|
You can of the Alaska Court of Appeals opinions.
|
|
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
VINCENT E. WILKERSON,
Court of Appeals Nos. A-10564 & A-10573
Appellant & Cross-Appellee, Trial Court No. 3AN-08-1096 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee & Cross-Appellant. No. 2346 - February 24, 2012
Appeal from the Superior Court, Third Judicial District,
Anchorage, Patrick J. McKay, Judge.
Appearances: Beth Lewis Trimmer and Dan Bair, Assistant
Public Advocates, Appeals & Statewide Defense Section, and
Rachel Levitt and Richard Allen, Public Advocates, Anchorage,
for Mr. Wilkerson. W. H. Hawley, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
John J. Burns, Attorney General, Juneau, for the State.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Vincent Edward Wilkerson was found guilty of first-degree murder,
evidence tampering, and third-degree weapons misconduct (felon in possession of a
concealable firearm), all stemming from the shooting death of his brother, Gregory
----------------------- Page 2-----------------------
Wilkerson. In this appeal, Wilkerson challenges his murder and evidence-tampering
convictions on four grounds.
First, Wilkerson argues that his trial judge committed error by refusing to
instruct the jury on heat of passion (a defense that potentially could have reduced the
homicide to manslaughter).
Second, Wilkerson argues that the jury instruction on self-defense
contained an inaccurate statement of law - an inaccuracy that would have led the jury
to believe that Wilkerson's right to use force in self-defense hinged on whether there was
an actual need for Wilkerson to act in self-defense, as opposed to whether a reasonable
person in Wilkerson's situation would have reasonably perceived a need to act in self-
defense.
Third, Wilkerson argues that the trial judge committed error by instructing
the jury that a person's act of flight could be considered evidence of that person's
consciousness of guilt.
Finally, Wilkerson argues that the trial judge committed error by allowing
the State to introduce evidence of Wilkerson's character for violence through the
testimony of a police detective who had no personal knowledge of Wilkerson, nor of
Wilkerson's reputation in the community, but who had formed his opinion of
Wilkerson's character by reviewing Wilkerson's case files.
As we explain in this opinion, we conclude that there is merit to
Wilkerson's claim regarding the admission of the character evidence. This evidence was
admitted in error - but, for the reasons explained here, we conclude that the error was
harmless. With regard to Wilkerson's other three claims, we conclude that they have
no merit.
The State has filed a cross-appeal raising one issue: the State contends that
Wilkerson should have been precluded, as a matter of law, from asserting the defense of
- 2 - 2346
----------------------- Page 3-----------------------
self-defense because Wilkerson was a convicted felon at the time of this incident, and
because Wilkerson used a concealable firearm. We conclude that this issue is moot.
Whether the trial judge was required to instruct the jury on heat of passion
At trial, Wilkerson sought to have the jury instructed on heat of passion.
To justify this instruction, there had to be evidence to support three findings: (1) that
Wilkerson committed the homicide while in the heat of passion; (2) that Wilkerson's heat
of passion was the result of a serious provocation by his brother; and (3) that a
reasonable person in Wilkerson's circumstances would not have cooled down during the
interval between the provocation and the homicide. See AS 11.41.115(a). Dandova v.
State, 72 P.3d 325, 330 (Alaska App. 2003).
The evidence (viewed in the light most favorable to Wilkerson's claim of
heat of passion) showed that the homicide in this case was precipitated by an argument
between Wilkerson and his brother Gregory about money and cocaine. During this
argument, Wilkerson was armed with a handgun - a 9 mm semi-automatic pistol. This
gun was hidden in Wilkerson's pants waist, under his shirt. While Wilkerson argued
with his brother, he surreptitiously moved the gun slowly around his waist until it was
behind his back.
At some point, Gregory began speaking more belligerently to Wilkerson.
