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Wilkerson v. State (2/24/2012) ap-2346

Wilkerson v. State (2/24/2012) ap-2346


        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 @



                                                     Court of Appeals Nos. A-10564 & A-10573 

                Appellant & Cross-Appellee,                Trial Court No. 3AN-08-1096 Cr 


                                                                    O    P  I  N  I  O  N 


                Appellee & Cross-Appellant.                 No. 2346    -   February 24, 2012 

                Appeal     from   the   Superior   Court,    Third   Judicial   District, 

                Anchorage, Patrick J. McKay, Judge. 

                Appearances:      Beth   Lewis   Trimmer   and   Dan   Bair,   Assistant 

                Public Advocates, Appeals & Statewide Defense Section, and 

                Rachel Levitt and Richard Allen, Public Advocates, Anchorage, 

                for Mr. Wilkerson.  W. H. Hawley, Assistant Attorney General, 

                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 

                John J. Burns, Attorney General, Juneau, for the State. 

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


                MANNHEIMER, Judge. 

                Vincent     Edward     Wilkerson     was   found    guilty  of  first-degree   murder, 

evidence   tampering, and third-degree weapons misconduct (felon in possession of a 

concealable   firearm),   all   stemming   from   the   shooting   death   of   his   brother,   Gregory 

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

Wilkerson.     In this appeal, Wilkerson challenges his murder and evidence-tampering 

convictions on four grounds. 

                First, Wilkerson argues that his trial judge committed error by refusing to 

instruct the jury on heat of passion (a defense that potentially could have reduced the 

homicide to manslaughter). 

                Second,      Wilkerson      argues   that   the  jury   instruction    on   self-defense 

contained an inaccurate statement of law - an inaccuracy that would have led the jury 

to believe that Wilkerson's right to use force in self-defense hinged on whether there was 

an actual need for Wilkerson to act in self-defense, as opposed to whether a reasonable 

person in Wilkerson's situation would have reasonably perceived a need to act in self- 


                 Third, Wilkerson argues that the trial judge committed error by instructing 

the   jury   that   a   person's   act   of   flight   could   be   considered   evidence   of   that   person's 

consciousness of guilt. 

                Finally, Wilkerson argues that the trial judge committed error by allowing 

the   State   to   introduce   evidence   of   Wilkerson's   character   for   violence   through   the 

testimony of a police detective who had no personal knowledge of Wilkerson, nor of 

Wilkerson's       reputation    in  the  community,       but   who    had   formed    his   opinion    of 

Wilkerson's character by reviewing Wilkerson's case files. 

                As    we    explain   in  this  opinion,    we   conclude     that  there   is  merit   to 

Wilkerson's claim regarding the admission of the character evidence. This evidence was 

admitted in error - but, for the reasons explained here, we conclude that the error was 

harmless.    With regard to Wilkerson's other three claims, we conclude that they have 

no merit. 

                The State has filed a cross-appeal raising one issue:   the State contends that 

Wilkerson should have been precluded, as a matter of law, from asserting the defense of 

                                                  - 2 -                                             2346

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self-defense because Wilkerson was a convicted felon at the time of this incident, and 

because Wilkerson used a concealable firearm.             We conclude that this issue is moot. 

        Whether the trial judge was required to instruct the jury on heat of passion 

                At trial, Wilkerson sought to have the jury instructed on heat of passion. 

To justify this instruction, there had to be evidence to support three findings:               (1) that 

Wilkerson committed the homicide while in the heat of passion; (2) that Wilkerson's heat 

of   passion   was   the   result   of   a   serious   provocation   by   his   brother;   and   (3)   that   a 

reasonable person in Wilkerson's circumstances would not have cooled down during the 

interval between the provocation and the homicide.  See AS 11.41.115(a).  Dandova v. 

State, 72 P.3d 325, 330 (Alaska App. 2003). 

                The evidence (viewed in the light most favorable to Wilkerson's claim of 

heat of passion) showed that the homicide in this case was precipitated by an argument 

between Wilkerson and his   brother Gregory about money and cocaine.                     During this 

argument, Wilkerson was armed with a handgun - a 9 mm semi-automatic pistol.  This 

gun was hidden in Wilkerson's pants waist, under his shirt.                While Wilkerson argued 

with his brother, he surreptitiously moved the gun slowly around his waist until it was 

behind his back. 

                At some point, Gregory began speaking more belligerently to Wilkerson. 

