Opinion
Court of Appeals No. A-8685.
September 28, 2005.
Appeal from the Superior Court, Third Judicial District, Saint Paul, Frederick J. Torrisi, Judge. Trial Court No. 3ST-01-0055 CR.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Carl W. Merculief Jr. was convicted of murder in the first degree. At trial, Merculief requested that the jury be instructed on the affirmative defense of heat of passion. Superior Court Judge Fred J. Torrisi ruled that there was no evidence to support such an instruction and declined to give it. On appeal Merculief argues that he presented "some evidence" that he acted in the heat of passion during the killing and therefore was entitled to have the requested instruction submitted to the jury. We conclude that the evidence at Merculief's trial did not support an instruction on heat of passion.
Factual and procedural background
Carl Merculief's conviction for first-degree murder arises from his shooting of his estranged wife's boyfriend during the early morning hours of July 24, 2001.
Carl Merculief and Kari Ann Merculief were married in 1996. In January of 2001 the Merculiefs moved their family from Anchorage to a house on Saint Paul Island. By April 2001, Kari Ann and Merculief were separated. One month later Merculief moved back to Anchorage alone.
On several prior occasions, Kari Ann had attempted to leave Merculief, but Merculief had threatened to "kill [her] and whoever [she] was with." He also stated that if Kari Ann left him he would beat her or "cut her up so bad" that she would be so "ugly . . . [or] deformed . . . [that] nobody'd want [her]." Once Merculief was in Anchorage, Kari Ann told him that she wanted a divorce. Merculief did not take this well — he asked if Kari Ann was seeing anyone else and said that if she ever did, he would kill the other man.
On June 20, 2001 Timothy Harris, an officer in the Coast Guard, moved to Saint Paul Island to assume command of the Loran station. Harris and Kari Ann met about two weeks later. Shortly thereafter, the two became romantically involved.
Around this time Merculief told Kari Ann that he did not want her to have another man around their children. In June 2001, the Merculiefs' two children Nicander and Neka were five and two years old, respectively. Kari Ann did not tell Merculief about Harris because she feared for her safety, and that of Harris, if Merculief found out about their relationship. On July 21, Kari Ann was informed by a friend that Merculief was returning to Saint Paul Island. Kari Ann, frightened of what Merculief would do to her, filed for, and was granted, a restraining order barring Merculief from contacting her.
On July 23, Officer Joseph Crickenberger, of the Saint Paul Department of Public Safety, met Merculief's flight when it arrived from Anchorage. Officer Crickenberger served Merculief with the protective order and attempted to explain the order to him, but Merculief appeared to ignore him. Merculief was picked up at the airport by Thomas Bourdukofsky, his brother-in-law.
Merculief did not tell Bourdukofsky about the retraining order and asked Bourdukofsky to drive him to Kari Ann's home. Once there, Merculief took Nicander and Neka from their babysitter, Ernestine Stepetin, and went to Bourdukofsky's home. At this point Merculief called Kari Ann at work and told her that he had the children. Kari Ann then called the police, reporting that Merculief had taken the children and that he had called her in violation of the restraining order. Officer Crickenberger then called Merculief at Bourdukofsky's residence and went over the restraining order line-by-line so that Merculief would be informed of "what he was not supposed to do." While at Bourdukofsky's house, Merculief questioned Nicander about his mother's friends and the child apparently mentioned Tim Harris.
Later that evening Kari Ann asked Stepetin to pick the children up from Bourdukofsky's home. When Stepetin went to Bourdukofsky's house to do so, Merculief confronted her and asked her three times if Kari Ann was seeing anyone. Stepetin was not asked how she responded. At around 7 p.m., in Stepetin's presence, Merculief phoned Harris at the Coast Guard station. During the phone call, Merculief sounded angry and asked Harris "what are you doing at my house with my wife?" After making the phone call Merculief played video games with the children while Stepetin washed Bourdukofsky's dishes. At some point Merculief told Stepetin to "[t]ell that fucking bitch [Kari Ann] to keep her honkey boyfriends away from my kids." Stepetin took the children and left, and Merculief went to sleep on the couch.
