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Bachmeier v. State (5/11/2012) ap-2359

Bachmeier v. State (5/11/2012) ap-2359

                                               NOTICE
 

        The text of this opinion can be corrected before the opinion is published in thePacific 

        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 



STEVEN BACHMEIER, 				  )

                                                  )         Court of Appeals No. A-10626 

                                Appellant,        )        Trial Court No. 3KN-08-1392 CR 

						  )

                        v. 			  )

                                                  )                O    P   I  N  I  O  N 

STATE OF ALASKA, 				  )

						  )

                                Appellee.         )             No. 2359 - May 11, 2012 



                Appeal from the Superior Court, Third Judicial District, Kenai, 

                Charles T. Huguelet, Judge. 



                Appearances: Hanley R. Smith, Assistant Public Defender, and 

                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

                Scot H. Leaders, District Attorney, Kenai, and John J. Burns, 

                Attorney General, Juneau, for the Appellee. 



                Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges. 



                BOLGER, Judge. 



                Steven Bachmeier, who was an inmate at Wildwood Correctional Center 



near Kenai, was convicted of fourth-degree assault for assaulting a corrections officer. 



At trial, Bachmeier claimed that he acted in self-defense; specifically, Bachmeier claimed 


----------------------- Page 2-----------------------

that he reasonably believed that the corrections officer was about to use unlawful force 



against him. The jury rejected Bachmeier's self-defense claim. 



                On appeal, Bachmeier argues that the jury's verdict is flawed because the 



jury was misinstructed regarding the scope of force that a corrections officer may lawfully 



use against an inmate. We agree, and we therefore reverse Bachmeier's conviction. 



        Background 



                On   August   6,   2008,   Bachmeier   was   working     as   a   laundry   worker   at 



Wildwood Correctional Facility. Bachmeier took a laundry cart into the prison's property 



room at the same time that Corrections Officer Magdaleno Dominguez was "dressing out" 



a new inmate - that is, exchanging the new inmate's personal clothing for institutional 



clothing, and giving the new inmate institutional bedding. 



                Bachmeier's laundry cart contained folded institutional clothing, as well as 



prepared tote bags, some containing institutional bedding and some containing clothing. 



The prepared tote bags were in the bottom of the cart, while the folded institutional 



clothing was lying on top of these tote bags. 



               As Bachmeier started to put the folded clothing onto the shelves of the 



property room, Dominguez ordered Bachmeier to give him one of the prepared tote bags. 



Bachmeier answered that he would give Dominguez a tote bag as soon as he completed 



putting away the folded clothing that was on top of the tote bags. At this point, the State's 



version of events and Bachmeier's version of events diverge. 



               According to the State's version, Dominguez told Bachmeier that he needed 



the tote bag immediately, so that he could complete the process of dressing out the new 



inmate.    In  response,   Bachmeier     asked   Dominguez      in  a  "very  defiant"   manner    if 



                                               - 2 -                                          2359
 


----------------------- Page 3-----------------------

Dominguez was "high," or on drugs. Dominguez then announced that Bachmeier was 



fired from his laundry job for failing to follow a direct order. 



              According to Dominguez, after he made this announcement, Bachmeier 



attacked him and punched him twice. Dominguez swung at Bachmeier, but he missed. 



Bachmeier then put Dominguez into a head lock. Dominguez finally managed to push 



Bachmeier out of the property room, and other corrections officers intervened and ended 



the incident. 



              Besides Dominguez's testimony, Bachmeier's jury heard the testimony of 



two inmates who witnessed the incident. Although these inmates' testimony was similar 



to Dominguez's, there were some significant differences. We present those differences 



in the light most favorable to Bachmeier's claim of self-defense. 



              According to the first inmate, when Bachmeier did not immediately respond 



to Dominguez's request for a tote bag, Dominguez removed some of the folded clothing 



from Bachmeier's laundry cart and threw this clothing onto the floor. In response to 



Dominguez's act of throwing the clothing onto the floor, Bachmeier asked Dominguez 



if he was high or on drugs. 



