*1 to Ken the second check provide either to records, HA, Appellant, tax we hold that Xi
Quinn or his Van provide was which he did the information herring prove that he owned the sufficient to Alaska, Appellee. STATE delivery net in accepted seine when (providing AS 1976. See 45.02.401 March No. A-4818. person- to agreed, otherwise title unless Appeals of Alaska. Court time buyer at the property passes al per- completes at which seller place March goods). delivers There- formance fore, to two hold that Lewis was entitled herring points ownership for of a
additional
purse seine. points bring Lew- these additional
Because points, the point Inlet total to six
is’ Cook required permit un-
minimum number 05.666, that Lewis is
der 20 AAC we hold entry per- to a Cook Inlet limited
entitled
mit.12
IV. CONCLUSION properly ruled hold CFEC
We apply for a eligible Lewis permit
herring purse in the Prince seine fishery herring under AS
William Sound
16.43.260(a). thus AFFIRM the We CFEC’s concerning the Prince William
decision permit.
Sound we REVERSE Inlet concerning decision the Cook
CFEC’s
permit. Lewis was entitled to two additional
points herring purse for his investment net, bringing point Inlet total Cook
seine six, points
count to minimum number permit. therefore
required obtain We superior this issue court
REMAND REMAND to CFEC with directions herring purse Inlet seine
to issue Cook
permit to Lewis’ estate.
AFFIRMED, REVERSED, part,
part, and REMANDED. holding claim that entitled to additional
12. Because our resolves this issue Lewis’ he is favor, points years participation 1974 and 1975. we will the merits of for the Lewis’ not address *2 Koch, Defender, B.
David Asst. Public Salemi, Defender, Anchorage, John B. Public appellant. Hanley, Atty. Gen., L. James Asst. Office Special Appeals, Prosecutions and Anchor- age, Botelho, Gen., Atty. and Bruce M. Ju- neau, appellee. BRYNER, C.J.,
Before COATS MANNHEIMER, JJ.
OPINION MANNHEIMER, Judge. appeals
Xi Ha1 Van his conviction for sec- murder, 11.41.110(a)(1). ond-degree AS As below, explained in superior more detail argue court refused to allow Ha to self- jury. defense to the The court allowed Ha to argue passion jury, heat of to the but jurors court instructed the should provoca- evaluate extent the victim’s opportunity tion and the extent of Ha’s name, case, 1. In a Vietnamese the first name is the in this Xi Van Ha is referred to as Mr. Ha. Thus, confusion, family appellant's family name. name To avoid will continue to refer to is "Xi”. in all of the court documents him in this manner. minutes, point of calm himself from the view of deck. After about fifteen Buu be- “mentally healthy” person. appeal, On gan get impatient that the food superior Ha, that the court should have yet began contends heated. He to harass swear- self-defense, instructed the on and he making at Ha and comments such as court should have contends that the allowed your swearing “fuck mother”. Ha started *3 jury to consider evidence of Ha’s mental get Buu and told him to off the boat. abnormality they assessed his heat of response, began Ly Buu to beat Ha. ran in supe- passion defense. We conclude that the Ly from the deck to assist Buu. held Ha’s issues, correctly these and rior court resolved arms to his side while Buu continued to beat Ha’s conviction. thus we affirm by him. Buu seized Ha the hair and struck repeatedly and his face head with his fists. from Ha came to the United States Viet- in lived in for ten nam 1980. He California continued, beating began As the Ha shout- then, years Dilling- in he moved to and Tran, help. yelled for He to his friend ham, fisherman, he worked as a where “Gioi, fight: hitting come out and ... Buu is pursued he had both in his native trade killing point, yelled, andme me!” At one Ha country Malaysia. Despite years in and his dying!” “I’m When Tran heard Ha’s cries States, English in the United remained help, for he rose from his bunk came to rudimentary. physically separated Ha’s aid. Tran Buu 7, 1991, employed Ha On June was fish Ha, but Buu was able to strike Ha four vessel) (fishing aboard the Ultimate. F/V pulled or five more times before he was 7th, long-time After work on June Ha and his that, away. during Ha testified at times socializing Tran friend Gioi were the Wil- beating, Buu hit so hard that he fell Dillingham. low Tree Bar Later down. Ha also testified that the attack left evening they joined by were other Vietnam- him with blurred vision. Among fishermen. the new arrivals ese Ly Hop Truong. and Buu were Van Van Ha Ultimate, Ly they Buu and left the family knew Buu and his from the Vietnam- time, returned few minutes later. This California, community in ese and he was also Buu was armed with a hammer. Buu came Ly aware that Buu and were roommates in Ha, screaming, going you, “I’m to kill Dillingham. you you swung will strike until die!” Buu head, Tree; jumped the hammer at Ha’s but Ha The men shared drinks in the Willow Misty, from the Ultimate to thought Ha later testified that he Buu which was F/V Ha, they alongside. was berthed Buu drunk time left the bar. When followed Tran, Ly, Misty, together and Buu returned to the Ha onto the Ha ran into the cabin and Ha the door Ultimate after volunteered to reheat held closed. Buu stood outside the and, door, through glass some leftover food. Ha later testified that cabin shouted, only