According to one witness, Gregory told Wilkerson that he was going to "bust [his]
head". According to another witness, Gregory told Wilkerson, "[I've] kicked your ass
before; I'll kick your ass again." To this, Wilkerson responded, "I bet it won't happen
again." - whereupon he pulled the pistol from under his shirt, brought the weapon out
in front of his body, pointed it at Gregory, and shot him. Gregory stumbled and fell face
- 3 - 2346
----------------------- Page 4-----------------------
down on the floor. Wilkerson then stood over his brother and shot him three more times
- twice in the back, and once in the back of the head.
Even though the Wilkerson brothers were arguing just before the shooting,
there was no evidence of any physical contact between the brothers, and there was no
evidence that Gregory Wilkerson was armed, or that he made any statement or gave any
other indication that he was armed. The brothers were about ten feet apart when
Wilkerson started shooting.
Under AS 11.41.115(f)(2), a "serious provocation" must be "conduct [that
was] sufficient to excite an intense passion in a reasonable person in the defendant's
situation". And, with regard to the requisite degree of passion, our supreme court
explained in LaLonde v. State , 614 P.2d 808, 811 (Alaska 1980), that the passion
engendered by the provocation must be of such a nature as to obscure the defendant's
reason "to such an extent as would render ordinary [persons] of average disposition
liable to act rashly or without due deliberation and reflection". Finally, the defendant's
assaultive conduct must be proportionate to the provocation. Dandova , 72 P.3d at 334.
When Wilkerson's attorney presented his argument for a heat of passion
instruction, he recognized that there was little evidence to support a finding that
Gregory's belligerent words constituted the kind of "serious provocation" that would
cause a reasonable person in Wilkerson's situation to lose their self-control to the point
of shooting Gregory several times in the head and back. To overcome the seeming
slightness of the provocation that immediately preceded the shooting, and the
disproportionality of Wilkerson's response, the defense attorney argued that Gregory had
repeatedly mistreated or threatened Wilkerson in the past - including a wrestling match
between the two brothers in which Gregory broke Wilkerson's arm; a prior argument
(about one year before the shooting) during which Gregory asked where his gun was;
and an earlier fight during which Gregory picked up Wilkerson and threw him to the
- 4 - 2346
----------------------- Page 5-----------------------
ground. The defense attorney argued that, because of this past history of mistreatment
at the hands of his brother, Wilkerson experienced a cumulative, built-up passion that led
him to shoot Gregory.
In his brief to this Court, Wilkerson renews this "cumulative effect"
argument. He asserts that his response to his brother's belligerent words "cannot be
viewed [simply in light] of the events of just the evening in question". Rather, Wilkerson
argues, the reasonableness and proportionality of his response must be viewed in light
of the "series [of mistreatment] over a span of time".
We discussed this "series of provocations" theory in Dandova , 72 P.3d at
334-37, but the facts of Dandova did not require us to decide whether Alaska law
recognizes this broader approach to the heat of passion defense. We reach the same
conclusion here. Given the nature of the prior incidents that Wilkerson relies on, and
given the length of time between those prior incidents and the shooting in this case, no
reasonable person could conclude that this series of events constituted a "serious
provocation" as defined in AS 11.41.115(f)(2).
One might well conclude, based on the past incidents, and based on
Wilkerson's conduct in the present case, that Wilkerson harbored a powerful resentment
toward his brother Gregory. But as we explained in Dandova , "many murders are
committed because the killer is experiencing intense emotion at the time", and the
defense of heat of passion is not intended to apply to all emotional killings. Id. at 332.
Rather, heat of passion applies only when the defendant is subjected to a serious
provocation that would "naturally induce a reasonable [person] in the passion of the
moment to lose self-control and commit the act on impulse and without reflection". Ibid.
(quoting the supreme court's decision in LaLonde , 614 P.2d at 810).
