Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

State of Alaska v. Yoder Austin Blalock (9/27/2019) ap-2656

State of Alaska v. Yoder Austin Blalock (9/27/2019) ap-2656


            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-12282 & A-12301  

                       Appellant/Cross-Appellee,                                    Trial Court No. 3AN-11-12129 CR  


                                                                                                      O P I N I O N  


                       Appellee/Cross-Appellant.                                     No. 2656 - September 27, 2019  

                       Appeal   from  the  Superior   Court,  Third  Judicial  District,  


                       Anchorage, Jack W. Smith, Judge.  

                       Appearances:  Elizabeth D. Friedman, Law Office of Elizabeth  


                       D.  Friedman,  Redding,  California,  under  contract  with  the  

                       Office of Public Advocacy, Anchorage, for the Appellant/Cross- 


                       Appellee.  Ann B. Black, Assistant Attorney General, Office of  


                       Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney  

                       General, Juneau, for the Appellee/Cross-Appellant.  

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



                       Judge HARBISON.  

                       Following a jury trial, Yoder Austin Blalock was convicted of second-                                              

degree murder for killing Nathan Tanape.                                   Blalock was sentenced to 60 years with 15                               

years suspended (45 years to serve) and was placed on probation for a period of 10 years.                                                                

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

                            Prior to trial, Blalock moved to suppress the statements he made to the                                                                         

police, both at the scene of his arrest and later at the police station.                                                                 Blalock argued that,             

because he had requested an attorney at the scene, any subsequent questioning by the                                                                                         

police in the absence of an attorney violated the United States Supreme Court's decision                                                                          



in  Edwards v. Arizona                        .   Under Edwards, the police are precluded from initiating further  


interrogation of a suspect who has invoked his right to counsel, until counsel has been  



made available. 


                            At an evidentiary hearing, the trial court agreed with Blalock and precluded  


the prosecutor from introducing Blalock's statements as part of the State's case-in-chief.  


But the court later found that the officers' conduct was neither intentional nor egregious.  


Accordingly, applying Alaska Evidence Rule 412 (as interpreted by this Court in State  



                 ), the trial court allowed the prosecutor to impeach Blalock's testimony with his  

v. Batts 


statements to the police.  


                            On appeal, Blalock challenges the trial court's ruling permitting the State  


to use his statements to impeach himduring cross-examination. The State cross-appeals,  


arguing that the trial court erred in granting Blalock's motion to suppress.  In particular,  


the State argues that Blalock was not subject to a custodial interrogation at the time he  


asked for a lawyer and that he was not entitled to anticipatorily invoke his Miranda  


rights. Because we conclude that the trial court did not err in allowing the impeachment  


use of Blalock's statements and because we otherwise affirm Blalock's conviction, we  


need not decide the issues raised in the State's cross-appeal.  

       1      See Edwards v. Arizona, 451 U.S. 477, 484-86 (1981).

       2      Id. at 484-85.

       3      See State v. Batts, 195 P.3d 144, 151-52 (Alaska App. 2008).

                                                                                    - 2 -                                                                                 2656

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

                       At trial, Blalock defended on the ground of self-defense, and the trial court                                         

instructed the jury on this  defense.   Blalock  asked the trial  court  to instruct the jury on  

the  "Stand  Your  Ground"  amendment  -  a  2013  statutory  enactment  that  narrowed  a  

person's   duty   to   retreat   before   using   deadly   force   in   self-defense.     Under   this  

amendment,  there  is  no  duty  to  retreat  if  the  person  is  "in  any  .  .  .  place  where  the  person  

has  a  right  to  be."4  


                                 The trial court concluded that the "Stand Your Ground" law was not  


retroactively applicable to Blalock's case, which was based on events occurring in 2011,  


and the trial court declined to instruct the jury  on it.  


                       Blalock now challenges the trial court's decision. For the reasons explained  


here,  we  agree  with  the  trial  court  that  the  statutory  amendment  did  not  apply  


retroactively to Blalock's case.  We therefore uphold the trial court's decision declining  


to instruct the jury  on the 2013 law.  


                       Finally,  Blalock  raises  several  challenges  to  his  sentence.                                            We  have  


reviewed his claims, and we find no merit to them.  


           Factual background  


                       One night in October 2011, Blalock drove to Tanape's apartment where  


Blalock's acquaintance, Charles Alexie, and several other people were partying. Outside  


of the apartment, Blalock encountered Tanape.  When Blalock was standing about ten  


feet away from Tanape, Tanape yelled at him to leave.  


                       Blalock began walking back to his truck, saying, "Just wait right there, I got  


something for you."  Blalock took something out of his truck and walked back toward  


Tanape.  Blalock and Tanape faced off.  Blalock sprayed Tanape with pepper spray and  

      4     AS 11.81.335(b)(5) (enacted by SLA 2013, ch. 51,  1).  

                                                                      - 3 -                                                                  2656

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

 slashed him with a knife.  Tanape went to the ground; he then grabbed Blalock by the                                                                                                                                                                                                                                                                                                   

legs, picked him up, and slammed him to the ground.                                                                                                                                                         

                                                            Alexie ran toward Blalock and Tanape to intervene, but Blalock sprayed                                                                                                                                                                                                                                

Alexie with pepper                                                                          spray,   causing   Alexie to                                                                                           fall to                          the ground and                                                              have difficulty   

breathing. Tanape and Blalock struggled, and then Blalock got up, ran back to his truck,                                                                                                                                                                                                                                                                                    

and drove away, leaving Tanape lying in the middle of the alley.                                                                                                                                                                                                          

                                                            Alexie ran back inside the apartment, covering his eyes, and yelling for                                                                                                                                                                                                                                                    

 someone to call 911. Tanape came inside soon after Alexie, covered in blood and unable                                                                                                                                                                                                                                                                                 

to speak.   

