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Hamilton v. State (11/22/2002) ap-1843
Hamilton v. State (11/22/2002) ap-1843
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
ADAM B. HAMILTON, )
) Court of Appeals No.
A-7762
Appellant, )
Trial Court No. 4FA-99-3764 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1843 November 22, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. John A. Scukanec, 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.
Adam B. Hamilton appeals his convictions for first-
degree burglary and first-degree murder. He contends that most
of the evidence against him was obtained as a result of an
unlawful investigative stop. He also contends that, during his
trial, the prosecutor improperly referred to his post-arrest
silence, and that the trial judge should have ordered a mistrial
because of the prosecutors comments. Finally, Hamilton contends
that the trial judge improperly refused to allow the jury to
consider Hamiltons proposed defenses of self-defense and heat of
passion. For the reasons explained here, we reject each of these
contentions and affirm Hamiltons convictions.
In addition, Hamilton argues that his sentence should
be vacated; he contends that the sentencing judge, like the
prosecutor, relied on Hamiltons post-arrest silence. We do not
agree with Hamiltons characterization of the sentencing judges
remarks, and we therefore affirm Hamiltons sentence.
Underlying facts of the homicide
David Dixon, his wife Rebecca, and their
three-year-old daughter lived at 385 Winter Street in
Fairbanks. This residence is located a few miles north
of the downtown area, just off the Old Steese Highway
near Chena Hot Springs Road. The Dixons shared the
residence with another couple, Jason Starkey and
Heather Woods.
The Dixons fell asleep watching television
around 11:00 p.m. on the night of November 23, 1999.
Shortly before 2:30 a.m., Rebecca Dixon awoke to find
her husband struggling with an intruder a tall figure
wearing a leather jacket. The intruder stabbed David
Dixon repeatedly with a long knife and threw him around
the room like a rag doll. Rebecca Dixon could not see
the intruders face because he was wearing a stocking
cap or ski mask, and because he had a bandana across
his face.
As soon as Rebecca Dixon realized the danger,
she grabbed her daughter, who had been sleeping on a
bed at the foot of the Dixons bed, and shielded her
daughters head and ears so she couldnt hear or see what
was happening. Rebeccas movement attracted the
attention of her husbands attacker. He stopped
stabbing her husband and stared at her for a moment.
Then the attacker dropped David Dixon in front of a
couch, stabbed him a couple more times in the back, and
ran out of the house.
Rebecca ran screaming to the loft where Jason
Starkey and Heather Wood slept. While the two women
tried to stop the bleeding, Starkey called 911. The
911 call was received at 2:32 a.m..
A few minutes later, when the ambulance
arrived, Rebecca Dixon telephoned her husbands best
friend, Adam Hamilton, because she knew that Hamilton
would be the first person that her husband would call
if he needed help. But no one was home at Hamiltons
house. Rebecca left a message on Hamiltons answering
machine.
David Dixon had been stabbed twenty-eight
times, primarily in the head, neck, chest, and back.
He died from his wounds.
A considerable amount of physical evidence
tied Hamilton to this crime. His clothing was stained
with fluids that probably came from Dixons body. A
blood-stained stocking cap and a blood-stained bandana
were found in his vehicle. Hamiltons jacket was
missing an airborne pin or parachute badge (a lapel or
garment pin in the shape of two wings); Rebecca Dixon
found this pin on the floor of her residence, near her
husbands body. And Hamiltons shoes matched two bloody
footprints that were found on the floor and carpet of
the Dixon residence.
From the beginning of the trial, Hamilton
conceded that he was the one who entered the house and
stabbed Dixon. Hamilton suggested, however, that Dixon
had let him into the house and that therefore the entry
was not a burglary. Hamilton also suggested that Dixon
must have done something to spark the confrontation,
and that therefore Hamilton was not guilty of first-
degree murder but rather a lesser degree of homicide.
The jury rejected these suggestions and convicted
Hamilton of first-degree burglary and first-degree
murder.
The legality of the investigative stop
As just explained, the 911 call was received
at 2:32 a.m.. Almost immediately, news of the break-in
and stabbing was broadcast over the radio frequencies
used by the state troopers and the Fairbanks police.
Alaska State Trooper Sgt. Kevin Kemp was
conducting a DWI traffic stop on the west side of town,
in the parking lot of the Safeway store at the corner
of University and Airport Roads. Leaving his DWI
suspect in the custody of a backup officer, Kemp
started driving toward the crime scene. He headed east
on Airport Road toward the Steese Highway. When he
reached the Steese, he turned north, heading toward
Chena Hot Springs Road and the Dixon residence.