Here, Wilkerson was armed with a pistol during his argument with his
brother. Before Gregory uttered the words that Wilkerson now relies on as constituting
- 5 - 2346
----------------------- Page 6-----------------------
the necessary provocation, Wilkerson had already gotten up from the couch and had
surreptitiously moved his pistol to a hidden position behind his back. Then, when
Gregory told Wilkerson, "[I've] kicked your ass before[, and] I'll kick your ass again,"
Wilkerson responded, "I bet it won't happen again." Wilkerson then pulled out his gun
and shot his brother. After his brother fell to the floor, Wilkerson stood over him and
shot him three more times - twice in the back, and once in the back of the head.
Given these facts, and even in light of the brothers' past interactions, no
reasonable juror could conclude that Wilkerson acted in the heat of passion. We reach
this conclusion for two reasons. First, Gregory's conduct toward Wilkerson did not rise
to the level of a "serious provocation". Second, the undisputed facts show that
Wilkerson acted deliberately; he was preparing to assault Gregory even before Gregory
uttered the words that supposedly triggered the passion in Wilkerson.
For these reasons, we uphold the superior court's decision not to instruct
the jury on the defense of heat of passion.
Whether the jury instruction on self-defense misdescribed the law
Wilkerson's jury was instructed concerning the law of self-defense.
Wilkerson challenges the wording of one of the self-defense instructions. He contends
that this instruction misdescribed the law of self-defense. Here is the wording of the
challenged jury instruction. The particular portion that Wilkerson objects to is presented
in italics:
Even when a defendant faces a threat of imminent
death or serious physical injury, the law of self-defense
allows the use of force no greater than necessary to avert the
threat. A defendant must have actually believed that the
degree of force used was necessary and the belief must have
- 6 - 2346
----------------------- Page 7-----------------------
been one that a reasonable person would have held. A basic
[tenet] of the doctrine of self-defense is that the use of deadly
force is unreasonable if non-deadly force would have been
sufficient to avert the threatened harm. Even in
circumstances where a defendant is permitted to use deadly
force in self-defense, the defendant may not employ all[-]out
deadly force, [but] only that force necessary to avert the
threat.
Wilkerson argues that the italicized sentence - in particular, the phrase
"actually believed" - misdescribes the law of self-defense by telling the jury that
Wilkerson's right to use force in self-defense hinged on whether there was an actual
need for Wilkerson to act in self-defense, as opposed to whether a reasonable person in
Wilkerson's situation would have reasonably perceived a need to act in self-defense.
It is true that a person's right to use force in self-defense does not hinge on
whether the person actually faced an imminent attack; it is sufficient that, given the
circumstances, the person reasonably believed that they were about to be assaulted, even
though this belief ultimately turned out to be mistaken. 1
But the challenged instruction does not say otherwise. The portion of the
instruction to which Wilkerson objects does not refer to the actuality of the danger;
rather, it refers to the actuality of Wilkerson's belief that he was in imminent danger.
The challenged instruction correctly states that, when a defendant asserts
that their use of force against another person was justified by the belief that they were
about to be attacked, the defendant must show (1) that they actually held this belief at the
time, and (2) that this belief was reasonable.
As our supreme court explained in Weston v. State, when a defendant
claims that their use of deadly force was justified under the law of self-defense, "[the]
1 See McCracken v. State , 914 P.2d 893, 898 (Alaska App. 1996).
- 7 - 2346
----------------------- Page 8-----------------------
defendant must satisfy both an objective and subjective standard; he must have actually
believed deadly force was necessary to protect himself, and his belief must be one that
a reasonable person would have held under the circumstances." 682 P.2d 1119, 1121
(Alaska 1984). Or, as this Court paraphrased the requirement in Ha v. State , "[A]
defendant's use of force against [an] enemy is authorized only when the defendant
actually and reasonably believes that the enemy's threatened attack is imminent." 892
P.2d 184, 194 (Alaska App. 1995).