                                                            Policeofficers                                                   responded totheapartment. Whentheyarrived,they                                                                                                                                                                                         noticed  

an overwhelming smell of pepper spray and observed Tanape sitting in a chair.                                                                                                                                                                                                                                                                                      He had   

wounds on his legs and knees, a large laceration on his head, and what appeared to be                                                                                                                                                                                                  

a stab wound to the back of his neck.                                                                                                         

                                                             Shortly after the officers arrived, Tanape was transported to the hospital                                                                                                                                                                                                                          

where he was pronounced dead.                                                                                                                    An autopsy revealed that his death was caused by over                                                                                                                                                                            

twenty stab wounds.                                   

                                                            After Blalock fled the scene, he called 911 several times to report that he                                                                                                                                                                                                                                                    

was involved in the incident. Officers located Blalock and arrested him. They then took                                                                                                                                                                                                                                                                                           


himto the Anchorage Police Department where detectives read hima                                                                                                                                                                                                                                            Miranda  warning.   


Blalock agreedto beinterviewed by thedetectives, andhemadeincriminating statements  


during the interview.  

               5              See Miranda v. Arizona, 384 U.S. 436, 444 (1966).  

                                                                                                                                                                                         - 4 -                                                                                                                                                                                     2656

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

                    Blalock was subsequently  charged with second-degree murder  for  stabbing  


Tanape  to death.   The  case  proceeded  to  trial,  and  Blalock  was  convicted  of  second- 

degree  murder.  

          Litigation  of  Blalock's  motion  to  suppress  and  the  use  of  his  statements  as  

          impeachment  evidence  

                    Prior  to  trial,  Blalock  moved  to  suppress  the  statements  he  made  during  his  

arrest  and  subsequent  interview.   Blalock  asserted  that  he  had  clearly  invoked  his  right  

to   counsel   during   his   arrest and   that   the   on-scene   police   officers   did   not   report   the  

invocation   to   the   detectives   who   later   interrogated him.    He   contended   that   once   he  

invoked   his   right   to   counsel,   the   Supreme   Court's   decision   in   Edwards   v.   Arizona  

precluded   the   police   from   initiating   an   interrogation   with   him   until   an   attorney   was  



              Although the detectives read him his Miranda rights prior to interrogating him  


at the station, Blalock asserted that his statements had to be suppressed because they  


were obtained in violation of the Edwards rule.  


                    The evidence presented  at the  evidentiary hearing  on Blalock's motion  


showed that when the officers first confronted Blalock, he made statements about the  


incident.  In response, one of the officers activated his recorder.  


                    The recording captured the conversations between Blalock and the officers  


as  follows:        Blalock  initially  made  a  variety  of  spontaneous  statements,  including  


repeatedly asking, "Is he okay?"  At one point, an officer asked Blalock where his truck  


was located.  Blalock responded, "Oh, it's safe.  I want to talk to a lawyer."  The officer  


replied, "What's that?"  Blalock did not repeat his request for a lawyer.  

     6    AS 11.41.110(a)(1) and/or (a)(2).  

     7    See Edwards v. Arizona, 451 U.S. 477, 484-86 (1981).  

                                                            - 5 -                                                        2656

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

                    Instead, Blalock continued making rambling statements.  For example, he  


said, "Well . . . is (indiscernible) going to be okay or not?  Fuck, when I - And when  


I first got away, the last time I hit him, I - something happened to his eye."  


                    Duringtheevidentiary hearing, theofficer whomadetherecording testified  


that he did not hear Blalock state that he wanted to talk to a lawyer.  The officer was  


aware that Blalock said something, which is why he asked Blalock to repeat himself. But  


the officer did not hear Blalock say anything in response.  


                    The officer testified that during his contact with Blalock, his radio was  


active, so he was hearing radio traffic as well as trying to talk to Blalock.  Additionally,  


he reported that he had significant hearing loss in certain frequencies, likely due to his  


experience as a firefighter and a police officer.  


                    One of the other officers who initially contacted Blalock also testified at the  


hearing. He explained that, as the cover officer, he was responsible for making sure that  


the scene was safe until other officers arrived to help take Blalock into custody.  His  


main concern was safety, and he was concentrating on watching Blalock's behavior to  


ensure there was no threat.  


                    The detective who later interviewed Blalock testified that he did not speak  


with the arresting officers or listen to the recordings of their contact with Blalock before  


the interview.  