According to one witness,   Gregory told Wilkerson that he was going to "bust [his] 

head".   According to another witness, Gregory told Wilkerson, "[I've] kicked your ass 

before; I'll kick your ass again."       To this, Wilkerson responded, "I bet it won't happen 

again." - whereupon he pulled the pistol from under his shirt, brought the weapon out 

in front of his body, pointed it at Gregory, and shot him.  Gregory stumbled and fell face­ 

                                                 - 3 -                                            2346

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down on the floor.   Wilkerson then stood over his brother and shot him three more times 

- twice in the back, and once in the back of the head. 

                Even though the Wilkerson brothers were arguing just before the shooting, 

there was no evidence of any physical contact between the brothers, and there was no 

evidence that Gregory Wilkerson was armed, or that he made any statement or gave any 

other   indication   that   he   was   armed.   The   brothers   were   about   ten   feet   apart   when 

Wilkerson started shooting. 

                Under AS 11.41.115(f)(2), a "serious provocation" must be "conduct [that 

was] sufficient to excite an intense passion in a reasonable person in the defendant's 

situation".     And,   with   regard   to   the   requisite   degree   of   passion,   our   supreme   court 

explained   in  LaLonde   v.   State ,   614   P.2d   808,   811   (Alaska   1980),   that   the   passion 

engendered by the provocation must be of such a nature as to obscure the defendant's 

reason "to such an extent as would render ordinary [persons] of average disposition 

liable to act rashly or without due deliberation and reflection".  Finally, the defendant's 

assaultive conduct must be proportionate to the provocation.  Dandova , 72 P.3d at 334. 

                When Wilkerson's attorney presented his argument for a heat of passion 

instruction,   he    recognized    that   there  was   little  evidence   to  support   a   finding   that 

Gregory's belligerent words constituted the kind of "serious provocation" that would 

cause a reasonable person in Wilkerson's situation to lose their self-control to the point 

of shooting Gregory several times in the head and back.                  To overcome the seeming 

slightness     of  the   provocation     that   immediately      preceded     the  shooting,    and    the 

disproportionality of Wilkerson's response, the defense attorney argued that Gregory had 

repeatedly mistreated or threatened Wilkerson in the past - including a wrestling match 

between the two brothers in which Gregory broke Wilkerson's arm; a prior argument 

(about one year before the shooting) during which Gregory asked where his gun was; 

and an earlier fight during which Gregory picked up Wilkerson and threw him to the 

                                                  - 4 -                                             2346

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

ground.    The defense attorney argued that, because of this past history of mistreatment 

at the hands of his brother, Wilkerson experienced a cumulative, built-up passion that led 

him to shoot Gregory. 

                 In   his   brief   to   this   Court,   Wilkerson   renews   this   "cumulative    effect" 

argument.       He asserts that his response to his brother's belligerent words "cannot be 

viewed [simply in light] of the events of just the evening in question". Rather, Wilkerson 

argues, the reasonableness and proportionality of his response must be viewed in light 

of the "series [of mistreatment] over a span of time". 

                 We discussed this "series of provocations" theory in Dandova , 72 P.3d at 

334-37,   but   the   facts   of Dandova   did   not   require   us   to   decide   whether   Alaska   law 

recognizes this broader approach to the heat of passion defense.                   We reach the same 

conclusion here.      Given the nature of the prior incidents that Wilkerson relies on, and 

given the length of time between those prior incidents and the shooting in this case, no 

reasonable   person   could   conclude   that   this   series      of   events   constituted   a   "serious 

provocation" as defined in AS 11.41.115(f)(2). 

                 One   might   well   conclude,   based   on   the   past   incidents,   and   based   on 

Wilkerson's conduct in the present case, that Wilkerson harbored a powerful resentment 

toward   his   brother   Gregory.     But   as   we   explained   in  Dandova ,   "many   murders   are 

committed   because   the   killer   is   experiencing   intense   emotion   at   the   time",   and   the 

defense of heat of passion is not intended to apply to all emotional killings.  Id. at 332. 

Rather,   heat   of   passion   applies   only   when   the   defendant   is   subjected   to   a   serious 

provocation that would "naturally induce a reasonable [person] in the passion of the 

moment to lose self-control and commit the act on impulse and without reflection". Ibid. 

(quoting the supreme court's decision in LaLonde , 614 P.2d at 810). 