your his invitation to cook food was directed “Fuck mother! I will strike Ly. Tran Ha you you!” did not wish to socialize and I will kill Buu because Buu was known as a vio- Buu continued his tirade for four or five Ha, person. According family lent Buu’s minutes until Ha’s friend Tran ran aboard violence; reputation California had Misty grabbed the hammer from California, Ha testified Buu and his Ly Buu’s hand. came aboard too and escort- (as members) family brothers well as other away. Misty ed Buu Ha remained on the people had been known to threaten and beat returning several minutes before to the Ulti- Knowing who crossed them. that Buu had mate. drinking, suspected been Ha that Buu would prone be even more to violence. night, sleep. That Ha could not He feared The four men reached the boat and went that Buu was kill him bound to return and aboard; Ha generator promised. attempted started the to heat the he had Tran to reas- Ha, stove. While waited for the stove to but Ha sure remained awake after his up, lay heat asleep. throbbing Ha’s friend Tran down on a friend fell Ha’s head was bunk, while Ly pain. paced throughout Buu’s friend went out on in He the boat. paced, kept Buu. He hidden As he Ha remembered there the rifle underneath Misty; jacket. testified, previ- “[M]y a rifle aboard the Ha had Ha later head actions, ously weapon to shoot at controlling my used this birds was it and was com- fishing. manding he was Ha went back to the go while me to kill [Buu].” Misty, it. weapon, retrieved the loaded noon, Shortly Ha after went to where he “very fright- later testified that he working. believed Buu was When he discov- lay through- ened”. He awake on his bunk there, ered that Buu was not sat down for side, night, rifle at his out with the “the a while to wait for him. Ha then loitered in resounding voice of Mr. Buu ... in [his] boat, vicinity of Buu’s where he was Tran ears”. awoke and left boat around fishermen, observed other Vietnamese in- morning. 7:00 8:00 the next Ha continued cluding Ly. Ly carry- Buu’s saw Ha friend bunk, Buu, thinking he awake on about ing long object *4 jacket. concealed under his the rifle still underneath his blanket. Sever- Although apparently Ha did not remember (around in morning), al hours later 8:00 the speaking boat, anyone Ly to at the testified Sifsof, boat, the Victor owner came that approached spoke he Ha and to him. aboard. learning searching After that Ha was Buu, Ly go begged to back Ha home. Ha lying
Ha was still on his bunk when Sifsof refused. spoke Ha mending arrived. Sifsof to about day, that giving but Ha’s was still nets head later, A little Ha encountered his friend great pain.
him Ha told Sifsof about the Charlie Tran. observed Tran that Ha was beating he Ly had received from Buu and trembling pale. and Tran asked what was night the before —that head still hurt his and wrong responded, Ha seeming and diffi- vision was his still blurred. Sifsof saw that culty, Buu him that had assaulted and threat- very upset, though Ha was still he even was ened to kill him. Tran When asked Ha what acting sluggish. Ha that told Sifsof the two coat, carrying he was his Ha told men who had attacked him worked on a boat “This your urged is none of Tran business.” by Johnson, Billy owned another local fisher- pass, Ha to let but Ha replied, the incident speak man. Sifsof told Ha that he would to go? night “How can I let it Last he me beat employees. about Johnson his me; up going and kill told me he was to he morning, Around 10:00 that Ha and Sifsof already kill threatened to me. If he doesn’t the moved Ultimate to a different location in today, kill me me he’ll kill tomorrow.” preparation upcoming fishing open- for the afternoon, spotted At Ha 1:30 the Buu working, ing. While the men were Ha left store, returning grocery carrying rifle his The the bunk. Ultimate’s new bag groceries. With Buu’s voice still happened location to be closer to Johnson’s head, speaking pulled Ha in his out his rifle boat, the boat on which Buu worked. Sifsof and ran from behind. Ha towards Buu re- pain left Ha then alone on the The Ultimate. back, firing Buu in peatedly shot the the rifle worse, grew in Ha’s head and Ha became emptied thirteen until he had times frightened, that he realizing more was closer weapon Buu of ammunition. was struck head, In to Buu. his Ha heard Buu’s voice rounds; he immediately. seven of these died becoming stronger, stronger and and he be- trial, shooting At Ha testified after frightened. lay came more and He more Buu, simply he around and turned went back try sleep, to to he found he down but could contrast, to the Ultimate. another wit- Ha not. tried to think of someone who could shooting to that ness testified Ha walked him, but to think help he was unable then, it, up body, to dirt on Buu’s kicked and anyone who could. Ha testified that Buu’s English, Buu swore at and said to the head; stated, voice remained in he “I his corpse, you going you.” “I was told to police not think call that I should to [did] help just voice [b]ecause [Buu’s] so me— Ultimate, Upon his return Ha stayed my ferocious and it ears.” shirt, changed replaced the rifle bed, police
Finally, Ha and arrived retrieved the rifle from his hid. The and bunk, Ultimate, boat, left the went in searched the did not find Ha. search of but ques- M. Judge Milton Souter perior Court voice.
