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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


         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 No. A-11966  

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


                                                                             O P I N I O N  


                                   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,  



                  Judge WOLLENBERG, writing for the Court.  

                  Judge ALLARD, concurring.  

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

                       Following ajurytrial, MarquinnJones-Nelsonwasconvictedoffirst-degree                                        


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  




                    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  



                    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                                                                                                       


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                                                                                               


at the end of the trial,                                                                                                                                                                   

                                                       this test does not govern the admissibility of evidence supporting  



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  



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).  



                 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  




                 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  


                                                                                                     -  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                                                                                                                                                                                                                                                                                                                                                           


                  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  


 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                                                                                



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     




                       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  



                       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  



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                                                                                                                                                                                                               


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  



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.  


                                   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                                         


 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  



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.  

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