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Marquinn Jones-Nelson v State of Alaska (7/19/2019) ap-2650

Marquinn Jones-Nelson v State of Alaska (7/19/2019) ap-2650

                                                    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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MARQUINN JONES-NELSON,  

                                                                  Court of Appeals No. A-11966  

                                   Appellant,                   Trial Court No. 3AN-11-05289 CR  



                          v.  

                                                                             O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                         No. 2650 - July 19, 2019  



                 Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                       

                 Anchorage, Gregory A. Miller, Judge.  



                 Appearances:  Cynthia L. Strout, Attorney at Law, Anchorage,  

                                                                         

                  for  the  Appellant.      Timothy  W.  Terrell,  Assistant  Attorney  

                                                         

                  General,  Office  of  Criminal  Appeals,  Anchorage,  and  Jahna  

                                           

                  Lindemuth, Attorney General, Juneau, for the Appellee.  



                  Before: Mannheimer, Chief Judge, and Allard and Wollenberg,  

                                                       

                  Judges.  



                  Judge WOLLENBERG, writing for the Court.  

                  Judge ALLARD, concurring.  


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

                       Following ajurytrial, MarquinnJones-Nelsonwasconvictedoffirst-degree                                        



                                                                                                                  1  

murder in connection with the shooting death of Devante Jordan.                                                                               

                                                                                                                     Jones-Nelson now  



                                                        

appeals his murder conviction.  



                                                                                                                                                

                       On appeal, Jones-Nelson raises two claims. First, Jones-Nelson argues that  



                                                                                                                                         

the  superior  court  improperly  limited  his  cross-examination  of  three  of  the  State's  



                                                                                            

witnesses.  Specifically, Jones-Nelson contends that the court erred when it refused to  



                                                                                                                                                 

allow his attorney to elicit testimony from these witnesses about Jordan's reputation for  



                                                                                                                                      

violence or about Jordan's prior violent acts until the defense attorney had first presented  



                                                                                                                                  

"some  evidence" of self-defense -  i.e., other evidence (apart from the anticipated  



                                                                                                                                              

testimony of these three witnesses) to support each of the elements of a claim of self- 



                                                                                                                                               

defense.  Jones-Nelson acknowledges that the "some evidence" test is the standard that  



                                                                                                                                                

governs whether a self-defense instruction is warranted, but he argues that this same test  



                                                                                                               

does not govern a judge's decision whether to admit evidence.  



                                                                                                                                              

                       The  State  concedes  that  the  trial  court  was  wrong  to  require  this  



                                                                                                                                      

 foundational  showing  as  a  prerequisite  to  the  admission  of  evidence  of  Jordan's  



                                                                                                                                                

reputation for violence or Jordan's prior violent acts.   We agree.   However, for the  



                                                                                                                   

reasons explained in this decision, we conclude that the error was harmless.  



                                                                                                                                      

                       Second, Jones-Nelson argues that the superior court gave an incorrect  



                                                                                                                                                

instruction to the jury on the law of self-defense.  We agree with Jones-Nelson that this  



                                                                                                                                                

instruction was incomplete and potentially misleading:  it failed to explicitly tell the  



                                                                                                                                              

jurors  that,  when  they  evaluated  whether  Jones-Nelson's  use  of  deadly  force  was  



                                                                                                                                              

reasonable, they were required to judge his decision under the circumstances as they  



      1     AS 11.41.100(a)(1)(A).   Jones-Nelson was also convicted of evidence tampering,   



AS        11.56.610(a)(1),               and        two       counts         of      third-degree             weapons           misconduct,  

AS 11.61.200(a)(1).  He does not appeal these convictions.  



                                                                       - 2 -                                                                 2650
  


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

reasonably appeared to Jones-Nelson at the time (rather than under the circumstances as  

                                                                                                                                 



they turned out to be in retrospect).  

                                                       



                    But  after  carefully  reviewing  the  record  (in  particular,  the  other  jury  

                                                                                                                             



instructions on self-defense and the final arguments of the parties), we conclude that this  

                                                                                                                               



error did not appreciably affect the jury's verdict.  

                                                                             



          Background facts and proceedings  

                                              



                    On the evening of March 23, 2011, Jones-Nelson and two of his friends  

                                                                                                                    



attended a party at an Anchorage apartment. Jordan and some of his friends attended the  

                                                                                                                                



same party.  

                    



                    Atsomepoint, Jordan confrontedJones-Nelson in abedroom,accusinghim  

                                                                                                                               



of spreading the rumor that Jordan was a police snitch. During this confrontation, Jordan  

                                                                                                                          



came within three feet of Jones-Nelson, and he was acting aggressively.   However,  

                                                                                                                    



Jordan ultimately left the room and returned to sit with his friends in the kitchen.  