                    Based on this evidence, the trial court granted Blalock's motion to suppress  


and excluded Blalock's statements frombeing used during the State's case-in-chief. The  


trial court found that Blalock clearly and audibly invoked his right to counsel.  The trial  


court concluded that a reasonable officer should have heard Blalock's clear invocation  


because "a reasonable officer would be paying attention to statements made by the  


defendant, especially when he had a recording device going and was asking questions  


                                                               - 6 -                                                          2656

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

of the defendant."  The trial court therefore suppressed all statements Blalock made to     

the on-scene officers after he invoked his right to counsel.                                                     

                              The court also suppressed Blalock's later statements to the detectives at the                                                                                  

police station.  The trial court found that Blalock's waiver of his                                                                                Miranda rights at the   

police station was invalid under                                         Edwards because the police, not Blalock, initiated the                                                              



                              In its written order granting Blalock's motion to suppress, the trial court  


ruled that Blalock's statements could not be used for any purpose during the trial "except  


to impeach the Defendant's contradictory testimony at trial."  Blalock did not object to  


this ruling at that time.  


                              The case proceeded to trial.  After the State rested and the defense had  


begun  to  present  its  case,  Blalock's  attorney  indicated  that  Blalock  would  testify.  


Blalock's  attorney  then  asserted  for  the  first  time  that  the  Miranda  violation  was  


"egregious" and "intentional" and was therefore inadmissible even for impeachment  



purposes under Alaska Evidence Rule 412 and this Court's decision in State v. Batts. 


                              After  reviewing  its  original  order  and  the  Batts  decision,  but  without  


hearing  any  additional  evidence,  the  trial  court  concluded  that  the  violation  was  


egregious and that Blalock's statements in response to police questioning could not be  


used for any purpose.  


                              The State petitioned for review, and this Court granted the State's petition.  


Because  the  Batts  issue  had  not  been  litigated  as  part  of  the  original  suppression  

        8      See Edwards, 451 U.S. at 484-85.  

        9      See State v. Batts, 195 P.3d 144, 151-52, 157-58 (Alaska App. 2008) (holding that a  

defendant may  be impeached with statements made in violation of  his Miranda  rights where  

"the violation consisted of  a failure . . . to honor the defendant's invocation of  the right to . . .  

counsel," unless the Miranda violation was either intentional or egregious).  

                                                                                            - 7 -                                                                                        2656

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

proceedings, this Court vacated the trial court's ruling that the Miranda  violation in  


Blalock's case was egregious. We held that "the State was entitled to notice and a proper  


opportunity to litigate the [Batts] issue before the [superior] court made new findings that  


affected the admissibility of this evidence."  


                    Based on this ruling, the trial court conducted a second evidentiary hearing  


in order to address the Batts issue.  


                     Some of the evidence presented at this second evidentiary hearing mirrored  


the evidence that had been presented to the trial court at the first evidentiary hearing.  


The trial court again heard that Blalock clearly announced that he wanted to talk to a  


lawyer.  The trial court again heard officers testify that they did not hear this statement.  


                    But       the     State      also      presented         new       evidence         from        a    clinical  


neuropsychologist.  The neuropsychologist, Paul Craig, testified about how the brain  


processes auditory information, and specifically how the brain suppresses some input in  


order  to  focus  on  relevant  stimuli.                    Based  on  his  review  of  the  recording  which  


documented Blalock's arrest, Craig concluded that what could be heard on the recording  


was not necessarily the equivalent of what ended up in the listeners' minds.   Craig  


explained that other input (such as the radio traffic) would have been competing with  


Blalock's voice, and this impacted the ability of at least some of the officers to hear what  


Blalock was saying.  


                    Craig also noted that when Blalock invoked his right to counsel, the officer  


closest to him had just asked him about the location of his vehicle and he was listening  


for an answer to that question.  According to Craig, Blalock's response, asking for a  


lawyer, "conceptually didn't fit in" and therefore an officer might not process, hear, and  


comprehend that answer.  


                                                               - 8 -                                                          2656

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

                    The trial court also heard from a police lieutenant who had not testified at  


the first hearing.   The lieutenant explained that during high-risk arrests, officers are  


experiencing sensory overload, and their attention is consistently divided.   A cover  


officer's primary focus is generally onthesuspect's actions, specifically the hands; cover  


officers are watching for  threatening movements or attempts to reach for weapons.  


Arresting officers are generally focused on the arrest itself, to make sure there is no  


struggle during the handcuffing process and to ensure that the suspect is secured in the  


patrol vehicle.  


                    After hearing this additional evidence, the trial court issued a new ruling,  


this time concluding that the Miranda violation was neither intentional nor egregious.  


                    The trial court found that the officers were credible when they testified that  


they did not hear or comprehend Blalock's request for an attorney, and it accordingly  


found that the officers did not act intentionally when they questioned him after he asked  


for an attorney.  


                    Noting that an egregious violation is one that would be apparent to any  


reasonable officer, the trial court found that the violation by the officers in this case was  


not egregious because it was caused by natural psychological reactions and tunnel vision  


caused by the anxiety of a high-stress situation.  The trial court also observed that this  


was not the type of situation where application of the exclusionary rule could have an  


influence on police behavior and policies.  


                    The trial court similarly found that the detectives' interrogation of Blalock  


at  the  police  station  was  not  an  egregious  violation  of Miranda .                                 In  order  for  the  


detectives to have discovered that Blalock had previously invoked his right to counsel,  


they would have had to listen carefully to the audio and any video recording prior to  


conducting the interrogation.  The trial court found that requiring detectives to listen  


                                                               - 9 -                                                          2656

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

carefully  to  audio  and  video  recordings  of  the  arrest  prior  to  interrogating  a  homicide  

suspect  is  "simply  too  high  a  burden  to  impose  on  the  police"  and  is  "unreasonable."   