Later, Victor Sifsofs Ha heard all head, supported explained to the evidence tioned whether holding his emerged, Specifically, go jail. of self-defense. might have to Sifsof the elements Sifsof go to there was interpreter questioned whether an advised Ha obtain harm to do this. Ha faced imminent any Ha was reluctant evidence that police, but boat, returned to the Buu. Eventually, police when he shot Ha, him. and arrested found something miss- THE There’s COURT: first-degree and tried for indicted Ha was in- [proposed] self-defense ing from the instructed on murder. read, already structions that I’ve second-degree offenses of included lesser imminency of harm requirement of is the (under a heat of manslaughter murder aggressor.... coming [AS] from the ultimately acquit- theory). The passion (a), states, part “a [that] [in] 11.81.330 murder found first-degree Ha of ted upon may force another person use murder. second-degree guilty of person reason- and to the extent necessary ably it is for self-de- believes Instructed Trial Have Court Should against what the fense Jury on Self-Defense? of unlawful force the use believes trial, argued beginning of From the you look to [if] [AS] other”.... And *5 In the acted in self-defense. that he had (23) (b) ],...“ ], subpart ‘force’ [ 11.81.900[ (which to the opening statement defense restraint, any bodily impact, or con- means prosecu- immediately after the was delivered finement, bodily or the threat of imminent statement), attorney Ha’s de- opening tor’s restraint, impact, or confinement”.... So Ha and Buu had attacked scribed how ... the definition of [that] it’s clear to me death; attorney him the threatened requirement of ... includes the “force” continued: then part imminency of force as of threat of use [V]iolence ATTORNEY: DEFENSE It’s not included of the definition.... hear for Buu. You will was not uncommon that any self-defense instructions of these dark, brooding, man and his about this I’ve seen. your And I invite nature.... combative if I don’t even know self-defense And scrutiny attention as the evi- close case, I’m appropriate ... in this because regarding charac- [Buu’s] dence comes any any that shows evidence aware ter, you understand will come to because Bearing in imminency of [harm].... dark, danger- only appreciate not the ... that the altercation between mind man, ous, the deadly side of this but also good place took twelve these two men anyone For significance of his threats. killing[,] given the fact the hours before Buu did not take his threats who knew that the defendant that it’s uncontradicted from Buu that he would lightly. A threat man for over an hour before stalked this weight, you good, had as much was as him[, [g]iven the fact and] [that] he killed by a ... Mafia on cheek [the] as a kiss absolutely that vic- no evidence there’s deadly Buu’s godfather. That’s how in the hour approached tim the defendant threats were. shooting, or hour and a half before imminency all.... I no here at there was Buu, knowing knew that [Ha] From going I’m to want to be don’t see it. And see, escape. You Buu comes there was no hearing argument on that. family thugs who have a ... a from attorney responded: Ha’s You reputation for violence and extortion. [Ha that] that.... knew will hear “im- think DEFENSE ATTORNEY: family, or with would have to deal with eyes through] the minency” viewed [is tomorrow, Today, Buu himself. asserting justifiable force. Not person would stalk down. independent person such ... an whether looking at the evidence would evidence, judge Ha submitted At the close of the facts, imminency self-defense, ... under the see on but Su- proposed instructions person position he felt in Ha’s also have whether in defendant’s mind would been [the] argued, attorney I think afraid. The defense danger. that in imminent he was ... overwhelming evidence there’s been DEFENSE ATTORNEY: You’d have that in imminent fear. Vietnamese, he was how would another [ask] behave, knowing knowing how Vietnamese attorney analogized then case to Ha’s how, public when Vietnamese make a syn- involving the “battered woman eases threat, they carry you that it out that attorney drome”. claimed The defense seriously, take those should threats know- battered their cases where women shot person this making threat has they slept, had ruled husbands while courts usually temper [and] violent carries out juries trial should instruc- receive got [threats]. You’ve take all of attorney tions on self-defense.2 The defense circumstances those into consideration and told Souter: yourself, person then ask would another ATTORNEY: fact [T]he DEFENSE those act circumstances the same that Buu was shot behind is irrele- way? vant, just like fact that a husband is However, Judge again concluded that asleep. shot I think while he’s what the justify did not evidence an instruction on [ask], court has to has to what the self-defense. [ask], is, did the defendant he was feel that THE COURT: The evidence this case safety? in imminent fear for his own absolutely any devoid of evidence that prong of And That’s the first