Opinion
Court of Appeals No. A-12192 No. 6778
03-06-2019
TERENCE CLYDE GRAY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Whitney Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-10-2702 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Whitney Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
Following a jury trial, Terence Clyde Gray was convicted of one count of second-degree murder for shooting and killing Edwing Matos.
AS 11.41.110(a)(1).
Gray appeals his conviction, arguing that the trial court erred by declining to instruct the jury on the defense of heat of passion. For the reasons explained in this opinion, we agree.
Gray raises two additional claims. First, Gray argues that the superior court committed plain error by failing to address improper arguments made by the prosecutor during closing arguments. Second, Gray argues that the superior court erred in admitting certain firearm-related evidence. We reject these two claims.
Given our resolution of Gray's claims, we reverse Gray's conviction for second-degree murder. The State may, at its option, either retry Gray for second-degree murder or, instead, elect to have the superior court enter a conviction for manslaughter — the crime for which Gray would have been convicted had the jury resolved the heat-of-passion defense in his favor.
See LaPierre v. State, 734 P.2d 997, 1005 (Alaska App. 1987).
Underlying facts
The events in this case began with the burglary of Edwing Matos's home on February 24, 2010. Two days later, Matos told Dennis Johnson, his cousin and employer, that he had located a PlayStation for sale on Craigslist that he thought might be one that was stolen from his residence.
Johnson located the advertisement on Craigslist and noticed that the seller identified himself as "T" (later identified as Terence Gray). Johnson called the phone number listed in the Craiglist advertisement to inquire about the PlayStation.
Johnson met with Gray at Gray's apartment complex later that afternoon and agreed to purchase the PlayStation. After receiving a phone call, Gray attempted to give Johnson a different PlayStation, but Johnson took the PlayStation he had initially tested and left Gray's residence.
Johnson gave the PlayStation to Matos. Matos called Johnson later that evening and confirmed that the PlayStation belonged to him.
The next day, Matos contacted Johnson to ask for a ride from Costco. Matos told Johnson that he had contacted Gray, and Gray had agreed to meet Matos at Costco to return Matos's other belongings. But Gray was not answering any of Matos's phone calls, and he had seemingly stood Matos up.
Johnson and Shelton McCarty drove to Costco to pick up Matos. After they met Matos, however, Gray called Matos, and Gray and Matos agreed to meet instead at the Dimond Center.
Once at the Dimond Center, McCarty dropped Johnson and Matos off at different doors, and McCarty remained in the car. Inside the mall, Johnson observed that Gray was wearing a white hoodie, ball cap, wig, and fake mustache and beard. Johnson assumed that Gray was wearing a disguise so that Matos could not describe him to the police.
After Matos and Gray made contact, they sat down on a bench; Johnson observed that they appeared to be having an amicable conversation and that neither man was postured in a defensive or confrontational mode. Although there did not appear to be any conflict, Johnson stood nearby and continued to watched their interaction.
At one point, Gray noticed Johnson standing nearby, watching him and Matos. Johnson made eye contact with Gray, and Gray appeared to recognize Johnson.
Soon afterward, Gray stood up and began walking away from Matos. Matos, who was on his phone, nodded at Johnson to indicate, "Let's go." Johnson took a step toward Matos, but stopped momentarily to look down at his phone. Johnson then heard two shots. He looked back up and saw Gray standing with a gun in his hand.
Gray then came toward Johnson. Gray leveled the gun at Johnson and began pulling the trigger. But the gun did not fire, and Gray then ran away.
McCarty noticed people fleeing from the mall, so he decided to go inside to check on Matos and Johnson. McCarty observed Matos on the ground with a pool of blood around him. (There was a dispute at trial as to whether McCarty picked up a gun from Matos as he lay on the ground.)
Matos died from his wounds.
A grand jury indicted Gray on one count of first-degree murder for killing Matos, one count of attempted murder for attempting to shoot Johnson, and one count of third-degree assault for pointing a firearm at Johnson.
AS 11.41.100(a)(1)(A); AS 11.31.100; and AS 11.41.220(a)(1)(A), respectively.
Gray proceeded to a jury trial, maintaining that he shot Matos in self-defense. Gray testified that on the day before the shooting, Matos had appeared at his apartment and pointed a gun at him. Gray contended that, when he was with Matos the following day at the Dimond Center, Matos told him, "You're coming with us." When Gray tried to walk away, Johnson stepped in front of him. Gray said that he felt surrounded, and when he turned around, he saw a gun in Matos's waistband and heard Matos tell someone over the phone that he was going to shoot Gray. Gray then shot Matos. (We discuss Gray's testimony in more detail later.)
