Brown v. State

698 P.2d 671, 1985 Alas. App. LEXIS 307

Opinions

OPINION

Footnotes

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BRYNER, Chief Judge.

Elijah J. Brown was convicted, after a jury trial, of assault in the first degree. AS 11.41.200(a)(1). Superior Court Judge Jay Hodges sentenced Brown to a presumptive term of six years’ imprisonment. Brown appeals, contending that the trial court committed plain error in instructing the jury that the defendant bore the burden of proving self-defense.¹ We reverse.

Elijah J. Brown was convicted of assaulting his friend of thirty years, E.M. Miller. Their friendship had apparently disintegrated, due in part to Miller’s friendship with Brown’s wife. Brown and his wife had been separated for three years when Brown went to his wife’s apartment at around 6:00 p.m. on November 4, 1982, to deliver some mail to his daughter. Brown became upset when he discovered his wife and Miller together in his wife’s living room. A short argument ensued.

There was conflicting testimony as to whether Miller threatened Brown. Brown claimed that Miller threatened him with a .44 magnum handgun; Miller denied this claim. In any event, Brown left the apartment and Miller went to a private club known as “the party house.” It is undisputed that Miller had a .44 magnum in his pocket at the party house. Brown testified that a short time after arguing with Miller, he returned to his wife’s apartment and argued with her until she asked him to leave. Brown went home, decided that he had to go talk to Miller again and, after arming himself with a .22 rifle, took a cab to . the party house.

Although Brown and Miller gave different versions of what happened inside the party house, they agreed that Brown entered carrying his rifle while Miller was standing at the bar and that Brown, after saying something to Miller, fired his rifle, shooting Miller in the chest. Miller responded, firing one round from his handgun before it jammed, and Brown fired a second shot into the ceiling. Brown and Miller then struggled with one another until they were separated.

At trial, Miller testified that Brown shot him without provocation. In contrast, Brown testified that he entered the party house, approached Miller without pointing the rifle at him, and told Miller he wanted to talk. According to Brown, after he and Miller had spoken for about a minute, Miller turned as if to walk away, then suddenly turned back. When Miller turned back toward Brown, his coat was open and he held the .44 magnum, lowering it at Brown. In response to Miller’s action, Brown raised his rifle and managed to fire a shot at Miller just before Miller fired at Brown. Brown repeatedly testified that he had only intended to talk to Miller and that he fired only in self-defense.²

In addressing this defense during closing arguments to the jury, the prosecution stated:

If you find that there is self-defense in this case and it’s a meritorious defense and you find so by the preponderance of the evidence, that it is a meritorious defense, then [Brownj’s not guilty of anything because self-defense ... applies to all four [degrees of assault].

Brown did not object to this argument. The trial court then gave two jury instructions dealing with the issue of self-defense. In its initial instruction the court told the jury that the defendant bears the burden of proof on the issue of self-defense. Jury Instruction 13 provided, in relevant part:

I have previously instructed you that the State always bears the burden of proving the defendant’s guilt beyond a reasonable doubt. However, in this case the defendant has asserted the defense of self-defense, which is an affirmative defense. As to that defense only the defendant must bear the burden of proof, about which I will instruct you more fully.

The court’s next instruction, Jury Instruction 14, dealt with the use of deadly force and concluded that, “unless the State has proven beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant not guilty.” Although Jury Instruction 13 improperly shifted the burden of proof on the issue of self-defense and conflicted with Jury Instruction 14, Brown failed to object to it.

On appeal, Brown argues that Instruction 13 constituted plain error. See Crutchfield v. State, 627 P.2d 196, 198 (Alaska 1980); Alaska R.Crim.P. 47(b). The state acknowledges that the instruction was an incorrect statement of the law but maintains that it did not amount to plain error because, as a matter of law, Brown was not entitled to assert self-defense. Relying on Bangs v. State, 608 P.2d 1, 5 (Alaska 1980), the state claims that Brown became an initial aggressor and forfeited his right to claim self-defense when he armed himself and sought to confront Miller. See AS 11.81.335(a)(1), AS 11.81.330(a)(3). The state maintains that, since as a matter of law Brown was not entitled to any self-defense instruction, he could not have suffered prejudice from the incorrect self-defense instruction.