                 Here, Wilkerson was armed with a pistol during his argument with his 

brother.  Before Gregory uttered the words that Wilkerson now relies on as constituting 

                                                   - 5 -                                              2346

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

the necessary provocation, Wilkerson had already gotten up from the couch and had 

surreptitiously   moved   his   pistol   to   a   hidden   position   behind   his   back. Then,   when 

Gregory told Wilkerson, "[I've] kicked your ass before[, and] I'll kick your ass again," 

Wilkerson responded, "I bet it won't happen again."   Wilkerson then pulled out his gun 

and shot his brother.       After his brother fell to the floor, Wilkerson stood over him and 

shot him three more times - twice in the back, and once in the back of the head. 

                Given these facts, and even in light of the brothers' past interactions, no 

reasonable juror could conclude that Wilkerson acted in the heat of passion.                 We reach 

this conclusion for two reasons.   First, Gregory's conduct toward Wilkerson did not rise 

to   the  level   of  a  "serious  provocation".       Second,    the  undisputed     facts  show    that 

Wilkerson acted deliberately; he was preparing to assault Gregory even before Gregory 

uttered the words that supposedly triggered the passion in Wilkerson. 

                For these reasons, we uphold the superior court's decision not to instruct 

the jury on the defense of heat of passion. 

        Whether the jury instruction on self-defense misdescribed the law 

                Wilkerson's      jury   was   instructed    concerning     the  law   of  self-defense. 

Wilkerson challenges the wording of one of the self-defense instructions.  He contends 

that this instruction misdescribed the law of self-defense.             Here is the wording of the 

challenged jury instruction. The particular portion that Wilkerson objects to is presented 

in italics: 

                        Even   when   a   defendant   faces   a   threat   of   imminent 

                death    or  serious   physical   injury,   the  law   of   self-defense 

                allows the use of force no greater than necessary to avert the 

                threat.   A   defendant   must   have   actually   believed   that   the 

                degree of force used was necessary and the belief must have 

                                                 - 6 -                                             2346

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

                 been one that a reasonable person would have held.  A basic 

                 [tenet] of the doctrine of self-defense is that the use of deadly 

                 force is unreasonable if non-deadly force would have been 

                 sufficient     to   avert    the    threatened     harm.       Even      in 

                 circumstances where a defendant is permitted to use deadly 

                 force in self-defense, the defendant may not employ all[-]out 

                 deadly   force,   [but]   only   that   force   necessary   to   avert   the 


                 Wilkerson argues that the italicized sentence - in particular, the phrase 

"actually   believed"   -   misdescribes   the   law   of   self-defense   by   telling   the   jury   that 

Wilkerson's right to use force in self-defense hinged on whether there was an actual 

need for Wilkerson to act in self-defense, as opposed to whether a reasonable person in 

Wilkerson's situation would have reasonably perceived a need to act in self-defense. 

                 It is true that a person's right to use force in self-defense does not hinge on 

whether the person actually faced an imminent attack; it is sufficient that, given the 

circumstances, the person reasonably believed that they were about to be assaulted, even 

though this belief ultimately turned out to be mistaken. 1 

                 But the challenged instruction does not say otherwise.               The portion of the 

instruction to which Wilkerson objects does not refer to the actuality of the danger; 

rather, it refers to the actuality of Wilkerson's belief that he was in imminent danger. 

                 The challenged instruction correctly states that, when a defendant asserts 

that their use of force against another person was justified by the belief that they were 

about to be attacked, the defendant must show (1) that they actually held this belief at the 

time, and (2) that this belief was reasonable. 

                 As   our   supreme   court   explained   in   Weston   v.   State,   when   a   defendant 

claims that their use of deadly force was justified under the law of self-defense, "[the] 

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

                                                   - 7 -                                                2346 

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

defendant must satisfy both an objective and subjective standard; he must have actually 

believed deadly force was necessary to protect himself, and his belief must be one that 

a reasonable person would have held under the circumstances."                     682 P.2d 1119, 1121 

(Alaska   1984).      Or,   as   this   Court   paraphrased   the   requirement   in Ha   v.   State ,   "[A] 

defendant's   use   of   force   against   [an]   enemy   is   authorized   only   when   the   defendant 

actually and reasonably believes that the enemy's threatened attack is imminent."  892 

P.2d 184, 194 (Alaska App. 1995). 

