Opinion
Court of Appeals No. A-9523.
June 4, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-04-11843 Cr.
Paul E. Malin, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the A ppellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Thomas B. McElwain appeals his convictions for third-degree assault and first-degree eluding a police officer. He argues that his trial judge committed error by refusing to instruct the jury on the defenses of self-defense and necessity. For the reasons explained here, we conclude that the evidence presented at McElwain's trial did not justify instructions on these defenses, and we therefore affirm McElwain's convictions.
AS 11.41.220(a)(1)(A) and AS 28.35.182(a)(1), respectively.
The evidence presented at McElwain's trial
On the night of December 4-5, 2004, two Anchorage police officers — Sergeant Ronald Tidler and Detective Mark LaPorte — were working as part of a crime intervention unit along the Fourth Avenue corridor in downtown Anchorage. Both officers were in plain clothes, but they carried badges and guns, and they wore bulletproof vests.
Around 2:30 in the morning, Tidler and LaPorte were in the Gaslight Lounge when "last call" was announced. The bar's security guards were trying to force two unruly patrons outside, and Tidler and LaPorte went to the aid of the security guards.
LaPorte pulled his badge out from under his shirt and pushed the most unruly patron, Brian Brown, out of the door and onto the hood of a car, where he handcuffed him. As LaPorte did so, he announced to Brown that he was a police officer. He then took Brown into the Gaslight's security office. Security guards had the second patron in custody, and they accompanied LaPorte to the Gaslight's security office.
In the meantime, Tidler was standing outside the bar, talking to a third man who apparently was in the company of the two unruly patrons, but who was not personally involved in the altercation. Tidler told this man that he was a police officer, and that the man needed to leave the area.
During Tidler's conversation with the third patron, a fourth man was standing outside the bar, about six feet away. This man was later identified as Thomas McElwain. During the altercation, he appeared to be either smoking or talking on his cell phone. When the third patron left the area at Tidler's request, McElwain followed him.
A short time later, while Tidler was still outside the bar, a former Gaslight security guard came up to him and whispered, "Yo — why does homey have a sword?" When Tidler asked what that meant, the former security guard motioned to McElwain — who had apparently returned to the Gaslight and was standing about ten feet away. The former security guard said, "That guy is packing a sword."
Tidler made eye contact with McElwain and asked him, "Do you have a sword?" McElwain made no answer and merely shrugged. Tidler then began to move slowly toward McElwain. He drew his pistol and said, "Anchorage Police. Let me see your hands." McElwain froze, but he didn't show his hands to Tidler.
At that moment, a security guard came up behind McElwain. The security guard grabbed the hilt of McElwain's sword, withdrew it, and backed away. The sword was short, about twelve inches long — more like a long knife than a sword.
After the security guard disarmed him, McElwain said, "It's okay; it's okay," and then he started advancing on Tidler. Tidler repeated, "Anchorage Police", and he told McElwain to stop.
Tidler apparently continued to approach McElwain. When the two men were close enough that they were almost touching, McElwain looked at Tidler's handgun and said something about having one of his own.
(Three witnesses testified about McElwain's words. According to Tidler, McElwain said, "I've got one bigger than that. I'll show it to you." According to the security guard who disarmed McElwain, McElwain said, "Fuck this. I'm going to get my gun." And according to the former security guard who had first alerted Tidler to the sword, McElwain said, "My gun is bigger than yours.")
Tidler again told McElwain, "Stop. Anchorage Police." At this point, McElwain responded, "I don't care who you are." McElwain then began walking away from the bar, into the parking lot. Tidler followed McElwain. Because Tidler believed that McElwain intended to retrieve a gun from his car, Tidler called for back-up. LaPorte, who was already on the scene, went out to assist Tidler.
McElwain walked to his car. Tidler began yelling, "Stop, stop! Police. Don't go to the car." Then Tidler and LaPorte got on either side of the car with their guns drawn, yelling, "Police!" In addition to this verbal assertion of their identity as police officers, LaPorte's badge was hanging around his neck by a leather cord, clearly visible.
Despite these commands to stop, McElwain got into his vehicle and reached under his seat. Tidler thought he was going for a gun, but McElwain then raised his hands to show the officers that he had no gun, and that he had merely retrieved his keys from under the seat. McElwain then proceeded to insert his key in the ignition.
LaPorte opened the passenger door of McElwain's car and yelled "Stop!" He also tried to kick McElwain. While LaPorte was in this position, with one leg in the car, McElwain started the car and threw it into reverse. LaPorte shifted his weight into the vehicle and lifted his other foot off the ground, to avoid being dragged underneath the car.