In short, Wilkerson's attack on this jury instruction is based on a misreading
of the instruction. The instruction does not say that a defendant claiming self-defense
must show that they actually faced imminent danger, as opposed to reasonably believing
that they faced imminent danger. Instead, the instruction speaks to the requisite nature
of the defendant's belief in the imminent danger: it correctly states that the defendant
must have (1) actually and (2) reasonably believed that the circumstances required the
immediate use of force in self-defense.
Whether the trial judge committed error by instructing the jury that a
person's flight potentially indicated a consciousness of guilt
Wilkerson's trial judge instructed the jury that "a defendant's flight may
tend to prove guilt[, in that] you may consider a defendant's flight as establishing
consciousness of guilt." According to Wilkerson, this jury instruction essentially told
the jurors that Wilkerson had indeed engaged in an act of flight - thus removing this
issue of fact from the jury's consideration.
Wilkerson objected to the instruction in the superior court, but not on this
ground. At trial, Wilkerson's attorney argued that there was no evidence to support the
giving of this instruction - that is, no evidence that Wilkerson fled the scene of the
- 8 - 2346
----------------------- Page 9-----------------------
homicide. But now, on appeal, Wilkerson abandons that argument and instead attacks
the jury instruction on a different theory - asserting that the jury instruction unlawfully
told the jurors to assume that Wilkerson engaged in an act of flight. Because this latter
objection was never presented to the trial judge, Wilkerson must show plain error.
There are, of course, many reasons why a person might flee a crime scene,
and consciousness of guilt is only one potential reason. But under Alaska law, it is
proper to instruct the jurors that they may consider evidence of the defendant's flight,
and may give this evidence whatever weight they deem appropriate. Dyer v. State , 666
P.2d 438, 449 (Alaska App. 1983).
We acknowledge that the jury instruction in Wilkerson's case is not as fully
explanatory or descriptive as the flight instructions that have been reviewed in other
reported Alaska cases. Nevertheless, it is a correct description of the law on this issue
(as far as it goes).
In particular, and contrary to Wilkerson's argument on appeal, the
instruction does not affirmatively tell the jurors that Wilkerson engaged in an act of
flight. Wilkerson's appellate argument hinges on a strained reading of the instruction,
interpreting its words in the light most favorable to a finding of error. But as we have
explained, Wilkerson must show plain error; that is, Wilkerson must show that the
purported error would have been obvious to any competent judge or attorney. 2
This jury instruction contains no obvious error of law. We therefore
conclude that Wilkerson has failed to show that the giving of this instruction constituted
plain error.
2 Cleveland v. State, 241 P.3d 504, 507 (Alaska App. 2010); Simon v. State, 121 P.3d
815, 820 (Alaska App. 2005).
- 9 - 2346
----------------------- Page 10-----------------------
Whether the State should have been allowed to introduce evidence of
Wilkerson's character for violence through the testimony of a police
detective who had no knowledge of Wilkerson's reputation or character for
violence other than what he had gleaned by reading Wilkerson's files
At trial, Wilkerson asserted that his brother Gregory was the first aggressor,
and that he (Wilkerson) acted in self-defense. Accordingly, under Alaska Evidence Rule
404(a)(2), the State was authorized to introduce evidence of Wilkerson's character for
violence, to rebut the assertion that Gregory was the first aggressor. However, under
Evidence Rule 405, this character evidence was limited to (1) evidence of the
defendant's reputation in the community, or (2) evidence of the opinion of a person
acquainted with the defendant.
Over Wilkerson's objection, the trial judge allowed the State to introduce
evidence of Wilkerson's character for violence through the testimony of the lead
investigator in Wilkerson's case, John Foraker. As Wilkerson noted when he objected
to this testimony, Detective Foraker had no personal acquaintance with Wilkerson, nor
did he purport to know Wilkerson's reputation in the community. Rather, the detective
based his opinion on the hearsay information he gleaned by reviewing Wilkerson's
criminal record - in particular, Wilkerson's six prior convictions for assault.