                 In short, Wilkerson's attack on this jury instruction is based on a misreading 

of the instruction.     The instruction does not say that a defendant claiming self-defense 

must show that they actually faced imminent danger, as opposed to reasonably believing 

that they faced imminent danger.            Instead, the instruction speaks to the requisite nature 

of the defendant's belief in the imminent danger:              it correctly states that the defendant 

must have (1) actually and (2) reasonably believed that the circumstances required the 

immediate use of force in self-defense. 

         Whether   the   trial   judge   committed   error   by   instructing   the   jury   that   a 

        person's flight potentially indicated a consciousness of guilt 

                 Wilkerson's trial judge instructed the jury that "a defendant's flight may 

tend   to   prove   guilt[,   in   that]   you   may   consider   a   defendant's   flight   as   establishing 

consciousness of guilt."        According to Wilkerson, this jury instruction essentially told 

the jurors that Wilkerson had indeed engaged in an act of flight - thus removing this 

issue of fact from the jury's consideration. 

                 Wilkerson objected to the instruction in the superior court, but not on this 

ground.  At trial, Wilkerson's attorney argued that there was no evidence to support the 

giving of this instruction - that is, no evidence that Wilkerson fled the scene of the 

                                                   - 8 -                                               2346

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

homicide.      But now, on appeal, Wilkerson abandons that argument and instead attacks 

the jury instruction on a different theory - asserting that the jury instruction unlawfully 

told the jurors to assume that Wilkerson engaged in an act of flight.  Because this latter 

objection was never presented to the trial judge, Wilkerson must show plain error. 

                There are, of course, many reasons why a person might flee a crime scene, 

and consciousness of guilt is only one potential reason.                But under Alaska law, it is 

proper to instruct the jurors that they may consider evidence of the defendant's flight, 

and may give this evidence whatever weight they deem appropriate.  Dyer v. State , 666 

P.2d 438, 449 (Alaska App. 1983). 

                We acknowledge that the jury instruction in Wilkerson's case is not as fully 

explanatory or descriptive as the flight instructions that have been reviewed in other 

reported Alaska cases.        Nevertheless, it is a correct description of the law on this issue 

(as far as it goes). 

                In    particular,   and   contrary    to  Wilkerson's      argument     on   appeal,   the 

instruction does not affirmatively tell the jurors that Wilkerson engaged in an act of 

flight.  Wilkerson's appellate argument hinges on a strained reading of the instruction, 

interpreting its words in the light most favorable to a finding of error.              But as we have 

explained,   Wilkerson   must   show   plain   error;   that   is,   Wilkerson   must   show   that   the 

purported error would have been obvious to any competent judge or attorney. 2 

                This   jury   instruction   contains   no   obvious   error   of   law.  We   therefore 

conclude that Wilkerson has failed to show that the giving of this instruction constituted 

plain error. 

    2   Cleveland v. State, 241 P.3d 504, 507 (Alaska App. 2010); Simon v. State, 121 P.3d 

815, 820 (Alaska App. 2005). 

                                                  - 9 -                                               2346 

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

        Whether   the   State   should   have   been   allowed   to   introduce   evidence   of 

        Wilkerson's   character   for   violence   through      the   testimony   of   a   police 

        detective who had no knowledge of Wilkerson's reputation or character for 

        violence other than what he had gleaned by reading Wilkerson's files 

                At trial, Wilkerson asserted that his brother Gregory was the first aggressor, 

and that he (Wilkerson) acted in self-defense. Accordingly, under Alaska Evidence Rule 

404(a)(2), the State was authorized to introduce evidence of Wilkerson's character for 

violence, to rebut the assertion that Gregory was the first aggressor.             However, under 

Evidence      Rule   405,   this  character   evidence    was   limited   to  (1)  evidence     of  the 

defendant's reputation in the community, or (2) evidence of the opinion of a person 

acquainted with the defendant. 

                Over Wilkerson's objection, the trial judge allowed the State to introduce 

evidence   of   Wilkerson's   character   for   violence   through      the   testimony   of   the   lead 

investigator in Wilkerson's case, John Foraker.  As Wilkerson noted when he objected 

to this testimony, Detective Foraker had no personal acquaintance with Wilkerson, nor 

did he purport to know Wilkerson's reputation in the community.  Rather, the detective 

based   his   opinion   on   the   hearsay   information   he   gleaned   by   reviewing   Wilkerson's 

criminal record - in particular, Wilkerson's six prior convictions for assault. 

