Opinion
A-13579
10-05-2022
ROBERT TYRONE GENTLEMAN III, Appellant, v. STATE OF ALASKA, Appellee.
Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks Trial Court No. 4FA-17-00687 CR, Ben A. Seekins, Judge.
Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE
Robert Tyrone Gentleman III was convicted of first-degree failure to stop at the direction of a peace officer for driving his car recklessly for multiple miles after he was signaled to stop by a state trooper. At trial, Gentleman testified that he did not stop because he believed that an encounter with the police was likely to result in his death or serious injury due to an outstanding warrant for his arrest. Based on this testimony, he asked that the jury be instructed on the defense of necessity. The superior court declined to give Gentleman's requested instruction.
AS 28.35.182(a)(1).
Gentleman now appeals his conviction for first-degree failure to stop. For the reasons explained in this opinion, we agree with the superior court that Gentleman was not entitled to a necessity defense under the circumstances presented in this case. We therefore affirm Gentleman's conviction.
Background facts
In early April 2017, Gentleman was driving a truck in North Pole. Alaska State Trooper Edward Halbert, who was driving in the opposite direction, noticed that the truck did not have a front license plate. The truck made a left turn in front of Halbert, and Halbert noticed that snow was packed on and obscuring the rear license plate, despite the fact that there was no snow anywhere else on the truck and it was a sunny, fifty-degree day.
Trooper Halbert followed the truck and activated his lights, signaling that the driver should pull over. But rather than pull over, the driver of the truck took a sudden turn and appeared to speed up. Halbert followed the truck until it reached a dead end in the road, where the driver spun the truck around rapidly and headed back in the opposite direction. Halbert turned around and continued his pursuit.
The truck sped up to what Halbert estimated was forty to fifty miles per hour, which Halbert testified was a high speed, given that the road was narrow, rough, and marked with pot holes. At the end of the road, there was a stop sign and a pile of snow that blocked the ability to see oncoming traffic. Halbert testified that the truck slowed down, ran the stop sign, and took a blind left turn from behind the snow pile.
The truck, with Halbert in pursuit, came upon a Jeep, which made a right turn. The truck and Halbert followed the Jeep, and the two then passed the Jeep. The truck then turned onto another road, which was covered in slush, causing the truck to lose traction and fishtail a bit. Halbert testified that he believed it was possible that the driver of the truck might lose control of the vehicle.
The truck made a final turn onto a road that eventually came to a dead end. At this point, the truck stopped, and the driver put both of his hands out the window. The driver told some pedestrians on the street to record his arrest, while Halbert radioed for additional officers to assist him in the arrest. While waiting for the officers, the driver of the truck told Halbert that he would not reveal his name until after he was handcuffed. Ultimately, once he was handcuffed, the driver informed Halbert that his name was Robert Gentleman, and Halbert recognized him because he had an outstanding arrest warrant.
Gentleman was arrested and indicted for first-degree failure to stop at the direction of a peace officer. Prior to trial, Gentleman provided notice of his intent to rely on the defense of necessity.
AS 28.35.182(a)(1) (knowingly failing to stop a vehicle as soon as practical and in a reasonably safe manner when requested to do so by a peace officer, while also committing the additional offense of reckless driving); see also AS 28.35.400 (defining reckless driving). Gentleman was also charged with, and convicted of, improper use of evidence of registration because he was driving with mismatched license plates. AS 28.10.481. He does not challenge this conviction on appeal.
At trial, Roxanne Sourapas, the mother of Gentleman's child, testified that she had seen a news report prior to Gentleman's arrest that listed Gentleman on a local "most wanted" list. She also testified that the report portrayed him as a "really bad guy."
Gentleman testified that he was scared when Halbert tried to initiate a traffic stop because Sourapas had told him that the police had "shoot to kill orders on [him]," and because a police officer had recently shot his cousin. Gentleman testified that he wanted to have witnesses to his stop, and that he had been trying to drive to a destination where he expected there to be witnesses.
The prosecutor cross-examined Gentleman extensively on whether there were alternative courses of action he could have taken instead of violating the law by eluding a police officer. Notably, the prosecutor asked Gentleman whether he could have turned himself in to the police prior to driving on the day in question:
Prosecutor. Okay. Now, before this happened, when you started to become worried as you say that you might be in danger from police action, couldn't you have arranged for your safe turning in to law enforcement on these warrants?
Gentleman: Yeah, maybe.
Prosecutor. So you could have turned yourself in and avoided any kind of hostile high risk interaction with law enforcement, right?