The underlying issue here is whether a witness's opinion of another
person's character must be based on the witness's personal knowledge. Because this
underlying issue is a question of law, the State is incorrect when it asserts that we must
review the trial judge's decision under the "abuse of discretion" standard. Instead, we
exercise our own independent judgement as to what the law requires.
True, many Alaska appellate decisions declare that all of a trial judge's
decisions regarding the admission and exclusion of evidence are reviewed for abuse of
- 10 - 2346
----------------------- Page 11-----------------------
discretion. 3 But that is wrong: there is no single standard of review that applies to all
evidentiary rulings. 4 Rather, the applicable standard of review hinges on what the
underlying issue is. 5 Here, the question is whether, under Alaska law, a witness offering
an opinion about another person's character must speak from personal knowledge. We
are not required to defer to the trial judge's view of this matter; rather, we decide this
question de novo.
There is little Alaska case law on this issue, but Alaska Evidence Rule 602
codifies the general principle that "[a] witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that the witness has personal knowledge of
the matter." And decisions from other jurisdictions make it clear that personal
knowledge is a foundational requirement for opinion testimony concerning another
person's character under Evidence Rule 405.
As explained in Charles Alan Wright and Kenneth W. Graham, Jr., Federal
Practice and Procedure (1978), § 5265, Vol. 22, p. 584, when a party offers a witness's
opinion concerning the character of another person, the rules require that the witness's
opinion be based on personal knowledge. Although a long acquaintance is not
necessary, "the opinion witness must testify from personal knowledge." United States
v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982). Or, as stated in State v. Jackson, 896
A.2d 137 (Conn. App. 2006):
A party seeking to present opinion testimony [of a person's
character] must demonstrate that its witness has had sufficient
3 See, e.g., Hawley v. State , 614 P.2d 1349, 1361 (Alaska 1980); Proctor v. State , 236
P.3d 375, 378 (Alaska App. 2010).
4 Booth v. State , 251 P.3d 369, 372 (Alaska App. 2011).
5 Ibid.
- 11 - 2346
----------------------- Page 12-----------------------
contact with the person who is the subject of the opinion and,
on the basis of [that] contact, has formed an opinion with
regard to that person's character. ... [T]o lay an appropriate
foundation for the introduction of opinion testimony, a party
must show that the witness providing the testimony has a
deliberate opinion formed as the result of personal contact
and experience.
Id. at 149. See also State v. Hernendez, 646 S.E.2d 579, 580 (N.C. App. 2007) ("The
proper foundation for the admission of opinion testimony as to a witness's character for
truthfulness or untruthfulness is personal knowledge.").
In Graham v. Lombardi, 784 P.2d 813 (Colo. App. 1989), the Colorado
Court of Appeals confronted the same situation presented in Wilkerson's case: a police
officer was allowed to offer his opinion that the defendant was a violent person, but the
officer's opinion was based solely on his review of the case files pertaining to prior
incidents of which the officer had no personal knowledge. The Colorado court held that
this testimony was improper because the officer's opinion was not based on personal
knowledge:
Testimony about character offered in the form of an opinion
by a lay witness is limited by [Colorado Evidence Rule] 701
to opinions rationally based on the witness' perception ... .
The requirement that the opinion be based on the witness'
perception embodies the requirement of personal knowledge
contained in [Colorado Evidence Rule] 602. See 3
Weinstein's Evidence, supra, ¶ 701[02] at 701-14; see also
United States v. Dotson, 799 F.2d 189 (5th Cir. 1986).
Here, the [police] witness had not been involved in the
former incidents which provided the basis for his opinion.
The witness had none of the personal knowledge necessary
- 12 - 2346
----------------------- Page 13-----------------------
to provide a basis for his own perception of the plaintiff's
character [for] violence.
The personal knowledge necessary to support a
witness' opinion concerning character must be based on more
than pre-trial review of police reports or the witness'
involvement in criminal investigations. See United States v.