In Bangs, a heated exchange took place between Bangs and his eventual victim, Troyer, during which Troyer grabbed Bangs and attempted to choke him. Bangs escaped, walked rapidly to his nearby trailer, grabbed a loaded revolver and returned to the scene of the struggle. Bangs testified that he pointed his gun at Troyer, cocked it, and challenged Troyer to “come on.” When Troyer lunged at him, Bangs shot. The Alaska Supreme Court, relying on State v. Millett, 273 A.2d 504, 510 (Me.1971), held that even when the evidence was viewed in the light most favorable to Bangs, he was not entitled to a self-defense instruction, because he had been the initial aggressor.

We do not believe the holding in Bangs to be dispositive in the present case. A defendant in a criminal case is entitled to a jury instruction as to his theory of the case if there is some evidence to support it. Toomey v. State, 581 P.2d 1124,1126 (Alaska 1978); Paul v. State, 655 P.2d 772, 775 (Alaska App.1982); Folger v. State, 648 P.2d 111, 113 (Alaska App.1982). In the present case, if there was some evidence presented at trial to support the conclusion that Brown was not an initial aggressor, then he was entitled to have the jury instructed on self-defense. In both Bangs and Millett undisputed evidence established that the defendants, anticipating resistance, procured guns for the sole purpose of armed confrontation with their intended victims. Bangs, 608 P.2d at 5. Both defendants, after arming themselves, challenged their victims to physical combat with the apparent purpose of provoking a response. Under these circumstances both were found to be initial aggressors as a matter of law. By contrast, in this case there was evidence that Brown was not an initial aggressor — that he did not confront Miller to seek combat or challenge Miller for the purpose of provoking a physical response. Brown testified that when he entered the party house he intended only to talk to Miller, that he communicated that intent, and that he first raised his .22 rifle when Miller drew his own gun.

Bangs does not deprive a defendant of the right generally recognized at common law to “seek his adversary for the purpose of a peaceful solution as to their differences.” Hunter v. State, 137 Tex.Cr.R. 289, 128 S.W.2d 1176, 1181 (1939) (on motion for rehearing). As noted in State v. Bristol, 53 Wyo. 304, 84 P.2d 757, 765 (1938),

[Njeither the fact of arming himself, nor the fact of going to the restaurant, even if he knew that the [victim] was there, was sufficient to deprive the defendant of the right of self-defense. The criterion is as to what he then did or said when he found the [victim], and whether what he said or did was reasonably calculated to cause the [victim] to be provoked into attacking the defendant.

Accord State v. Starks, 627 P.2d 88, 91 (Utah 1981); State v. Jackson, 94 Ariz. 117, 382 P.2d 229, 232-33 (Ariz.1963); Gunther v. State, 228 Md. 404, 179 A.2d 880, 882 (1962); State v. Evans, 124 Mo. 397, 28 S.W. 8, 11 (1894).

Thus, in determining whether Brown was a first aggressor, the crucial inquiry is not whether he was armed when he went to meet with Miller; rather, it is whether his assault occurred “in the course of a dispute provoked by the defendant at a time when he [knew] or ought reasonably to [have known] that the encounter [would] result in mortal combat.” State v. Millett, 273 A.2d at 510. This is an inquiry that must be resolved in light of the totality of the evidence presented at trial.

While it is only Brown’s own testimony which supports his theory that he entered the party house in a non-aggressive manner with the sole intention of conversing with Miller, the burden to produce some evidence is not a heavy one. See Paul v. State, 655 P.2d 772, 775-77 (Alaska App.1982). Viewing the evidence in the light most favorable to Brown, we believe that there is some evidence that Brown did not provoke a dispute with Miller under circumstances that he knew or should have known would result in mortal combat. Brown was therefore entitled to have his self-defense claim — weak as it may have been³ — properly determined by the jury.