Given the time of day, traffic was light as
Kemp drove through Fairbanks. In fact, as Kemp headed
north on the Steese Highway, he saw only two non-police
vehicles after he passed Trainor Gate Road. These two
vehicles were a snow grader and a four-door sedan, both
headed south. That is, these two vehicles were
traveling in the opposite direction from Kemp away
from the crime scene.
Kemp saw these two vehicles in front of him
(i.e., north of him) as he crossed Farmers Loop Road.
The sedan was passing the snow grader and was
illuminated by the graders lights. Kemp observed that
the sedan had a whale tail (i.e., a spoiler) mounted on
its trunk and had a long antenna in back. Kemp also
saw that the driver had long hair and was sitting tall
in the seat, but he could not tell what the driver was
wearing, or whether the driver was a man or a woman.
Kemp wanted to record the license plate
number of the sedan (so that the authorities could
contact the driver later), but he was unable to see the
sedans license plate. Kemp knew that there were at
least two Fairbanks police cars behind him so, using
his radio, he asked these officers to record the
license plate number of the sedan that was headed
toward them. Kemp broadcast this request for
assistance at 2:42:30 a.m. that is, ten minutes after
the 911 call.
Officer Pearl J. Turney was one of the
Fairbanks police officers who was behind Kemp. She had
been patrolling the central area of Fairbanks when she
heard the dispatch report of the break-in and stabbing.
Turney drove out the Steese Highway to where it
intersects with Farmers Loop Road, and there she set up
an observation post.
Turney was in this location when she heard
Kemps request for assistance. From her vantage point,
Turney could see the snow grader and the sedan that
Kemp had described. After the sedan passed her, Turney
pulled onto the Steese Highway and headed south,
following the sedan.
As Turney got closer to the sedan, she saw
that its license plate was covered with snow, making it
impossible to read the license plate number. She
advised dispatch that the license plate was obscured,
and she described the sedans make and model.
As Turney followed the sedan, it traveled
south to the Johansen Expressway and then turned west.
When Turney informed her fellow officers that the sedan
had left the Steese Highway and was now traveling west
on the Johansen, her supervisor (Sgt. Matthew Soden)
modified Kemps request for the license plate number.
Soden told her to wait for backup, then stop the sedan
and interview its occupants.
Turney continued to follow the sedan. The
car left the Johansen Expressway and turned onto
College Road (still heading west). Turney now had
backup from Officer Gertha Wells, who had reached
College Road in time to see the sedan and Turneys
patrol car drive past. Turney and Wells conferred and
decided to stop the sedan near the corner of College
and Marietta.
When Turney activated her overhead lights,
the driver of the sedan pulled onto Marietta and
stopped. The time was 2:46 a.m. fourteen minutes
after the 911 call, and less than four minutes after
Kemp radioed his request for assistance in identifying
the sedan.
Both Turney and Wells parked their patrol
cars, and Turney approached the sedan on foot while
Wells provided cover. When Turney reached the rear of
the sedan, she brushed the snow from the license plate
so that the license plate number was visible. Wells
immediately radioed the number to their dispatcher.
Turney continued walking toward the front of
the sedan, on the drivers side. As she neared the
drivers door, she looked through the window and saw
that the drivers hands were covered with blood. Turney
backed away from the car, drew her sidearm, and ordered
the driver to get out of the car with his hands up and
in plain sight.
The driver was Adam Hamilton. The ensuing
searches of his person, his clothing, and his vehicle
yielded the majority of the States evidence linking
Hamilton to the burglary/homicide.
The question is whether the police had the
right to stop Hamiltons car. The State offers two
justifications for this traffic stop.
First, Alaska law AS 28.10.171(b) requires
drivers to maintain their license plates in a location
and condition so as to be clearly legible. The State
argues that because the license plate of Hamiltons
vehicle was covered by snow, the police were authorized
to stop him and cite him for this offense. Second, the
State argues that the police were authorized to stop
Hamilton because they had reason to believe that he was
a potential witness i.e., reason to believe that he
might have observed something that would be pertinent
to their investigation of the break-in and stabbing.
(a) Whether the stop of Hamiltons vehicle was
justified because of Hamiltons violation of AS
28.10.171(b)
Hamilton acknowledges that his license plate
was covered with snow at the time he was stopped.
However, he points out that none of the officers
involved in the traffic stop ever claimed that they
requested or performed the stop so that Hamilton could
be cited for driving with an illegible license plate.
Instead, all of the officers testified that Hamilton
was stopped because they wanted to find out if he knew
anything or had seen anything that would further their
investigation of the break-in and stabbing. Because
the officers did not subjectively rely on the illegible
license plate as a basis for their actions, Hamilton
argues that the State is barred from relying on this
after-the-fact justification for the stop.
But, in fact, the State is allowed to rely on
an after-the-fact justification, so long as the facts
known to the officers at the time of the investigative
stop are sufficient to establish the legal foundation
for this justification. We decided this point of law
in Beauvois v. State, 837 P.2d 1118 (Alaska App. 1992).