self-defense. any was ... there threat imminent then, prong, on ... would a the second harm from Mr. Buu this defendant. person under circum- reasonable like absolutely The evidence is clear stances, another who defendant, according even to his own defendant, given [the situation of the de- victim, testimony, looking stalked the background, experience, fendant’s] *6 him better than an before ... for hour person you what have would that —how back, gunned in shot him the jury may feel? ... find that [Ha] down_ Any The victim was unarmed. fear, in they may imminent find that threat of harm ... made had been twelve person the not have reasonable would to thirteen hours earlier. This is the un- [Nonetheless], been.... I think meet state of eontradicted this record. To an the test.... an [This is] “some evidence” observer, objective third-party that could jury issue for the to decide. possibly immineney not amount to Despite attorney’s argument, the defense somebody of harm.... [I]f threat beats Judge that not in- Souter ruled he would you you hurt up threatens to some jury struct on the self-defense. He found more, day you the next stalk can them “single that there not a of evi- shred not down and them? That’s the law of any immineney dence [to indicate] of harm or state[.] this facing [the defendant] threat of harm at the ground Judge then noted a second Souter time an [the that he stalked hour victim] requested denying the in- self-defense half, in to an hour a and shot him the the evidence that Ha had struction: showed absolutely, him.... back and killed It’s aggressor during been the afternoon en- the abundantly to me that an ele- clear essential Buu on Because counter with June 8th. AS justification ment of to- [is] the self-defense 11.81.330(a) declares that self-defense is not tally missing this in case.” conflict, aggressor Judge available in a morning, attorney The next renewed Souter ruled Ha’s uncontroverted status argument pointed aggressor on was another for self-defense. He June 8th tending prove giving not instruc- evidence had reason for self-defense been fear for his life and that a reasonable tions.3 there of conflict on below, As this is not an accurate 3. Because was no renewal explained (other than Ha's act the afternoon of June 8th characterization of the current law. Buu), shooting that Ha was the conclusion
190 accused, might arguably to the Alaska, in self- vorable all use of force
In
11.81.330(a).
juror
If
to entertain a reasonable
lead a
governed
AS
defense is
guilt.
to the
rises
as to the defendant’s
used
self-defense
doubt
the force
in AS
deadly
as defined
force
level of
Paul,
P.2d at 775.
11.81.900(b)(12),
a claim self-defense
then
may
test
not be
the “some evidence”
Whole
additionally satisfy
requirements
must
exacting in
of the amount of evidence
terms
335(a)
deadly
limits
Section
AS 11.81.335.
needed,
must ad-
the defendant’s evidence
(1)
force is
situations which
force to
legal
of self-defense.
dress all the
elements
(2)
actor
justified
AS 11.81.330
court must
determine
[T]he trial
deadly
the use of
“reasonably
[that]
believes
evidence, viewed in the
[the
whether or not
against
defense
necessary for self
force is
defendant,]
light
to the
most favorable
death,
injury”, or one of the
serious
adequate
the self-defense issue
to raise
in the statute. Section
listed
serious felonies
believed,
and,
legal tests
if
would under the
335(b)
the use of
even when
declares
permit a
applied to a claim
justified under section
deadly
force would
of self-defense
guilt[.]
as to
reasonable doubt
using
335(a),
must still refrain
person
that, with
deadly
person
“if
knows
force
(Maine
Millet,
273 A.2d
State
...,
can avoid
safety
complete ...
4)
1971)
Paul,
n.
(quoted
be, be, appear pressing urgent. A or was per sufficient evidence that a reasonable fear of future some time is not position son in Ha’s would have feared death sufficient.”) injury serious from Buu. Buu statute, Alaska’s self-defense AS had threatened Ha with death. Buu was a 11.81.330(a), specifically does not mention the man grudges violent who nursed and who requirement immineney: likely carry someday. out his threat person may upon A ... use force anoth- Moreover, suggested the evidence that Buu person er to the extent violent, clan, came criminal reasonably necessary it is believes for self might very Buu’s help relatives well Buu against person defense what the reason- carry might carry out the threat —or it out ably believes to be the use of unlawful sum, if Buu themselves unable. other, force unless produced justify evidence to remarks
attorney during made opening the defense statement: (3) person claiming the defense of
justification DEFENSE ATTORNEY: A threat aggressor. was the initial you from Buu that he would was as LaFave & Scott cites this statute as one good, weight, had as much as a Mss on provisions the few “self-defense in the mod- godfather. [the] cheek a ... Mafia ern require- [that] codes fail to address [the deadly That’s how Buu’s threats were. immineney] explicitly”. ment of LaFave and Scott, Law, 5.7(d), § Substantive Criminal Buu, p.
