term (or

triggers  a  greater presumptive term), the legislature

has  mandated that the government prove the  conviction

beyond  a  reasonable doubt.  See AS 12.55.145(d).   In

Huf  v. State, 675 P.2d 268, 273-74 (Alaska App. 1984),

we  concluded that, by analogy to AS 12.55.145(d),  the

legislature intended to have this same burden of  proof

apply  to  the  governments proof of the other  factual

assertions  that  trigger  a greater  presumptive  term

under  AS  12.55.125(c)  for example, possession  of  a

firearm.

          The  legislature has also specified a  higher

standard  of  proof   proof  by  clear  and  convincing

evidence  when the government or the defendant  asserts

under   AS   12.55.165  that  there  are  extraordinary

circumstances   that  would  justify  the   three-judge

statewide  sentencing  panel  in  imposing  a  sentence

outside   the   normal   rules  governing   presumptive

sentencing.   This  same clear and convincing  evidence

standard  of  proof  applies  to  the  aggravating  and

mitigating  factors listed in AS 12.55.155(c)-(d)  that

authorize  a  sentencing  judge  to  depart  from   the

presumptive term established by the legislature for the

defendants  crime.  See AS 12.55.155(f).   In  Buoy  v.

State, 818 P.2d 1165, 1167-68 (Alaska App. 1991),  this

court  concluded  that, by analogy to AS  12.55.155(f),

the  government  must  meet the  clear  and  convincing

evidence  standard when it alleges aggravating  factors

that  will  authorize a sentencing judge to exceed  the

Austin ceiling  i.e., authorize the judge to sentence a

first   felony  offender  to  a  term  of  imprisonment

exceeding  the  presumptive term for  a  second  felony

offender    convicted    of   the    same    offense.13

    The   Alaska  Legislature  has  now  codified   the

Buoy    decision    in   AS   12.55.025(i)    and    AS

12.55.125(k)(2).

          Finally,  the  legislature has  mandated  the

          clear and convincing evidence standard of proof when

the  government  asks a sentencing court  to  impose  a

mandatory  99-year  sentence on a  first-degree  murder

defendant  under AS 12.55.125(a)(3) by  asserting  that

the  defendant  subjected  the  victim  to  substantial

physical torture.

          In  this appeal, Allen argues that the  clear

and  convincing evidence standard of proof should  also

apply to second-degree murder cases when the government

relies  on aggravating factors (or the defendant relies

on  mitigating  factors) to argue that  the  sentencing

judge  should impose a sentence outside the 20- to  30-

year benchmark range established in Page v. State.14

          Allens  argument  appears to be  inconsistent

with AS 12.55.025(i), which declares that (with certain

specified exceptions) the preponderance of the evidence

standard  of  proof applies to sentencing  proceedings.

Moreover,   Allens  argument  ignores  the  fact   that

aggravating  and mitigating factors do not  play  their

normal legal role in a second-degree murder sentencing.

          The normal role of aggravators and mitigators

is  to expand the sentencing judges legal authority  in

cases  governed  by presumptive sentencing.   Proof  of

aggravators authorizes the judge to impose  a  sentence

above  the  presumptive term, while proof of mitigators

authorizes  the  judge to impose a sentence  below  the

presumptive term.15

          But  second-degree murder is not governed  by

presumptive  sentencing.16   This  means   that,   even

without   proof   of  aggravators  or   mitigators,   a

sentencing  judge is authorized to impose any  sentence

within  the  10-  to 99-year range established  by  the

legislature  for  this offense.  See  AS  12.55.125(b).

True, our decision in Page restricted sentencing judges

discretion  by establishing a 20- to 30-year  benchmark

          range.  Nevertheless, a sentencing judge may  impose a

sentence  outside this range for any good  reason   not

only  upon  proof  of  the aggravators  and  mitigators

listed in AS 12.55.155(c)-(d).

          It  is true that in second-degree (and first-

degree)  murder  sentencings, the parties  often  frame

their arguments in terms of these statutory aggravating

and   mitigating  factors.   We  have  recognized   and

approved  the  practice  of [using]  these  factors  as

points  of  reference  ...  when  [evaluating]  how  [a

specific] offense should be viewed in comparison  to  a

typical          ...          murder.17           Never

theless,  a  sentencing judge is  not  limited  to  the

statutory  aggravating  and  mitigating  factors   when

deciding  whether the circumstances of  the  defendants

case  call  for  a sentence outside the Page  benchmark

range.  As we noted in Brown v. State,

     
     There are few legal restrictions on the types
     of   factors  that  a  sentencing  court  can
     consider  when assessing whether a particular
     sentence  should fall outside  the  benchmark
     range  [for  second-degree  murder].   As  we
     stressed in Williams [v. State, 809 P.2d 931,
     934 (Alaska App. 1991)], any sound reason may
     be  relied on to differentiate one case  from
     another.
     
     973 P.2d 1158, 1162 (Alaska App. 1999).

               Because  aggravators and mitigators

     do not have the same legal significance at  a

     murder    sentencing,   and    because    the

     legislature   has   recently   codified   its

     preference  for  the  preponderance  of   the

     evidence standard of proof at sentencing,  we

     reject Allens contention that aggravators and

     mitigators must not be considered by a  judge

     at  a  murder sentencing unless these factors

     are proved by clear and convincing evidence.

          We  note that the preponderance  of

the   evidence  standard  appears  to   favor

neither  the  government nor  the  defendant.

Rather,  this standard of proof only  expands

the    information   (both   favorable    and

unfavorable) that a sentencing judge can rely

on.    That  is,  the  preponderance  of  the

evidence  standard allows a sentencing  judge

to take account of aggravating and mitigating

circumstances  even though the  proponent  of

these  circumstances may not be able to prove

their point by clear and convincing evidence.