                The   underlying     issue   here  is  whether   a   witness's   opinion   of   another 

person's character must be based on the witness's personal knowledge.                  Because this 

underlying issue is a question of law, the State is incorrect when it asserts that we must 

review the trial judge's decision under the "abuse of discretion" standard.               Instead, we 

exercise our own independent judgement as to what the law requires. 

                True, many Alaska appellate decisions declare that all of a trial judge's 

decisions regarding the admission and exclusion of evidence are reviewed for abuse of 

                                                -  10 -                                          2346

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

discretion. 3   But that is wrong:      there is no single standard of review that applies to all 

evidentiary   rulings. 4    Rather,   the   applicable   standard   of   review   hinges   on   what   the 

underlying issue is. 5   Here, the question is whether, under Alaska law, a witness offering 

an opinion about another person's character must speak from personal knowledge.  We 

are not required to defer to the trial judge's view of this matter; rather, we decide this 

question de novo. 

                There is little Alaska case law on this issue, but Alaska Evidence Rule 602 

codifies the general principle that "[a] witness may not testify to a matter unless evidence 

is introduced sufficient to support a finding that the witness has personal knowledge of 

the   matter."    And     decisions   from    other  jurisdictions    make    it  clear  that  personal 

knowledge   is   a   foundational   requirement   for   opinion   testimony   concerning   another 

person's character under Evidence Rule 405. 

                As explained in Charles Alan Wright and Kenneth W. Graham, Jr., Federal 

Practice and Procedure (1978), § 5265, Vol. 22, p. 584, when a party offers a witness's 

opinion concerning the character of another person, the rules require that the witness's 

opinion     be  based    on  personal    knowledge.      Although      a  long  acquaintance     is  not 

necessary, "the opinion witness must testify from personal knowledge."                  United States 

v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982).   Or, as stated in State v. Jackson, 896 

A.2d 137 (Conn. App. 2006): 

                A party seeking to present opinion testimony [of a person's 

                character] must demonstrate that its witness has had sufficient 

    3   See, e.g., Hawley v. State , 614 P.2d 1349, 1361 (Alaska 1980); Proctor v. State , 236 

P.3d 375, 378 (Alaska App. 2010). 

    4   Booth v. State , 251 P.3d 369, 372 (Alaska App. 2011). 

    5   Ibid. 

                                                -  11 -                                             2346 

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

                contact with the person who is the subject of the opinion and, 

                on the basis of [that] contact, has formed an opinion with 

                regard to that person's character.   ...   [T]o lay an appropriate 

                foundation for the introduction of opinion testimony, a party 

                must   show   that   the   witness   providing   the   testimony   has   a 

                deliberate opinion formed as the result of personal contact 

                and experience. 

Id. at 149.   See also State v. Hernendez, 646 S.E.2d 579, 580 (N.C. App. 2007) ("The 

proper foundation for the admission of opinion testimony as to a witness's character for 

truthfulness or untruthfulness is personal knowledge."). 

                In Graham v. Lombardi, 784 P.2d 813 (Colo. App. 1989), the Colorado 

Court of Appeals confronted the same situation presented in Wilkerson's case:  a police 

officer was allowed to offer his opinion that the defendant was a violent person, but the 

officer's opinion was based solely on his review of the case files pertaining to prior 

incidents of which the officer had no personal knowledge.   The Colorado court held that 

this testimony was improper because the officer's opinion was not based on personal 


                Testimony about character offered in the form of an opinion 

                by a lay witness is limited by [Colorado Evidence Rule] 701 

                to opinions rationally based on the witness' perception ... . 

                The requirement that the opinion be based on the witness' 

                perception embodies the requirement of personal knowledge 

                contained      in  [Colorado     Evidence      Rule]   602.     See   3 

                Weinstein's Evidence, supra, ¶ 701[02] at 701-14; see also 

                United States v. Dotson, 799 F.2d 189 (5th Cir. 1986). 

                        Here, the [police] witness had not been involved in the 

                former incidents which provided the basis for his opinion. 

                The witness had none of the personal knowledge necessary 

                                                -  12 -                                           2346

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

                to provide a basis for his own perception of the plaintiff's 

                character [for] violence. 

                        The     personal    knowledge       necessary    to   support    a 

                witness' opinion concerning character must be based on more 

                than    pre-trial   review    of  police    reports   or  the   witness' 

                involvement in criminal investigations.  See United States v. 