                    Blalock  testified,  and  the  State  introduced  his  statements  for  impeachment  


          Alaska  law  regarding  the  impeachment  use  of  statements  obtained  in  


          violation of Miranda  


                    In Miranda v. Arizona , the Supreme Court held that the privilege against  


self-incrimination applies to questioning initiated by law enforcement officers after a  


person has been taken into custody and that "prior to any questioning, the person must  


be warned that he has a right to remain silent, that any statements he does make may be  


used as evidence against him, and that he has a right to the presence of an attorney, either  


retained or appointed."10  



                                       When a suspect in custody invokes his right to counsel, the  


police must stop all questioning until counsel is present, unless the defendant initiates the  




                    Generally, a defendant's statements obtained in violation of Miranda are  



inadmissible except to  impeach the  defendant's inconsistent  statements at trial.                                          In  


Harris  v. New  York, the  Supreme Court explained this exception,  concluding that  a  


defendant's privilege to testify should not be construed to include the right to commit  


perjury:   "The shield provided by Miranda  cannot be perverted into a license to use  

     10   Miranda v. Arizona , 384 U.S. 436, 444 (1966).  

     11   Tagala v. State, 812 P.2d 604, 609 (Alaska App. 1991) (citing Arizona v. Roberson ,  

486 U.S. 675, 677 (1988)).  

     12   See Harris v. New York, 401 U.S. 222, 226 (1971);   Oregon  v.  Hass, 420 U.S. 714,  

723-24 (1975).  

                                                            - 10 -                                                        2656

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

perjury by way of a defense, free from the risk of confrontation with prior inconsistent                                     



                      Alaska Evidence Rule 412 similarly allows a defendant to be impeached  


with certain statements obtained in violation of Miranda, regardless of whether the  


Miranda violation consisted of a failure to give proper warnings or a failure to honor the  



defendant's invocation of the right to silence or the right to counsel. 


                      In State v. Batts, we considered the question of whether Evidence Rule 412  


is unconstitutional under the Alaska Constitution.  In particular, we considered whether  


the Alaska exclusionary rule should be applied to prohibit even the impeachment use of  



statements obtained in violation of Miranda . 


                      We concluded that the application of Evidence Rule 412 is constitutional  



only  when  the Miranda  violation  was  neither  "intentional" nor  "egregious." 


explained  that  a  Miranda  violation  is  "intentional  if  the  officer  conducting  the  


interrogation knew that further questioning would violate Miranda [,] but the officer  



                                                                                   We  also  explained  that  a  Miranda  

consciously  chose  to  continue"  questioning. 


violation is "egregious if the violation would have been apparent to any reasonable  



police officer." 

      13   Harris, 401 U.S. at 225-26.  

      14   See State v. Batts, 195 P.3d 144, 151-52 (Alaska App. 2008).  

      15   Id. at 155-58.  

      16   Id. at 158.  

      17   Id.  

      18   Id.  

                                                                   - 11 -                                                                2656

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

                      Why we conclude that the trial court did not err when it allowed the State                                                                                                                                                

                      to use Blalock's statements for impeachment purposes                                                                                             

                                           On   appeal,   Blalock   argues   that   the   trial   court   mistakenly   applied   a  

subjective standard in analyzing whether the police conduct was egregious when it                                                                                                                                                                                               

should have applied an objective standard.                                                                                                     That is, he contends that the question of                                                                                       

whether a     Miranda  violation was egregious should not hinge on whether the officers                                                                                                                                                                      

actually heard Blalock's invocation but rather on whether a "reasonable police officer"                                                                                                                                                                      

would have heard Blalock's statement.                                                                                           Blalock also argues that, even if the arresting                                                                          

officers'   violation   of   Miranda   was   not   egregious,   the   detectives   who   interrogated  

Blalock at the police station subsequently committed an egregious violation of                                                                                                                                                                           Miranda  

by not investigating whether or not he had invoked his right to counsel before they                                                                                                                                                                                    

conducted their interview.                          

                                           We agree that the question of whether a                                                                                       Miranda  violation is "egregious"                                      

under  Batts  is an objective test.                                                                   A violation is "egregious" if "the violation would have                                                                                                          

been apparent to any reasonable police officer."                                                                                                             19  


                                                                                                                                                                       As we said in Batts, "[T]he police  


must not be allowed to make violation of Miranda a tactic, nor should the government  


be allowed to profit from a Miranda violation that no reasonable police officer would  



have committed." 