At Gray's request, the court instructed the jury on self-defense. The court also instructed the jury on the lesser included offense of second-degree murder under the theory that, with the intent to cause serious physical injury or knowing that his conduct was substantially certain to cause death or serious physical injury, Gray caused Matos's death.
AS 11.41.110(a)(1).
The jury found Gray not guilty of first-degree murder but guilty of second-degree murder for shooting Matos. The jury acquitted Gray of all charges related to the alleged assault on Johnson.
The trial court erred in failing to instruct the jury on Gray's heat-of-passion defense
During the discussion of jury instructions, Gray's attorney asked the court to instruct the jury on both self-defense and the defense of heat of passion. If successful, the heat-of-passion defense would have reduced Gray's offense to manslaughter (rather than murder). The trial court ruled that the evidence was sufficient to support a self-defense instruction, but not a heat-of-passion instruction.
AS 11.41.115(a) & (e).
We apply our independent judgment to the question of whether Gray presented sufficient evidence to entitle him to a heat-of-passion instruction.
See Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010) (noting that a court reviews de novo whether a defendant has presented some evidence of a proposed defense "after considering the entire record and viewing the evidence in the light most favorable to the defendant").
The heat-of-passion defense has three elements: (1) that the defendant committed the homicide while in the heat of passion; (2) that this passion was the result of a "serious provocation" caused by the victim (as that phrase is defined in AS 11.41.115(f)(2)); and (3) that a reasonable person in the defendant's circumstances would not have cooled in the interval between the provocation and the homicide. If a defendant presents "some evidence" on each of these three elements, he is entitled to an instruction on heat of passion. The State then bears the burden of disproving this defense beyond a reasonable doubt.
See Luch v. State, 413 P.3d 1224, 1229 (Alaska App. 2018); Wilkerson v. State, 271 P.3d 471, 473 (Alaska App. 2012).
Dandova v. State, 72 P.3d 325, 332 (Alaska App. 2003).
See AS 11.41.115(a) & AS 11.81.900(b)(19).
The trial court effectively ruled that Gray had failed to present sufficient evidence of the first element — that he acted in the heat of passion. In particular, the trial court ruled that "fear alone is not heat of passion"; rather, the fear had to be more extreme — i.e., farther along the "bell curve." The court stated that, "having watched the video, having . . . listen[ed] to the testimony of the defendant, . . . I don't find that . . . there was sufficient fear. . . . I don't find fear of such an abnormal nature that it would result in heat of passion."
We conclude that the trial court's ruling is inconsistent with our prior case law in two respects. First, as we stated in Howell v. State, "We have consistently recognized that . . . the word 'passion' encompasses more than anger or rage; it includes fear, terror and other intense emotions." Thus, a claim based solely on fear may be sufficient to entitle the defendant to an instruction on the defense.
Howell v. State, 917 P.2d 1202, 1206 (Alaska App. 1996) (collecting cases).
LaPierre v. State, 734 P.2d 997, 1001 (Alaska App. 1987).
Second, questions regarding the credibility of conflicting testimony, or the plausibility of the defendant's version of events, are issues for the jury to decide. To place the heat of passion defense at issue, a defendant need only produce "some evidence" that, when viewed in the light most favorable to the defendant, supports each element of the defense. The defendant's burden is "not a heavy one." In evaluating whether the defendant has produced "some evidence," the court must credit testimony favorable to the defense and discredit testimony unfavorable to the defense.
Howell, 917 P.2d at 1207 (citing LaPierre, 734 P.2d at 1000).
Dandova, 72 P.3d at 332.
LaPierre, 734 P.2d at 1000; see also Hilbish v. State, 891 P.2d 841, 851 (Alaska App. 1995) (noting that the "some evidence" requirement is "not a stringent one").
See Weston v. State, 682 P.2d 1119, 1122 (Alaska 1984) (evaluating the "some evidence" standard in the context of self-defense); see also Greenwood v. State, 237 P.3d 1018, 1024 (Alaska 2010) (in determining whether the defendant has presented "some evidence" to warrant a necessity instruction, "[t]he implausibility of [the] defendant's story, or any weakness in the evidence supporting that story, is not a relevant consideration"), cited in Jordan v. State, 420 P.3d 1143, 1153 (Alaska 2018).