                                                                                                                             



                    One of Jordan's friends who lived in the apartment, Nikita Sanders, could  

                                                                                                                            



see that Jordan was angry.  She asked him if he was "good," and Jordan replied that he  

                                                                                                                                 



was.  But Jordan then asked another friend, Parrish Harris, whether he should "drop"  

                                                                                                                          



Jones-Nelson. Sanders heard this comment, and she told Jordan, "Not in my apartment."  

                                                                                                                                     



                    (Because Jones-Nelson was still in the bedroom, he did not hear Jordan's  

                                                                                                                       



comment.)  

                   



                    A little later, Jones-Nelson called Harris into the bedroom and told him to  

                                                                                                                                 



fetch Jordan.  Harris did so; moments later, Jordan came into the bedroom.  

                                                                                                                    



                    According to the testimony later given by Jones-Nelson and two of his  

                                                                                                                               



friends  (Dorian  Topps  and  Dionte  Wren),  Jordan  approached  Jones-Nelson  in  an  

                                                                                                                                



aggressive manner.  He came within a foot and a half of Jones-Nelson, stood over him,  

                                                                                                                             



and asked, "What's up?"  (Jordan, who was about 6 foot 3 inches tall and weighed 170  

                                                                                                                              



                                                              -  3 -                                                         2650
  


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

pounds, was significantly bigger than Jones-Nelson, who was 5 foot 7 inches tall and  

                                                                                                                              



weighed about 135 pounds.)  

                                              



                    According to the defense witnesses, Jordan looked like he was going to hit  

                                                                                                                               



Jones-Nelson.  In addition, Topps (one of Jones-Nelson's friends) testified that he saw  

                                                                                                                             



Jordan  reaching  for  a  handgun  in  his  waistband  as  he  approached  Jones-Nelson.  

                                                                                                                                    



However, Wren (Jones-Nelson's other friend) testified that he did not see Jordan with  



a firearm, nor did he see Jordan actually try to hit Jones-Nelson.  

                                                                                                    



                    Regardless of this discrepancy in the testimony, it is undisputed that Jones- 

                                                                                                                          



Nelson pulled out a handgun and started shooting at Jordan.  Jones-Nelson fired two  

                                                                                                                             



shots in quick succession, at which point Jordan turned and ran toward the kitchen.  As  

                                                                                                                               



Jordan ran away, Jones-Nelson fired four more shots.   Jordan died as a result of his  

                                                                                                                              



wounds.  



                    Following the shooting, Jones-Nelson fled the apartment, accompanied by  

                                                                                                                                



Wren and Topps.  Jones-Nelson's girlfriend was waiting outside in a car, and the four  

                                                                                                                             



drove  away  from the  apartment.                     When  Jones-Nelson's  girlfriend  asked  him what  

                                                                                                                           



happened, Jones-Nelson replied that he had just "smoked" Jordan.  Jones-Nelson later  

                                                                                                      



disposed of the handgun by tossing it over a bridge.  

                                                                     



                    The  next  day,  Jones-Nelson  contacted  a  person  to  obtain  a  fake  birth  

                                                                                                                           



certificate and other false documents so that he could leave Alaska under a false identity.  

                                                                                                                                    



The person that Jones-Nelson contacted was secretly a federal informant, and she alerted  

                                                                                                                         



the authorities to Jones-Nelson's plan.  The police arrested Jones-Nelson when he went  

                                                                                                                            



to retrieve the false documents.   When Jones-Nelson was interviewed following his  

                                                                                                                              



arrest, he denied being at the scene of the shooting.  

                                                                



                    At trial, there was no dispute that Jones-Nelson shot and killed Jordan. The  

                                                                                                                              



only question was whether this shooting was justified by self-defense.  

                                                                                                             



                                                              - 4 -                                                         2650
  


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

                    In  his  opening  statement,  Jones-Nelson's  counsel  asserted  that  Jones- 

                                                                                                                           



Nelson  shot  Jordan  in  self-defense,  after  Jordan  approached  Jones-Nelson  in  an  

                                                                                                                                



aggressive and threatening manner. The defense attorney told the jury that it would hear  

                                                                                                                               



evidence of Jordan's reputation for violence, as well as specific incidents of Jordan's  

                                                                                                                        



violent behavior.   The defense attorney asserted that this evidence would show the  

                                                                                                                                



reasonableness of Jones-Nelson's perception that Jordan was going to hurt him, and the  

                                                                                                                                 



reasonableness  of  Jones-Nelson's  decision  to  use  deadly  force  in  response  to  this  

                                                                                                                               



perceived threat.  

