"if You Knew Him Like I Did, You'd Have Shot Him, Too ..." a Survey of Alaska's Law of Self-defense

• Publication year: 2006

§ 23 Alaska L. Rev. 171. "IF YOU KNEW HIM LIKE I DID, YOU'D HAVE SHOT HIM, TOO ..." A SURVEY OF ALASKA'S LAW OF SELF-DEFENSE

Alaska Law Review
Volume 23
Cited: 23 Alaska L. Rev. 171

"IF YOU KNEW HIM LIKE I DID, YOU'D HAVE SHOT HIM, TOO ..." A SURVEY OF ALASKA'S LAW OF SELF-DEFENSE

JAMES FAYETTE ^[*]

I. INTRODUCTION

II. STATUTORY FRAMEWORK

A. The Use of Non-deadly Force

B. The Use of Deadly Force

C. The Burden of Proof

III. PROCEDURAL ASPECTS OF THE SELF-DEFENSE INSTRUCTION

A. Instructing the Grand Jury

B. Notice

C. Instructing the Jury that Self-Defense Does Not Apply

IV. ESSENTIAL QUESTIONS ABOUT SELF-DEFENSE

A. Is this a "Force" Crime?

B. Was the Defendant the First Aggressor?

C. Did the Defendant Have a Duty to Retreat?

D. Has the Defense Offered "Some Evidence?"

E. Did the Defendant Face an "Imminent" Threat?

F. Did the Defendant Fear "Unlawful" Force?

G. Did the Defendant Use Excessive Force?

H. Did the Defendant Have a Subjectively Held, Objectively Reasonable Belief in the Necessity of Using Force?

V. THE USE OF PRIOR ACTS AND REPUTATION EVIDENCE

A. The Defendant's Prior Acts and Reputation

B. The Victim's Prior Acts and Reputation

VI. STATUTORY JUSTIFICATION DEFENSES CLOSELY RELATED TO SELF-DEFENSE

A. Defense of Third Persons

B. The Use of Force to Terminate a Burglary

C. The Use of Force Against Police Officers

D. The Use of Force to Make an Arrest

VII. CONCLUSION

FOOTNOTES

Self-defense is one of the most powerful defense tools in Alaska's criminal law. It has the potential for broad application, it involves numerous substantive and procedural nuances, and it implicates many of the fundamental policies of the criminal justice system. Moreover, Alaska's law of self-defense has recently undergone major revisions, making a survey of its principles both important and timely. This Article seeks to provide a descriptive overview of the statutes, cases, and policies that form the framework of Alaska's self-defense law. It is organized around the litigation process and describes the important aspects of a self-defense claim both before and during trial. Drawing on his experience in litigating self-defense cases in Alaska, the author offers practical summations and explanations that will help illuminate self-defense principles for prosecutors, defense attorneys, and judges alike.

I. INTRODUCTION

Domestic violence and street crime prosecution are the bread-and-butter of any Alaska prosecutor's or public defender's office. Consequentially, self-defense principles haunt the Alaska criminal bar's daily practice. However, litigants and judges are often ill-prepared to contend with the unique substantive and evidentiary issues that every self-defense trial raises. This Article seeks to aid the criminal bar by providing a practical overview of Alaska's law of self-defense.

Part II discusses the statutory framework of self-defense, and Part III discusses several procedural aspects of the self-defense doctrine. Part IV addresses the most essential and commonly-litigated aspects of a self-defense claim. Part V provides an overview of the use of prior bad acts and reputation evidence, both for the defendant and the victim. Part VI examines four statutory justification defenses closely related to self-defense.

This survey is intended to be a practitioner's guide, and, as such, it provides commentary on recent legislative trends and includes citations to jury instructions and unpublished opinions. ^[1] Aside from a few practical suggestions, no normative argument is [*pg 174] presented. ^[2] While this survey was originally written by a prosecutor for prosecutors, and retains a prosecutorial focus, there is much authority of use to defenders here. Thus, this survey is offered to the entire Alaska criminal bar?prosecutors and defenders alike?in the spirit that all our criminal jury work will benefit.

