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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
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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
| JACK E. MORRELL, | ) |
| ) Court of Appeals No. A-9847 | |
| Appellant, | ) Trial Court No. 3AN-04-1978 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2241 September 25, 2009 | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Eric A. Aarseth, Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
Jack E. Morrell killed Eric Kalenka by stabbing him
several times in the leg outside of a Taco Bell restaurant. We
conclude that there was sufficient evidence to support Morrells
resulting conviction for second-degree murder. We also conclude
that the trial judge did not abuse his discretion by admitting
evidence that Morrell had smoked marijuana and had four ounces of
marijuana in his vehicle. We further conclude that Morrells
sentence of 60 years imprisonment with 10 years suspended was not
clearly mistaken.
Background
Erik Kalenka and his girlfriend, Christine Giles, went
to the drive-through at the Taco Bell on Fifth Avenue after a
night of playing video games. Jack Morrell and his cousins,
Paul and William Wassili, also went to the Taco Bell after
spending four to five hours drinking at Chilkoot Charlies.
While Kalenka and Giles were waiting in the drive-
through line, Morrells Chevy Suburban struck the rear bumper of
Kalenkas rented Subaru. Kalenka got out of the Subaru to assess
the damage and asked Morrell to move the Suburban so that Kalenka
could see the back of his car. Morrell refused to move, saying
something to the effect of Why are you white people always
fucking with us Natives? Kalenka responded by pulling out his
phone and dialing 911.
The encounter then escalated: Morrell grabbed Kalenka
by the collar and shoved him against the Subaru. Kalenka stated
that he did not want to fight he just wanted Morrells
information because the Subarau was a rental. The fight
continued as Morrell produced a folding knife from his pocket and
punctured the Subarus rear tire. Paul and William Wassili exited
the Suburban, and Claude Doucet, the driver of the car behind the
Suburban, also got out of his vehicle.
The fight continued to escalate, and Morrell and
Kalenka began to roll around on the ground. Then Kalenka
screamed that he had been stabbed, and Doucet and William Wassili
pulled Morrell off Kalenka. Kalenka, who was bleeding and having
trouble walking, got back into the Subaru and asked Giles to get
an ambulance. While Giles was speaking with the 911 operator,
Kalenka became unresponsive and then died.
Medical Examiner Frank Fallico conducted the autopsy.
Fallico testified that Kalenka died from multiple stab wounds:
Kalenka suffered seven stab wounds to the left leg and one stab
wound to the upper portion of his right leg, near the groin area.
Fallico testified that one of the wounds, a stab wound above the
knee on the left side of Kalenkas left leg, had been rapidly
fatal because it nicked the popliteal artery, an extension of the
femoral artery. Fallico also testified that Kalenka had wounds
to his hands and face.
Morrell was indicted for second-degree murder1 and
first-degree robbery (for allegedly taking Kalenkas wallet).2
Morrell claimed self-defense at trial, arguing that although
Morrell started the fight, Kalenka escalated the fight, using
deadly force by putting Morrell in a headlock, making it
difficult for him to breathe.
The State presented evidence of marijuana metabolite
in a blood sample taken from Morrell on the morning after his
arrest, and evidence that there were over four ounces of
marijuana found in his car. At trial, Morrell argued that the
marijuana evidence should not be admitted, but the trial court
denied his motion and admitted the evidence.
The jury acquitted Morrell on the robbery charge but
rejected his self-defense claim and convicted him of second-
degree murder. Finding that Morrells crime was an atypically
serious second-degree murder, Superior Court Judge Eric A.
Aarseth sentenced Morrell to 60 years imprisonment with 10 years
suspended.
Sufficiency of the Evidence
Morrell argues that insufficient evidence was
presented to the jury to support his conviction for second-degree
murder. When we review the sufficiency of the evidence, we
uphold a verdict if any reasonable juror could have concluded
that the defendant was guilty beyond a reasonable doubt.3 We do
not weigh the evidence or witness credibility;4 we consider only
those facts in the record most favorable to the verdict and such
reasonable inferences as a jury may have drawn from those facts.5
Morrell was charged with second-degree murder under
three theories: (1) the serious-physical-injury theory that he
intended to cause serious physical injury to Kalenka or knew that
his conduct was substantially certain to result in serious
physical injury or death, and his conduct caused Kalenkas death;
(2) the extreme-indifference theory that he engaged in conduct
manifesting an extreme indifference to human life, and caused
Kalenkas death; and (3) the felony-murder theory that he caused
Kalenkas death during the commission of first-degree robbery.6
The jury was not asked to specify which theory it
relied upon when it reached a verdict on the murder charge.7 But
the parties agree that the jury did not rely on the felony-murder
theory, because the jury acquitted Morrell of the robbery charge.