                            



                    Both Jones-Nelson and his friend Topps testified that Jordan approached  

                                                                                                        



Jones-Nelson in an aggressive manner, and that Jordan reached into his waistband for  

                                                                                                                                 



a gun.  (As we noted earlier, Jones-Nelson's other friend, Wren, testified that he did not  

                                                                                                                                



see Jordan reach for a gun.) Jones-Nelson testified that when he saw Jordan reaching for  

                                                                                                                                 



a gun, he was afraid that he would be pistol-whipped or shot, so he grabbed a revolver  

                                                                                                                         



fromthe window ledge and started shooting at Jordan. Jones-Nelson conceded that, after  

                                                                                                                               



the first few shots, Jordan dropped his gun and ran, but Jones-Nelson testified that he  

                                                                                                                                 



kept firing because he was afraid that Jordan's friends might have guns and might come  

                                                                                                                             



to Jordan's aid.  

                          



                     The prosecutor argued that neither Jones-Nelson nor his friend Topps were  

                                                                                                                              



credible witnesses, and that their testimony about Jordan reaching for a gun was false.  

                                                                                                                                      



The prosecutor asserted that Jones-Nelson never subjectively believed that he needed to  

                                                                                                                                  



use deadly force to repel an imminent attack.  

                                                                       



                     The  jury  ultimately  rejected  Jones-Nelson's  claim  of  self-defense  and  

                                                                                                                               



convicted Jones-Nelson of first-degree murder.  

                                                                          



                                                               -  5 -                                                         2650
  


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

               The court's limitation on the defense attorney's introduction of evidence                                                                      

               regarding Jordan's reputation for violence and Jordan's prior violent acts                                                                                 



                              Prior to trial, Jones-Nelson's attorney filed notice of his intent to support                                         



Jones-Nelson's claimofself-defenseby introducing evidenceofseveralpriorviolentacts                                                                                                       



                                                                                                                                                 2  

by Jordan, as well as evidence of Jordan's reputation for violence.                                                                                                             

                                                                                                                                                     At trial, the defense  



                                                                                                                                                                                  

attorney  initially  sought  to  introduce  some  of  this  evidence  through  his  cross- 



                                                                                                                                                                                   

examination of three witnesses who either saw or overheard the shooting: Dionte Wren,  



                                                                                              

Nikita Sanders, and her sister, Andronika Sanders.  



                                                                                                                                                                                 

                              The prosecutor objected to this proposed cross-examination on the ground  



                                                                                                                                                                                       

that the defense attorney had not yet offered "some evidence" on every element of self- 



                                                                                                                                                                                   

defense. In particular, the prosecutor argued that the proposed cross-examination would  



                                                                                                                                                                                                   

be  improper  until  the  defense  attorney  first  offered  evidence  that  Jones-Nelson  



                                                                                                                                                                              

subjectively believed that he was about to be killed or subjected to serious physical  



                                                                                                                                                                                                   

injury.  (At that point in the trial, no witness had testified to seeing Jordan with a gun.)  



                                                                                                                                                                            

                              The trial judge adopted the prosecutor's view of the law, and he sustained  



                                                                                                                                                                                        

the prosecutor's objection to the proposed cross-examination.   The judge ruled that  



                                                                                                                                                                                          

Jones-Nelson's attorney could not elicit any testimony about Jordan's reputation for  



                                                                                                                                                                                  

violence, or about Jordan's past acts of violence, until the attorney presented "some  



                                                                                                                                                                                       

evidence"to support each element ofJones-Nelson's self-defenseclaim. Onlylater, after  



                                                                                                                                                                                  

Topps testified that he saw Jordan reaching for a handgun as he approached Jones- 



                                                                                                                                                                              

Nelson, did the trial judge permit the defense attorney to introduce evidence of Jordan's  



                                                                                           

prior acts of violence and reputation for violence.  



        2      See Loesche v. State, 620 P.2d 646, 650 (Alaska 1980);                                                                  Johnson v. State , 268 P.3d                     



362, 365-66 (Alaska App. 2012);  Allen v. State , 945 P.2d 1233, 1241-42 (Alaska App. 1997);  

McCracken v. State                        , 914 P.2d 893, 898-99 (Alaska App. 1996).  



                                                                                           -  6 -                                                                                      2650
  


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

                                 On appeal, Jones-Nelson argues that the trial court improperly limited his                                                                                                   



attorney's cross-examination of Wren and the Sanders sisters.                                                                                                   He argues that, even                     



though   the   defense   had   not   yet   presented   affirmative   evidence   that  Jones-Nelson  



subjectively feared a deadly attack, the trial judge nevertheless should have allowed the                                                                                                                     



defense attorney to elicit evidence regarding Jordan's reputation for violence and his                                                                                                                        



prior violent acts.                          