II. STATUTORY FRAMEWORK

In Alaska, self-defense is a justification defense, and as such it provides a complete defense to all crimes involving the use of force. ^[3] Alaska's current self-defense statutes were enacted by the 1978 Alaska legislature. ^[4] Since their effective date, Alaska's two basic self-defense statutes have been substantively amended only twice -- in 2004 and 2006. ^[5] The statutory framework establishes when the use of both non-deadly and deadly force is justified and also sets forward which party will have the burden of proof at trial.

A. The Use of Non-deadly Force

Alaska's self-defense statute provides that a defendant "is justified in using non-deadly force . . . to the extent the person reasonably believes that force is necessary for self-defense against what the person reasonably believes to be unlawful force" applied against him. ^[6] However, a person may not use force if the defendant: (a) provoked the conflict with the intention of injuring the victim, (b) was engaged in mutual combat, (c) was the first aggressor, or (d) was using a deadly weapon or dangerous instrument to act in revenge or to further a felony objective. ^[7] The first three restrictions (mutual combat, provocation, first aggressor) do not apply "if that person has withdrawn from the encounter and effectively communicated the withdrawal to the other person, but [*pg 175] the other person persists in continuing the incident by the use of unlawful force." ^[8]

Alaska's non-deadly self-defense statute includes ten important limitations. Five concepts are found in the statute's first clause, and five are found in the second clause. The statute's first clause includes the following limiting concepts: the use of excessive force, the threat of unlawful and imminent force, as well as subjective and objective necessity. ^[9]

For instance, the non-deadly force statute explicitly states that the defendant must be reacting to "unlawful force." ^[10] The requirement of an "imminent" threat is inherent in the statutory definition of "force." ^[11] The statute's "when and to the extent" clause implicitly embodies the concept that force may not be excessive. ^[12] However, the "reasonably believes" clause is the heart of the self-defense statute. ^[13] This clause embodies two important tests: subjective and objective necessity. ^[14] The subjective prong asks the jury to assess why the defendant believed he should use force against his victim. ^[15] In other words, what was the defendant actually thinking? If the defendant used force because he thought it was necessary to avoid injury to himself, then the defendant may have a self-defense claim. ^[16] On the other hand, if the defendant was motivated by anger, rage, jealousy, intoxication, or his own violent nature, then he may not. ^[17]

Next, the jury must assess whether the defendant's conduct was objectively necessary. The objective standard is "whether a reasonable person would have acted in self-defense under the circumstances." ^[18] "[T]he law holds a defendant to a standard of [*pg 176] fully reasonable conduct in the context of self-defense. . . ." ^[19] If the defendant's conduct does not fall within the range of conduct which the jury is prepared to justify, then the defendant may be convicted -- no matter what his subjective motivation. ^[20] Thus, every self-defense trial asks the jury to place the "reasonable man" in the defendant's shoes and to engage in an after-the-fact assessment of the reasonableness of his use of force. ^[21]

The statute's second clause includes five important instances when a defendant may not claim self-defense. ^[22] The first three are when the force was the product of mutual combat, when the defendant provoked the conflict with the intent to injure his victim, and when the defendant was the first aggressor. ^[23] The 2004 Alaska legislature provided a fourth exception: a person may not claim self-defense if the force used was the result of using a deadly weapon ^[24] or in commission of a felony criminal objective ^[25] or by a [*pg 177] participant in a controlled substances offense. ^[26] The 2006 Alaska Legislature enacted a fifth exception: a person may not claim self-defense if deadly force was used in retaliation for perceived or actual conduct if the defendant (or the person on whose behalf the act was committed) has a violent reputation. ^[27] These legislative changes were intended to make it more difficult for gang members and drug dealers to claim self-defense. ^[28]

B. The Use of Deadly Force

"Deadly force" is defined as any force that is used under circumstances in which the defendant knows or intends to create a substantial risk of causing serious physical injury. ^[29] It also includes any act that places someone in fear of such injury by means of a dangerous instrument. ^[30] Alaska's self-defense statute provides that a person may not use deadly force unless he first satisfies the test for the use of non-deadly force. ^[31] Next, the person may only use deadly force when and to the extent he reasonably believes it is necessary to defend himself against the threat of death, serious physical injury, kidnapping, sexual assault in the first or second degrees, sexual abuse of a minor in the first degree, or robbery in any degree. ^[32] The deadly force statute also includes an important exception: the obligation to retreat. ^[33]

C. The Burden of Proof

In Alaska, self-defense is classified as a justification "defense" that the prosecution must...