                                           Here, in analyzing whether the Miranda violation was egregious, the trial  


court correctly applied an objective test.  Even though the court found, based on the  


testimony presented at the suppression hearing, that a reasonable officer should have  


heard Blalock's invocation of the right to counsel and therefore precluded the State from  


relying on Blalock's statements in its case-in-chief, the new evidence presented at the  

           19        Batts, 195 P.3d at 158.  

           20        Id.  

                                                                                                                                  - 12 -                                                                                                                                2656

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

Batts hearing led the court to conclude that the Miranda violation was caused by "natural  


neuropsychologicalreactionstostress,multitasking,multiplestreams ofcommunication,  


and focused operation by each officer."  The trial court noted that Blalock's statement  

was a single non sequitur statement that did not conceptually fit in to the conversation  


between Blalock and the officers.  It also found that a reasonable officer focused on  


safety concerns and distracted by radio traffic during an ongoing homicide investigation  


and arrest would not necessarily have heard or immediately internalized a request for  



                    The trial court recognized the improbability that none of the arresting  


officers would have heard Blalock's request for counsel.  But the trial court found that  


the officers' testimony was credible, and the court expressly concluded that "no officer  


heard or comprehended" the defendant's request for counsel.  The trial court noted that  


the officer closest to Blalock clearly understood that Blalock had said something because  


he attempted to clarify Blalock's statement by asking, "What's that?"  But Blalock did  


not repeat his request.  Instead, Blalock continued talking about the crime.  


                    After analyzing the totality of the circumstances, the trial judge found that  


the purpose of the exclusionary rule - i.e., to deter police misconduct - would not be  


furthered by excluding Blalock's statements for impeachment purposes.   Given the  


court's factual findings, which are not clearly erroneous, we conclude that the trial court  


did not err by finding that the arresting officers' Miranda violation was not egregious.  


We  recognize  that  this  finding  is  in  tension  with  the  court's  earlier  finding  that  a  


reasonable officer should have heard Blalock's request for counsel.  But that tension  


serves to undermine the court's original decision to suppress Blalock's statements -not  


the use of Blalock's statements for impeachment purposes.  


                                                             - 13 -                                                          2656

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

                        To the extent Blalock is also arguing that the trial court erred in finding that                                                

the  Miranda  violation was not "intentional," we reject this argument.                                                        We held in           Batts  

that a     Miranda violation is "intentional" if the officer consciously decides to continue                                              



questioning while knowing that such questioning violates                                                Miranda .            This is necessarily  


a subjective test.  

                        As we noted earlier, the trial court found credible the officers' testimony  


that they did not hear Blalock's request for counsel. This finding of credibility is entitled  



to broad deference.                       The record supports the trial court's finding, and we therefore  


conclude that the trial court did not err in ruling that the officers did not intentionally  


violate Miranda .  


                        Blalock also contends that, even if the arresting officers' conduct did not  


amount  to  an  egregious  Miranda  violation,  the  conduct  of  the  detectives  who  


subsequently interviewed him was egregious, because the detectives did not investigate  


whether or not Blalock had invoked his right to counsel.  


                        The officers in this case were interrogating Blalock shortly after he was  


taken into custody.  The on-scene officers had not yet prepared a written report or even  


downloaded the audio on their recorders.   If the detectives had asked the on-scene  


officers whether Blalock had requested counsel, based on their testimony the officers  


would honestly, but mistakenly, have responded that Blalock had not asked for a lawyer.  


                        It is reasonable to require detectives to check with on-scene officers prior  


to conducting an interrogation in order to determine whether the suspect has invoked the  

      21    Id.  

      22    See,  e.g.,   Rausch  v.  Devine,  80  P.3d  733,  737  (Alaska  2003)  ("The  trial  court's  

findings  regarding  the  credibility   of   witnesses  .   .  .   may   be  reversed  only   if   clearly  


                                                                          - 14 -                                                                      2656

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

right to counsel.   But Blalock's proposed rule would deem egregious a detective's failure  

to  listen  to  every  available  audio recording  before  conducting  a  first  interview  with  a  

suspect,  even  when,  as  here,  the  interrogation takes  place  during  a  dynamic,  ongoing  


investigation  and  shortly  after  a  suspect  is  brought  into  custody.               This  proposed  rule  is  

inconsistent  with  the  practical  realities  of  police  investigations.  

                   We therefore  affirm the trial  court's ruling allowing the State  to  impeach  

Blalock's  testimony  with  the  statements  he  made  to  the  police.  

                   Given  our  ruling,  and  because  we  affirm  Blalock's  conviction,  the  State's  

cross-appeal challenging Blalock's motion  to  suppress  is  moot, and  we do not address  

it  further.  

         Applicability of the 2013 amendment to the self-defensejustification                        statute  

                   Prior   to   his   trial,   Blalock   filed   notice   that   he   intended   to   rely  on  the  

justification  of  self-defense.   He  also  asked  the  trial  court  to  instruct  the  jury  that  he  had  

no   duty  to retreat  before  using   self-defense   due  to  the  recently   enacted   "Stand  Your  

Ground"  amendment  to  the  self-defense  statute.   Under  this  amendment,  a  person  who  

     23  We  note that a portion of  Blalock's argument is based on the United States Supreme  

Court decision Arizona v. Roberson , 486 U.S. 675, 687-88 (1988).   But Roberson  is not  

directly  applicable to this case.  In Roberson,  the Supreme Court held that the Edwards  rule  

bars police-initiated interrogation following a suspect's request for counsel, even when the  

interrogation is regarding a  separate investigation.  Id. at 682-85.  The Supreme Court stated  

that  it  attached  no  significance  to  the  fact   that  the  officer  who  conducted  the  second  

interrogation did not know that the defendant had made a request for counsel.  Id.  at 687.  