The law is well settled in Alaska that once some evidence places self-defense in issue, the state has the burden of disproving the existence of the defense beyond a reasonable doubt. AS 11.81.-900(b)(15); Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984). In Jury Instruction 13 the trial court incorrectly placed the burden of proof for self-defense upon Brown. As the state acknowledges, this instruction is erroneous, since it raises the possibility that the jury might view it as shifting the burden of proof on a closely contested issue. Carman v. State, 602 P.2d 1255, 1259-60 (Alaska 1979); Howard v. State, 583 P.2d 827, 833 (Alaska 1978). Cf Bidwell v. State, 656 P.2d 592, 596 (Alaska App.1983) (instruction did not shift burden of proof and was therefore not plain error).

Particularly in light of the prosecutor’s final argument, which asserted that the jury was required to find self-defense by a preponderance of .the evidence, the error cannot be dismissed as insubstantial. Nor is the error cured by Jury Instruction 14, which provided that the state was required to disprove self-defense beyond a reasonable doubt. Which of these conflicting instructions was actually relied upon by the jury is a matter of pure conjecture, and it is impossible to say with any degree of assurance that the appropriate standard was used.

We conclude that the instruction misallo-eating the burden of proof on self-defense was obviously prejudicial in that it cannot fairly be said that the error did not appreciably affect the jury’s verdict. Van Hatten v. State, 666 P.2d 1047, 1057 (Alaska App.1983). Giving the instruction, therefore, amounted to plain error. See Stork v. State, 559 P.2d 99, 101 (Alaska 1977).

The conviction is REVERSED.

SINGLETON, J., concurs and dissents.

Entered pursuant to Appellate Rule 214 and Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).

1

. Brown also argues that the court erred in denying his request for a continuance and that the sentence he received is excessive. Our disposition of Brown’s self-defense claim makes it unnecessary to consider these issues.

2

. A review of the record indicates that Brown consistently claimed his sole purpose in approaching Miller at the party house was to talk about Miller’s prior threats. For example. Brown testified at one point:

Q: What effect did it [Miller’s prior display of his .44 magnum to Brown at Brown's wife’s house] have?

A: It affected me to the point where I just had made up my mind I wasn’t going to let him run over me anymore and that was it. He was going to have to tell me why he was doing this or look — we could talk it over and forget about it, because I definitely had never been bothering him or interfered in his married life or no other life of his.

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Q: Why did you take your rifle with you? A: Because I wanted to talk to Mr. Miller. And I knew that Mr. Miller was armed. I knew he was armed, but yet I wanted to talk to him. So I was a little bit — I was afraid of going just barehanded. It’s the only way I can go....

Q: Did you intend to shoot anyone with that gun whenever you left?

A: My intention was not to shoot anyone.... Similarly, Brown's testimony concerning the

manner in which he approached Miller after entering the'party house clearly indicates that he sought only to speak with Miller:

When I arrived in the party house, I walked in, Miller was standing up right at the bar. Assume this is the bar, like I am now. When I entered the door and I said, "Miller, I’d like to talk to you?” he said, "What do you want to talk to me about.” I said, “Well I think we should talk about this whole incident that just happened, why you pulled your gun or whatever I did to you.”

Thus, Brown expressly denied that he had any intent to harm Miller at the time he entered the party house and he never indicated expressly or impliedly that he expected a violent confrontation with Miller to result from their meeting or that he carried his gun in order to provoke a violent confrontation. To the contrary, Brown’s testimony, if believed, would support an inference that Brown feared a violent confrontation if he sought to talk with Miller without arming himself.

3

.. Any weakness or implausibility in the defendant’s story is not a relevant consideration in determining whether the "some evidence” standard has been met. Toomey v. State, 581 P.2d 1124, 1126 n. 10 (Alaska 1978); Paul v. State, 655 P.2d 772, 776 (Alaska App.1982).