                                 The   State   concedes   that   the   trial   judge   was   wrong   to   require   this  



foundational showing.                                    We agree.                  While the "some evidence" test governs the question                                                          



of whether a defendant is ultimately entitled to have the jury instructed on self-defense                                                                                               



                                                   3  

at the end of the trial,                                                                                                                                                                   

                                                       this test does not govern the admissibility of evidence supporting  



                                                                                                4  

                                                                                                   

a claim of self-defense during the trial. 



                                                                                                                                                                                                

                                 In particular, there is no rule that a defendant must first introduce evidence  



                                                                                                                                                                                                                 

to support each element of self-defense before the defendant may introduce evidence of  



                                                                                                                                                                                             

a decedent's prior acts of violence or their reputation for violence. Indeed, the defendant  



                                                                                                                                                                                       

may rely on such evidence to establish the "some evidence" threshold for a self-defense  



                                                                                                                                                                                                     

instruction at the end of the trial.   Thus, the trial judge was wrong to require Jones- 



                                                                                                                                                                                       

Nelson's attorney to introduce independent evidence on each element of self-defense  



                                                                                                                                                                                   

before the judge allowed the attorney to introduce evidence of Jordan's reputation for  



                                                                                 5  

                                                                                      

violence or his prior violent acts. 



        3        See AS 11.81.900(b)(19);  Weston v. State, 682 P.2d 1119, 1121 (Alaska App. 1984).  



        4  

                                                                                                                                              

                 See  Savo  v.  State,  382  P.3d  1179,  1181  (Alaska  App.  2016)  (noting  that  the  

                                                                                                                                                                                                         

determination of whether the defendant has presented "some evidence" to warrant a self- 

                                                                                                                                                                         

defense instruction "applies at the conclusion of the trial, after all the evidence has been  

received").  



        5  

                                                                                                                                                                                                              

                 See Lewis v. State, 469 P.2d 689, 697 (Alaska 1970) (although the court generally has  

discretion to control the presentation of evidence, the court cannot exclude evidence based  

                                                                                                                                                                                      (continued...)  



                                                                                                     -  7 -                                                                                               2650
  


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

                                                                      Wedisavowany contrary                                                                                                              implication in                                                            Gottschalkv.State                                                                               , 881 P.2d 1139,  



  1143 (Alaska App. 1994) and                                                                                                                              Deacon v. State                                                                     , 1993 WL 13156808, at *1 (Alaska App.                                                                                                                                                    



June 23, 1993) (unpublished).                                                   



                                                                      Although   the   trial   judge   was   wrong   to   require   this   "some   evidence"  



 foundational   showing,   it   is   important   to   note   that   there   are   other   foundational  



requirements that a defendant must meet before presenting this kind of evidence. These                                                                                                                                                                                                                                                                                                                                             



requirements differ depending on whether (1) the defendant is claiming that, as a matter                                                                                                                                                                                                                                                                                                                                    



 of historical fact, the victim was the first aggressor, or (2) the defendant is claiming that                                                                                                                                                                                                                                                                                                                                                  



he reasonably believed that he was about to be attacked with deadly force.                                                                                                                                                                                                                                                                                                                              



                                                                      To prove the question of historical fact -                                                                                                                                                                               i.e., that the victim was actually                                                                                         



the first aggressor - a defendant may introduce evidence of the victim's character for                                                                                                                                                                                                                                                                                                          



violence, and he need not establish that he was actually aware of the victim's violent                                                                                                                                                                                                                                                                                                                                        



 character at the time of the altercation.                                                                                                                                                                   However, this evidence must take the form of                                                                                                                                                                                               



reputation   or   opinion   evidence; the defendant may                                                                                                                                                                                                                                not introduce evidence of prior                                                                                                                 



 specific acts of violence.                                                     



                                                                      In contrast, when the defendant seeks to prove the reasonableness of his                                                                                                                                                                                                                                                                                                      



 fear that the victim was about to attack, the defendant can introduce any evidence                                                                                                                                                                                                                                                                                                                                



pertaining to his contemporary knowledge of the victim's violent propensities.                                                                                                                                                                                                                                                                                                                                                         This  



includes not only what the defendant had personally observed about the victim's violent                                                                                                                                                                                                                                                                                                                                         



propensities in the past, but also what the defendant had heard from others about the                                                                                                                                                                                                                                                                                                                                                             



victim's reputation for violence or thevictim's                                                                                                                                                                                                specificprior acts ofviolence -provided                                                                                                                                



that the defendant was aware of this information at the time of his altercation with the                                                                                                                                                                                                                                                                                                                                                           



victim.   



                  5                (...continued)  



on the misconstruction or misapplication of a legal rule).  