Here, when viewed in the light most favorable to Gray, the testimony reflected the following sequence of events: Gray testified that, soon after Johnson retrieved the PlayStation from his house (the day before the shooting), an unknown male appeared at his door and pointed a gun at him. The man said, "I know you took my shit, I know what you look like, I know what your car look[s] like, and I know where you live; I'm going to be in touch." The man then walked away. Gray's friend identified the man as Matos and said that Matos was "not someone to play with" because he shoots people. Gray testified that this encounter "shook" him.
That same day, Johnson called Gray, demanded that Gray make reparations, and told Gray that his "shack-thin walls" would not protect him. Matos also called Gray that day and gave Gray a twenty-four-hour deadline to return his belongings. Gray testified that he felt like he was on "a roller coaster ride [that] you just can't get off." He testified that he was afraid to stay at his own residence that night, so he stayed at his neighbor's apartment.
The next day (the day of the shooting), Gray wore a bulletproof vest and a disguise, and he carried a gun to his meeting with Matos because he was afraid that Matos, or Matos's companions, would shoot him.
As Gray and Matos approached the benches at the Dimond Center, Gray noticed Johnson approaching. Matos told Gray that he had other friends at the mall as well. Then, when Matos did not believe Gray's story about how he obtained the PlayStation, Matos told Gray, "You're coming with us."
Gray testified that he was afraid, and he told Matos that he just wanted to be left alone. Gray got up and tried to walk away, but Johnson stepped in front of him and gave him a head nod. Gray thought they were setting him up, and he felt like he was surrounded and in a "bubble."
When Gray turned around to face Matos, he heard Matos on the phone saying, "I'm going to shoot this motherfucker." Gray observed a gun in Matos's waistband, and he believed that Matos was going to shoot him. Gray testified that he felt that he had no choice but to shoot or be shot. On redirect, Gray explained that he was not calmly considering his options at the time of the shooting; rather, he simply reacted to the perceived danger.
We acknowledge that there was evidence before the trial court that cast doubt on whether Gray was truly in the throes of passion. But as we noted earlier, even when a defendant's factual assertions are disputed, "the critical inquiry is whether there was some evidence of heat of passion," and the plausibility or credibility of Gray's version of events is irrelevant.
LaPierre, 734 P.2d at 1000; see also Greenwood, 237 P.3d at 1022, 1024 (addressing necessity defense); Folger v. State, 648 P.2d 111, 113-14 & n.3 (Alaska App. 1982) (addressing self-defense).
Ultimately, the key question is whether "the totality of the circumstances might fairly have given rise to an inference of heat of passion." If so, "it [is] not necessary for [the defendant] to claim explicitly that he had been overwhelmed with fear." Viewing Gray's testimony in his favor, we find that Gray presented sufficient evidence of heat of passion to satisfy the "some evidence" test.
LaPierre, 734 P.2d at 1001.
Id. (emphasis added).
In the trial court, and again on appeal, the State largely focuses its argument on whether Gray's testimony established the second element of the defense of heat of passion — that he acted in response to serious provocation. Under AS 11.41.115(f)(2), "serious provocation" is "conduct which is sufficient to excite an intense passion in a reasonable person in the defendant's situation . . . under the circumstances as the defendant reasonably believed them to be[.]" As Professor LaFave explains in his treatise on the criminal law, "What is really meant by 'reasonable provocation' is provocation which causes a reasonable man to lose his normal self-control; and, although a reasonable man who has thus lost control over himself would not kill, . . . his homicidal reaction to the provocation is at least understandable."
2 Wayne R. LaFave, Substantive Criminal Law § 15.2(b), at 674-75 (3d ed. 2017).
The State argues that Matos's act of pointing a gun at Gray the day before the shooting did not constitute serious provocation, since Gray had ample opportunity to cool off. The State further argues that the encounter at the mall was similarly insufficient, even when viewed together with the prior day's incidents, since Matos "never directly threatened Gray," and a reasonable person would therefore not be so impassioned as to lack the ability to reflect before shooting Matos.
But while the State's arguments may be a reasonable interpretation of the evidence, that is not the question. The question is whether Gray presented "some evidence" on this issue — i.e., some evidence that, when viewed in the light most favorable to Gray, "might arguably lead a juror to entertain a reasonable doubt" as to whether there was serious provocation.
LaPierre, 734 P.2d at 1000-01 (quoting Paul v. State, 655 P.2d 772, 775 (Alaska App. 1982)).
Ultimately, if Gray's testimony is credited — that Matos threatened to shoot Gray the day before, and then again at the mall while his hand was on the butt of a gun — Gray presented "some evidence" of serious provocation, and an insufficient opportunity to cool in the immediate aftermath.