Vol. 656 n. 38. knowing From [Ha] knew that correctly perceived, escape.... AS 11.81.330can there was no Buu comes from point legislature family be silent on this because thugs reputa- who have a placed requirement immineney in the tion for [Ha violence extortion.... statutory definition of “force” contained knew he would have to deal that] with the 11.81.900(b)(23): AS family, or Buu Today, himself. to- morrow, they would stalk down. any bodily impact, means
“[F]orce” re- straint, or or the threat of confinement^] However, “inevitable” harm not the same restraint, bodily impact, imminent or con- though may as “imminent” harm. Even finement[;] deadly “force” includes (or have feared that Buu one non-deadly force[J relatives) someday Buu’s Mil would reasonable fear of future harm does au- interrelationship of these statutes is ex- thorize a to hunt down and Mil an plicitly legislative commentary noted enemy. statutes, to the self-defense AS 11.81.330- *8 335: force is “Since defined to include the requirement This court discussed the of bodily impact, person threat of imminent a Paul; immineney in a footnote in the court may defend himself from threats of imminent judge that a noted trial is authorized to impact impact.” as well as actual 1978 Sen- reject self-defense instructions (June Journal, 12), Supp. ate p. No. 47 126. where there is some evidence that the argues immineney himself, that the of a defen- defendant acted defend but no peril judged dant’s must An peril. example be from the stand- evidence of imminent of point of the defendant. Ha contends that a circumstances under which self-defense in- person in position person might reasonable structions be denied based on lack —a may who had heard Buu peril threaten his life and who of imminent be found in “bat- propensities syndrome” knew Typical- the vicious of Buu and his tered wife homicides. family ly, criminal fear that these cases involve a battered wife who —would inevitably Buu or of sleep. Although one his relatives would kills her husband in his 192 abuse, during commonly ample rather than con- [an active] instances there
such
However,
finding that
kill-
flict. ...
in order to warrant
support
a
the
evidence
instruction,
giving
the
of a self-defense
the
fear and that
the
was motivated
urgent
facts of the case must still show
the
at the time
fear was as real and
spouse
danger
was in imminent
close to
killing
the
as it was when the husband
of
killing.
actually capable
time
of immedi-
was awake and
abuse,
uniformly
physical
cases have
ate
(citations omitted).
Stewart,
had assaulted
at
wounding
them. He succeeded in
any
We have not found
case that would
woman.
Id.
allow claim of self-defense under the
Buggs
charged
aggravated
with
as-
presented
circumstances
here. While we
sault,
pre-
and he claimed self-defense. He
agree
past
that a
reputa-
victim’s
acts and
fought
sented evidence that the men he had
tion for violence will often be relevant on
gang
with were
members
a street
called
question
of the reasonableness of a
“Crips”,
and that these men and their
self-defense,
defendant’s use of force in
gang
eventually
fellow
members would
find
may
deadly
only
one
resort to
force
if
they
him
finish
begun:
what
had
necessary
prevent
it is
immediate harm.
points
testimony,
At
The defendant’s
various
“self-defense”
this case
nothing
“preemptive
defendant
on
more than a
elaborated
his fear of the
Crips.
against
why
When asked
strike”
the men he
he felt he was in
feared.
danger
[pool
when he returned to the
hall] Buggs,
Buggs, 806 P.2d kidnapper early in the week. Under such acknowledged The Arizona court that a circumstances, suggests, prop- LaFave “[t]he defendant is entitled to a self-defense in- inquiry immediacy er is not the threat slightest struction “if there evidence of immediacy response necessary but the of the justification for his act”. Id. If defense. a threatened harm is such court no found evidence that the defendant it cannot if be avoided the intended danger had been in of imminent harm from moment, princi- victim waits until the last his enemies. ple permit self-defense must to act early required the defendant shot the direction earlier —as as is
[When] defend Crips, they advancing effectively”. upon were himself Id. Held: the defendant was not entitled to father an self- axe. The defendant claimed that defense instructions because there was no evi- he had acted in self-defense because he and his reasonably dence that she great bodily believed that death or ongoing atmosphere sister "lived in an of immi- imminent.); Whipple harm was bodily nent of serious harm and fear of (Ind.1988) (The 523 N.E.2d 1365-67 death”. Held: the defendant was not entitled to seventeen-year-old defendant and his sister had self-defense instructions because there was no years suffered abuse at mental parents. evidence that the defendant believed the hands of their The defendant retali- danger.). that he or his sister faced imminent by killing ated first his mother and then his *10 194 shotgun, Arizona court found that the with his this was a new confronta- readily Therefore, distinguish- if
case in front of them was
tion.
even Mize believed it
example:
necessary
able from LaFave’s
was
to kill McDonald to avoid
death,
his own imminent
that belief was
Here,
the defendant returned to the
when
unreasonable.
his
area of the confrontation and fired
pistol at the men who had kicked
he Mize,
(citations omitted).
442
340 S.E.2d at
not
their domination and con-
authorities,
with the
Consistent
above
and
trol,
they gave
signal
no
that
wording
in accord with the
of
11.81.330
AS
intended to renew their attack. Our con-
11.81.900(b)(23),
hold that a
AS
we
de-
authority
clusion
with settled
is
line
justification
claiming
fendant
self-defense as
off,
fight
the effect that after a
has broken
prove
for the use of force must
that he or she
merely
pursue
one cannot
and kill
because
reasonably
acted to avoid what he or she
he once feared
his life.
perceived to be a
harm.
threat
imminent
(citations omitted).
Buggs,
P.2d at
806
1385
A defendant’s reasonable belief that harm
Buggs
The court therefore ruled that
was not will come at some future time is not sufficient
entitled to an instruction on self-defense. Id.
support
a claim of self-defense or defense
Hernandez,
705,
v.
253 Kan.
P.2d
State
861
of others.