                                                                                                                                                                                                                            



                                                                                                                                                                                                                      -  8 -                                                                                                                                                                                                                  2650
  


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

                                                          We discussed these principles at length in                                                                                                                                               Allen v. State                                               , 945 P.2d 1233,        



 1239-43 (Alaska App. 1997) and                                                                                                                     McCracken v. State                                                                        , 914 P.2d 893, 898-99 (Alaska                                                                         



App. 1996).   



                                                          Moreover, there may be other foundational requirements that prevent or                                                                                                                                                                                                                                              



limit the introduction of this type of evidence.                                                                                                                                                           



                                                          For instance, in the present case, Jones-Nelson's attorney sought to cross-                                                                                                                                                                                                                         



 examine Wren about a 2008 altercation in which Jordan purportedly confronted Jones-                                                                                                                                                                                                                                                                        



Nelson, knocked him unconscious with a single punch, and pulled a gun on him.                                                                                                                                                                                                                                                                                    This  



 evidence was offered to establish the reasonableness of Jones-Nelson's belief that he                                                                                                                                                                                                                                                                                       



needed to use deadly force against Jordan.                                                                                                                                               But Wren did not have personal knowledge                                                                                                       



 of this prior incident, so the trial judge properly excluded his testimony as hearsay.                                                                                                                                                                                                                                              



                                                          Finally, we acknowledge that there may be instances where there is a                                                                                                                                                                                                                                                   



 significant question whether the defendant will ultimately be entitled to a self-defense                                                                                                                                                                                                                                     



instruction, and where the trial judge is unable to resolve this question at the time the                                                                                                                                                                                                                                                                                 



 defense attorney seeks to introduce evidence of the victim's character for violence or the                                                                                                                                                                                                                                                                                



victim's prior acts of violence.  In such instances, a trial judge retains the discretion to                                                                                                                                                                                                                                                                                   



regulate the order                                                                of proof, so                                               as to                     avoid   the danger                                                              of prejudicing                                                      the jury                                with  



                                                                                                                                                                                                                                       6  

 evidence that ultimately turns out to be inadmissible.                                                                                                                                                                                     



                                                                                                                                                                                                                                                                                                                                                                

                                                          In Jones-Nelson's case, however, we conclude that even if the trial judge  



                                                                                                                                                                                                                                                                                                                                                             

 should have allowed the defense attorney to cross-examine Wren and the Sanders sisters  



                                                                                                                                                                                                                                                                                                                                                                        

 about Jordan's reputation for violence, or about Jordan's past violent acts, any error was  



                                                                                                                                                                                                                                                                                                                                                                           

rendered harmless later in the trial, when the defense attorney was able to introduce the  



                                                                                                                                                                               

 same evidence through other witnesses.  



               6             See  Alaska Evid. R. 611(a) (vesting court with authority to "exercise reasonable                                                                                                                                                                      



control over the mode and order of interrogating witnesses and presenting evidence").  



                                                                                                                                                                                  -  9 -                                                                                                                                                                              2650
  


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

                     Later in the trial, Jones-Nelson's attorney introduced testimony from a  

                                                                                                                                   



number of witnesses that Jordan was a violent person who often carried a gun, that  

                                                                                                                               



Jordan was a "person of interest" in two prior shootings, and that he was involved in a  

                                                                                                                                   



third  shooting.          In  addition,  the  defense  attorney  introduced  evidence  of  the  2008  

                                                                                                                             



incident  in  which  Jordan  knocked  out  Jones-Nelson  (the  evidence  that  the  judge  

                                                                                                                            



excluded on hearsay grounds when the defense attorney sought to offer it through the  

                                                                                                                                



testimony of Wren).  

                                  



                     Indeed, at oral argument, Jones-Nelson conceded that he was ultimately  

                                                                                                                      



able to introduce all of the evidence of Jordan's prior acts of violence and Jordan's  

                                                                                                                        



character for violence that his trial attorney had initially sought to introduce through the  

                                                                                                                                 



cross-examination of Wren and the Sanders sisters. Jones-Nelson nevertheless contends  

                                                                                                                        



that he was prejudiced by the trial judge's ruling because Wren and the Sanders sisters  

                                                                                                                            



would have been particularly credible witnesses on the topic of Jordan's history of, and  

                                                                                                                                



character for, violence.  

                                      



                     But during the trial, Jones-Nelson's attorney acknowledged on several  

                                                                                                                          



occasions that he could recall these three witnesses during the defense case - and yet  

                                                                                                                                



he did not do so. In fact, the defense attorney later affirmatively declined to recall Nikita  

                                                                                                                            



 Sanders.  We therefore reject Jones-Nelson's claim that the trial judge prevented him  

                                                                                                                               



from eliciting the testimony of these three witnesses.  