Gentleman: True.
Prosecutor: And you could have called them directly, you could have gone through a family member or anyone else that could have helped you if you didn't want to speak to them directly, couldn't you?
Gentleman: Possibly.
After the prosecutor's cross-examination of Gentleman, defense counsel did not ask any questions on redirect examination.
Following Gentleman's testimony, defense counsel requested that the jury be instructed on the defense of necessity. The superior court denied this request, concluding that Gentleman had failed to present some evidence that he reasonably believed there were no adequate alternatives to failing to stop. In particular, the court noted that, according to the testimony, Gentleman was informed prior to the attempted traffic stop that he was on a "most wanted" list, and he took no action to remedy the situation:
The law assumes that you can't create your own necessity. So in other words, his reasonable alternative would have been prior to this date to turn himself in. He could have arranged in any manner or fashion to have press present, witnesses present, cameras present at a time prior to this traffic stop occurring.
The court further stated that a person with a warrant "cannot simply choose to maintain [their] presence outside of custody with an indefinite belief that [they] never have to stop for police because [they] feel afraid of them."
Gentleman now appeals, challenging the superior court's denial of his request for an instruction on the defense of necessity.
Why we uphold the superior court's denial of Gentleman's request for a jury instruction on the defense of necessity
Under Alaska law, a criminal defendant may assert an affirmative defense of necessity to the extent permitted by common law, except when the defense is preempted or otherwise specifically delineated by the legislature.
AS 11.81.320.
To prove the defense of necessity, a defendant must show by a preponderance of the evidence that: (1) the defendant committed the charged offense to prevent a significant evil; (2) there was no adequate alternative to the charged offense; and (3) the harm caused was not disproportionate to the harm avoided by breaking the law. When, as here, the offense is a continuing one, a defendant must also show that they stopped breaking the law as soon as the necessity ended. With respect to the first, second, and fourth elements, the defendant's conduct is evaluated based on the defendant's reasonable beliefs at the time of acting.
State v. Garrison, 171 P.3d 91, 94 (Alaska 2007) (explaining the elements of the necessity defense); see AS 11.81.900(b)(2)(B) (providing that the defendant has the burden of proving an affirmative defense by a preponderance of the evidence).
Garrison, 171 P.3d at 94.
Id.
To receive an instruction on the defense of necessity, a defendant is required to present "some evidence" of each of these elements. "Some evidence" is evidence that, when viewed in the light most favorable to the defendant, would allow a reasonable juror to find in the defendant's favor on each element of the defense. We review de novo the question of whether a defendant presented evidence sufficient to justify an instruction on the defense of necessity.
Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010).
McGee v. State, 162 P.3d 1251, 1262 (Alaska 2007).
Scharen v. State, 249 P.3d 331, 333 (Alaska App. 2011).
In this case, the superior court found that Gentleman failed to present sufficient evidence that he reasonably believed there were no adequate alternatives to committing the charged offense. In particular, the court found that Gentleman could have turned himself in to the police in a safe, reasonable manner prior to the attempted traffic stop, when he first developed a fear that a police encounter could lead to his death, and that this option was a "reasonable alternative" that defeated Gentleman's request for a necessity instruction. Gentleman characterizes this as a ruling that he had failed to meet the second prong of the necessity defense.
We question whether an alternative that predated the perceived emergency can be relied on to defeat the second prong. As one commentator has noted, "It is sometimes said that the defense of necessity does not apply except in an emergency - when the threatened harm is immediate, the threatened disaster imminent." The threatened harm - i.e., the risk of a violent encounter with Trooper Halbert - did not materialize until Halbert signaled for Gentleman to pull over. At that point, Gentleman did not have the adequate alternative of turning himself in to the police.
2 Wayne R. LaFave, Substantive Criminal Law § 10.1(d)(5), at 175 (3ded. 2018); see also Guthrie v. State, 2009 WL 1424447, at *3 (Alaska App. May 20, 2009) (unpublished) (upholding trial court's refusal to give necessity instruction when the situation faced by the defendant "was not an emergency that required immediate action" and thus, the reasonably foreseeable harm from engaging in the illegal activity was disproportionate to the harm avoided).
But we view the superior court as identifying a more fundamental problem with Gentleman's necessity defense - that Gentleman was not entitled to a necessity instruction because he knowingly created the situation by failing to turn himself in when he was aware of his outstanding warrants. This ruling is grounded in the first prong of the necessity defense and is supported by our decision in Scharen v. State.