In Beauvois, we held that the legality of an
investigative stop hinges on an objective test:
whether the facts known to the officers established a
legitimate basis for the stop. The officers subjective
theories as to why the stop was proper are irrelevant.1
Hamilton contends that we receded from this
position in Castle v. State, 999 P.2d 169 (Alaska App.
2000). But Hamilton has misconstrued our holding in
that case.
In Castle, a police officer attempted to
conduct an investigative stop of the defendant.
Fleeing from the officer, the defendant committed a
minor offense: running in the middle of the street, a
violation of a municipal ordinance regulating
pedestrian traffic.2 We held that the officers initial
effort to conduct an investigative stop had been
illegal.3 The remaining question was whether the State
could rely on Castles ensuing violation of the
municipal ordinance to justify the ultimate stop. We
said no; the State could not rely on Castles act of
running in the street to justify the stop because
Castles violation of the pedestrian ordinance was the
direct result of [the officers] unjustified attempt to
seize [Castle], and because the policy of the
exclusionary rule would be undermined if we allowed
Castles conduct to form the justification for his
ensuing arrest.4
Hamilton, like the defendant in Castle,
committed a minor infraction of the law in the sight of
police officers, but there the resemblance ends.
Hamilton did not cover his license plate with snow in
response to illegal conduct by the police. Thus,
Hamiltons case is governed by the rule we announced in
Beauvois: the legality of the traffic stop is
determined by an objective assessment of the facts
known to the officers at the time they conducted the
stop.
As Officer Turney was following Hamiltons
vehicle on the Johansen Expressway, she radioed that
she could not see Hamiltons license plate number
because the license plate was covered with snow. That
is, Turney knew that Hamiltons license plate was
covered with snow before she commenced the seizure of
Hamiltons vehicle i.e., before she turned on her
overhead lights and signaled Hamilton to stop at the
corner of College and Marietta.
This fact is sufficient to establish the
legality of the ensuing traffic stop under federal law.
In Whren v. United States, 517 U.S. 806, 116 S.Ct.
1769, 135 L.Ed.2d 89 (1996), the Supreme Court rejected
the doctrine of the pretext traffic stop and held
instead that, no matter what may have prompted police
officers interest in a vehicle or its occupants, a
traffic stop is legal so long as the officers had
probable cause to believe that a violation of the
traffic code (or any other violation of the law) had
occurred in their presence.5
Here, Officer Turney had probable cause to
believe that Hamiltons vehicle was being driven in
violation of AS 28.10.171(b), the statute requiring
that license plates be maintained in a legible
condition. It is a misdemeanor to violate this
statute.6 Thus, Turney was authorized to stop
Hamiltons vehicle and either arrest him or cite him for
this violation.7 And, as we held in Beauvois, it is
irrelevant that Turney did not actively consider or
subjectively rely on this basis for the traffic stop.
Hamilton suggests (although he does not
directly argue) that we should reject Whren as a matter
of state constitutional law and then invalidate his
traffic stop. Hamilton points out that even if his
violation of the license plate law might conceivably
have justified the police in stopping his vehicle, the
fact of the matter is that the officers true motive for
stopping Hamilton was to investigate the break-in and
stabbing, not to enforce the license plate law. Thus,
Hamilton contends, we should not allow the State to
rely on the pretext of Hamiltons violation of the
license plate law.
We conclude that Hamiltons case does not
require us either to accept or reject Whren as a matter
of Alaska constitutional law. We reach this conclusion
because we hold that the police were justified in
stopping Hamiltons car as part of their investigation
of the break-in and stabbing.
(b) The stop of Hamiltons vehicle was justified
as an investigative stop of a potential witness
Under the test for investigative stops
adopted by our supreme court in Coleman v. State, 553
P.2d 40 (Alaska 1976), the police must have reasonable
suspicion that imminent public danger exists or [that]
serious harm to persons or property has recently
occurred.8 As this Court emphasized in State v. G.B.,
769 P.2d 452 (Alaska App. 1989),
the Coleman rule is ultimately rooted in
common sense and practicality. In each case,
compliance with Colemans requirement of
recently committed serious harm must be
evaluated with a view toward the fundamental
concern of the Coleman court: the risk that
an investigative stop based on mere suspicion
may be used as a pretext to conduct a search
for evidence. As indicated in Coleman, the
fundamental inquiry in each case is whether a
prompt investigation [was] required ... as a
matter of practical necessity.
G.B., 769 P.2d at 456.9
In Beauvois v. State10 and Metzger v. State11, we
upheld investigative stops based on the need to identify and
interview witnesses who may have information pertinent to the
investigation of a recently committed serious crime even when
there is no reason to believe that the people who are being
stopped committed the crime. We reach a similar conclusion here.