Dotson , supra (character evidence as to truthfulness
inadmissible if only basis for opinions of government agents
was their involvement in criminal investigation of
defendants); Government of Virgin Islands v. Petersen, 553
F.2d 324 (3rd Cir. 1977) (observation of defendant's
behavior over time is the recognized basis for both opinion
and reputation testimony about character); United States v.
Salazar, 425 F.2d 1284 (9th Cir. 1970) (two months of
occasional business dealings insufficient to qualify witness to
testify about defendant's reputation for honesty).
Accordingly, the opinion testimony here should have been
excluded.
Id. at 814-15.
In light of these authorities, we too conclude that personal knowledge is a
foundational requirement for opinion testimony offered under Alaska Evidence Rule
405. Thus, it was error to allow Detective Foraker to give his opinion concerning
Wilkerson's character for violence when that opinion was based solely on information
that Foraker had gathered from case files pertaining to other incidents of which he had
no personal knowledge.
Nevertheless, we conclude that the admission of this evidence was harmless
because there is no realistic possibility that it affected the jury's verdict. See Love v.
State, 457 P.2d 622, 634 (Alaska 1969) (holding that the test for the harmlessness of
non-constitutional error is whether the appellate court "can fairly say that the error did
not appreciably affect the jury's verdict").
- 13 - 2346
----------------------- Page 14-----------------------
It is true that Detective Foraker's testimony was offered on a central issue
in the case: whether Gregory Wilkerson was the first aggressor, thus giving Vincent
Wilkerson a right of self-defense. But the eyewitnesses to the shooting were in
agreement that Gregory was both unarmed and standing at a distance from Wilkerson
when Wilkerson shot him. The eyewitnesses were also in agreement that, after
Wilkerson shot his brother in the head, Wilkerson stood over his brother's prostrate body
and shot him three more times. Given this record, we conclude that the error in allowing
Detective Foraker to offer his opinion of Wilkerson's character for violence did not
appreciably affect the jury's decision - in particular, the jury's rejection of Wilkerson's
claim that he killed his brother in self-defense.
The State's contention that the legislature has barred convicted felons from
raising a claim of self-defense if, when acting in self-defense, the felon uses
a concealable firearm
Under AS 11.61.200(a)(1), it is illegal for a convicted felon to possess a
concealable firearm. And under AS 11.81.330(a)(4)(A), a claim of self-defense is not
available to a person whose use of force "was the result of using a deadly weapon or
dangerous instrument ... to further a felony criminal objective of the person".
The State contends that, reading these two statutes together, Wilkerson was
precluded from raising a claim of self-defense because he used a pistol against his
brother, and because he was pursuing a "criminal objective" simply by possessing this
pistol (since it was a concealable firearm). To quote the State's brief, "Wilkerson [could
not claim] self-defense because his conduct was illegal from the outset."
The State's proposed interpretation of AS 11.81.330(a)(4)(A) appears to
be somewhat at odds with the language of the statute. Subsection (a)(4)(A) speaks of
situations where the defendant's use of defensive force is the "result" of the defendant's
- 14 - 2346
----------------------- Page 15-----------------------
"using" a deadly weapon or dangerous instrument to further a criminal objective. This
language seemingly addresses situations where the defendant uses a deadly weapon or
dangerous instrument to further a criminal objective, and then, as a result of the
defendant's use of the deadly weapon or dangerous instrument, someone (a victim,
bystander, or law enforcement officer) takes counter-measures that prompt the defendant
to employ force for self-protection.
But we need not resolve this question of statutory construction because the
issue is moot in Wilkerson's case. Wilkerson's jury was instructed on self-defense, and
the jury rejected this defense. Moreover, we are affirming Wilkerson's conviction,
which means that there will be no re-trial. Under these circumstances, there is no need
for us to resolve the meaning of AS 11.81.330(a)(4)(A) as it applies to felons who use
defensive force while in possession of concealable firearms.
Conclusion
The judgement of the superior court is AFFIRMED.
- 15 - 2346
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