This is a different   situation than is presented in Blalock's case, where the question is not  

whether Blalock's Miranda  rights were violated, but whether the officers' conduct was  

intentional and egregious such that Blalock's statements could not be used even to impeach  


                                                       - 15 -                                                   2656

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

is  in  a  place  where  they  have  the  right  to  be  does  not  have  a  duty  to  retreat  before  using  


deadly  force  in  self-defense.              

                    The  trial  court  ruled  that  the  legislative  change  did  not  apply  retroactively  

to  Blalock's  case,  and  it  declined  to  instruct  the  jury  on  "Stand  Your  Ground."   Blalock  

now  challenges  this  ruling.  

          Legislative changes  to the duty to retreat prior to the use of deadly  force  

          in  self-defense  

                    As  originally enacted in 1978, the self-defense statute provided, in pertinent  

part,  that  a  person  may  not  use  deadly  force  in  self-defense  if  the  person  knows  that  with  


complete  safety,  the  person  can  avoid  the  necessity  of  using  deadly  force  by  retreating.                            


But the statute included an exception to the duty to retreat, explaining that it was not  




necessary to retreat when a person was in a premises that the person owned or leased. 


Through an amendment in 2006, other exceptions were added, including that a person  


had no  duty to retreat before using deadly force when  in the person's  temporary  or  


permanent residence or in a building where the person worked in the ordinary course of  



                    In 2013, the legislature added yet  another exception to the  self-defense  


statute.  This exception, commonly called the "Stand Your Ground" amendment, was  


added by House Bill 24, and it provided that there is no duty to retreat before using  

     24   See AS 11.81.335(b)(5).  

     25   See SLA 1978, ch. 166,  10; former AS 11.81.335(b) (1978).  

     26   See former AS 11.81.335(b)(1) & (2) (1978).  

     27   SLA 2006, ch. 68,  3.  

                                                           - 16 -                                                        2656

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

deadly force in self-defense if the person is "in any other place where the person has a                   

right  to  be."28  

                    The  question  raised  by  Blalock  is  whether  the  2013  "Stand  Your  Ground"  

amendment  applied  to  his  2011  killing  of  Nathan  Tanape.  

          Why   we   conclude   that   the    "Stand   Your   Ground"   amendment   is   not  


                    A statute  will  not  be  given  retroactive  effect  unless  it clearly appears that  


it   was   the   legislature's  intent.                                                                              

                                                     The  legislature  passed  the  "Stand  Your  Ground"  


amendment in 2013, and it became effective on September 18, 2013, ninety days after  



the governor signed the bill.                                                                                        

                                              The legislature did not set out an applicability provision  


as part of the legislation and therefore did not make an explicit statement that the "Stand  


Your Ground" amendment would apply retroactively.  


                    Blalock argued in the trial court that the "Stand Your Ground" amendment  


was not a substantive change in the law but rather was simply a "clarification" of existing  


law, and that therefore due process required that the effective date of the "clarification"  


was the date of the enactment of the original statute, AS  11.81.335.  As a result, he  


claims that the 2013 "Stand Your Ground" amendment applied to his 2011 crime.  

     28   SLA 2013, ch. 51,  1; see also AS 11.81.335(b)(5).  

     29   AS 01.10.090; see also  Herscher v. State Dept. of Commerce, 568 P.2d 996, 1001  

(Alaska 1977); State v. Kaatz, 572 P.2d 775, 779 (Alaska 1977).  

     30   SLA 2013, ch. 51,  1; see also Alaska Constitution art. II,  18 ("Laws passed by  the  

legislature become effective ninety day                  s after enactment."); AS 01.10.070 ("Acts become  

effective 90 days  after becoming law, unless the legislature . . . provides for another effective  


                                                             - 17 -                                                         2656

----------------------- Page 18-----------------------

                        Before the "Stand Your Ground" amendment was passed in 2013, a person                                                    

ordinarily had a duty to retreat before using deadly force to defend themselves; there                                                              


were four specifically delineated exceptions to this rule.                                                                                           

                                                                                                               But now the law of self- 


defense is that there is no duty to retreat before using deadly force, as long as the person  



                                                                                                           This is a substantive change  

using the force is in a place where they have a right to be. 


in the law, not merely a clarification of the existing law.  


                        The legislative history of the amendment supports our interpretation of its  


effect on the law of self-defense.  For example, Rex Shattuck, staff member to the bill's  


sponsor, Representative Mark Neuman, testified during the House Judiciary Committee  


meeting that the "Stand Your Ground" amendment expanded locations fromwhich there  


was no duty to retreat. He pointed out that the amendment eliminated the need to retreat  


from any location where a person has the legal right to be - such as "out camping, if  



you're on public land" or "outside your home." 


                        That  the  amendment  was  an  expansion  of  the  law,  rather  than  a  


"clarification," also was made clear from an exchange between Representative Les Gara  


and Representative Neuman during the House Finance Committee meeting. During that  


exchange, RepresentativeGaraexpressedconcernthatiftherewas no differencebetween  



the  bill  and  the  current  law,  then  they  were  "wasting"  their  time.                                                         In  response,  


Representative Neuman explained that, in general, existing Alaska law required persons  

      31    Former AS 11.81.335(b) (1)-(4) (pre-Sept. 2013 version).  

      32    AS 11.81.335(b)(5); see also SLA 2013, ch. 51,  1.  

      33    Minutes  of   House  Judiciary   Comm.,  House  Bill  24,  statement  by   Rex  Shattuck,  

 1:12:18-1:12:24 p.m. (Feb. 6, 2013).  