              This first inmate also testified that when Dominguez fired Bachmeier from 



his job as a laundry worker, Dominguez was standing close to Bachmeier - within arm's 



length - and Dominguez gestured with his hand toward Bachmeier. It was in response 



to this gesture that Bachmeier punched Dominguez. 



              The second inmate corroborated the first inmate's testimony that Dominguez 



aggressively approached Bachmeier during this encounter. The second inmate testified 



that when Dominguez announced that Bachmeier was fired, Dominguez reached across 



the cart and pointed directly in Bachmeier's face. This inmate described Dominguez as 



"furious," and he said that Dominguez's gesture was threatening. This inmate had never 



                                            -  3 -                                     2359
 


----------------------- Page 4-----------------------

seen a corrections officer act the way Dominguez was acting, nor had he ever seen a 



corrections officer as angry as Dominguez was. 



                 According to this second inmate, it looked like Bachmeier was defending 



himself against Dominguez's threatening hand gesture. This inmate testified that he, too, 



probably would have hit Dominguez if he had faced the same situation. 



                 Based     on   this  testimony,    Superior    Court    Judge    Charles    T.  Huguelet 



concluded that Bachmeier was entitled to a jury instruction on self-defense. The judge 



gave a self-defense instruction that tracked the language of AS 11.81.330(a), which states 



that a person is justified in using non-deadly force against another person "when and to 



the extent the person [using the force] reasonably believes [that this force] is necessary 



for self-defense against what the person reasonably believes to be the use of unlawful force 



by the other person." 



                 Judge Huguelet also perceived that, because Bachmeier was a prison inmate 



and Dominguez was a corrections officer, the jury would need to be instructed on the type 



or degree of force that a corrections officer can lawfully use on an inmate - so that the 



jury could properly assess whether Bachmeier reasonably believed that Dominguez was 



using, or was about to use, "unlawful force" against him. 



                 For this reason, Judge Huguelet decided to inform the jurors of the provisions 



of AS 11.81.410(a): 



                         [A] guard or peace officer employed in a correctional 

                 facility   may,   if   authorized   by   regulations   adopted   by   the 

                 Department of Corrections, use nondeadly force upon another 

                 person   when   and   to   the   extent   reasonably   necessary   and 

                 appropriate to maintain order. 



                 When the parties were discussing this instruction, Bachmeier's attorney asked 



Judge   Huguelet   to   also   inform   the   jurors   of   the   provisions   of   22   AAC   05.060,   an 



                                                   - 4 -                                             2359
 


----------------------- Page 5-----------------------

administrative regulation promulgated by the Department of Corrections defining the 



circumstances in which a corrections officer can use physical force. Under this regulation: 



                [a] facility staff member may not, in a facility, use physical 

                force ... except when necessary in self-defense, [or] to protect 

                a person from imminent physical harm, [or] to enforce a lawful 

                order of a staff member in the face of physical resistance by 

                a   prisoner,   [or]   to   carry   out   medical   instructions,   [or]   to 

                prevent   escape     or  serious   damage     to  property,   or   in  the 

                conduct of a search[.] 



                Bachmeier's attorney argued that, because AS 11.81.410(a) only authorized 



a corrections officer to use force to maintain order "if authorized by regulations adopted 



by the Department of Corrections," it was important for the jurors to know exactly what 



the department regulations stated about the permissible uses of force. But Judge Huguelet 



concluded that it was unnecessary to instruct the jurors regarding this regulation. 



                Judge     Huguelet     told  Bachmeier's      attorney   that  he  had   examined      the 



regulation, and that he had considered trying to draft a jury instruction that incorporated 



the wording of both the statute and the regulation, but he ultimately decided that the 



wording of the statute - "reasonably necessary and appropriate to maintain order" - 



adequately covered the same concept as the regulation. 



        Discussion 



                Judge Huguelet was mistaken when he ruled that the concluding phrase of 



AS 11.81.410(a), "reasonably necessary and appropriate to maintain order," adequately 



conveyed the test for deciding when a corrections officer may use force upon an inmate. 