Thus, the jurors must have convicted Morrell under one or both of
the other two theories.
In this appeal, Morrell does not contest that there
was sufficient evidence to support a conviction under the extreme-
indifference theory. But Morrell contends that the State failed
to provide sufficient evidence to support conviction under the
serious-physical-injury theory.
Sufficiency of the evidence to support conviction
under the serious- physical-injury theory
Our review of the record convinces us that there was
sufficient evidence to support either prong of the serious-
physical-injury theory: that Morrell intended to cause serious
physical injury, or that Morrell knew his conduct was
substantially certain to result in serious physical injury or
death.
Regarding the first prong of this theory, there was
sufficient evidence to show that Morrell intended to cause
serious physical injury.8 The witnesses at the scene and the
autopsy evidence established that Morrell stabbed Kalenka
repeatedly with a folding knife, an instrument defined by statute
as a deadly weapon.9 The medical examiner testified that Kalenka
had eight penetrating stab wounds on his legs. Of these wounds,
one was lethal or rapidly lethal and the other seven were
referred to as lethal only in the absence of modern medical care.
The medical examiner also testified that Kalenka had knife wounds
on his hands suggesting that he attempted to ward off Morrells
attack. The jury could have inferred that because Morrell
stabbed Kalenka eight times while Kalenka tried to protect
himself, Morrell had the conscious objective of causing serious
injury to Kalenka.
Additionally, Giles, Kalenkas girlfriend, testified
that prior to the fight, Morrell threatened both her and Kalenka.
Claude Doucet, an unrelated bystander, testified that Morrell was
uttering racist remarks and expletives. Morrell himself
testified that he was intoxicated at the time of the encounter
and that he was angry at Kalenka for calling 911. Accordingly,
the jury could have concluded that Morrell was drunk and
agitated, that Morrell intentionally stabbed Kalenka, and that
Morrell wanted to hurt Kalenka. Viewing the evidence in the
light most favorable upholding the jurys verdict, there is ample
evidence that Morrell intended to seriously injure Kalenka.
Regarding the second prong of this theory, there was
likewise sufficient evidence to show that Morrell knew his
conduct was substantially certain to cause death or serious
physical injury. In Huitt v. State, we clarified that a person
could act knowing that his conduct was substantially certain to
cause death under this statute without having an intent to
kill.10 There was ample evidence presented at trial from which
reasonable jurors could have concluded that Morrell knew that
stabbing Kalenka would result in serious physical injury.
Morrell stabbed Kalenka repeatedly with a knife, a
weapon that is capable of causing death or serious physical
injury. Dr. Fallico, the medical examiner, testified that,
notwithstanding the wound to Kalenkas popliteal artery, any of
the wounds could have been fatal, particularly if left untreated.
Dr. Fallico also testified that stabbing causes bleeding and
infection, and that bleeding and infection can cause long-term
impairment of health or death. In the light most favorable to
upholding the jurys verdict, there was sufficient evidence that
Morrell knew of the substantial probability that stabbing
Kalenkas legs would cause long-term impairment.
Sufficiency of the evidence that Morrell was not
acting in self-defense
Morrell also argues that the State presented
insufficient evidence to rebut his claim of self-defense. Once
the defendant produces some evidence of self-defense, the State
has the burden of disproving the existence of that defense beyond
a reasonable doubt.11
However, a person may not use force in self-defense if
he is the initial aggressor.12 In particular, a person who arms
himself and provokes a confrontation forfeits the right to claim
self-defense.13 Morrell admits that he was the initial aggressor
in this encounter. But he argues that Kalenka used deadly force
against him by putting him in a headlock, which gave him the
right to use deadly force against Kalenka.14 Morrell bases his
argument almost solely on his own testimony, ignoring the
evidence that favors upholding the jurys verdict.
There was ample evidence from which reasonable jurors
could have concluded that Kalenka was not threatening Morrell
with deadly force at the time Morrell stabbed him. Doucet
testified that Morrell was winning the fight at the time he
stabbed Kalenka. Doucet also testified that he had to pull
Morrell off Kalenka once Kalenka announced he had been stabbed.