The State argues, in the alternative, that even if the trial court erred by failing to give a heat-of-passion instruction, this error was harmless. The State notes that the evidence supporting the heat-of-passion defense was virtually identical to the evidence supporting the claim of self-defense, which the jury rejected. But we have recognized that the same facts that give rise to a claim of self-defense may also support a heat-of-passion instruction, and that the jury's rejection of self-defense does not necessarily render the absence of a heat-of-passion instruction harmless.
See, e.g., Howell v. State, 917 P.2d 1202, 1206-07 (Alaska App. 1996); Blackhurst v. State, 721 P.2d 645, 648-49 (Alaska App. 1986); see also Kirby v. State, 649 P.2d 963, 968-69 (Alaska App. 1982) (the fact that the jury rejected self-defense did not preclude a heat-of-passion defense because the jury could have found that the defendant's need to defend himself was unreasonable, or that he was the initial aggressor, but that he still acted in the heat of passion).
Here, the jury acquitted Gray of first-degree murder and all the charges involving Johnson; the jury convicted Gray of a single count of second-degree murder. It is unclear from the verdict precisely why the jury found that the State had disproved self-defense beyond a reasonable doubt. The jury's refusal to find self-defense does not necessarily reflect its rejection of Gray's claim that he reasonably believed Matos had a gun. Rather, the jurors could have reasoned that Gray was guilty of second-degree murder because they did not believe it was necessary for Gray to fire the second shot, or because they did not believe that deadly force was necessary or that Matos's use of force was imminent.
In fact, the jury specifically asked to hear a playback recording of Gray's testimony as to why he "shot twice." (The testimony indicated that the first shot to Matos's face was not fatal, but the second shot to his chest was.) Had the jury been instructed on the defense of heat of passion, this defense might have succeeded even if the jury found that Gray did not act reasonably in firing the second shot.
See Howell, 917 P.2d at 1211 n.7 ("[A] claim of heat of passion presupposes that the defendant has acted unreasonably on account of intense emotional excitement.").
For these reasons, we conclude that the trial court erred in refusing to instruct the jury on the defense of heat of passion, and that this error requires us to vacate Gray's second-degree murder conviction. But because this error at most prevented the jury from convicting Gray of the lesser offense of manslaughter, the State should be given the option of choosing between a new trial or the entry of a judgment of conviction for manslaughter.
See id. at 1211; LaPierre, 734 P.2d at 1001-02.
The possibility that the State may request entry of judgment for manslaughter requires us to consider other arguments Gray raises on appeal which, if meritorious, would require a new trial.
Gray's challenges to the prosecutor's closing argument
Gray challenges several aspects of the prosecutor's closing argument. Because Gray did not object to the prosecutor's remarks, he must establish that the trial court committed plain error by failing to intervene.
See Hess v. State, ___ P.3d ___, Op. No. 7323, 2018 WL 6718592, *3-4 (Alaska Dec. 21, 2018).
Gray contends that the prosecutor misstated several aspects of the law of self-defense. But in large measure, the prosecutor's arguments tracked the jury instructions, which Gray does not challenge. Having thoroughly reviewed the closing arguments and the parties' briefing, we conclude that any ambiguous statements about the law, or inartful word choices, when viewed in the context of the entire closing argument and the jury instructions, did not constitute plain error. We note that the prosecutor repeatedly referred the jury to specific jury instructions and reminded the jury that there were both subjective and objective elements to self-defense, and that it was the State's burden to disprove self-defense beyond a reasonable doubt. The trial court also instructed the jury that it should disregard any arguments that departed from the law, as stated in the instructions.
Gray also argues that the State violated the "golden rule" by asking the jurors, "Would you, as a panel of twelve people, have done the same thing under the same circumstance? If the answer is a unanimous yes, then you acquit Mr. Gray." A "golden rule" argument "implores the jurors to put themselves in the position of the defendant[], and then to ask themselves what kind of outcome they would wish under the circumstances." This type of argument is improper because it "encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence."
Beaumaster v. Crandall, 576 P.2d 988, 994 (Alaska 1978).
Olson v. State, 2005 WL 1683588, at *4 (Alaska App. July 20, 2005) (unpublished) (quoting United States v. Teslim, 869 F.2d 316, 328 (7th Cir. 1989)).