Under AS 11.81.410(a), a corrections officer's use of force is justified only if it meets 



both of two tests: the use of force must be "authorized by regulations adopted by the 



Department of Corrections" and (even when authorized by regulation) the use of force 



                                                  -  5 -                                           2359
 


----------------------- Page 6-----------------------

must be "reasonably necessary and appropriate to maintain order." The statute's first 



requirement, that the officer's use of force be authorized by regulation, is not simply an 



alternative method of describing the statute's second requirement, that the officer's use 



of force be reasonably necessary and appropriate to maintain order. 



                Further,   given   the   evidence   in   Bachmeier's   case,   there   is   a   substantial 



possibility that, because of Judge Huguelet's refusal to instruct the jurors concerning the 



requirements of the pertinent regulation, 22 AAC 05.060, the jurors used the wrong legal 



test when reaching their decision regarding Bachmeier's claim of self-defense. 



                Viewing the evidence in the light most favorable to Bachmeier's claim of 



self-defense, Bachmeier could reasonably have believed that Dominguez was about to 



physically assault him because he declined to immediately obey Dominguez's order to 



retrieve a bedding tote from the laundry cart. At trial, the defense attorney argued that 



Bachmeier's belief was reasonable based on Dominguez's unprofessional act of throwing 



the   folded   clothing   onto   the   floor,   Dominguez's   extreme   and   unusual   anger   when 



Bachmeier did not immediately comply with his directive, Dominguez's aggressive and 



assertive behavior, his close physical approach to Bachmeier, and his act of lifting his 



hand toward Bachmeier. 



                Viewing the evidence in the light most favorable to a claim of self-defense, 



and    under    the  pertinent   Department      of  Corrections     regulation,    22  AAC     05.060, 



Dominguez would not be authorized to use physical force on Bachmeier under these 



circumstances - because Bachmeier had not threatened Dominguez or any other person 



with physical harm, and because Bachmeier had not physically resisted Dominguez's 



order. 



                                                 -  6 -                                            2359
 


----------------------- Page 7-----------------------

                 But the jurors were not told about the provisions of this regulation. Instead, 



the jurors were only told that Dominguez could lawfully use force against Bachmeier "to 



the extent reasonably necessary and appropriate to maintain order." 



                 Given the evidence, the jurors might have concluded that even if Dominguez 



was    about    to  hit  Bachmeier,      Dominguez's       action   was   "reasonably      necessary     and 



appropriate to maintain order" - so that, even if Bachmeier reasonably believed that 



Dominguez   was   about   to   hit   him,   this   would   have   been   a   lawful   use   of   force   on 



Dominguez's part. The jurors would therefore conclude, mistakenly, that Bachmeier had 



no right to use force to defend himself from Dominguez - because, under the self-defense 



instruction that the jurors received (and under AS 11.81.330), Bachmeier had to show 



that he reasonably believed he was defending himself from unlawful force. 



                 In summary, there is a substantial possibility that the verdict at Bachmeier's 



trial would have been different if the jurors had been correctly instructed on the rules 



governing a corrections officer's use of force. The State attempts to avoid this problem 



by arguing that the preceding discussion does not truly apply to the facts of Bachmeier's 



case. 



                 The State notes that 22 AAC 05.060 does not speak of a corrections officer's 



use of "force," but rather the use of "physical force." The State suggests that the phrase 



"physical force" was intended to mean something narrower than the definition of force 



contained in AS 11.81.900(b)(27): "any bodily impact, restraint, or confinement or the 



threat of imminent bodily impact, restraint, or confinement." 



                 In   particular,   the   State   argues   that   if   the   phrase   "physical   force"   were 



interpreted as broadly as the statutory definition of "force," then the Department regulation 



would   prohibit   a   corrections   officer,   when   faced   with   an   unruly   inmate,   from   even 



threatening the inmate with "bodily impact, restraint, or confinement" if the inmate did 



                                                   -  7 -                                             2359
 


----------------------- Page 8-----------------------

not behave properly and comply with the officer's directives. For this reason, the State 



argues that the phrase "physical force" must be interpreted narrowly, as meaning only 



the active application of force, as opposed to a threat of future force, or of future restraint 



or confinement. The State further argues that, under this narrow definition of "physical 



force," there was no evidence in Bachmeier's case that Dominguez used physical force 



against Bachmeier, at least not until Bachmeier punched him. 