                                                                                     



                     Jones-Nelson's defenseattorneyultimately presented all of the evidence he  

                                                                                                                                  



wished regarding Jordan's character for violence and Jordan's prior specific acts of  

                                                                                                                                  



violence, and the defense attorney chose not to recall and question Wren and the Sanders  

                                                                                                                         



sisters about these matters.  For these reasons, we conclude that any error in the trial  

                                                                                                                               



judge's initial ruling - the trial judge's refusal to allow the defense attorney to elicit this  

                                                                                                                                



evidence by cross-examining Wren and the Sanders sisters during the State's case - did  

                                                                                                                                



not affect Jones-Nelson's ability to present his defense.  

                                                                         



                                                              -  10 -                                                         2650
  


----------------------- Page 11-----------------------

              The self-defense jury instruction          



                           Jones-Nelson's jury was given two pattern jury instructions on the use of                                                                     



force in self-defense.  One of these instructions described the law that governs the use  



of non-deadly force in self-defense, and the other instruction described the law that                                                                                



                                                                 7  

                                                                                                                                                           

governs the use of deadly force.                                     The instruction on the use of deadly force correctly  



                    

informed the jurors that a defendant who would be justified in using non-deadly force  



                                                                                                                                                        

in  self-defense  may  use  deadly  force  when  and  to  the  extent  that  "the  defendant  



                                                                                                                                                               

reasonably believes" that deadly force is necessary to prevent imminent death or serious  



                                                                                                                  

physical injury (or to prevent certain specified felonies).  



                                                                                       

                           However, at the prosecutor's request, the trial judge gave the jury a third  



                                                                                                                                                                               

instruction on self-defense that was intended to supplement the two pattern instructions.  



                                                                                                                                                       

Jones-Nelson challenged this third instruction.  Here is the language of that instruction:  



                                                                                                                                           

                                        A basic tenet of the doctrine of self-defense is that  

                                                                                                                            

                           [the] use of deadly force is unreasonable . . . if non-deadly  

                                                                                                                                                    

                           force is obviously sufficient to avert the threatened harm.  

                                                                                                                                           

                           Even in circumstances when a person is permitted to use  

                                                                                                                                             

                           deadly force in self-defense[,] that person may still not be  

                                                                                                                                        

                           authorized  to  employ  all-out  deadly  force  because  such  

                                                                                                                                 

                           extreme force is not necessary to avert the danger.  



                                                                                                                                                                           

                           On appeal, Jones-Nelson argues that this instruction is incorrect because it  



                                                                                                                                                                   

suggests that the jury should retrospectively evaluate a defendant's use of deadly force  



                                                                                                                                                                

to determine whether deadly force was in fact objectively necessary, rather than having  



                                                                                                                                                                       

the jury assess whether the defendant's use of deadly force was reasonable under the  



                                                                                                       

circumstances known to the defendant at the time.  



                                                                                                                                                                  

                           Jones-Nelson correctly notes that a defendant may be justified in using  



                                                                                                                                                                       

deadly force (even "all-out" deadly force) if, under the circumstances known to the  



       7      See the pattern jury instructions for AS 11.81.330 and AS 11.81.335.   



                                                                                 -  11 -                                                                            2650
  


----------------------- Page 12-----------------------

defendant, the defendant reasonably believed that this amount of force was necessary -                                                              



even if it later turns out that this belief was mistaken, and that lesser force would have     



               8  

sufficed.   



                                                                                                                                 

                       We agree with Jones-Nelson that the wording of the challenged instruction  



                                                                                                                                             

failed to unambiguously recite the concept of "reasonableness" that is central to the law  



                                                                              

of self-defense.  As we said in McCracken v. State :  



                                                                                                                         

                       When a homicide defendant asserts that he or she acted in  

                                                                                                                   

                       self-defense, the law does not require the defendant to prove  

                                                                                                                          

                       that he or she actually faced imminent deadly attack. Even if  

                                                                                                                       

                       the defendant's fear turns out to have been mistaken, the  

                                                                                                                     

                       defense still may be established if the defendant proves that,  

                                                                                                                

                      under  the  circumstances,  he  or  she  reasonably  feared  



                                                                                                          [9]  

                                                                                              

                       imminent deadly attack at the hand of the victim. 



                                                                                                                                               

                       The question is not whether a defendant's use of force, and the level of  



                                                                                                                               

force  used,  was  necessary  in  hindsight  (or,  using  the  language  of  the  challenged  



                                                                                                                                

instruction, whether some lesser amount of force can now be seen to be "obviously  



                                                                                                                               

sufficient to avert the threatened harm"). Rather, the question is whether the defendant's  



                                                                                                                                            

use of force, and the level of that force, was reasonable under the circumstances as they  



                                                                     10  

                                                             

were known to the defendant at the time. 