(1993),
Buggs.
is
accord with
Her-
supported
Ha’s evidence
the conclusion
nandez,
having
the defendant’s sister was
reasonably
that he
believed that Buu would
problems
marital
and wanted to leave her
someday
requirement
harm him. But the
husband. The sister’s husband threatened
imminency
scope
limits the
of authorized
her with violence if she left him or if she
may actually
self-defense. A defendant
sister,
police.
support
contacted the
To
his
that,
later,
reasonably
sooner or
his
believe
the defendant went to confront the husband.
enemy
opportune
will
an
choose
moment to
When the husband told the defendant
Nevertheless,
kill
attack and
him.
business,
mind his own
the defendant shot
noted,
the law
not
does
allow a defen-
murder,
Charged
him.
with
Hernandez
enemy
dant to seek out and
his
so that he
claimed that he acted
defense of another
longer
no
has to live in fear. The defen-
(his sister), because his brother-in-law would
against
enemy
dant’s use of force
his
is au-
seriously injured
have killed or
sister
only
actually
thorized
when the defendant
the near future. The court held that defense
reasonably
enemy’s
that
believes
of others was not
available
the defendant
threatened
attack
imminent.
AS
because he had no reason to
believe
his
11.81.900(b)(23);
State,
Paul v.
655 P.2d at
posed
brother-in-law
a threat of imminent
777,
n.
harm to his sister.
Id.
Here, although pursued judging the victim had reasonableness the de during day approxi- perceptions. defendant Byrd [the] fendant’s actions and (Alaska 1980). mately eight killing, hours before the de- 626 P.2d agree fendant Mize was in no And imminent that the reasonable asleep. perception when McDonald was at ness of harm home imminent evaluated, just When Mize went to McDonald’s trailer must be based on Buu’s *11 Moreover, specific assuming words and actions on the occasion even that Ha believed it pointless speak any Ha killed but also based on Ha’s would be to with of these knowledge propensities past threats, people of Buu’s nothing about Buu’s this does posed conduct. to that Buu establish an imminent danger Ha to or that Ha could have reason- determination of reasonableness [T]he ably posed danger. believed that Buu such a must be based on the “circumstances” fac- argument simply way say- Ha’s another of ing a defendant or his Such “situation’!.] ing Ha inevitably believed Buu would encompass physical terms more than the kill him if Ha did not act first. As we have potential movements of the assailant.... said, a reasonable fear of future harm does any [TJhese terms include relevant knowl- justify killing enemy. not one’s edge person. the defendant had about the They necessarily bring also appears argue Ha also to that Viet involved, persons including all attributes of police namese culture teaches that all are Furthermore, the defendant. the defen- corrupt, expect help that one can no from the encompass any prior dant’s circumstances authorities, people and that must take the experiences provide had he which could personal law into their own hands to resolve reasonable basis for a belief that another disputes. Assuming purposes argu for of person’s injure intentions were to com- [or ment that Ha’s characterization of Vietnam mit upon] a crime him or that the use of accurate, ese culture is assuming and further deadly necessary force was under the cir- things, that Ha believed all these this still cumstances. does not establish that Ha be Goetz, 96, People v. 68 N.Y.2d 506 N.Y.S.2d posed danger lieved that Buu an imminent 29, (1986) (citations 497 N.E.2d might argu him. To the extent that Ha omitted). ing that the law of self-defense should make Thus, Ha is correct when he asserts exceptions people whose culture encour the reasonableness of his belief that he faced vendettas, ages killings assuage personal analyzed light imminent harm must be of honor, preemptive killings fu forestall beating the severe that Ha had sustained harm, reject argument. ture before, light Buu’s hands twelve hours of Ha next contends that Ha, repeated Buu’s earlier threats kill (and ultimately jury) should have evaluat fight knowledge of Ha’s of Buu and his imminency ed the point harm from the family, history whose criminal indicated that thinking view of someone who was not clear seriously. Buu’s threats should be taken that, ly. argues because of his extreme And, understanding to the an extent that possibly fear and because he had sustained Vietnamese culture was relevant to evaluat- injury attack, during brain Buu’s earlier ing Ha, Buu’s motivation or kill readiness to subjectively that Buu convinced proper too this was a matter to be consid- any Assuming about to him at moment. ered. true, this this would not establish the argues because of his subjective perception. reasonableness of Ha’s background poor cultural and his command (In fact, arguing if Ha is that he would not English, he felt that it would be useless to perceived an have imminent were it go police help to the and that he had “no abnormality, argument not for his mental killing viable alternatives” to Buu. The evi- acting unreasonably.) establishes that he was ample dence at Ha’s trial shows Ha had opportunity says to inform others of his conflict that the When law reasonableness with Buu and to their Dur- seek assistance. of self-defense must be evaluated from the defendant, point the twelve or thirteen hours between the of view of the this does fight shooting, point mentally on board the ill Ultimate and the mean from the of view of a completely During Buu left Ha alone. defendant. The reasonableness of defen- period, skip- perceptions Ha had conversations actions dant’s must be evalu- per fishing point boat and with ac- ated from the of view of a reasonable various situation, quaintances community. in the Vietnamese the defendant’s not a dysfunction. psychotic person suffering mental This dants who killed under delusion *12 People elaborated in v. Goetz: were about to suffer serious harm. distinction was ap- that] lower court concluded [The case, despite suggest- In this the evidence propriate ... a defendant’s test is whether good that Ha had reason to fear future “reasonable to beliefs and reactions were Buu, harm