In the present case, when the police stopped Hamiltons
car, they knew that an intruder had entered a residence in the
middle of the night, had perpetrated an apparently fatal assault,
and then had fled. The police also knew that the assailant had
been at large for approximately fifteen minutes. (The 911 call
was received at 2:32 a.m.; Hamiltons car was pulled over at 2:46
a.m..)
As Hamilton points out in his brief, there were several
routes that the assailant might have taken when fleeing the scene
of the crime. But the main route from the Dixon residence to the
city center was the Steese Highway. Sgt. Kemp observed Hamiltons
car traveling south (away from the Dixon residence) on the Steese
Highway at 2:42 a.m. i.e., ten minutes after the 911 call. Kemp
testified that, aside from the snow grader and the police cars,
there were no other vehicles on the Steese Highway between
Trainor Gate Road (the north part of central Fairbanks) and the
Dixon residence.
Kemp could reasonably suspect that the people in this
southbound vehicle had seen something a person or another
vehicle, for example that might prove important to the
investigation of the just-committed burglary and assault. But as
Kemp continued north toward the Dixon residence, he watched these
potential witnesses drive out of sight to the south. He
therefore broadcast a request for assistance not asking the
Fairbanks police to stop the vehicle, but merely to record its
license plate number so that the authorities could contact the
driver later.
Had the Fairbanks police simply recorded Hamiltons
license plate number and allowed him to drive on unimpeded, there
would have been no Fourth Amendment issue in this case. But when
Officer Turney got behind Hamiltons car, she saw that Hamiltons
license plate was covered with snow, thus making it impossible to
obtain the license plate number without stopping the vehicle.
To summarize the situation at that point: A serious
assault had been committed in the middle of the night an assault
which, given the nature and the number of David Dixons wounds,
threatened to become a homicide at any moment. The state
troopers and the Fairbanks police responded within minutes. As
they made their way to the crime scene, they saw only one private
vehicle driving toward central Fairbanks, away from the
neighborhood of the crime. The officers had reason to believe
that the occupant(s) of this car might have seen something that
would aid their investigation. But because the license plate of
this vehicle was covered with snow, it was not possible to
identify the vehicle and contact the driver later. If the police
were to speak with these potential witnesses, it had to be right
then.
Under these circumstances, we conclude that the Coleman
rule was satisfied: a prompt investigation [was] required ... as
a matter of practical necessity. We therefore uphold the
legality of the investigative stop under Beauvois and Metzger
without regard to the independent ground that driving with a snow-
covered license plate is a misdemeanor under AS 28.10.171(b) and
AS 28.40.050(a)-(b).
The defense request for mistrial after the prosecutor
elicited testimony that Hamilton failed to express
concern for anyone else following the traffic stop
Three of the States witnesses described
Hamiltons behavior at the scene of the stop and, later,
at the hospital (where he was taken for treatment of a
wound to his thigh).
Officer Turney described Hamilton as very
calm and cooperative during the traffic stop, even
after he was ordered out of the car and handcuffed.
Another officer who arrived shortly after the stop
agreed that Hamilton was calm and unemotional. Turney
further testified that, during the ride to the
hospital, Hamilton expressed concern about his wound
(he apparently was having difficulty either feeling or
wiggling his toes), but he did not express concern
about anyone else. And Sergeant Kemp, who saw Hamilton
after he arrived at the hospital, testified that
Hamilton was fairly calm.
Hamiltons attorney conceded that the State
was entitled to introduce evidence of Hamiltons
demeanor i.e., evidence that Hamilton had been calm
and unemotional. But he objected to Officer Turneys
testimony that Hamilton had not expressed concern for
anyone else. The defense attorney argued that this
testimony was a comment on Hamiltons right to remain
silent about the crime for which he was being
investigated. He asked the trial judge either to
declare a mistrial or to give a cautionary instruction
to the jury.
The trial judge, Superior Court Judge Richard
D. Savell, denied the request for a mistrial but
granted the request for a cautionary instruction.
Judge Savell asked the defense attorney to draft an
instruction, but the defense attorney declined.
Instead, the defense attorney outlined generally what
he wanted the instruction to say, and then he asked
Judge Savell to come up with the exact language.
When court resumed session, Judge Savell told
the jurors:
The Court: Ladies and gentlemen, I want
to remind you that the defendant at all
stages of a criminal proceeding is not
obliged to make any statements or produce any
evidence. And, in fact, its his right not to
do so. Go ahead, Mr. Satterberg [the defense
attorney].
Nothing further was said about this
issue until the next day, when Hamiltons
attorney renewed his motion for a mistrial.