      8    See Weston v. State, 682 P.2d 1119, 1121-22 (Alaska 1984);  McCracken v. State                                                 , 914  



P.2d 893, 898 (Alaska App. 1996).  



      9    McCracken , 914 P.2d at 898.  



      10   See State v. Miller, 798 N.W.2d 827, 831 (Neb. 2011) (noting, in analyzing a similarly  

                                                                                                                                     

flawed instruction, that "[w]hat the jury believes is actually necessary in response to such a  

                                                                                                                  

threat with the benefit of calm hindsight is not the inquiry, because '[d]etached reflection  

                                                                                                                

cannot be demanded in the presence of an uplifted knife'" (quoting Brown v. United States,  

                                                                

256 U.S. 335, 343 (1921))).  



                                                                    -  12 -                                                                2650
  


----------------------- Page 13-----------------------

                    It is true, as the State argues, that the supplemental instruction correctly  

                                                                                                                       



captured the concept that the defendant's use of force must be proportionate to the  

                                                                                                                                



perceived danger.   But, again, the question is what danger the defendant reasonably  

                                                                                                                    



perceived at the time, and what degree of force the defendant reasonably believed was  

                                                                                                                               



necessary to counter that perceived danger. The challenged instruction did not explicitly  

                                                                                                                       



tell the jurors that they were required to evaluate Jones-Nelson's use of force from the  

                                                                                                                                



perspective of a reasonable person in Jones-Nelson's circumstances.  

                                                                                                            



                    Thatbeing said, weconclude that when the supplemental instruction is read  

                                                                                                                               



in conjunction with the other jury instructions on self-defense, and in the context of the  

                                                                                                                                 



parties' closing arguments at Jones-Nelson's trial, there is little chance that the jurors  

                                                                                                                            



would have been misled on this issue.  Instead, we conclude that the jurors would have  

                                                                                                                              



understood the principle that a defendant can validly use deadly force in self-defense if  

                                                                                                                                   



the person  reasonably  believed  at the time that  this  force (and  level of force)  was  

                                                                                                                               



necessary, even if it later turned out that the defendant's belief was mistaken.  

                                                                                                                         



                    As we noted earlier, the jury received two pattern instructions on the use  



of force in self-defense.  Each of these instructions stated that, under the law of self- 

                                                                                                                              



defense, a person is justified in using force if the person reasonably believed at the time  

                                                                                                                              



that  the  use  of  this  force  was necessary.                     (A  separate  instruction  defined  the  term  

                                                                                                                             



"reasonably believes.")  And in their closing arguments, both the prosecutor and the  

                                                                                                                                



defense attorney repeatedly referred to this aspect of self-defense law.  

                                                                                                              



                    Moreover,  neither  attorney  referenced  the  challenged  jury  instruction  

                                                                                                                    



during their closing arguments.   In closing, the prosecutor primarily challenged the  

                                                                                                                                



credibility of Jones-Nelson's claim that Jordan had a gun.  He argued that Jones-Nelson  

                                                                                                                 



never subjectively believed that it was necessary for him to use deadly force against  

                                                                                                                          



Jordan. The prosecutor also argued that, regardless of Jones-Nelson's subjective belief,  

                                                                                                                            



                                                              -  13 -                                                         2650
  


----------------------- Page 14-----------------------

it was unreasonablefor                                                                  Jones-Nelsonto                                                continueshooting Jordanafter Jordanturned and                                                                                                                             



ran back toward the kitchen.                                                                                    



                                                   We acknowledge that, at two points during his argument, the prosecutor                                                                                                                                                                           



used language that potentially suggested that the question was whether deadly force was                                                                                                                                                                                                                                       



"necessary," as distinct from whether deadly force was "reasonable."                                                                                                                                                                                                           But read in the                                  



larger context of the prosecutor's argument, we interpret the prosecutor as properly                                                                                                                                                                                                                       



asking the jurors to evaluate the reasonableness of Jones-Nelson's purported belief that                                                                                                                                                                                                                                       



he had to use deadly force, given the circumstances.                                                                                                                                                        



                                                    (We note that Jones-Nelson does not challenge, or even mention, these two                                                                                                                                                                                                  



segments of the prosecutor's argument.)                                                                          



                                                    On   appeal,   Jones-Nelson   points   to   the   fact   that   the   jury   requested  



clarification   of   the   self-defense   instructions.     He   argues   that   this   indicates   that   the  



supplemental jury instruction was prejudicial.                                                                                                                                          But in a follow-up question, the jury                                                                                               



explained that they were seeking clarification of two of the exceptions to the valid use                                                                                                                                              



of   self-defense   -   namely,   the   provisions   that   preclude   a   claim   of   self-defense   in  



instances of "mutual combat," or when deadly force is used "in revenge for, retaliation                                                                                                                                                                                                               



                                                                                                                                                                                                                                                                                                            11  

for, or response to actual or perceived conduct by a rival or perceived rival."                                                                                                                                                                                                                                    These  



                                                                                                                                                                                                                                                                                                                                 

exceptions are statutory, and they were set out in one of the pattern instructions that the  



                                                                                                                                                                                                                                          12  

                                                                                                                                                                                             

court gave to the jury - not in the supplemental instruction. 