Similarly, William Wassili told the police that once Kalenka had
been stabbed, he had to shove Morrell off Kalenka.
Accordingly, the jury could have reasonably concluded
that Morrell was winning the fight and that Kalenka did not pose
a deadly threat. Looking at all the evidence in the light most
favorable to the jurys verdict, there was sufficient evidence for
a reasonable juror to conclude that Morrell did not act in self-
defense.
The Marijuana Evidence
Before trial, Morrell sought to exclude the evidence
of the marijuana found in his vehicle and of the marijuana
metabolites found in his bloodstream, citing Alaska Evidence
Rules 402 and 403. The judge denied Morrells motion, ruling that
the marijuana evidence was probative of Morrells motive, and that
the evidence would not confuse the jury or prompt them to decide
Morrells case based on emotion. We review this decision to admit
evidence for an abuse of discretion,15 that is, whether the
judges decision was clearly untenable or unreasonable.16
We conclude that the trial judge could reasonably
decide that the evidence that Morrell possessed marijuana was
relevant to the issues in dispute. Morrell admitted that he knew
that four ounces of marijuana could subject him to criminal
charges. The evidence thus suggested that Morrell was angry
about Kalenkas decision to call 911 because he was afraid that
the police would discover that he had marijuana in his vehicle.
This motive in turn suggested that Morrell intended to hurt
Kalenka and that he was not merely acting in self-defense.
In addition, the evidence that Morrell had marijuana
metabolites in his system suggested that Morrell may have been
under the influence of marijuana when he attacked Kalenka. If
Morrell was under the influence, the jury could infer that he was
acting unreasonably when he stabbed Kalenka, and that his
decision was not based on a reasonable belief that he was
required to use deadly force to defend himself. Morrell contends
that the State was not able to prove the extent of his
intoxication, but that fact goes to the weight, rather than to
the admissibility, of this evidence.
When the judge considered the potential prejudicial
effect of this evidence, he concluded that the magnitude of the
charged offenses second-degree murder and first-degree robbery
made it unlikely that a jury would be affected by the relatively
minor stigma attached to the possession of marijuana. This
reasoning was not clearly untenable. In a similar case, the
Arizona Supreme Court found it unlikely that a jury in a murder
case would be unfairly swayed by evidence that the defendant had
purchased marijuana [g]iven the gravity of the crime for which
defendant was on trial.17 We likewise conclude that the judges
evidentiary ruling in this case was not an abuse of his
discretion.
Sentence Appeal
The trial judge sentenced Morrell to 60 years
imprisonment with 10 years suspended for the second-degree murder
conviction. Morrell argues that this sentence is excessive.
In Page v. State, this court established a range of 20
to 30 years to serve for a typical second-degree murder.18 The
legal effect of the Page benchmark range is that sentencing
judges who wish to impose more than 30 years to serve for the
crime of second-degree murder must explain why they view the
defendant as having a worse background than that of a typical
first felony offender, or why they view the defendants crime as
worse than a typical second-degree murder.19 A sentencing judge
may exceed the 20- to 30-year range for any sound reason.20
In the instant case, the judge explained that Morrell
had guarded prospects for rehabilitation and that his criminal
record indicated a significant downward spiral. As the judge
noted, the presentence report indicated that Morrell had two
strings of convictions. The first, beginning in 1992, included a
felony conviction for second-degree burglary and a conviction for
third-degree forgery.
The second string, beginning in 2002, included the
violation of a domestic violence protective order, two separate
convictions for failure to appear, misdemeanor driving while
intoxicated, and driving with a suspended license. The
presentence report also noted the eerie similarities between the
facts of the present offense and a traffic incident that
escalated into a public disturbance in 2003. The judge observed
that Morrell was being simultaneously sentenced for an alcohol
importation conviction, and he found that, at the time of
Kalenkas murder, Morrell was in possession of marijuana clearly
intended for distribution. Because of Morrells conduct from 2001
leading up to the murder, the judge found that Morrell posed a
danger to the public.