The defense attorney cursorily asserted that
the courts curative instruction was not
strong enough, but he did not explain why he
thought so, nor did he suggest any supplement
to the courts instruction. Instead, the
defense attorney immediately proceeded to his
main argument that a mistrial was required
under this Courts ruling in Silvernail v.
State, 777 P.2d 1169 (Alaska App. 1989).
In Silvernail, the defendant and
two other men were arrested and then charged
with kidnapping and murder.12 At trial,
Silvernail asserted that he had been an
unwilling participant that his two
companions had coerced him to aid the
kidnapping and murder.13
Silvernail took the stand to
testify in support of this coercion theory.
During the prosecutors cross-examination of
Silvernail, the prosecutor asked him why he
had not explained his situation to the police
officers who arrested him:
Prosecutor: When Officer Gaines came
and took you out of the passenger seat, did
you say to him, God, Im glad youre here.?
Silvernail: No.
Prosecutor: Did you say anything about
the fact that you had just been scared to
death?
[Objection by defense counsel;
overruled]
Prosecutor: You never said to the
police officer, when he came up to the car,
Hey, [my companions] just killed a guy. Let
me tell you about it.?
Silvernail: No.
Prosecutor: You never said, Gee, Im
relieved. Youre finally here to help me.
Right?
Silvernail: No, I didnt say that.
Silvernail, 777 P.2d at 1172-73.
On appeal, we held that this
testimony should have been excluded under
Alaska Evidence Rule 403 because its
probative value was so heavily outweighed by
its potential for unfair prejudice.
We pointed out that in most
circumstances[,] silence is so ambiguous that
it is of little probative force. ...
[Although silence] gains more probative
weight where it persists in the face of
accusation, ... [f]ailure to contest an
assertion ... is considered evidence of
acquiescence only if it would have been
natural under the circumstances to object to
the assertion in question.14 And we
concluded that, given the fact that
Silvernail was taken into custody after
attempting to evade the police and while
wearing a shirt soaked with the victims
blood, it would hardly have been natural
under the circumstances for Silvernail to
have made a full disclosure of his
situation.15 We explained:
At the time of arrest and during
custodial interrogation, [the] innocent and
[the] guilty alike perhaps particularly the
innocent may find the situation so
intimidating that they may choose to stand
mute. A variety of reasons may influence
that decision. In these often emotional and
confusing circumstances, a suspect may not
have heard or fully understood the question,
or may have felt there was no need to reply.
He may have maintained silence out of fear or
unwillingness to incriminate another. Or the
arrestee may simply react with silence in
response to the hostile and perhaps
unfamiliar atmosphere surrounding his
detention.
Silvernail, 777 P.2d at 1177.16
Given our ruling in Silvernail, it
is fairly obvious that the testimony
challenged here Officer Turneys testimony
that Hamilton failed to express concern for
anyone else was objectionable and should not
have been admitted. In its brief to this
Court, the State does not really argue
otherwise.
But the issue is not the
admissibility of this testimony. As
explained above, Judge Savell sustained the
defense attorneys objection to this testimony
and, at the defense attorneys request, the
judge gave a curative instruction to the
jury. Instead, the issue is whether the
curative instruction was inadequate to remedy
the harm, so that a mistrial was still
required.
When Hamiltons attorney renewed his
motion for mistrial on the following day,
Judge Savell declared that he believed it was
a close call whether he should declare a
mistrial. The judge added that he [could]
imagine circumstances ... that would tip the
scale in either direction from here. In the
end, however, Judge Savell was not convinced
that a mistrial was required.
A trial judges decision to grant or
deny a mistrial is reviewed under the abuse
of discretion standard.17 This means that we
will reverse the trial courts decision only
when we are left with a definite and firm
conviction, after reviewing the whole record,
that the trial court erred in its ruling.18
A timely curative instruction is
presumed to remedy the unfair prejudice that
might otherwise arise from inadmissible
testimony.19 In Hamiltons case, immediately
following the defense attorneys objection to
Turneys testimony, Judge Savell instructed
the jury that Hamilton had a right to decline
to make any statements. We have previously
recognized that such an instruction can be
sufficient to cure the error when a jury
hears testimony concerning a defendants pre-
arrest silence.20
As explained above, this curative
instruction was given at the defense
attorneys request, after the attorney
outlined what he wanted the judge to say.
Although the defense attorney later
complained that the instruction had not been
strong enough, he never suggested alternative
or supplemental wording. And, indeed,
Hamiltons appellate attorney does not attack
the wording of the instruction.
We have already noted that when
Judge Savell ruled on the motion for
mistrial, he warned that he [could] imagine
circumstances ... that would tip the scale in
either direction from here. But events that
might have prompted Judge Savell to revise
his ruling never came to pass. The
prosecutor never asked another witness about
Hamiltons concern or lack of concern for
other peoples welfare, and the prosecutor did
not mention this theme during his summation
to the jury.