But viewed in context, the prosecutor's statement did not constitute an improper "golden rule" argument. The prosecutor was not asking the jurors to individually place themselves in Gray's shoes and consider what they would want the outcome to be, nor was he imploring them to decide the case based on personal interest or bias. Rather, as the prosecutor's surrounding arguments make clear, the prosecutor was asking the jurors, as a group of people in the community, to assess whether Gray's conduct was reasonable for purposes of assessing his self-defense claim. We find no obvious error from this argument.
Lastly, Gray points out that, during rebuttal, the prosecutor argued that "if . . . what you [saw] transpire here was a reasonable thing that [Gray] did, that he was justified in doing that, and that Mr. Matos deserved to die, then you need to acquit." Gray argues that the prosecutor's statement impermissibly confused the jury about its duty and was calculated to inflame the jury.
The prosecutor's statement regarding whether Matos "deserved to die" was unquestionably improper. As we explained in Rossiter v. State, "[t]he availability of self-defense does not hinge on whether the deceased 'deserved to die.'" We noted in particular that "because our law declares that self-defense is established if the defendant made a reasonable mistake regarding the need to use deadly force, there will be times when a homicide will be justified by self-defense even though the victim actually did nothing to assault the defendant." As a result, it is error for a prosecutor to frame the jury's decision on self-defense "as a referendum on the value of the victim's life."
See Rossiter v. State, 404 P.3d 223, 226-27 (Alaska App. 2017).
Id. at 226.
Id.
Id. at 227.
But unlike in Rossiter, the prosecutor's comment in this case was a brief and isolated remark within an otherwise proper explanation of the need for the jury to examine the reasonableness of Gray's response when evaluating his self-defense claim. The prosecutor clearly informed the jury that it was the State's burden to disprove Gray's self-defense claim beyond a reasonable doubt, and the jury received instructions that properly described the law of self-defense. In the absence of an objection, we cannot find that this single comment — while improper — constituted plain error requiring reversal.
See Hess v. State, ___ P.3d ___, Op. No. 7323, 2018 WL 6718592, *5 (Alaska Dec. 21, 2018) (enumerating factors for a court to consider in determining whether an improper argument was prejudicial).
Gray's challenges to the admission of the gun-related evidence
The police never recovered the .40-caliber firearm used to shoot Matos. During their investigation of Gray, however, the police collected other gun-related evidence that the State later introduced at trial over Gray's objection.
On appeal, Gray argues that the trial court erred in admitting three different items of gun-related evidence: (1) a photograph of an empty gun box recovered from Gray's apartment a day after the shooting; (2) two firearms recovered from under the bed where Gray was found hiding at the time he was arrested two weeks after the shooting; and (3) a photograph of Gray, obtained from his computer, showing Gray holding multiple firearms four months prior to the shooting. Gray argues that this evidence was not relevant and that any minimal relevancy was outweighed by undue prejudice, given Gray's concession that he shot Matos.
We agree with Gray that the court's decision to admit some of this gun-related evidence was questionable. But we conclude that any error in admitting the gun-related evidence was harmless. Given Gray's concession that he shot Matos, the gun evidence played a minimal role in the State's case against Gray. The trial focused primarily on the witnesses' observations of Gray and Matos at the Dimond Center just prior to the shooting. Even during Gray's own testimony, the central issue was what happened in the days and moments leading up to the shooting. And the prosecutor only briefly mentioned Gray's access to guns during closing argument.
See Barton v. North Slope Borough School Dist., 268 P.3d 346, 353 (Alaska 2012) (noting that in determining whether an evidentiary ruling was harmless, relevant factors include the relative amount of time at trial devoted to the evidence and whether the evidence was cumulative). --------
Moreover, with respect to the photograph of Gray with multiple guns, the trial court instructed the jury that it could not rely on the photograph for any purpose other than to show that Gray had access to guns at the time he was arrested. (The court found that the photograph was relevant to assessing Gray's credibility given Gray's testimony that he did not have access to guns after the shooting.) The judge explicitly informed the jury that it would be improper to assume, based on the photograph, that Gray was a "bad person" or that he was more likely to have committed the offenses charged. We also note that while the photograph was apparently displayed to the jury and used by the prosecutor to cross-examine Gray, it was not admitted as an exhibit — and thus, it was not available to the jury during deliberations.
We therefore conclude that the admission of the gun-related evidence challenged on appeal does not constitute reversible error.
Conclusion
We VACATE Gray's conviction for second-degree murder and REMAND this case to the superior court.
On remand, the State should be afforded the opportunity to elect to either retry Gray for second-degree murder or to have the superior court enter a conviction for manslaughter — the crime for which Gray would have been convicted had the jury found in Gray's favor on the heat-of-passion defense.