According to LaPorte, McElwain "floored it", but there was very little traction because the parking lot surface was covered with snow and ice. This lack of traction saved LaPorte from injury, because McElwain could not get the car moving very fast.
At this point, Tidler decided that his partner's life was in jeopardy, and he shot the left front tire of McElwain's car to slow it down. Tidler contemplated shooting McElwain as well, but he was worried that a bullet might hit LaPorte.
While this was occurring, a marked patrol car pulled into the parking lot with its lights and siren on, and McElwain stopped reversing his vehicle. LaPorte seized this opportunity to jump out of McElwain's car, and he then circled to the front of the car. McElwain put the car in a forward gear and drove straight toward LaPorte. Again, because of the snow and ice, McElwain's vehicle did not have much traction, and the car moved slowly enough to give LaPorte a chance to put his hand on the front panel of the car and spin himself out of the way. However, the open passenger door struck LaPorte as the car went by. Meanwhile, Tidler shot the left rear tire.
McElwain continued forward, then turned right — crashing into a barricade and then into a dumpster. He did not stop, but instead left the parking lot by turning onto H Street and then right onto Fourth Avenue. Tidler and LaPorte gave chase on foot, while the patrol car (the one that had arrived with back-up officers) followed with its lights and sirens on.
McElwain drove fast and ran a couple of red lights, apparently trying to evade the pursuing patrol car. He then abruptly pulled into a parking lot at the corner of 6th and H. McElwain turned his car off and began to get out of the car. When the officers placed him in custody, he asked them what was going on.
McElwain's request for jury instructions on self-defense and necessity
The State charged McElwain with third-degree assault on the theory that he recklessly placed LaPorte in fear of imminent serious physical injury by means of a dangerous weapon (to wit, his vehicle). At trial, McElwain argued that he was entitled to an instruction on self-defense (or, in the alternative, necessity) because he honestly and reasonably believed that he was being unlawfully attacked by armed men. In other words, McElwain's claims of self-defense and necessity were premised on the underlying assertion that, throughout his encounter with Tidler and LaPorte, McElwain remained ignorant of the fact that the two men were police officers.
A defendant seeking a jury instruction on self-defense or necessity must point to "some evidence" supporting the requested instruction. In this context, the phrase "some evidence" is a term of art; it means "evidence that, if viewed in the light most favorable to the defendant, [is sufficient to] allow a reasonable juror to find in the defendant's favor on each element of the defense." State v. Garrison, 171 P.3d 91, 94 (Alaska 2007).
See also Dandova v. State, 72 P.3d 325, 332 (Alaska App. 2003); Lacey v. State, 54 P.3d 304, 308 (Alaska App. 2002); Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995); Paul v. State, 655 P.2d 772, 775 (Alaska App. 1982).
Even viewing the evidence in the light most favorable to McElwain, no reasonable fact-finder could conclude that the officers failed to identify themselves as police officers during their encounter with McElwain.
In his brief to this Court, McElwain argues that even if the officers did identify themselves, it is still possible that "McElwain did not understand or hear them". McElwain also argues that, even if the police did identify themselves, and even if he did hear and understand what they were saying, this would not necessarily lead to the conclusion that McElwain would "automatically and necessarily believe [that] their representations were authentic".
But there was no testimony to support any of these assertions. McElwain did not take the stand, and no other witness suggested that McElwain had any sort of impairment (whether physical or mental) that would have prevented him from seeing and hearing the officers identify themselves, or that any other surrounding circumstance prevented McElwain from hearing or understanding what the officers were saying to him when they repeatedly identified themselves as the police and ordered him to stop. Likewise, there was no testimony to support the conclusion that McElwain honestly and reasonably doubted the truthfulness of the officers' assertions that they were the police.
It is true that the "some evidence" test requires a court to view the evidence in the light most favorable to the defendant's claim. But as this Court explained in Hilbish v. State, 891 P.2d 841 (Alaska App. 1995), it is not sufficient for a defendant to simply "conjure scenarios involving [a proposed defense] that would arguably be consistent with the evidence at trial". Id. at 852. The State was under no burden to disprove McElwain's assertions of self-defense or necessity until there was some evidence affirmatively suggesting that McElwain's suggested factual scenarios might actually have happened. See Id. It was not sufficient for McElwain to argue that the evidence presented at his trial failed to actively disprove his suggestions that he did not hear or understand the officers, or that he honestly and reasonably distrusted what they were saying. See Id.
Accordingly, we conclude that the trial judge properly declined to instruct the jury on self-defense or necessity.
Conclusion
The judgement of the superior court is AFFIRMED.