Morrell argues that his crime was a typical second-
degree murder in comparison to other cases. He relies on cases
in which we have affirmed sentences that were not excessive.21
However, these cases only examined whether sentences within the
Page benchmark were excessive, not whether the sentencing judges
adequately determined that the crimes were typical or atypical
second-degree murders. Therefore, these cases only indicate
which second-degree murder sentences are not excessive, and do
not stand for the proposition that greater sentences would
necessarily have been impermissible.22 Morrell also
tries to distinguish his crime from one second-degree murder case
where we affirmed a 65-year sentence. In Gustafson v. State, the
defendant was convicted of second-degree murder for shooting the
passenger of another car after he became incensed by a minor
slight by another driver.23 Morrell argues that his case is not
as serious as Gustafsons crime. But Morrells case is very
similar to one aspect of the Gustafson decision: Morrell used a
deadly weapon in an unprovoked attack in response to a minor and
common social disagreement. And as we recognized in Gustafson,
an unpredictable or inexplicable crime like this one supports a
greater focus on the need to reaffirm the communitys values and
sense of safety.24 In summary, the judge
adequately explained his departure from the Page benchmark, and
the resulting sentence is not clearly mistaken.
Conclusion
The State presented adequate evidence for reasonable
jurors to conclude beyond a reasonable doubt that Morrell
committed second-degree murder and that the State disproved
Morrells claim of self-defense. Morrell has not shown that the
trial court abused its discretion by allowing the evidence of
marijuana possession and use. And Morrell has not shown that his
sentence is excessive.
We therefore AFFIRM the superior courts judgment and
sentence.25
_______________________________
1 AS 11.41.110(a)(1), (a)(2), and/or (a)(3).
2 AS 11.41.500(a)(1).
3 Sheldon v. State, 796 P.2d 831, 839 (Alaska App. 1990).
4 Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990).
5 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
6 AS 11.41.110(a)(1) (with intent to cause serious physical
injury to another person or knowing that the conduct is
substantially certain to cause death or serious physical injury
to another person, the person causes the death of any person); AS
11.41.110(a)(2) (the person knowingly engages in conduct that
results in the death of another person under circumstances
manifesting an extreme indifference to the value of human life);
and AS 11.41.110(a)(3) (felony murder).
7 See State v. James, 698 P.2d 1161, 1163-67 (Alaska 1985).
8 Serious physical injury is defined by statute as (A)
physical injury caused by an act performed under circumstances
that create a substantial risk of death; or (B) physical injury
that causes serious and protracted disfigurement, protracted
impairment of health, protracted loss or impairment of the
function of a body member or organ, or that unlawfully terminates
a pregnancy. AS 11.81.900(b)(56).
9 AS 11.81.900(b)(17) provides: deadly weapon means any
firearm, or anything designed for and capable of causing death or
serious physical injury, including a knife, an axe, a club, metal
knuckles, or an explosive.
10 678 P.2d 415, 420 (Alaska App. 1984).
11 Brown v. State, 698 P.2d 671, 674 (Alaska App. 1985).
12 AS 11.81.330(a)(3).
13 Bangs v. State, 608 P.2d 1, 5 (Alaska 1980); Toomey v.
State, 581 P.2d 1124, 1126-27 (Alaska 1978).
14 See Castillo v. State, 614 P.2d 756, 758 (Alaska 1980)
(note that this case was decided based on the law in effect prior
to the enactment of the Alaska Revised Criminal Code in 1980).
15 See Hoffman v. State, 950 P.2d 141, 146 (Alaska App.
1997).
16 Lewis v. State, 469 P.2d 689, 695 (Alaska 1970).
17 State v. Atwood, 832 P.2d 593, 637 (Ariz. 1992)
overruled on other grounds by State v. Nordstrom, 25 P.3d 717
(Ariz. 2001).
18 657 P.2d 850, 855 (Alaska App. 1983).
19 Carlson v. State, 128 P.3d 197, 203 (Alaska App. 2006).
20 Id. at 204.
21 See Arenas v. State, 727 P.2d 313, 313-15 (Alaska App.
1986) (25-year sentence for a shooting during a bar fight); Hurn
v. State, 872 P.2d 189, 199-200 (Alaska App. 1994). (30-year
sentence for a shooting outside a bar); Jimmy v. State, 689 P.2d
504, 505-06 (Alaska App. 1984) (25-year sentence).
22 Arenas, 727 P.2d at 314; see also Hurn, 872 P.2d at 199-
200.
23 854 P.2d 751, 754, 765 (Alaska App. 1993).
24 Id. at 765.
25 We address in a separate opinion Morrells claim that
the judge improperly made his second-degree murder sentence
consecutive to his sentence for importing liquor into a local
option area in Case No. 3AN-04-8193 CR.
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