               There are two flaws in the State's argument. 



               First,  the  State's  argument    appears   to  be  based  on   a  misreading   of 



AS 11.81.410(a), the statute that defines when a corrections officer's use of force against 



an inmate is justified. Under AS 11.81.410(a), a corrections officer's use of force against 



an inmate is not justified unless (1) the use of force is authorized by a Department of 



Corrections regulation, and (2) the use of force is reasonably necessary and appropriate 



to maintain order. For purposes of interpreting this statute, we must apply the definition 



of   "force"   codified  in  AS   11.81.900(b)(27)    -    "any  bodily   impact,   restraint,  or 



confinement     or  the  threat  of  imminent   bodily   impact,   restraint,  or  confinement." 



Accordingly, a corrections officer has no special justification to use force against an 



inmate under AS 11.81.410(a) unless there is a Department of Corrections regulation 



which authorizes that use of force. 



               If we followed the State's suggestion and gave a narrow interpretation to 



the phrase "physical force" in 22 AAC 05.060 - construing this phrase so that it was 



not co-extensive with the statutory definition of "force" codified in AS 11.81.900(b)(27), 



but was, instead, limited to the actual, active application of physical force - then there 



would be no Department regulation authorizing corrections officers to use threats of force, 



restraint, or confinement against an inmate. Thus, a corrections officer's threat of such 



measures would constitute "force" for purposes of our criminal code, but the officer's 



                                             -  8 -                                        2359
 


----------------------- Page 9-----------------------

conduct would not be justified under the provisions of AS 11.81.410(a). This result seems 



illogical, and it is clearly not a result that the State would favor. 



               The second flaw in the State's argument is that it appears to be based on a 



misunderstanding of the law of self-defense. The State relies heavily on the fact that, even 



viewing the evidence in the light most favorable to Bachmeier's proposed defense, there 



was no evidence that Dominguez struck Bachmeier, or otherwise actively used force upon 



him, until after Bachmeier punched Dominguez. But Bachmeier's claim of self-defense 



did not require him to show that Dominguez struck him first. 



               Our general self-defense statute, AS 11.81.330(a), states that a person is 



justified in using non-deadly force against another person "when and to the extent the 



person [using the force] reasonably believes [that this force] is necessary for self-defense 



against what the person reasonably believes to be the use of unlawful force by the other 



person." 



               Even though the wording of this statute might suggest that a person is not 



allowed to act in self-defense until the other person is actually using unlawful force upon 



them, the right of self-defense has always been construed in a broader fashion. The law 



allows a person to use force defensively when the person reasonably believes that another 



person is imminently going to subject them to unlawful force - even when, in hindsight, 

the person's belief turns out to have been mistaken.1 



               Viewing the evidence in the light most favorable to Bachmeier's claim of 



self-defense, the   jury could have concluded that Bachmeier actually and reasonably 



believed that Dominguez was about to strike him without justification (i.e., about to strike 



        1  See  Wilkerson v. State, 271   P.3d 471, 475 (Alaska App. 2012); McCracken v. 



State, 914 P.2d 893, 898 (Alaska App. 1996); Ha v. State , 892 P.2d 184, 194 (Alaska App. 

1995). 



                                            -  9 -                                        2359 


----------------------- Page 10-----------------------

him in circumstances where Dominguez's act of striking Bachmeier would not be justified 



under   the   governing   Department   regulation,   22   AAC   05.060).   If   this   was   so,   then 



Bachmeier      would     have   been   entitled  to  use   reasonable    non-deadly     force   against 



Dominguez in self-defense, even though Dominguez did not actually strike him first. 



        Conclusion 



                As explained in this opinion, the jurors were not correctly instructed on the 



question of what force a corrections officer can justifiably use against an inmate. And there 



is a substantial possibility that the verdict at Bachmeier's trial would have been different 



if the jurors had been correctly instructed on the rules governing a corrections officer's 



use of force. We accordingly REVERSE the judgment of the district court. 



                                                -  10 -                                           2359
 

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