                Dotson ,    supra     (character     evidence     as   to   truthfulness 

                inadmissible if only basis for opinions of government agents 

                was      their   involvement       in   criminal     investigation      of 

                defendants); Government of Virgin Islands v. Petersen, 553 

                F.2d     324   (3rd   Cir.   1977)    (observation     of   defendant's 

                behavior over time is the recognized basis for both opinion 

                and reputation testimony about character);  United States v. 

                Salazar,   425   F.2d     1284   (9th   Cir.   1970)   (two  months   of 

                occasional business dealings insufficient to qualify witness to 

                testify     about     defendant's       reputation      for   honesty). 

                Accordingly, the opinion testimony here should have been 


Id. at 814-15. 

                In light of these authorities, we too conclude that personal knowledge is a 

foundational requirement for opinion testimony offered under Alaska Evidence Rule 

405.    Thus,   it   was   error   to   allow   Detective   Foraker   to   give   his   opinion   concerning 

Wilkerson's character for violence when that opinion was based solely on information 

that Foraker had gathered from case files pertaining to other incidents of which he had 

no personal knowledge. 

                Nevertheless, we conclude that the admission of this evidence was harmless 

because there is no realistic possibility that it affected the jury's verdict.             See Love v. 

State, 457 P.2d 622, 634 (Alaska 1969) (holding that the test for the harmlessness of 

non-constitutional error is whether the appellate court "can fairly say that the error did 

not appreciably affect the jury's verdict"). 

                                                 -  13 -                                            2346

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

                It is true that Detective Foraker's testimony was offered on a central issue 

in the case:    whether Gregory Wilkerson was the first aggressor, thus giving Vincent 

Wilkerson      a  right   of   self-defense.  But    the  eyewitnesses   to     the  shooting    were   in 

agreement that Gregory was both unarmed and standing at a distance from Wilkerson 

when     Wilkerson     shot   him.   The     eyewitnesses     were   also   in  agreement     that,  after 

Wilkerson shot his brother in the head, Wilkerson stood over his brother's prostrate body 

and shot him three more times. Given this record, we conclude that the error in allowing 

Detective Foraker to offer his opinion of Wilkerson's character for violence did not 

appreciably affect the jury's decision - in particular, the jury's rejection of Wilkerson's 

claim that he killed his brother in self-defense. 

        The State's contention that the legislature has barred convicted felons from 

        raising a claim of self-defense if, when acting in self-defense, the felon uses 

        a concealable firearm 

                Under AS 11.61.200(a)(1), it is illegal for a convicted felon to possess a 

concealable firearm.       And under AS 11.81.330(a)(4)(A), a claim of self-defense is not 

available to a person whose use of force "was the result of using a deadly weapon or 

dangerous instrument ... to further a felony criminal objective of the person". 

                The State contends that, reading these two statutes together, Wilkerson was 

precluded   from   raising   a   claim   of   self-defense   because   he   used   a   pistol   against   his 

brother, and because he was pursuing a "criminal objective" simply by possessing this 

pistol (since it was a concealable firearm). To quote the State's brief, "Wilkerson [could 

not claim] self-defense because his conduct was illegal from the outset." 

                The State's proposed interpretation of AS 11.81.330(a)(4)(A) appears to 

be somewhat at odds with the language of the statute.              Subsection (a)(4)(A) speaks of 

situations where the defendant's use of defensive force is the "result" of the defendant's 

                                                 -  14 -                                            2346

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

"using" a deadly weapon or dangerous instrument to further a criminal objective.  This 

language seemingly addresses situations where the defendant uses a deadly weapon or 

dangerous   instrument   to   further   a   criminal   objective,   and   then,   as   a   result   of   the 

defendant's   use   of   the   deadly   weapon   or   dangerous   instrument,   someone   (a   victim, 

bystander, or law enforcement officer) takes counter-measures that prompt the defendant 

to employ force for self-protection. 

                 But we need not resolve this question of statutory construction because the 

issue is moot in Wilkerson's case.   Wilkerson's jury was instructed on self-defense, and 

the   jury   rejected   this   defense. Moreover,   we   are   affirming   Wilkerson's   conviction, 

which means that there will be no re-trial.           Under these circumstances, there is no need 

for us to resolve the meaning of AS 11.81.330(a)(4)(A) as it applies to felons who use 

defensive force while in possession of concealable firearms. 


                 The judgement of the superior court is AFFIRMED. 

                                                  -  15 -                                             2346

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