On appeal, Hamilton suggests that
the prejudice of the inadmissible testimony
was exacerbated by the contemporaneous press
coverage of the trial. During the second
days argument on the motion for mistrial,
Hamiltons trial attorney pointed out that the
local newspaper was carrying the headline,
Accused calm after stabbing death.
But as Judge Savell correctly
noted, this newspaper headline was a red
herring because everyone agreed (in fact, the
defense attorney expressly conceded) that it
was proper for the jury to hear testimony
concerning Hamiltons demeanor i.e.,
testimony that he was calm and unemotional
following the traffic stop. The issue
confronting the court was what to do about
Turneys testimony that Hamilton had failed to
express concern for anyone else. There is
nothing in the record to indicate that the
newspaper article mentioned this testimony.
Likewise, there is nothing in the record to
indicate that any of the jurors disobeyed
Judge Savells instructions to insulate
themselves from media coverage of the trial.
Having reviewed the record, we
conclude that Judge Savell did not abuse his
discretion when he concluded that the
curative instruction was sufficient to remedy
the problem and that a mistrial was not
required.
Was Hamilton entitled to an instruction on self-defense
or an instruction on heat of passion?
In his opening statement, Hamiltons attorney
suggested that Hamilton acted in self-defense when he
stabbed Dixon, or at least that Dixon had provoked
Hamiltons violence (thus potentially mitigating the
crime to manslaughter due to heat of passion). But
when the presentation of evidence was completed, Judge
Savell ruled that Hamilton was not entitled to jury
instructions on self-defense or heat of passion.
A defendant is entitled to have the jury
instructed on self-defense or heat of passion (or any
other defense) if there is some evidence to support the
defense. In this context, some evidence is a term of
art; it means evidence which, when viewed in the light
most favorable to the defendant, is sufficient to
support a finding in the defendants favor by a
reasonable fact-finder on each element of the proposed
defense.21
(In the case of self-defense and heat of
passion, the government ultimately bears the burden of
disproving the defense beyond a reasonable doubt.
Thus, the evidence is sufficient to support a finding
in the defendants favor if it is sufficient to engender
a reasonable doubt on each element of the proposed
defense.)
At trial, Hamiltons attorney argued that a
plausible case of self-defense was established by the
following evidence: (1) the wound to Hamiltons leg;
(2) Rebecca Dixons testimony that Hamilton and Dixon
were struggling when she first awoke; (3) the fact that
Hamilton and Dixon were best friends suggesting that
Dixon must have done something to trigger this kind of
conduct from Hamilton; and (4) the lack of evidence of
a forced entry suggesting that Dixon voluntarily
permitted Hamilton to enter the house. But Judge
Savell concluded that none of this would support a
reasonable inference that Dixon had attacked Hamilton
or had provoked Hamilton to violence.
On appeal, Hamilton renews his contention
that he was entitled to jury instructions on self-
defense22 and heat of passion (i.e., serious
provocation by the victim)23. But Hamiltons argument
in support of these defenses consists primarily in
noting that Dixon and Hamilton were friends, that there
was no apparent reason for Hamilton to attack Dixon,
and that Hamilton may have induced Dixon to open the
door to him voluntarily (a factual assertion that the
jury rejected when they convicted Hamilton of
burglary).
It is true that the State offered no motive
for Hamiltons attack on Dixon. However, the evidence
showed that Hamilton came to Dixons residence in the
middle of the night, when everyone in the house was
asleep. Regardless of how Hamilton obtained entry, he
was armed with a knife and was wearing a bandana to
cover his face. When Rebecca Dixon awoke, she saw her
husband struggling with Hamilton, but there was no
evidence that Dixon was doing anything other than
trying to defend himself. David Dixon was unarmed, he
was clothed only in his underwear, and he was crouched
on the floor while Hamilton stabbed him repeatedly with
a downward motion. At this point, there was already
blood bubbling from Dixons mouth. Hamilton then began
to throw Dixon around the room like a limp rag doll,
all the while continuing to stab him. Dixon was no
longer making any kind of resistance. When Rebecca
Dixon moved from her bed to grab her daughter, Hamilton
interrupted his attack and stared at her, but then he
continued his attack dropping Dixon in front of a
couch and stabbing him a few more times in the back
before he ran from the house.
Neither Hamilton nor any other witness
offered an explanation for Hamiltons violence or gave
testimony suggesting that David Dixon had initiated or
provoked the attack. It is true that Hamilton was
bleeding from a wound to his thigh when the police
stopped his car. But there was no evidence presented
as to when Hamilton received this wound or how it was
inflicted. Even assuming that the wound was a knife
wound received while Hamilton was inside the Dixon
residence, there was no evidence that Dixon was armed
at any time during his struggle with Hamilton.