                                                                                                                                                                                                                                                                                                                                   

                                                   Viewing the jury instructions and the attorneys' arguments as a whole -  



                                                                                                                                                                                                                                                                                                                              

including the attorneys' repeated references to the correct test as stated in the pattern jury  



                                                                                                                                                                                                                                                                                          

instructions, and the fact that the attorneys never referred to the challenged supplemental  



             11           See AS 11.81.330(a).  



             12          Id.  



                                                                                                                                                            -  14 -                                                                                                                                                          2650
  


----------------------- Page 15-----------------------

jury instruction - we conclude that the error in the supplemental instruction did not                                                                                                                                     



                                                                                                  

 appreciably affect the jury's verdict.  



                  Conclusion  



                                   We AFFIRM the judgment of the superior court.  

                                                                                                                                                     



                                                                                                          -  15 -                                                                                                      2650
  


----------------------- Page 16-----------------------

 Judge ALLARD, concurring.                 



                                I   write   separately   regarding   the   supplemental   jury   instruction   on   self- 



 defense that the jury received in this case.                                                         



                                As explained in Judge Wollenberg's lead opinion, this jury instruction was                                                                                           



 intended to inform the jurors that, when a person uses force in self-defense, the amount                                                                                                   



 or degree of this force must be proportionate to -                                                                      i.e., a reasonable response to - the                                         



                                                                                                                                               1  

 danger  that the person reasonably believed they confronted                                                                                  .   



                                                                                                                                                                                                      

                                The flaw in the challenged jury instruction was that it failed to include the  



                                                                                                                                                                                                       

principle stated in the italicized portion of the preceding sentence:  the principle that the  



                                                                                                                                                                                                      

 lawfulness of the defensive force must be judged in light of the circumstances as the  



                                                                                                                                                                                                

 defendant reasonably perceived them at the time.  Instead, the instruction told the jurors  



                                                                                                                                                                                                    

 that a person's use of force will be deemed unreasonable if a lesser degree of force was  



                                                                                                                                                                                                         

 "obviously sufficient to avert the threatened harm," or if the person used an amount of  



                                                                                                                          

 force that was "not necessary to avert the danger."  



                                                                                                                                                                                                           

                                The State notes that the wording of this jury instruction was drawn from a  



                                                                                                                                                                                   2  

                                                                                                                                                                      

jury instruction on self-defense that this Court upheld in  Wilkerson v. State. 



                                                                                                                                                                                            

                                It  is  true  that  the  jury  instruction  in  Jones-Nelson's  case  was  drawn,  



                                                                                                                                                                                             

 essentially verbatim, from the final two sentences of the jury instruction that we upheld  



                                                                                                                                                                                                     

 in Wilkerson. But the jury instruction in Wilkerson contained an additional sentence that  



         1       See our extended discussion of this principle in                                                             State v. Walker, 887 P.2d 971, 978   



 (Alaska App. 1994).  



        2        Wilkerson v. State, 271 P.3d 471 (Alaska App. 2012).  



                                                                                                -  16 -                                                                                            2650
  


----------------------- Page 17-----------------------

expressly reminded the jury that a defendant's use of force must be judged from the                                                                                

defendant's reasonable perception of the circumstances.                                                      3  



                                                                                                                                                        

                          Jones-Nelson's caseillustratesthedangeroflifting languagefromappellate  



                                                                                                                                                                   

court decisions and then asking jurors to interpret and apply this language without the  



                                                                                                                                                               

benefit of its original context.  The fact that a jury instruction contains a verbatim quote  



                                                                                                                                                         

from one of this Court's decisions does not guarantee that the instruction is an accurate  



                                                                                                                                                                 

or complete statement of the law.  Thus, even when the language of a proposed jury  



                                                                                                                                                                  

instruction is drawn from an appellate court decision, trial judges and lawyers must still  



                                                                                                                                                            

analyze the proposed instruction to make sure that it properly conveys the law.  



       3     See id. at 474-75.  



                                                                               -  17 -                                                                          2650
  

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