Scharen, 249 P.3d at 334.
In Scharen, we held that a defendant is not entitled to raise a defense of necessity when the defendant knowingly created the situation that required them to engage in unlawful conduct. In that case, the defendant attended a fundraiser at which his wife was working. He had a few drinks and began to nod off at the bar, so his wife told him to leave and go wait in their car until she finished working. It was around eighteen degrees out, so the defendant started the engine for heat, and "deliberately went to sleep" in the driver's seat. Shortly thereafter, a passerby noticed him asleep in the car, tried to rouse him, failed, and called the police; the police woke him up and subsequently arrested him for driving under the influence. At trial, the defendant requested a necessity instruction, arguing that he had to turn the engine on for warmth. The trial court declined to give the instruction.
Id.
Id. at 332-33.
On appeal, we upheld the trial court's refusal to give a necessity instruction. We concluded that the defendant had failed to present sufficient evidence of the first prong of the necessity defense - i.e., that he committed the offense to prevent a significant evil (injury or death because of sub-freezing temperatures). We noted that, under AS 11.81.320(a), the defense of necessity is available only "to the extent permitted by common law" - and that the common law generally does not allow a defendant to rely on the defense of necessity if the underlying claim is that the defendant was required to break the law in order to avoid, cure, or alleviate a significant evil of their own making.
Id. at 334.
Id. at 333.
We held that, by knowingly leaving a "warm bar, safe from the elements" and going to sit in his car, the defendant made a "conscious decision" to put himself in the position where he would need to start the engine to keep warm. He therefore was not entitled to an instruction on the defense of necessity.
Id. at 334. We declined to decide the extent to which a defendant who "recklessly" or "negligently" brought about the dangerous situation was precluded from raising a necessity defense. Rather, we limited our holding to a defendant who "knowingly" created the situation giving rise to the claimed necessity. Id.
We distinguished this ruling, on the first prong of the necessity instruction, from our alternate holding that the defendant had also failed to present some evidence of the second prongi.e., that he had no adequate alternatives to continuing to sit in the cold car. As to the first prong, we examined the events leading up to the defendant's decision to sit in the car - the choices the defendant made that laid the groundwork for the eventual emergency. Id. As to the second prong, we examined whether the defendant had adequate alternatives to turning on the engine in order to meet the emergency (freezing temperatures) once it manifested itself. Mat 334-35.
The same rationale applies in this case. If we define the significant evil Gentleman faced as the immediate risk of a violent encounter with Trooper Halbert, as our case law and the relevant commentary suggests we should, it would be incorrect to say that Gentleman had an "adequate alternative" to evading the officer at the time the significant evil materialized. But under these circumstances, Gentleman would still not be entitled to an instruction on the defense of necessity - not because he had an adequate alternative, but because he knowingly created the significant evil he later sought to avoid when he chose to drive around North Pole despite being aware that he had recently been featured on a news report of the "most wanted" local criminals. The fact that he did not have a front license plate on his vehicle and had snow obscuring his rear license plate only heightened the risk that he would be stopped by a law enforcement officer.
Gentleman argues that the record is ambiguous as to when he first learned from Sourapas that he was on the "most wanted" list, and that it is possible that the call with her occurred so shortly before he drove that he did not have the option of turning himself in. As we have explained, however, Gentleman acknowledged on the stand that he could have turned himself in to police prior to driving. Once Gentleman admitted that it was "true" that he "could have turned [himself] in [before driving]," the burden was on defense counsel to ask follow-up questions explaining or clarifying Gentleman's answers. In light of Gentleman's uncontroverted admissions, we reject Gentleman's claim that it is possible the call occurred so soon before he drove that he did not have time to turn himself in to police.
See Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010) (noting that it is the defendant's burden to present "some evidence" of each of the elements of the necessity defense).
For these reasons, we conclude that Gentleman was not entitled to a jury instruction on the defense of necessity.
We also note that Gentleman offered no explanation for why he was privileged to drive recklessly, an element of first-degree failure to stop. See Stanfill v. State, 2006 WL 2389537, *3 (Alaska App. Aug. 16, 2006) (unpublished) (upholding trial court's denial of necessity instruction where defendant failed to present evidence that the risk to the public caused by his reckless driving was outweighed by the potential harm to him if he pulled over for the police officer whom the defendant believed might harm him: "This case does not present a situation where [the defendant] refused to stop while otherwise continuing to drive in a reasonable manner.").
Conclusion
The judgment of the superior court is AFFIRMED.