from there was no evidence that statute, reading ”. of the him Under danger, Ha was in imminent or could have which believed a defendant’s testi- reasonably in immi- believed himself to be mony that he felt that his own actions were danger, through nent when he hunted Buu warranted and were reasonable would Dillingham the streets of and then shot him acquit regardless to of what have carrying grocer- from behind while Buu was anyone else in the defendant’s situation correctly ies. Souter therefore de- interpre- might have concluded. Such an to clined instruct on self-defense. ordinary meaning tation defies the significance “reasonably” ... of the term Proper Did the Trial Court Give a In- and misconstrues the clear intent of the struction on Heat Passion? Legislature[.] Although Judge Souter ruled that Ha argue jury, could not self-defense basis, [There must] be reasonable viewed judge argue allowed Ha to that his homicide objectively, [defendant’s] be- mitigated manslaughter should be under upon liefs .... belief based [A] mere fear passion. the doctrine of heat of This doc- fancy pure simple or ... or a delusion 11.41.115(a): in trine is codified AS satisfy requirements would not prosecution first-degree In a [for mur- statute. 11.41.100(a)(1)(A) der] [for AS or second-degree murder under] AS 11.41.110(a)(1),it is a defense that the de- completely To exonerate such an individu- passion, fendant acted in heat of be- [the] al, no matter how aberrational or bizarre opportu- fore there had been a reasonable thought patterns, would allow citizens cool, nity passion for the heat permis- to set their own standards for the passion provoca- resulted from serious sible use of force. It would also allow a by tion the intended victim. suffering ... defendant from delusions to perform impu- or acts of violence with provocation” The term “serious is in defined nity, contrary principles to fundamental 11.41.115(f)(2) AS as: justice and criminal law. conduct which sufficient an to excite Goetz, 25, 27-28, 506 at N.Y.S.2d 497 N.E.2d passion person intense in a in reasonable (cita- 47-48, (emphasis original) situation, 50 in the per- the defendant’s other than a omitted). State, tions intoxicated, See also Werner v. 711 son who is under the circum- (“[A] (Tex.Crim.App.1986) S.W.2d reasonably stances as the defendant be- necessity be; ‘reasonable words, [in belief of self- insulting lieved them to insult- is one that would be held an ing gestures, hearsay defense] reports of conduct ‘ordinary prudent [person] not, in the same engaged the intended victim do other, circumstances as the actor.’ ... test [T]he alone or combination with each [incorporates] ‘ordinary prudent man test provocation. constitute serious ”) of tort law.’ recognized “passion” This court has that the Thus, 11.41.115(a) spoken encompasses the reasonableness of Ha’s belief AS rage the imminence of must be evaluated more than it includes terror and —that point person from the of view of a reasonable other intense emotions. LaPierre v. (Alaska Thus, pertinent App.1987). his situation —someone with Ha’s 734 P.2d Buu, knowledge experience great of and if Ha killed Buu while in fear life, perceptions qualify someone passion” whose were clear and this could as “heat of otherwise, If judges assuming statutory rational. the rule were the other conditions were juries obliged acquit would be defen- met. history carrying ... cultural out it is not sufficient that threats, experience passion. particular peo- heat of in that the defendant culture 11.41.115(f)(2), the defendant’s seriously. Under AS ple would take So think it by “conduct ... suf passion must be caused wrong would be for the court to [instruct passion an in a rea ficient to excite intense jury] ... reasonable person in situation sonable the defendant’s boy some normal American farm as the defen under the circumstances Iowa. dant believed them to be”. *13 Judge agreed Souter with the defense attor- Moreover, 11.41.115(a), under AS the defen background ney that Ha’s cultural dant’s use of force must occur “before there knowledge assessing were relevant when opportunity for the [was] [de reasonable of his actions. For this rea- reasonableness passion to fendant’s] cool”.6 son, give ruled that he would passion jury in When the heat of only part prosecutor’s pro- the first of the trial, argued structions were at Ha’s instruction, posed The in its fi- instruction. prosecutor proposed an instruction form, nal read: person” would define “reasonable as a “rea When these instructions use the term sonably healthy person thinking whose is not person” “reasonably “reasonable be- by mental difficulties that skew or influenced lieve”, reasonable, mentally mean a ability thought affect his to form reasonable healthy person thinking influ- whose is not processes or act in a reasonable fashion”. by enced mental difficulties that skew or prosecutor proposed further ability affect his to form reasonable jury person” be told that a “reasonable is thought processes or to act in a reasonable someone “unaffected cultural mores of fashion. countries”, foreign and that the “reasonable incorporated person” standard “the cultural attorney object Ha’s continued to to the legal orderly conduct standards and rules instruction, conclusory abridged of the United States and the State of Alas fashion: ka”. [J]ust ATTORNEY: DEFENSE attorney strong exception to the took purposes, [in- I take it this clarification prosecutor’s proposed instruction. in- is from one of the standard struction] DEFENSE ATTORNEY: far as [A]s structions? normal, healthy person, ... the court has night. it I wrote last PROSECUTOR: testimony regarding allowed to come state of mind. I think [the defendant’s] THE I don’t think it’s stan- COURT: jury consider the court has to allow the dard at all. Particularly light that. of the court’s ruling passion in. So I that heat of comes Precisely. ATTORNEY: DEFENSE interpretation that disagree with [the] a reasonable is some normal Ameri- can devoid of the circumstances we have make THE COURT: could never [W]e
here. And the circumstances
include
[always
if
any progress in this world we
background,
someone’s cultural
because
past.