Given this evidence, any argument that
Hamilton acted in self-defense or as a result of
serious provocation by Dixon would be based on pure
speculation. As we said in Hilbish v. State,
One can certainly conjure scenarios
involving self-defense or heat of passion
that would arguably be consistent with the
evidence at trial; in this sense, [the
defendant might] plausibly maintain that the
evidence at trial does not rule out the
possibility of self-defense or heat of
passion. ... But the state was under no
obligation to assume the burden of disproving
self-defense until there was some evidence
affirmatively suggesting that what might have
happened actually did happen; [likewise, a
defendant does not meet the] burden of
establishing heat of passion as an
affirmative defense merely because the
evidence at trial did not disprove it.
891 P.2d 841, 852 (Alaska App. 1995).
In Hamiltons case, as was true in
Hilbish, the evidence that supposedly
supports self-defense or heat of passion is
essentially neutral, that is, merely
compatible with a theory of self-defense or
heat of passion.24 It has no material
bearing on the crucial issues involved in a
claim of self-defense or heat of passion:
whether [Dixon] actually used or threatened
deadly force at the time of the [stabbing],
whether [Hamilton stabbed Dixon] in defense
against such force or threat, or whether
[Dixon] engaged in any act of serious
provocation.25
Even viewing the evidence in the
light most favorable to Hamilton (which we
are obliged to do), Hamiltons claims of self-
defense or heat of passion rest on
speculation; they find no reasonable support
in the evidence. Judge Savell properly
denied Hamiltons requests for jury
instructions on self-defense and heat of
passion.
One concluding note: In past
decisions, including Hilbish, we have stated
that the abuse of discretion standard governs
our review of a trial judges decision whether
to instruct the jury on a proposed defense.
This is not completely accurate. If there is
some evidence of a proposed defense, a judge
has no discretion to refuse a timely defense
request for a jury instruction on that
defense. This is an issue of law which we
resolve de novo based on the entire record.
Conversely, if there is not some evidence of
the proposed defense, the defendant is not
entitled to have the jury instructed on that
defense.
Did Judge Savell penalize Hamilton for asserting his
Fifth Amendment right to decline to explain his
crime at sentencing?
As already noted, the jury convicted Hamilton
of first-degree burglary and first-degree murder.
Judge Savell sentenced Hamilton to 99 years
imprisonment for the murder the maximum term
allowed by law.26 (Hamilton received a concurrent
4-year prison term for the burglary.)
At sentencing, Hamilton declined to make a
statement or present any evidence to explain his
behavior. On appeal, Hamilton contends that Judge
Savell held Hamiltons silence against him that the
judges decision to impose a 99-year sentence was
tainted by the judges feeling that Hamilton was obliged
to explain his behavior if he wanted to receive
something less than the maximum sentence. But the
record provides little support for this claim.
Shortly after Judge Savell began his
sentencing remarks, he expressly acknowledged Hamiltons
right to remain silent, and he declared that he would
not accept [any] suggestion that [Hamiltons] invocation
of his right to silence [should] result in a harsher
sentence for him. Judge Savell then made the remarks
that Hamilton criticizes on appeal:
The Court: I have to confess that ...
[I] looked forward to the possibility of
learning [during these sentencing
proceedings] what could cause two close
friends [i.e., Hamilton and Dixon] to have
their respective lives end this way. I
looked forward to [this] sentencing in the
hope that I would hear an explanation that
could provide background, mitigation, and an
understanding [of Hamiltons conduct].
But after saying this, Judge Savell immediately reiterated that
he would not penalize Hamilton for asserting his right to
remain silent:
The Court: I accept that that
[explanation] is not forthcoming, and Ill not
punish [Mr. Hamilton] for it. But [without
such an explanation] I am limited ... in
being [able] to assess [Hamiltons] remorse,
rehabilitation potential, [and] whether and
to what extent deterrence is likely or
necessary or futile.
Although it is improper for a sentencing judge to
penalize a defendant for remaining silent, a sentencing judge
remains obliged (as Judge Savell noted) to assess the seriousness
of the defendants crime, the prospects for the defendants
rehabilitation, and the extent to which imprisonment may be
needed to deter the defendant from future acts of lawlessness
and/or to protect the public until the defendant is
rehabilitated.27 When a defendant declines to offer evidence on
these issues, the sentencing judge must base his or her decision
on the existing record.28
The record in this case shows that Hamilton committed a
vicious and apparently inexplicable murder. The evidence leaves
little doubt that the murder was premeditated: Hamilton
illegally entered the Dixon residence in the middle of the night,
wearing a bandana over his face and armed with a dagger-like
knife. He stabbed Dixon more than two dozen times, continuing
his attack long after his victim was rendered defenseless by
previous wounds.