Allens claim that his sentence is excessive


     Judge  Souter  sentenced Allen  to  serve  66

years  in  prison  for the murder  of  Labat.   On

appeal,  Allen  argues that this sentence  is  too

severe,  given  the  fact  that  Labat  repeatedly

threatened  to kill Allen and that Labat  was  the

initial aggressor in the incident that led to  the

homicide.

     At the sentencing hearing, Judge Souter noted

that, at the time of the homicide, Allen had three

prior  convictions for assault  two  felonies  and

one  misdemeanor.   He further  noted  that  while

Allen  was  incarcerated in connection  with  this

murder   charge,  Allen  assaulted  a  corrections

officer and was convicted of misdemeanor assault.

          Judge  Souter  agreed  that  Allen  had  been

provoked by Labat.  The judge noted that Labat had come

to  Allens residence and had made dire threats to Allen

threats  of  what  Labat would do  to  Allen  if  Allen

continued his relationship with Labats girlfriend.  But

Judge  Souter  concluded  that  although  violence  was

threatened,  no violence was offered.  The judge  found

that  Labat was not armed when he came to Allens house,

and  he  further found that Allen knew that  Labat  was

unarmed.   Judge  Souter acknowledged  that  Allen  had

testified  at  trial that he believed Labat  was  armed

with  a  handgun,  but the judge declared  that  Allens

testimony  on  this point had been just perjury.   This

man  never  believed that the victim had a gun,  or  he

never would have chased him with a knife.

          Judge  Souter  found that Allen chased  Labat

[while  Labat]  was  running away ...  in  ...  totally

frightened retreat  complete retreat, running  headlong

down  the  street, ... trying to avoid this  defendant.

He  found that Allen pursued [Labat] over 200 feet down

the street, and once or twice around a pickup truck, in

order  to  stab him.  Judge Souter further found  that,

after Allen stabbed Labat, he violently smashed [Labats

head] to the pavement ... [and] started stomping on the

victims  head.   And then, after he did  that,  [Allen]

kicked the victims body so violently that he lifted him

up off the pavement.

          In  sum,  Judge  Souter concluded  that  even

though  Labat  offered Allen some  provocation,  Allens

response  was  completely  out  of  proportion.   Allen

totally  flew off the handle and became irrational  and

acted  entirely outside the law when he  armed  himself

with  a  knife and chased Labat down the  street.   The

judge  found  that Allens offense was  among  the  most

serious  within the definition of second-degree  murder

because  Allen intended to kill Labat.   That  is,  the

judge  found that Allen was factually guilty of  first-

degree murder.

          Given   these   findings  concerning   Allens

offense  and  his history of assaultive conduct,  Judge

Souter was not clearly mistaken when he sentenced Allen

to 66 years in prison.18



Conclusion


          The  judgement  of  the  superior  court   is

AFFIRMED.

_______________________________
     1  See  Owens v. State, 613 P.2d 259, 261 (Alaska  1980)  (a
defendant  should  not be allowed to take  a  gamblers  risk  and
complain only if the cards [fall] the wrong way); see also Turpin
v. State, 890 P.2d 1128, 1130 (Alaska App. 1995).

2 Brown v. State, 693 P.2d 324, 327 (Alaska App. 1984).

     3 703 P.2d 1175, 1178-79 (Alaska App. 1985).

     4 615 P.2d 594, 603-04 (Alaska 1980).

     5  See  also  Mustafoski v. State, 954  P.2d  1042,  1045-46
(Alaska  App.  1998)  (testimony that the defendant  was  a  drug
dealer; no mistrial required); McPherson v. State, 800 P.2d  928,
929-930 (Alaska App. 1990) (testimony that the defendant had sold
marijuana  to minors; no mistrial required); Srala v.  Anchorage,
765  P.2d  103,  105-06 (Alaska App. 1988)  (testimony  that  the
defendant  asked the police to give him a break  since  they  had
never given him a break before; no mistrial required).

6  See  Noah  v. State, 887 P.2d 981, 983 (Alaska App.  1995)  (a
trial  judges decision to grant or deny a request for a  mistrial
is reviewed using the abuse of discretion standard).

     7  See  Owens  v.  State, 613 P.2d 259, 261  (Alaska  1980);
Turpin  v.  State,  890  P.2d 1128, 1130 (Alaska  App.  1995)  (a
defendant  should  not be allowed to take  a  gamblers  risk  and
complain only if the cards [fall] the wrong way).

     8 See Aviation Associates, Ltd. v. Temsco Helicopters, Inc.,
881 P.2d 1127, 1131 n.7 (Alaska 1994) (Plain error exists when  a
jury  instruction  obviously creates a high likelihood  that  the
jury [followed] an erroneous theory resulting in a miscarriage of
justice.)  (quoting Ollice v. Alyeska Pipeline Service  Co.,  659
P.2d 1182, 1185 (Alaska 1983)).

     9 Cuevas, 740 P.2d at 27.

     10   Id.

11   Irons, 4 P.3d at 182-83.

     12   Id. at 177.

13    See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981).

14   657 P.2d 850, 855 (Alaska App. 1983).

15   See AS 12.55.155(a).

16    See AS 12.55.125(b); Gustafson v. State, 854 P.2d 751,
763  (Alaska App. 1993);  Weitz v. State, 794 P.2d 952,  957
n.3 (Alaska App. 1990).

17    Sakeagak  v.  State, 952 P.2d 278,  284  (Alaska  App.
1998).

18    See  McClain  v. State, 519 P.2d 811,  813-14  (Alaska
1974) (an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).