      34    Minutes of House Finance Comm., House Bill 24, statement by  Representative Les  

Gara, 1:48:07-1:48:15 p.m. (Feb. 28, 2013).  

                                                                         - 18 -                                                                      2656

----------------------- Page 19-----------------------

to retreat, if they could do so safely, but that the proposed amendment changed the law                                                                      

by giving more weight to the right to defend oneself and others than to the duty to                                                                            




                         Blalock argues that because certain sponsors of the amendment stated that  


the amendment "clarifies" the law, this Court should find that the amendment was not  


a substantive change to the law of self-defense. For example, during the House Judiciary  


Committeemeeting, RepresentativeNeuman explained that HouseBill 24 wasnecessary  


in light of citizens' concerns about the right to  use self-defense without the courts  



second-guessing their decisions.                                   Representative Neuman stated that Alaska statutes  


already recognize a right to use force, and that House Bill 24 "clarifies that right exists  



not only in our home, but also in . . . any place that we have a right to be."                                                                            And  


Neuman's staffer, Rex Shattuck, reiterated that the bill was not changing justification,  



but rather "add[ing] clarification" to the law. 


                         Blalock's argument is unconvincing.   The use of the word "clarify" by  


some legislators and staffers does not change the fact that the legislature's purpose in  


enacting the "Stand Your Ground" amendment was to expand, not clarify, the right to  


use deadly force in self-defense.  

      35     See  Minutes of  House Finance Comm., House Bill 24, statement by  Representative  

Mark Neuman, 1:52:57-1:53:39 p.m. (Feb. 28, 2013).  

      36     Minutes of House Judiciary Comm., House Bill 24, statement by Representative Mark  

Neuman, 1:07:37-1:08:28 p.m. (Feb. 6, 2013).  

      37     Minutes of House Judiciary Comm., House Bill 24, statement by Representative Mark  

Neuman, 1:08:40-1:08:47 p.m. (Feb. 6, 2013).  

      38     Minutes  of   House  Judiciary   Comm.,  House  Bill  24,  statement  by   Rex  Shattuck,  

 1:15:30-1:16:37 p.m. (Feb. 6, 2013).  

                                                                            - 19 -                                                                         2656

----------------------- Page 20-----------------------

                   We   also  note   that   other   jurisdictions   have   concluded   that   similar  

amendments  to  their  self-defense  statutes  were  substantive  changes  to  the  law  and  that  

the  presumption  of  prospective  application  applied  in  the  absence  of  legislative  intent  to  


the  contrary.         We  agree  with  this  conclusion.    

                   Accordingly,  because  Alaska's  "Stand  Your  Ground"  amendment  was  not  

retroactively applicable to  Blalock's  case,  the  superior  court  did  not err  by refusing  to  

instruct  the  jury  on  this  portion  of  the  self-defense  statute.  

          Blalock's  claims  regarding  his  sentence  

                   Blalock  was  convicted  of  second-degree  murder,  which  is  an  unclassified  

felony.  At the time of Blalock's offense, a person convicted of second-degree murder  

was s   ubject t  o  a  sentence  of  not  less t  han   10  years  and  not m           ore  than  99  years.40  



court  sentenced  Blalock  to  60  years  with  15 years  suspended  (45  years  to  serve).  


Blalock now appeals this sentence.  


                   At sentencing, Blalock conceded, and the court found, three aggravating  


factors: (1) that Blalock employed a dangerous instrument in furtherance of the offense;  


(2) that  Blalock's  criminal history  included  conduct involving repeated  instances  of  


assaultive behavior; and (3) that Blalock was on parole or probation for another felony  




charge at the time  of the  current crime.                     But the  court rejected Blalock's proposed  


mitigator - AS  12.55.155(d)(3) ("the defendant committed the  offense under  some  

     39   See, e.g.,  Smiley v. State, 966 So.2d 330, 334-36 (Fla. 2007); Commonwealth v. Stone,  

291 S.W.3d   696, 703-04 (Ky. 2009); People v.   Conyer,   762 N.W.2d 198, 200-01 (Mich.  

App. 2008); Anderson v. State , 46 So.3d 835, 838 (Miss. App. 2010).  

     40   Former AS 12.55.125(b) (2011).   

     41   See AS 12.55.155(c)(4), (8), and (20), respectively.  

                                                          - 20 -                                                       2656

----------------------- Page 21-----------------------

 degree of duress, coercion, threat, or compulsion insufficient to constitute a complete                                                    

 defense, but that significantly affected the defendant's conduct").                                                  42  


                        Blalock's first argument regarding his sentence is that the trial court erred  


in rejecting his proposed mitigator.  But the aggravating and mitigating factors listed in  



AS 12.55.155(c) and (d) apply only to cases governed by presumptive sentencing. 


Blalock  was  convicted  of  second-degree  murder,  a  crime  that  is  not  governed  by  



presumptivesentencing.                          When a defendant is sentenced for second-degree murder, the  


judge is authorized to impose any sentence within the range of imprisonment that the  


legislature  has  established  for  that  offense,  regardless  of  whether  aggravating  or  



mitigating factors are proved. 


