Opinion
A-13331
08-25-2021
NEVILLE DERRICK WETHERHORN, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Palmer, Trial Court No. 3PA-17-00806 CR Kari Kristiansen, Judge.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Neville Derrick Wetherhorn was arrested after firing off gunshots at a campsite, which resulted in physical altercations with his girlfriend, her friend, and some concerned people from a nearby campsite. He was later convicted, following a jury trial, of third-degree weapons misconduct (felon in possession of a concealable firearm); fourth-degree weapons misconduct (possession of a firearm while intoxicated); fourth-degree assault (recklessly causing physical injury to another person); and disorderly conduct (making unreasonably loud noise in a public or private place with intent to disturb, or with reckless disregard for, the peace and privacy of another). He now appeals these convictions, raising two claims.
AS 11.61.200(a)(1).
AS 11.61.210(a)(1).
AS 11.41.230(a)(1).
AS 11.61.110(a)(2).
First, Wetherhorn argues that the trial court abused its discretion when it denied his motion for a mistrial after the prosecutor inadvertently played a section of an audio recording in which Wetherhorn referred to himself as a felon.
Whether to grant a mistrial is a decision that is committed to the sound discretion of the trial court, and we will reverse the trial court's decision only if the court has abused that discretion. The trial court has the opportunity to observe the tainted evidence in context and is therefore in a better position than an appellate court to determine whether there has been substantial prejudice. Thus, we will only reverse when "after reviewing the whole record, [we are] left with a definite and firm conviction that the trial court erred in its ruling."
Hewitt v. State, 188 P.3d 697, 699 (Alaska App. 2008).
Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
Hewitt, 188 P.3d at 699 (quoting Tritt v. State, 173 P.3d 1017, 1019 (Alaska App. 2008)).
Here, the trial court granted Wetherhorn's motion to bifurcate the third-degree weapons misconduct (felon in possession) charge from the other charges so that the jury would not hear about Wetherhorn's felony status until after it had already heard the evidence and rendered a verdict on the other charges. In accordance with this ruling, the prosecutor attempted to redact any reference to Wetherhorn being a felon from her presentation of the evidence. However, when playing the audio recording of Wetherhorn's loud and disruptive behavior at the hospital where he was taken after his arrest (which formed the basis for the disorderly conduct charge), the prosecutor inadvertently allowed the jury to hear Wetherhorn saying that he was being treated poorly because he was a felon. The prosecutor immediately realized what had happened and stopped the recording.
Wetherhorn later moved for a mistrial based on the jury hearing that he was a felon. After taking additional time to consider the motion for a mistrial, the trial court denied the motion. The trial court based its decision to deny the motion on the fact that the reference was brief and it was not clear that the jury had heard it or focused on it. (Per the trial court's policy, the jurors were allowed to submit questions after each witness; none of the jurors asked any questions about Wetherhorn's felony status.) The trial court offered to give a curative instruction, which Wetherhorn's attorney declined.
Given these circumstances, we find no abuse of discretion in the trial court's decision to deny the motion for a mistrial.
Second, Wetherhorn argues that the trial court erred when it refused his request to instruct the jury on self-defense. Wetherhorn was charged with fourth-degree assault based on allegations that he struck his girlfriend after his girlfriend and her friend took Wetherhorn's gun from him and tried to take his keys so he could not drive. At the time of the incident, Wetherhorn's girlfriend reported that Wetherhorn struck her, and she had injuries to her head and elbow. However, by the time of trial, Wetherhorn's girlfriend claimed not to have any memory of the incident. The friend also claimed lapses of memory and referred only to "arguing" and "push[ing]" that had happened, though in her original statement to the troopers, she had claimed Wetherhorn hit her and pushed her to the ground. Both the girlfriend and the friend were impeached with their prior inconsistent statements to the troopers.
Wetherhorn did not file a notice of self-defense prior to trial, and his attorney did not even suggest that self-defense was at issue in the case until after the evidence in the case was closed. At that point, the attorney argued that the jury should be instructed on self-defense under the theory that neither the girlfriend nor the friend had directly identified Wetherhorn as the initial aggressor in their trial testimony and therefore it was possible that he was not the initial aggressor in the "scuffle" that had occurred. The prosecutor objected to any instruction on self-defense, arguing that it was both untimely and unsupported by the evidence. The prosecutor pointed out that nobody had ever identified the girlfriend or the friend as the initial aggressors, and the physical altercation only began because Wetherhorn was firing gunshots into the campsite while intoxicated.
The trial court denied the request for a self-defense instruction, ruling that Wetherhorn had failed to provide "some evidence" of self-defense justifying such an instruction, even after viewing the evidence in the light most favorable to him. Having independently reviewed the record, we find no error in that ruling.
See Ha v. State, 892 P.2d 184, 190-91 (Alaska App. 1995) (explaining that the "some evidence" test is not a heavy or exacting burden and requires the trial court to view the evidence presented by the defendant in the light most favorable to the defendant).
See State v. Garrison, 171 P.3d 91, 94 (Alaska 2007).
Accordingly, the judgment of the superior court is AFFIRMED.