in the
what has been done
did]
may go
mitigating
[kill-
[this]
agree,
I
ATTORNEY:
DEFENSE
ing]_
par-
in this
[T]he circumstances
think the instruction
Judge, but I don’t
my
knowledge
ticular case
client’s
[include]
I don’t think it follows the
deceased,
background
follows the law.
the deceased’s
violence,
violence,
history for
his
law.
kill, yet his
require
... would not
passion
that the act of
has thus lost control
6. Heat of
does not
reasonable,
killing
killing
provocation
be
for a reasonable
is
to the
is
homicidal reaction
[or her]
really
"What
meant
'reasonable
no crime.
LaFave and A.
understandable.” W.
at least
Scott,
provocation'
provocation
7.10,
a rea-
which causes
(1986), §
Criminal Law
Substantive
[person]
[or her]
normal self-
sonable
control;
to lose
2, p.
Vol.
256.
[person]
although
who
a reasonable
Scott,
THE
[T]his
COURT:
is an instance of LaFave and
Substantive Criminal
(1986), 7.10,
giving
specifically
§
p.
an instruction
Law
tailored to
Vol.
case,
and I believe it does state the
Russo,
In State v.
69 Haw.
stability. argues Ha that the reasonableness jectivity doctrine, of the common-law it reactions, perceptions, of his and conduct requires still the actor’s emotional should light have been evaluated in of this distress be based on explana- “reasonable syndrome. tion or key phrase pre- excuse”. This objective essentially serves the character When the law tests the reasonableness of a inquiry of the against and erects a barrier actions, defendant’s the issue is what a rea- debilitating legal individualization of the sonable would have done in the defen- standard. dant’s circumstances. As we indicated our self-defense, discussion of a defendant’s “cir- Granted, may mentally encompass [Russo]
cumstances”
have been
aspects
the various
emotionally disturbed;
or
nothing
of a
knowledge,
defendant’s
Rus-
experience, and
provided
so
physical
offered
“a
situation.
reasonable ex-
agree
we
planation or
Judge
excuse” for his conduct
Souter that
the reasonableness of the
any test of
ruling
defendant’s
reasonableness....
A
conduct must not be evaluated
by asking
evidence of this nature ...
person suffering
what a
furnishes a
from men-
mitigating
basis for
abnormality
tal
the offense of
would
murder
thought
have
or done.
manslaughter
would undermine the nor-
Some cases have considered whether the
message
mative
of the criminal law[.]
account,
law should take into
in measuring
Russo,
(citations omitted).
199 defendant) jury correctly to have the instruct- was not erable prior assault on the tim’s court, ed. trial and we do not find argued above, the law has
plain error. As noted reaching Id. at 113-14 n. 3. decision traditionally to consider a defen- refused Folger, on of the Alas we relied decisions abnormality deciding dant’s mental Supreme concluded re ka Court which we claims, no heat passion cites heat of quired judge trial to instruct on self- accepted have passion cases which supporting defense even where the evidence proposed rule law. claim was weak the defendant’s self-defense State, implausible. v. 602 P.2d Houston Conclusion (Alaska 1979); State, 784, Toomey v. 581 above, (Alaska 1978). up- 1124, 1126 explained For the reasons n. 6 We have P.2d See, refusal to instruct consistently precedent. hold Souter’s to this adhered (Alas self-defense, State, uphold and we also e.g., on 836 P.2d Willett v. that Ha’s mental App.1992); decision to instruct 736 P.2d ka Carson (Alaska should not be considered when App.1987). abnormalities I see our decision deciding passion. claim of departure precedent Ha’s heát from that this case as a consequently dissent. judgement superior court is AFFIRMED. primary defense was self-defense.
agree that Ha’s defense suffered severe
COATS, J., dissents.
elapsed
problems because of the time
Buu’s assault and the moment when
between
*15
COATS,
dissenting.
Judge,
that
Ha shot Buu. There is little evidence
(Alaska
Folger
avoid a needless pre-
which a weak case for self-defense in a also think case such
sented. We presented as a self-defense is
this where defense,
possible there is a understanding
jury may consider its own of an
of what self-defense is the absence pref-
instruction from the court. It seems