                        Although the presence or absence of statutory aggravating and mitigating  


 factors  does  not  control  a  court's  sentencing  authority  for  second-degree  murder,  


 applying  the  factors  by  analogy  provides  appropriate  "points  of  reference"  for  


 determining "how a particular defendant's crime should be viewed in comparison" to  



 similar crimes. 


                        In this case, because the aggravating and mitigating factors applied only by  


 analogy, the judge's authority to consider this factor was not affected by whether it was  


proved by clear and convincing evidence (as would be required if the factors were being  

      42    AS 12.55.155(d)(3).  

      43    Allen v. State , 56 P.3d 683, 684 (Alaska App. 2002).  

      44    See AS 12.55.125(b).  

      45    Allen , 56 P.3d at 684.  

      46    Id. at 685.  

                                                                         - 21 -                                                                     2656

----------------------- Page 22-----------------------

used to increase or reduce a presumptive term).                                     Blalock's arguments regarding the     


proposed mitigating factor are therefore moot.                                    


                      In any event, in rulingonBlalock'sproposedmitigator, thetrialcourt found  


that Blalock disengaged from the argument, went back to his vehicle to arm himself, and  


then re-engaged.  The court further found that Blalock's claim that he had been pinned  


to the ground when he slashed and stabbed Tanape was not credible in light of Tanape's  


injuries.        The  trial  court's  characterization  of  the  offense,  and  its  rejection  of  the  


mitigator, were based on reasonable conclusions from the evidence.  


                      Blalock's second contention is that his sentence is excessive because it  


exceeded the Page benchmark for first felony offenders convicted of second-degree  



                 Blalock notes that the Page benchmark is 20-30 years and that he received 15  


years of active time above that benchmark.  



                      But the Page benchmark applies only to first felony offenders. 


had previously been convicted of felony assault, and he was on probation for that offense  


when he killed Tanape.  In fact, Blalock himself conceded at his sentencing that the  


benchmark does not apply to his case.  Accordingly, we reject this claim.  


                      Blalock's final contention regardinghis sentenceis that thetrial court failed  


to  properly  weigh  the  applicable  aggravating  factors  and  that  it  failed  to  consider  


Blalock's rehabilitation and mental health history.  As we have explained, the judge's  


sentencing authority was not affected by the judge's findings on the aggravating or  

      47   See id. at 685.

      48   See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983). 

      49   Felber v. State, 243 P.3d 1007, 1010 (Alaska App. 2010).

                                                                   - 22 -                                                               2656

----------------------- Page 23-----------------------

mitigating factors, and the aggravators applied only by analogy.  But in any event, we       

conclude that the court adequately assessed the weight to give the aggravating factors.                                                    50  


                      Determination of an appropriate sentence involves the judicial balancing  


of potentially competing factors, of which primacy cannot be ascribed to any particular  



               The "sentencing judge has substantial discretion when evaluating the priority  


of the various sentencing goals and assessing the weight they should receive under the  



facts of a particular case." 


                      In crafting Blalock's sentence, the trial court recognized that Blalock had  


identified mental health issues, and it considered that factor in fashioning the appropriate  


sentence. But the trial court also found that isolation was important because of Blalock's  


"significant"  criminal  and  assaultive  history.                               Blalock's  criminal  history  included  


numerous misdemeanor assault convictions, a conviction for felony assault, several  


harassment convictions, two convictions for criminal mischief, a conviction for child  


abuse, and a conviction for violating a protective order.  


                      The trial court found that Blalock's criminal history demonstrated that  


rehabilitation was unlikely.   But because Blalock had done well in confinement by  

      50   The trial court specifically  stated that it was giving aggravator (c)(4), the dangerous  

instrument factor, "marginal" weight.  The trial court considered Blalock's probation status  

under aggravator (c)(20) by  imposing all the remaining suspended time - almost 2 years -  

in the case for which Blalock was in violation of  his probation.  And the court discussed the  

importance of   Blalock's prior assaultive history   (aggravator   (c)(8)) while evaluating the  

Chaney criteria.  

      51   Id.   (holding  that  a  court  must  balance  multiple  objectives  when  sentencing  a  

defendant,  including  the  goals  of   rehabilitation,  isolation,  deterrence,  and  community  


      52   Evan v. State, 899 P.2d 926, 931 (Alaska App. 1995) (citing  Asitonia v. State , 508  

P.2d 1023, 1026 (Alaska 1973)).  

                                                                  - 23 -                                                               2656

----------------------- Page 24-----------------------

having no documented disciplinary actions for the four years preceding sentencing, the                                                                                                                                                                                                    

trial court also stated that it had "some marginal hope" for Blalock's rehabilitation.                                                                                                                                                   

                                             In   reviewing   a   sentencing   decision,   this   Court   applies   the   "clearly  

mistaken" standard of review.                                                                          This test is based on the premise that reasonable judges,                                                                                                            

confronted with identical facts, can and will differ on what constitutes an appropriate                                                                                                                                                                       

sentence, and, so long as that sentence is within the permissible range of reasonable                                                                                                                                                                           


sentences, it will not be modified by a reviewing court.                                                                                                                                          


                                             After independently reviewing the record, we conclude that the sentence  


imposed is not clearly mistaken.  



                                             The judgment of the superior court is AFFIRMED.  

           53         Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).  

                                                                                                                                         - 24 -                                                                                                                                       2656

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights