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Dandova v. State (6/20/2003) ap-1884
Dandova v. State (6/20/2003) ap-1884
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
JANA F. DANDOVA, )
) Court of Appeals No.
A-7814
Appellant, )
Trial Court No. 4FA-99-3115 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1884 June 20, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Kathleen A. Murphy, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Rosamund
M. Lockwood, 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.
COATS, Chief Judge, dissenting.
Jana Dandova attempted to kill her former lover, Craig
Schumacher, by shooting him. She was indicted for attempted
murder1 and first-degree assault2.
At her trial, Dandova asked to have the jury instructed
on the defense of heat of passion, a defense codified in AS
11.41.115(a) & (f). The trial judge concluded that Dandova was
not entitled to raise this defense because, even viewing the
facts in the light most favorable to Dandova, Schumacher had done
nothing to provoke Dandova on the day of the shooting and thus
Dandova could not show that she acted in response to serious
provocation as defined in AS 11.41.115(f)(2).
In this appeal, Dandova argues that the trial judge
interpreted the heat of passion defense too narrowly. She
contends that, even though Schumachers actions on the day of the
shooting might not constitute adequate provocation, the requisite
provocation was established if Schumachers actions on the day of
the shooting are viewed in conjunction with his past actions
during their contentious relationship.
There is some authority to support the proposition that
if the victim of a homicide engages in a continuing course of
provocative conduct, it is proper to consider that entire course
of conduct when assessing a defendants claim of heat of passion.
But, from the record in this case, it appears that Dandovas trial
judge shared this view of the law and he perceived that Dandovas
case presented a different question.
Dandova believed that the victim had committed conduct
(sexual abuse of their child) that would qualify as serious
provocation under Alaska law. But this had occurred more than
two years before so long ago that Dandova had cooled. Since
that time, the victim had performed other acts which Dandova
perceived as injuries and wrongs upon her, but (as explained
here) the victims acts do not qualify as serious provocation
under Alaska law. Finally, Dandova attempted to kill the victim,
not in response to a new act of provocation, but rather because a
non-provocative occurrence reminded her of these perceived
injuries or wrongs suffered at the hand of the victim.
For the reasons explained here, we conclude that heat
of passion is not available under such circumstances. We
therefore uphold the trial judges ruling, and we affirm Dandovas
conviction for attempted murder.
Underlying facts
Jana Dandova and Craig Schumacher began
dating in the early 1990s. But soon after they began a
romantic relationship, they began to have problems, and
their relationship commenced an on again, off again
cycle. During this time, Dandova became pregnant.
Dandovas and Schumachers relationship ended in 1993,
before their son (C.D.) was born.
Dandova testified that the relationship ended
because of Schumachers conduct and attitude during her
pregnancy. Schumacher refused to tell others about the
pregnancy, and he also would not provide Dandova with
any form of assistance. Meanwhile, Dandova confronted
a physically difficult pregnancy. She was severely
anemic, and she was told that she would have to deliver
by Caesarean section. When Dandova informed Schumacher
of these complications, his response was to ask Dandova
to repay him some money that she had previously
borrowed. Dandova testified that this was the last
straw: I wrote him the check, and ... that was the end
of the relationship.
Despite the termination of her romantic
relationship with Schumacher, Dandova tried to promote
a relationship between Schumacher and their son. But
this, too, became problematic.
Shortly after C.D.s birth, Schumacher began
to display behavior that Dandova considered abnormal.
Dandova was especially disturbed by the fact that
Schumacher would masturbate while watching Dandova
nurse their son. According to Dandova, Schumachers
behavior became increasingly bizarre, and he began to
stalk her. Schumacher would sneak into Dandovas house
uninvited and would expose himself to her. Then, C.D.
began returning from visits to Schumachers house with a
terrible smell on his hair and hands a smell that
Dandova believed was Schumachers semen.
Finally, Dandova told Schumacher that he was
no longer welcome in her home. In response, Schumacher
told Dandova that he wanted C.D., and he came to
Dandovas house to retrieve the child. When Dandova
told Schumacher to leave, he refused. An argument
ensued, and then a shoving match. At some point,
according to Dandova, Schumacher (who is 6 4 tall) told
Dandova (who is 5 6 or 5 7) to hit him so she did.
Schumacher then left Dandovas house to report this
assault and to try to have Dandova arrested.
Based on this incident, Dandova obtained a
restraining order against Schumacher. But shortly
afterwards, Schumacher went to court and obtained a
modification of this restraining order, allowing him
fifty-percent visitation with C.D..
During this period of shared custody, Dandova
began to believe that something was wrong with C.D.
because he exhibited developmental delays. Then one
day, when C.D. was three and a half, C.D.s babysitter
called Dandova and told her that something was wrong
with the child. When Dandova arrived at the
babysitters house, C.D. seemed withdrawn. Dandova took
the child to the doctor. During the ensuing
examination, the doctor found that C.D. had rectal
tearing. Dandova suspected that Schumacher was
sexually abusing her son. She reported her suspicions
to the Division of Family and Youth Services, but DFYS
closed its investigation and took no action.
In early 1997, Dandova and Schumacher
returned to court to litigate custody of C.D.. As part
of the custody proceedings, Schumacher was evaluated by
a therapist. This therapist, Dr. Gooding, initially
testified that he was concerned about Schumachers
behavior, and he believed that C.D. [might] very well
be at risk. Indeed, two months later, after Dr.
Gooding had treated Schumacher, Gooding testified that
he did not think Schumacher was a normal heterosexual
male, due to Schumachers unusual sexual history and
pattern [of sexual behavior]. In particular, Gooding
said, Schumacher had admitted masturbating in front of
C.D.. But despite this, Gooding testified that he
[did not] believe that Mr. Schumacher need[ed]
extensive counseling in the future. According to
Gooding, the risk that Schumacher would sexually abuse
C.D. was very low.
After hearing this (and other) evidence,
Superior Court Judge Ralph R. Beistline concluded that
the evidence [supporting the allegation of] child
molest[ation was] very weak. Although he harbored some
concerns, the judge concluded that the evidence did not
clearly establish that Schumacher was a pedophile or
was otherwise a danger to the child. Accordingly, on
December 10, 1997, Judge Beistline ordered that custody
of C.D. be divided equally between Dandova and
Schumacher. Several days later, Dandova fled to Canada
with her son. She later testified that she had done
this to protect the child.
While Dandova was in Canada, Schumacher filed
a lawsuit against her for defamation. When Dandova
failed to answer this lawsuit, Schumacher obtained a
default judgement against her for a significant amount
of money.
In December 1998 (one year after Dandova
absconded to Canada), the authorities located her.
Dandova was not extradited (she was a Canadian
citizen), but C.D. was returned to Schumacher. At the
advice of her Canadian attorney, Dandova returned to
Alaska to fight for her son.
At first, Dandova was not permitted to have
any contact with C.D.. Then she was permitted three 15-
minute phone calls per week. In early April 1999,
Dandova was granted one hours supervised visitation
with C.D. on Mondays and Wednesdays.
On September 29, 1999 (the day of the
shooting), Dandova received a telephone call from her
attorneys paralegal: the paralegal told Dandova that
the superior courts custody investigator had
recommended that Dandova pay a portion of C.D.s
counseling expenses. Dandova mistakenly got the
impression that the custody investigator had
recommended that she make these payments because
Schumacher was poor. (In fact, the custody
investigators report did not contain any information
about Schumachers financial condition. Rather, the
custody investigator simply recommended that Dandova,
as one of C.D.s parents, contribute a share of the
expenses.)
Dandova testified that, after receiving this
phone call from her attorney, she became suicidal. She
was already tormented by her conversations with her
son, because he would often cry and tell her that he
wanted to come live with her. She thought that C.D.s
behavior was regressing, and she believed that
Schumacher was using C.D. to torture her. In addition,
Dandova felt despondent because Schumacher, by
executing on the default judgement, had taken nearly
everything she owned. She had lost her home, and she
was reduced to living in the upstairs portion of a
friends house. Dandova claimed that Schumacher had
even executed on the support checks that she received
for her daughter (a child of a former marriage).
Driven by all these thoughts, Dandova got
into her car (a vehicle that she was using with the
permission of a friend) and began driving around
Fairbanks. She testified that, as she drove, she tried
to suppress the urge to kill herself.
Dandova testified that she unexpectedly saw
Schumacher on the street, getting out of his truck, on
his way to visit his attorney. Schumachers truck was
apparently the same make and model as the truck that
Dandova owned before she lost everything. At trial,
Dandova described her reaction to this encounter:
Dandova: I parked at Hunter [Elementary
School] and ... waited [until] he came out
[of his attorneys office] and he got [back]
into that pickup. And I had just heard that
morning how poor Craig [Schumacher], poor
Craig, you know, this poor man, how I was
going to have to pay for C.D.s ... counseling
visits, and he had just garnished every penny
I had. I couldnt even put money in the bank.
I had received a custody payment or child
support payment from my ex-husband ... and he
even got that money out of my bank. ... He
had ... everything[, and] I didnt have a
penny. Any penny I had, he was going to be
able to get. And the way I saw it was, There
he is in ... a pickup that was just like
mine, that he had tried to illegally garnish
from me or whatever, and hes telling [my
attorney] how poor he was. And I [was
looking at] a pickup that he had bought with
my money. ... [H]e had gotten over $101,000
from me.
Dandova waited for Schumacher to leave his attorneys
office. She knew that there was a handgun under the seat of her
car, and she decided to use this weapon to confront Schumacher.
When Schumacher returned to his truck, Dandova got out of her
vehicle and approached Schumachers truck on foot. She held the
gun in both hands, pointing it at Schumachers head. When
Schumacher tried to drive forward to escape, Dandova shot him
through the neck and the shoulder. Schumacher put the vehicle in
motion, but Dandova followed him, still pointing the gun.
Schumachers truck then stalled, so he jumped out. Despite his
injuries, Schumacher managed to tackle Dandova knocking her to
the ground, and knocking the gun from her grasp. By this time,
people from Schumachers attorneys office had come outside, and
they helped Schumacher restrain Dandova until the police arrived.
At the scene, Dandova told Schumachers attorney that she had shot
Schumacher because he had ruined her life.
Dandova gave the following account of the shooting:
Dandova: I just thought [that] Id run
out there and confront him about it, how poor
So youre so poor, youre so poor. And I dont
know, then things ... kind of went fast from
then on. I remember coming up to his
[vehicle] window, and he realized I had a
gun, and ... [he] started backing out or
something, and the gun went off in my hand,
and the windshield shattered. So then ... he
was driving [away] and I was chasing him.
... I was determined to basically do some
damage to that truck. ...
Based on this evidence (viewed in the light most
favorable to Dandova), Dandovas attorney asked Superior Court
Judge Charles R. Pengilly to instruct the jurors on the defense
of heat of passion codified in AS 11.41.115(a). If the jury had
found in Dandovas favor on this issue, her offense would have
been reduced to attempted manslaughter. But Judge Pengilly
declined to instruct the jurors on heat of passion because he
found that Dandovas intense emotion had not resulted from recent
serious provocation by the victim, Schumacher. Judge Pengilly
further found that, even if some of Schumachers prior actions
might constitute serious provocation, these provocative actions
occurred years before, and therefore a reasonable persons
emotions would have cooled.
The Alaska statute defining the heat of passion
defense, and whether it applies to a defendant charged
with attempted murder
AS 11.41.115(a) declares that when a
defendant is prosecuted for first-degree murder under
AS 11.41.100(a)(1)(A) or for second-degree murder under
AS 11.41.110(a)(1), it is a defense [to murder, but not
to manslaughter or any other crime3] that the defendant
acted in a heat of passion, before there had been a
reasonable opportunity for the passion to cool, when
the heat of passion resulted from a serious provocation
by the intended victim.
The term serious provocation is defined in
subsection (f)(2) of this same statute:
serious provocation means conduct which
is sufficient to excite an intense passion in
a reasonable person in the defendants
situation, other than a person who is
intoxicated, under the circumstances as the
defendant reasonably believed them to be;
insulting words, insulting gestures, or
hearsay reports of conduct engaged in by the
intended victim do not, alone or in
combination with each other, constitute
serious provocation.
Before we begin our discussion of whether Dandova was
entitled to a jury instruction on heat of passion under the
facts of this case, we must address a legal contention
raised by the State: the argument that the heat of passion
defense is not available to a defendant charged with
attempted murder.
AS 11.41.115(a) states that the heat of passion defense
is available in prosecutions under AS 11.41.100(a)(1)(A) or
AS 11.41.110(a)(1). Because the statute does not explicitly
add or in prosecutions for attempts to commit these forms of
murder, the State argues that the legislature did not intend
for this statute to apply when a defendant is charged with
attempted murder.
(This issue arises only in prosecutions for attempted
first-degree murder because, as this Court held in Huitt v.
State, 678 P.2d 415, 420 (Alaska App. 1984), and as we explained
again in Guertin v. State, 854 P.2d 1130, 1132 (Alaska App.
1993), there is no crime of attempted second-degree murder under
Alaska law. A prosecution for attempted murder requires proof of
the defendants intent to kill.4 Anyone who engages in
life-threatening conduct with the requisite culpable mental state
for attempted murder intent to kill is necessarily guilty of an
attempt to commit first-degree murder as defined in
AS 11.41.100(a)(1)(A). Thus, the crime of attempted
second-degree murder would be superfluous.5)
The failure of AS 11.41.115(a) to explicitly mention
attempts to commit murder does not necessarily mean that heat of
passion is unavailable as a defense in prosecutions for attempted
murder. Both this Court and the Alaska Supreme Court have
addressed similar issues of statutory interpretation in the past
questions of whether a statute that lists substantive crimes
should likewise apply to defendants who attempt to commit one of
the listed crimes. Uniformly, we have looked to the purpose
behind the legislation when deciding these issues.
For example, in Mack v. State, 900 P.2d 1202 (Alaska
App. 1995), this Court was required to construe AS
12.55.085(f)(1), which forbids sentencing courts from suspending
imposition of a defendants sentence when the defendant is
convicted of a violation of AS 11.41.410 11.41.455. (These
listed crimes comprise all the sexual offenses defined by our
criminal code.) The question in Mack was whether a defendant
convicted of attempting to commit one of the crimes defined by
the listed statutes should be deemed to have been convicted of a
violation of that statute meaning that the sentencing court
would be prohibited from granting the defendant a suspended
imposition of sentence or, instead, whether such a defendant was
exempt from this limitation on the sentencing courts authority.
We explained in Mack that, under Alaska law
(specifically, our attempt statute, AS 11.31.100(a)), attempt
does not occur in the abstract, but only in connection with a
separate, substantive offense[.] ... [A]ttempt cannot be
charged alone; a proper charge of attempt must refer not only to
the attempt statute but [also] to the underlying substantive
offense.6 So, to resolve the issue of whether the sentencing
statute applied to attempts, we examined the history and purpose
of the statute. We concluded that the legislature enacted this
restriction on a sentencing judges authority because of concern
over what the legislature perceived to be the repeated and
escalating nature of conduct exhibited by many sexual offenders
a pattern of conduct plainly unsuited to the purposes of the
suspended imposition of sentence statute.7 In addition, we noted
that construing the disputed statute to exclude attempted sexual
offenses would have anomalous consequences, for it would result
in an unconditional bar against the granting of a suspended
imposition of sentence in even the least serious [misdemeanor]
categories of completed sexual offenses, ... while simultaneously
allowing the [suspended impositions of sentence] in more serious
attempted [felony] sexual assault cases.8 Based on these
considerations, we construed AS 12.55.085(f)(1) to apply to
attempts as well as completed crimes.9
The Alaska Supreme Court considered a similar issue of
statutory construction in Brookins v. State, 600 P.2d 12 (Alaska
1979). In Brookins, the statute at issue was former AS
11.15.295, which provided that a person who used or carried a
firearm during the commission of a robbery was guilty of an
aggravated felony and faced a minimum sentence of 10 years
imprisonment. The issue was whether this statute applied to
defendants who were convicted of attempted robbery. The supreme
court held that even though the statute could arguably be
interpreted either way, the public policy against use of a
firearm in either an attempted or a completed robbery led to the
conclusion that the statute should apply to attempts.10
And, more recently in Bourdon v. State, 28 P.3d 319
(Alaska App. 2001), this Court held that AS 12.30.040(b)(2)
which denies post-conviction bail to defendants convicted of
various sexual offenses listed in the statute should be
construed to deny post-conviction bail to defendants convicted of
attempts to commit these crimes. We reasoned that, although the
statute does not expressly mention attempts, the legislative
history of the statute demonstrated that the legislature was
concerned about the dangerousness and the recidivism of sex
offenders. We noted that, to be convicted of attempted sexual
assault or sexual abuse of a minor, a defendant must have
intended to perform the completed crime and must have engaged in
a substantial step toward the completion of that crime; thus, a
defendant convicted of attempt had shown themself to be equally
as dangerous as an offender who completed the crime.11
Turning now to the question of whether a heat of
passion defense is available in prosecutions for attempted
murder, we conclude that we should employ an analysis similar to
the analysis employed in Mack, Brookins, and Bourdon. That is,
we must construe AS 11.41.115(a) in light of the policy it
embodies. The rationale of allowing a heat of passion defense is
that a person who commits murder in response to serious
provocation is less blameworthy, and assumedly less of a danger
to society, than a typical murderer. This same rationale applies
equally to a person who attempts (but fails) to kill in response
to serious provocation.
Moreover, if the heat of passion defense did not apply
to defendants charged with attempted murder, this would create
severe and illogical disparities in sentencing. A defendant who,
acting in the heat of passion, intentionally killed another
person would face conviction for manslaughter and a sentence of
up to 20 years imprisonment.12 But a similarly situated
defendant, likewise acting in the heat of passion, who tried to
kill another person but failed would face conviction for
attempted murder and a sentence of up to 99 years imprisonment.13
It is inconceivable that, between these two defendants, the
legislature intended to impose a five-fold penalty on the
unsuccessful assailant.
For these reasons, we conclude that the defense of heat
of passion is available in prosecutions for attempted murder.
(Of course, if the defendant succeeds in seriously
wounding their victim, then even though the attempted murder
charge may ultimately result in a conviction for attempted
manslaughter (a class B felony) on account of the defendants heat
of passion, the defendant can still be convicted of first-degree
assault (a class A felony) because heat of passion is a defense
only to the specified forms of murder. See AS 11.41.115(e).)
Was Dandova entitled to a jury instruction on heat of
passion under the facts of her case?
The major question in this appeal is whether
Dandova was entitled to a jury instruction on the
defense of heat of passion codified in AS 11.41.115(a).
Dandova would have been entitled to a jury instruction
on this defense if she presented some evidence of the
defense. In this context, some evidence is a term of
art meaning evidence which, if viewed in the light most
favorable to the defendant, is sufficient to allow a
reasonable juror to find in the defendants favor on
each element of the defense.14
Viewing the evidence discussed above in the
light most favorable to Dandova, one might reasonably
conclude that Dandova shot Schumacher while in the grip
of strong, perhaps overpowering, emotion. Thus, one
might say that she acted in the heat of passion in a
non-technical sense. But the same thing could be said
of many people who commit a homicide and are convicted
of murder. That is, many murders are committed because
the killer is experiencing intense emotion at the time.
At common law, overpowering emotion was not
sufficient to mitigate a murder to manslaughter unless
this emotion stemmed from adequate provocation.
Loosely speaking, a provocation was adequate if it was
such as might naturally induce a reasonable [person] in
the passion of the moment to lose self-control and
commit the act on impulse and without reflection.15
However, this is only a loose definition for the
common law restricted the types of provocation that
were deemed adequate to engender a heat of passion.
One major limitation was that the provocative
act had to be unlawful. See Rollin M. Perkins & Ronald
N. Boyce, Criminal Law (3rd ed. 1982), pp. 85-86.
Thus, a defendants observation of their spouses
adultery was deemed sufficient provocation, but not the
unfaithfulness of the defendants betrothed or the
defendants lover. Wayne LaFave and Austin Scott,
Substantive Criminal Law (1986), 7.10(b)(5), Vol. 2,
p. 259. Similarly, an aggressor who was met with
lawful force in self-defense would not be allowed to
claim that his victims use of defensive force aroused a
heat of passion in him. Perkins & Boyce, pp. 89-90.
Another major limitation was that provocative
words [were] not ... adequate provocation, [no matter
how] abusive, aggravating, contemptuous, false,
grievous, indecent, insulting, opprobrious, provoking,
or scurrilous they [might] be. Perkins & Boyce, p. 93.
Likewise, insulting gestures were never adequate
provocation. Id. at 95.
Moreover, the common law required the
defendant to conform to the emotional standard of a
reasonable person who was subjected to the same
provocation: the defendants overpowering emotion was
no defense if a reasonable persons emotions would have
cooled by the time the defendant committed the
homicide. Perkins & Boyce, pp. 99-101; see also LaFave
& Scott, 7.10(d), Vol. 2, pp. 265-67.
In addition, the defendants attack on the
victim had to be proportionate to the provocation.
Perkins & Boyce, p. 86; LaFave & Scott, 7.10(b), Vol.
2, pp. 256-57.
These are the limitations that caused
Dandovas trial judge to refuse her request for a jury
instruction on heat of passion. In this appeal,
Dandova argues that the trial judge construed Alaskas
heat of passion defense too narrowly. Specifically,
Dandova asserts that even though Schumachers conduct on
the day of the shooting was not, of itself,
sufficiently provocative conduct to establish heat of
passion, Dandova should have been allowed to base her
heat of passion argument on the totality of Schumachers
conduct during the years leading up to the shooting,
and on the cumulative effect of this conduct on her
emotions.
(a) Our prior decisions construing AS 11.41.115
Before Alaskas present criminal code went
into effect in January 1980, we had no statutory
definition of the heat of passion defense. Thus,
Alaskas early decisions on this topic most notably,
the supreme courts decision in LaLonde v. State, 614
P.2d 808 (Alaska 1980) were decided under the common
law.16
Now, however, the heat of passion defense is
codified in AS 11.41.115. This means that we are no
longer at liberty to define the defense as we think
best no longer free to exercise our common-law
authority to adopt the rule [of law] that is most
persuasive in light of precedent, reason, and policy.17
Instead, questions regarding the definition and scope
of this defense must be answered by ascertaining the
legislatures intent through statutory construction.18
In Martin v. State, 664 P.2d 612, 616-17
(Alaska App. 1983), this Court examined the origins of
AS 11.41.115 and concluded that our legislatures
purpose was, in large part, to codify the common-law
defense of heat of passion. In particular, we
concluded that the legislature had purposely rejected
the expansive formulation of the defense advocated by
the drafters of the Model Penal Code.
Section 210.3 of the Model Penal Code defines
a defense called extreme emotional disturbance which
abandons most of the common-law restrictions on what
constitutes adequate provocation. Under the Model
Penal Code version of the defense, a homicide which
would otherwise be murder [is reduced to manslaughter
if the homicide was] committed under the influence of
[any] extreme mental or emotional disturbance for which
there is reasonable explanation or excuse.19
Alaskas criminal code was formulated almost
two decades after the Model Penal Code was issued in
its final form. In addition, the Oregon Criminal Code
(one the sources that the authors of our criminal code
drew from) contains an extreme emotional disturbance
provision similar to the Model Penal Codes
recommendation.20 Yet the drafters of the Alaska
Criminal Code looked to the law of Illinois rather than
the law of Oregon or the Model Penal Code.21 They
wrote a heat of passion statute rather than an extreme
emotional disturbance defense, and the Alaska
Legislature followed their recommendation.
From these facts, we concluded in Martin that
our legislature was aware of the Model Penal Codes
version of the defense and refused to enact it. [T]he
legislature did not intend to make extreme emotional
disturbance a defense to murder.22 Instead, Alaskas
heat of passion statute is based on Chapter 38, 9-2(a)
of the Illinois Criminal Code a provision that
(according to its Illinois drafters) was intended to
parallel[] the common law.23
In addition, this Court has ruled that the
common-law requirement of proportionality continues to
govern the heat of passion defense codified in AS
11.41.115. That is, the defendants violent reaction
must not be disproportionate to the provocation. See
Roark v. State, 758 P.2d 644, 647 (Alaska App. 1988);
Bell v. State, 658 P.2d 787, 791 (Alaska App. 1983).
Finally, it is clear from the wording of AS
11.41.115 that our legislature rejected some of the
more recent liberalizing trends in the law of heat of
passion. For instance, although the common-law rule
was that provocation could not be based on words alone,
LaFave & Scott speaks of [s]ome cases [holding] that a
reasonable man may be provoked upon suddenly being told
of his wifes infidelity.24 Under these cases,
information from a third person that a wife has been
unfaithful has been held to constitute adequate
provocation, even though the common law would not deem
the provocation adequate unless the defendant actually
observed (or reasonably believed he observed) the
infidelity.25 But this expanded view of provocation is
obviously inconsistent with AS 11.41.115(f)(2), which
expressly states that hearsay reports of conduct
engaged in by the intended victim do not ... constitute
serious provocation.
(b) Dandovas argument that adequate provocation can
consist of a series of acts which, viewed
separately, are not themselves adequate provocation
As explained above, Dandova asserted that her
violent assault on Schumacher was precipitated by two
events: (1) a telephone conversation with her lawyers
paralegal earlier in the day, in which she learned that
the superior courts custody investigator was going to
recommend that Dandova pay a portion of her son C.D.s
counseling expenses, and (2) Dandovas observation of
Schumacher getting out of a new truck an event that
reminded her of the fact that Schumacher had won a
default judgement against her and had seized most of
her assets by executing on that judgement.
Dandova argued that, even though these two
events would seemingly not support a finding of serious
provocation, these events had to be evaluated in light
of Dandovas entire history with Schumacher in
particular, the fact that Dandova had reason to suspect
that Schumacher had sexually abused their son, and the
fact that Schumacher had obtained a judgement against
Dandova and, by executing on this judgement, had taken
most of Dandovas money.
At common law, adequate provocation could
exist when a defendant knew or reasonably believed26
that the victim had sexually assaulted or sexually
abused the defendants spouse or close relative.27
Thus, when Dandova observed physical evidence
suggesting that Schumacher had sexually abused C.D.,
this might have constituted provocation adequate to
mitigate an ensuing homicidal assault on Schumacher.
But, according to Dandovas testimony, this
incident had occurred years before. Thus, as a matter
of law, Dandova could not rely on this incident as
adequate provocation for her act of shooting Schumacher
because any reasonable person would have cooled.
(In the trial court, Dandovas attorney argued
that [even] in reasonable people, when these kinds of
things are done to members of your family, the heat of
passion never subsides. This argument is clearly
inconsistent with the common law and, additionally, it
is inconsistent with Alaska cases on this subject,
particularly LaLonde v. State28.)
On appeal, Dandova does not claim that her
suspicions of sexual abuse constituted adequate
provocation for her much later attack on Schumacher.
Nor does she assert that Schumachers lawsuit against
her, and his ensuing executions on her assets,
constituted adequate provocation. Rather, Dandova
attempts to use these events in a different way as an
explanation of why she reacted so violently to her
attorneys telephone call and the sight of Schumachers
new truck on the day of the shooting. Dandova argues
that an act which does not itself constitute serious
provocation within the definition contained in
AS 11.41.115(f)(2) can nevertheless be deemed adequate
provocation if this act stems from or reminds the
defendant of the victims past wrongs so that the whole
series of interactions between the defendant and the
victim, taken as a whole, constitutes serious
provocation.
Dandova relies on People v. Berry, 556 P.2d
777 (Cal. 1976), in which the California court ruled
that adequate provocation can arise from a series of
provocative acts by the victim. The rationale of the
Berry decision is that even though the victims
provocative acts, viewed individually, would not be
adequate to support a heat of passion defense, a series
of provocative acts can constitute adequate provocation
if, taken as a whole, they comprise a course of conduct
that would engender overwhelming passion in a
reasonable person. Id. at 780-81.
Another case adopting a similar rationale,
this one from Australia (Moffa v. The Queen29), is
discussed in Perkins & Boyce:
It has been recognized that many factors,
possibly not sufficient independently to
constitute adequate provocation, may join
together and be sufficient to raise an issue
of provocation. [For example, it] has been
held [that] where a defendants wife rejected
his advances toward reconciliation, denied
affection for him, scorned him with racial
epithets, stated [that] she had intercourse
with everybody on the street, and threw a
telephone and photographs at him, [these]
facts justified a [jury] instruction on
provocation for common law manslaughter.
Perkins & Boyce, p. 97. See also Commonwealth v. McCusker, 292
A.2d 286, 289-290 (Pa. 1972), and People v. Bridgehouse, 303
P.2d 1018 (Cal. 1956).
In a similar vein, LaFave & Scott addresses the related
problem of how to determine the cooling-off period when the
victim engages in a series of provocative acts. As noted in
LaFave & Scott, [n]ot infrequently, there is a considerable time
interval between the victims act of provocation and the
defendants fatal conduct time enough for passion to subside.
[Then,] some event occurs which rekindles the defendants
passion.30 According to LaFave & Scott, if this new occurrence
is enough to trigger the passion of a reasonable man, the cooling-
off period should start with the new occurrence.
[In the] typical heat-of-passion
manslaughter case[,] one specific event (of
one of the kinds previously discussed)
immediately produces a rage in the defendant.
This may account for the fact that modern
codes usually state that [the] defendants
passion must be sudden. However, a more
realistic appraisal of how human emotions
work compels the conclusion which some
courts have reached that a reasonable
provocation can be produced by a series of
events occurring over a considerable span of
time. When that is the case, then ... the
measurement of the cooling time should
commence with ... the last provocative event.
Id., 7.10(d), Vol. 2, p. 267.
Perkins & Boyce agrees that a later
event can rekindle passion that passion may
be suddenly revived by circumstances that
bring the provocation vividly to mind.31
However, LaFave & Scott concedes that the
court decisions on this topic have not always
recognized the idea that the cooling-off
period should recommence with the most recent
provocative act.32
We are unsure whether AS 11.41.115
was intended to incorporate Dandovas
suggested formulation of serious provocation.
Admittedly, there are some cases to support
Dandovas series of provocations or revival of
provocation theory, and this theory has found
favor in the two treatises discussed above.
On the other hand, as we noted in Martin v.
State, Alaskas heat of passion statute, AS
11.41.115, was intended to generally codify
the common-law definition of adequate
provocation presumably, the definition known
to the statutes drafters and to the
legislature when it enacted the statute
in 1978.33
In Martin, we addressed but did
not decide the question of whether serious
provocation as defined in AS 11.41.115(f)(2)
was confined to the categories of provocation
deemed adequate at common law basically,
situations of substantial violence or
discovered adultery.34 This question arose
in Martin because the defendant in that case
shot and killed her lover after learning that
he was dissatisfied with their relationship
and that he was seeing another woman.
As we described in Martin, the
defendant learned that [her lover] was
dissatisfied with their relationship over
four months prior to the killing; she learned
approximately thirty days before the killing
[that her lover] was seeing another woman;
and, two weeks before the killing, Martin
learned who [this woman was].35 At her
trial, Martin testified that the event that
pushed her over the edge was when she asked
her lover how he expected [the two of] them
to get along when he wouldnt have anything to
do with her, to which he responded, I dont
want anything to do with you now. Martin
said that, upon hearing this response, she
went into a fury, obtained a gun from her
bedroom, then returned and shot her lover
while he was washing his hands at the sink.36
We noted that, during the events
that precipitated the homicide, Martins lover
had not raised his voice, nor had he
threatened Martin, or tried to strike her.37
All he had done was to verbally affirm what
Martin already knew: that he was seeing
another woman and that he wished to end their
relationship. We concluded that, [u]nder all
these circumstances, ... the trial [judge]
properly found that there was insufficient
evidence of heat of passion to warrant an
instruction on that defense.38
The Martin opinion is somewhat
terse in its explanation of why this evidence
was insufficient as a matter of law to
establish heat of passion. Conceivably, the
Court could have been applying the common-law
rule that provocation must consist of an
unlawful act (since leaving ones lover is not
unlawful). However, given the discussion of
the facts that precedes the Courts ruling,
this interpretation seems unlikely. Instead,
the Court was apparently following the
statutory definition that insulting words
alone can not constitute adequate
provocation.
In doing so, the Martin court
implicitly rejected an argument that is quite
similar to the one Dandova makes in this
appeal: the argument that the victims words,
while perhaps insufficient by themselves to
constitute adequate provocation, can be
deemed adequate provocation if they are
sufficient to forcefully remind the defendant
of the past wrongs that the victim has
inflicted on the defendant. Thus, our ruling
in Martin appears to be contrary to the more
flexible definition of provocation that has
been adopted by some other jurisdictions.
However, we conclude that we need
not resolve this issue in Dandovas case.
Even assuming that the definition of serious
provocation in AS 11.41.115(f)(2) might
include provocation that consists of a series
of provocative events, Dandovas argument
still falters on the facts of her case and on
the wording of our statute.
As explained above, Dandova
asserted that her act of shooting Schumacher
was triggered by two events on the day of the
shooting. The first of these events was a
telephone call from her attorneys paralegal.
In this phone call, the paralegal told
Dandova that the superior courts custody
investigator had decided to recommend that
Dandova pay a portion of her son C.D.s
counseling expenses. Either from something
that the paralegal said, or from Dandovas own
suspicions concerning Schumachers motives,
Dandova somehow understood mistakenly that
the custody investigator was making this
recommendation because Schumacher had
declared that he was too poor to bear the
entire expense himself.
There is a major legal impediment
to categorizing this telephone conversation
as a provocation: AS 11.41.115(f)(2)
expressly states that hearsay reports of the
victims conduct do not constitute serious
provocation. Thus, even if the paralegal had
told Dandova that Schumacher had recently
sexually abused C.D., or that newly
discovered evidence proved that Schumacher
had obtained his civil judgement against
Dandova by fraud, these hearsay reports would
be insufficient as a matter of law to
mitigate the seriousness of Dandovas attack
on Schumacher.
Obviously, there will be times when
hearsay reports of another persons injurious
and illegal conduct can engender strong
emotions emotions such as the rage, terror,
or wild desperation that can characterize
heat of passion.39 But the definition of the
heat of passion defense has always been the
product of an uneasy marriage between
psychology and social policy. At common law,
many provocative events events that would
clearly tend to engender overwhelming emotion
in the hearer or the onlooker were
nevertheless flatly excluded from the
definition of provocation because the common-
law courts believed that it was bad policy to
allow a defense to murder based on these
types of events.
In Alaska, our defense of heat of
passion is now defined by statute, so it is
the legislature that makes these policy
choices. But when the legislature declares,
in AS 11.41.115(f)(2), that insulting words,
insulting gestures, or hearsay reports of
conduct engaged in by the intended victim do
not, alone or in combination with each other,
constitute serious provocation, the
legislature is simply continuing the
centuries-old practice of placing policy
limits on the heat of passion defense, and we
must defer to their judgement.
(We note but do not decide the
possible contention that, even though
AS 11.41.115(f)(2) declares that hearsay
reports of the victims conduct do not alone
constitute serious provocation, the required
level of provocation might be established by
a hearsay report in combination with other
acts of provocation acts other than
insulting words or gestures, which the
statute specifically precludes. We do not
decide this issue because (a) it is not
raised and, as we explain in the following
paragraphs, (b) Dandova did not present
evidence of other acts that qualify as
provocation.)
The second event that purportedly
triggered Dandovas armed assault on
Schumacher was her observation that
Schumacher had purchased a new truck.
Dandova testified that, when she saw
Schumacher getting out of this vehicle and
walking toward his attorneys office, it
reminded her of how Schumacher had obtained a
judgement against her and had executed on her
assets, so that she was left poor while he
could afford a new vehicle.
But, as with the telephone call,
there is a major legal impediment to
categorizing this event as a provocation.
Schumacher was not doing anything to Dandova.
He was simply parking his vehicle on the
street and walking to an appointment with his
attorney. In fact, he was unaware that
Dandova was there and was watching him.
Under AS 11.41.115(a), to establish
a prima facie case of heat of passion, the
defendant must do more than introduce
evidence that the killing or attempted
killing was done from intense emotion. The
defendant must also introduce evidence that
their passion resulted from a serious
provocation by the intended victim that this
passion stemmed from the victims conduct as
defined (and limited) by AS 11.41.115(f).
But what of the situation where the defendant
views the victims conduct as provocative, and
yet the victim is merely going about their
life, with no idea that their activities are
provocative to the defendant?
We addressed this issue in Roark v.
State, 758 P.2d 644 (Alaska App. 1988), in
the context of construing mitigating factor
AS 12.55.155(d)(7) (proof that the victim
provoked the [defendants] crime to a
significant degree). Regarding the legal
definition of provocation in this context, we
said:
In common usage, to provoke means: 1.
to excite to some action or feeling 2. to
anger, irritate, or annoy 3. to stir up
(action or feeling) 4. to call forth; evoke.
Websters New World Dictionary (2nd College
ed. 1980). This definition plainly suggests
something more direct and purposive than a
mere causal link between the person who
provokes a response and the action or feeling
that is provoked. When the victim directs
actions or words at the defendant for the
express purpose of eliciting a response, it
is clear that the defendant may be said to
have been provoked. When the victims conduct
is neither directed at the defendant nor
intended to influence the defendants actions
or emotions, however, the mere fact that it
has the incidental effect of prompting the
defendant to react, thereby contributing in a
causal sense to the commission of the crime,
would not in itself justify a finding of
provocation.
Roark, 758 P.2d at 647.
Schumachers conduct of purchasing a
new truck, and of parking his vehicle on a
public street, unaware that he was within
Dandovas view, is the second type of conduct
discussed in this passage from Roark: it was
neither directed at [Dandova] nor intended to
influence [her] actions or emotions. Even
though this event [had] the incidental effect
of prompting [Dandova] to react, thereby
contributing in a causal sense to the
commission of the crime, it was not
provocation.
We readily acknowledge that the
Roark definition of provocation is not
complete. The law has always recognized some
types of conduct as constituting adequate
provocation even though the victims conduct
was neither directed toward the defendant nor
necessarily intended to influence the
defendants emotions. The most obvious
example is the victims act of committing
adultery with the defendants spouse. But
adultery was the quintessential provocation
at common law universally recognized as
being capable of creating a heat of passion
in the other spouse.
Here, the alleged provocative act
was Schumachers purchase of a new truck. We
note that this would not constitute adequate
provocation at common law because the common
law limited provocation to unlawful conduct,
and it is lawful to purchase a vehicle.
We conclude as a matter of law that
Schumachers act of purchasing a new vehicle
could not constitute adequate provocation for
homicide or attempted homicide under our
statute. The purchase of the vehicle was a
lawful act, it was not directed at Dandova,
and it was not intended to influence her
actions or emotions.
Finally, we turn to another aspect
of Dandovas series of provocations claim
Schumachers lawsuit against Dandova, and his
subsequent executions against her assets.
Dandova argues that this lawsuit, and the
fact that her assets were seized to pay the
resulting civil judgement, were major factors
in creating the intense passion that she
experienced on the day that she shot
Schumacher. As explained above, the common
law required that the victims provocative act
be an unlawful act. Thus, the victims acts
of litigating against the defendant, and of
obtaining a judgement against the defendant,
and of executing on that judgement, would not
be adequate provocation at common law. More
recent cases confirm that, as a matter of
social policy, courts will not allow
defendants to claim heat of passion based on
the results of litigation even when the
defendant reasonably believes that the
litigation ended in a wrongful or erroneous
verdict.
For example, LaFave & Scott cites a
case from Pennsylvania in which a husband and
wife were litigating the husbands support
payments. In open court, the judge announced
a decision that the husband believed was
erroneously favorable to his wife. Upon
hearing the judges decision, the husband shot
and killed his wifes attorney, then shot and
wounded the judge. The Pennsylvania Supreme
Court held that, as a matter of law (i.e., as
a matter of social policy), the judges
decision could not constitute an adequate
provocation for homicide and attempted
homicide.40
For similar reasons, we are
likewise hesitant to allow Dandova to rely on
Schumachers lawsuit as a provocation for
attempted murder.
To summarize: We do not
definitively decide whether serious
provocation can be established by a victims
series of provocative acts. Rather, we hold
that even if Alaska law allowed serious
provocation to be established by a series of
provocative acts, Dandova still failed to
establish her entitlement to a jury
instruction on heat of passion.
It would be one thing if Dandova
had offered a series of acts that each
qualified as provocations, so that the only
remaining issue was whether their cumulative
effect constituted serious provocation. But,
with the exception of the long-ago allegation
that Schumacher had sexually abused their
child, Dandova based her heat of passion
claim on acts and events that, as a matter of
law, do not qualify as provocations. Thus,
we resolve Dandovas case with a narrow
ruling: a defendant can not establish
serious provocation by relying on the
cumulative effect of acts and events which,
as a matter of law, do not qualify as
provocations.
Conclusion
For the reasons stated here, we conclude that
the trial judge properly denied Dandovas request
to have the jury instructed on heat of passion.
The judgement of the superior court is AFFIRMED.
COATS, Chief Judge, dissenting.
I agree with my colleagues that Dandovas heat
of passion defense had some significant problems and
was very weak. But Dandova was entitled to a jury
trial and it was up to the jury to determine whether
Dandova established that she acted in the heat of
passion.
The Alaska Supreme Court has stated that any
weakness or implausibility in the evidence supporting
[a defendants] story is not a relevant consideration.1
The legislatures description of when the defendants
conduct is mitigated by heat of passion as codified in
AS 11.41.115(a) appears to me to be fairly straight
forward. And, of course, the trial court has the
discretion to address any lack of clarity by giving
supplemental instructions. In my view, the trial court
should have instructed the jury on heat of passion and
should have let the jury decide whether Dandova acted
in the heat of passion.
_______________________________
1 AS 11.41.100(a)(1)(A).
2 AS 11.41.200(a)(1) recklessly causing serious physical
injury to another person by means of a dangerous instrument.
3 See AS 11.41.115(e): Nothing in [subsection](a) ... of
this [statute] precludes a prosecution for or conviction of
manslaughter or any other crime not specifically precluded.
4 See Huitt, 678 P.2d at 419; Guertin, 854 P.2d at 1131.
5 Guertin v. State, 854 P.2d at 1131. See also Wayne R.
LaFave & Austin Scott, Substantive Criminal Law (1986),
6.2-(c)(1), Vol. 2, p. 25.
6 Mack, 900 P.2d at 1203.
7 Id. at 1204.
8 Id.
9 Id. at 1205.
10 Brookins, 600 P.2d at 17.
11 Bourdon, 928 P.2d at 321.
12 Under AS 12.55.125(c), the maximum penalty for
manslaughter (a class A felony) is 20 years imprisonment.
13 Under AS 12.55.125(b), a person convicted of attempted
murder faces a maximum penalty of 99 years imprisonment and a
mandatory minimum penalty of 5 years.
14 Lacey v. State, 54 P.3d 304, 308 (Alaska App. 2002),
citing Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995) (the
evidence must be sufficient to establish each element of the
proposed defense); Paul v. State, 655 P.2d 772, 775 (Alaska App.
1982) (the evidence, viewed in the light most favorable to the
defendant, must be sufficient to warrant a reasonable jurors
finding in the defendants favor on the proposed defense).
15 LaLonde v. State, 614 P.2d 808, 810 (Alaska 1980),
quoting Austin v. United States, 382 F.2d 129, 137 (D.C.
Cir. 1967).
16 Although LaLonde was decided in 1980 (i.e., after
Alaskas current criminal code went into effect), the
defendant in LaLonde was prosecuted under Alaskas former
criminal code. Our former criminal code did not explicitly
define the defense of heat of passion or the corresponding
crime of voluntary manslaughter. See Keith v. State, 612
P.2d 977, 987 (Alaska 1980). Thus, the supreme court was
declaring the common law in LaLonde.
17 Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
18 See Brant v. State, 992 P.2d 590, 592-93 (Alaska App.
1999) (Mannheimer, J., concurring):
[T]he supreme courts statement in Guin v. Ha that,
when a court is required to decide a question of law,
the courts duty is to adopt the rule of law that is
most persuasive in light of precedent, policy, and
reason ... is only partially true. The statement
applies in full measure when a court must declare the
common law. But when a court construes a statute, the
courts task is to ascertain and implement the intent of
the legislature. In accomplishing this task, the
courts primary point of reference is the wording of the
statute. When that wording is unclear or ambiguous, a
court may be assisted by precedent, policy, and reason
as well as by the statutes legislative history and the
recognized rules of statutory construction. But a
court exceeds its authority if it interprets statutes
as it believes the legislature should have meant them.
19 Model Penal Code 210.3(b), quoted in Martin, 664 P.2d
at 616.
20 Martin, 664 P.2d at 616.
21 See Martin, 664 P.2d at 617.
22 Id., 664 P.2d at 616.
23 Id., 664 P.2d at 617.
24 LaFave & Scott, 7.10(b)(5), Vol. 2, pp. 259-260.
25 Id., 7.10(b)(6), Vol. 2, p. 260.
26 See Howell v. State, 917 P.2d 1202, 1208-09 (Alaska
App. 1996). In Howell, this Court concluded that, at common
law, the adequacy of the provocation was evaluated under the
circumstances as the defendant reasonably perceived them,
even if it turned out that the defendant was mistaken. We
then held that, because the legislature inten[ded] to codify
the traditional doctrine of heat of passion in AS 11.41.115,
this same common-law doctrine concerning a defendants
reasonable but mistaken belief would continue to apply to
cases governed by our heat of passion statute.
27 See Perkins & Boyce, p. 97.
28 614 P.2d 808 (Alaska 1980). In LaLonde, the defendant
asserted that her decision to kill her former lover was
prompted by a report that she heard several hours before a
report that this former lover was thinking about killing
LaLondes new lover and, perhaps, LaLonde as well. The
supreme court held that a reasonable person would have
cooled within several hours time after hearing this report,
and thus LaLonde could not rely on heat of passion as a
defense to murder. Id. at 811.
The issue of whether a reasonable person would cool within a
particular span of time will often turn on the particular
facts of the case. However, LaLonde follows the common law
in rejecting the notion that some provocations are so great
that a reasonable person would never cool.
29 51 A.L.J.R. [Australian Law Journal Reports] 403 (High
Court of Australia 1977).
30 LaFave & Scott, 7.10(d), Vol. 2, p. 266.
31 Perkins & Boyce, p. 100.
32 LaFave & Scott, 7.10(d), Vol. 2, pp. 266-67.
33Martin, 664 P.2d at 617.
34Id. at 618.
35Id.
36Id.
37Id.
38Id.
39See Howell v. State, 917 P.2d 1202, 1206 (Alaska App.
1996) (We have consistently recognized that, in the
context of the heat of passion statute, the word
passion encompasses more than anger or rage; it
includes fear, terror and other intense emotions.); Ha
v. State, 892 P.2d 184, 196 (Alaska App. 1995) (same);
LaPierre v. State, 734 P.2d 997, 1001-02 (Alaska App.
1987) (same).
40See Commonwealth ex rel. Haines v. Banmiller, 143 A.2d
661 (Pa. 1958), cited in LaFave & Scott, 7.10(b)(8),
Vol. 2, p. 261.
1 Toomey v. State, 581 P.2d 1124, 1126 n.10 (Alaska 1978);
see also Houston v. State, 602 P.2d 784, 785 (Alaska 1979);
Folger v. State, 648 P.2d 111, 114 (Alaska App. 1982).