We have repeatedly held that premeditated murder is
among the most serious conduct within Alaskas definition of first-
degree murder and that, in first-degree murder cases, a
defendants premeditation, standing alone, will support a sentence
of 99 years imprisonment.29 Moreover, even in cases of second-
degree murder (i.e., cases in which the killing was unintended),
we have repeatedly upheld sentences in the upper end of the
penalty range for defendants who committed gratuitous or
otherwise inexplicable acts of extreme violence.30
It was Hamiltons right not to offer evidence in
explanation or mitigation of his conduct. But in the absence of
extenuating information, Judge Savell was left with the record as
it stood. That record fully supports Judge Savells decision to
impose the maximum sentence for first-degree murder. Given this
record, and given Judge Savells repeated statements that he would
not penalize Hamilton for remaining silent, the fact that
Hamilton received a sentence of 99 years imprisonment raises no
inference that Judge Savell was surreptitiously punishing
Hamilton for failing to explain his conduct.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Beauvois, 837 P.2d at 1121 n.1.
2 Castle, 999 P.2d at 170-71.
3 See id. at 173-74.
4 Id. at 177.
5 See Whren, 517 U.S. at 813-19, 116 S.Ct. at 1774-77.
6 AS 28.40.050(a)-(b).
7 See AS 12.25.030(a)(1) (a police officer may arrest a
person without a warrant when the person commits a crime in
the officers presence); AS 12.25.180(a) (a police officer
who stops or contacts a person for committing a misdemeanor
may either arrest them or issue them a citation, at the
officers discretion).
8 Coleman, 553 P.2d at 46.
9 Quoting Coleman, 553 P.2d at 46, which in turn was quoting
Goss v. State, 390 P.2d 220, 224 (Alaska 1964), overruled on
other grounds by Glasgow v. State, 469 P.2d 682 (Alaska
1970).
10 837 P.2d at 1121.
11 797 P.2d 1219, 1221 (Alaska App. 1990).
12 Silvernail, 777 P.2d at 1171.
13 See id.
14Silvernail, 777 P.2d at 1176 (quoting United States v.
Hale, 422 U.S. 171, 176; 95 S.Ct. 2133, 2136; 45
L.Ed.2d 99 (1975)).
15Id. at 1176-78.
16Quoting Hale, 422 U.S. at 177, 95 S.Ct. at 2137.
17See Walker v. State, 652 P.2d 88, 92 (Alaska 1982); Roth
v. State, 626 P.2d 583, 585 (Alaska App. 1981).
18Keogh v. W. R. Grasle, Inc., 816 P.2d 1343, 1349 n.11
(Alaska 1991).
19See Roth, 626 P.2d at 585.
20See Hamilton v. State, 771 P.2d 1358, 1360 (Alaska App.
1989).
21 See Lamont v. State, 934 P.2d 774, 777 (Alaska App.
1997); Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995);
see also Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996).
22 See AS 11.81.335 (use of deadly force in defense of
self).
23 See AS 11.41.115(a) & (f)(2) (heat of passion resulting
from serious provocation).
24Hilbish, 891 P.2d at 852.
25Id.
26See AS 12.55.125(a).
27 See AS 12.55.005; Chaney v. State, 477 P.2d 441, 443-44
(Alaska 1970).
28 Compare Lepley v. State, 807 P.2d 1095, 1101 (Alaska
App. 1991) (when a defendant asserts the privilege to refuse a
psychological evaluation in aid of sentencing, the sentencing
judge must not draw an adverse inference from the defendants
assertion of privilege, but the consequence for the defendant is
that the judge then assesses the defendants potential for
rehabilitation based on the existing evidence).
29 See Nelson v. State, 874 P.2d 298, 310 (Alaska App.
1994); George v. State, 836 P.2d 960, 963 (Alaska App. 1992);
Washington v. State, 828 P.2d 172, 174 (Alaska App. 1992); Riley
v. State, 720 P.2d 951, 952 & n.1 (Alaska App. 1986).
30 See Monroe v. State, 847 P.2d 84, 92-93 (Alaska App.
1993) (upholding a sentence of 60 years imprisonment); Norris v.
State, 857 P.2d 349, 356-58 (Alaska App. 1993) (upholding a
sentence of 50 years imprisonment); Page v. State, 657 P.2d 850,
853-55 (Alaska App. 1983) (upholding a sentence of 99 years
imprisonment); Faulkenberry v. State, 649 P.2d 951, 956-57
(Alaska App. 1982) (upholding a sentence of 60 years
imprisonment); see also the companion cases of Gustafson v.
State, 854 P.2d 751, 763-67 (Alaska App. 1993), and Cheely v.
State, 861 P.2d 1168, 1178-1180 (Alaska App. 1993) (upholding,
respectively, sentences of 65 and 60 years imprisonment).