Harris told a friend about Merculief's phone call saying that he was being "harassed." According to the friend, Harris did not seem concerned about Merculief, simply "annoyed."
When Merculief woke up, he telephoned Bourdukofsky, who had gone to a nearby bar. Just after midnight, when the bar closed, Bourdukofsky picked up Merculief and drove him to June Merculief's house. June and her sister Judy Merculief were there. The two men stayed at the house for awhile, drinking with June and Judy. At some point Merculief, referring to Kari Ann, said "[t]hat fucking bitch" had a restraining order on him. Bourdukofsky left in his truck and Merculief later departed on foot.
At around 3 a.m. Merculief returned to Bourdukofsky's house and knocked on the bedroom wall, waking him. Bourdukofsky got up and let Merculief in, then went back to bed. While Bourdukofsky was asleep, Merculief borrowed his truck and left.
Merculief drove to Tim Kochutin's house. While he was there, he spoke with Ben Feenstra and Nina Emanoff. Kochutin was asleep, but Merculief woke him. Together they watched a movie and drank beer and rum. At some point Merculief showed them a gun he had in his coat pocket, however he did not threaten anyone with it. He then asked how his wife and children were doing and again mentioned the restraining order.
At around 3:30 a.m. Merculief asked if anyone wanted to go for a drive with him. Feenstra and Emanoff declined, but Kochutin said yes. The two men left, taking some beer with them.
About a minute into the drive, Merculief began to get angry, saying that his wife was having an affair. Merculief then told Kochutin that he "was going to kill a Coast Guard [officer]" for "messing around with his wife." Kochutin told Merculief not to talk like that because he had a wife and children to think about. Merculief responded by pointing the gun at Kochutin and telling him that if he told anybody about what he (Merculief) was about to do, he would come to his house and kill him.
Merculief drove to the Coast Guard station and parked the truck, leaving Kochutin in the truck with the engine running. He told Kochutin that if he tried to drive away, he would shoot him. Kochutin waited in the truck. After a few minutes, Kochutin heard a gunshot. A few minutes later, he heard several more. When Merculief returned to the truck, his hands were covered in blood. Merculief told Kochutin, "I beat the shit out of [Harris] before I killed him." Merculief then pointed the gun at Kochutin again and told him that if he (Kochutin) told anyone about the murder, he would kill him.
After the murder, Merculief drove them to Kari Ann's house. Merculief woke Kari Ann and repeatedly told her "I killed your boyfriend" and also told her "Look Kari, I have your honkey boyfriend's blood all over me." At some point, Merculief hit Kari Ann in the forehead. He also put the gun to her head in front of the children, who had awakened.
At around 6 a.m., Merculief let Kochutin leave. Kochutin called the police and then went to Officer Crickenberger's home and told them that Merculief had killed someone and that he was worried for Kari Ann's safety.
Merculief attempted to convince Kari Ann to commit suicide with him by driving off of a cliff, but when he tried to force her into the truck, Kari Ann managed to throw his gun into the grass and run away. She then hitched a ride to the police station with a passerby.
Merculief was arrested that morning and later indicted on one count of murder in the first degree and two counts of murder in the second degree for the death of Tim Harris. He was also indicted for two counts of burglary (for breaking into the Coast Guard station and for breaking into Kari Ann's home), two counts of third-degree assault (for assaults on Kari Ann and Kochutin), and one count of weapons misconduct in the third degree (for communicating with someone in violation of a protective order while in possession of a gun). Merculief was charged by information with one count of violating a restraining order and one count of fourth-degree assault (against Kari Ann). After a jury trial, Merculief was convicted of all charges. Judge Torrisi merged the three murder convictions and sentenced Merculief to a composite sentence of 99 years.
AS 11.41.100(a)(1)(A).
AS 11.41.110(a)(1) (2).
AS 11.46.300(a)(1) and/or (a)(2).
AS 11.41.220(a)(1)(A).
AS 11.61.200(a)(9).
AS 11.56.740.
AS 11.41.230(a)(1).
Why we conclude that Merculief was not entitled to a heat of passion instruction
Alaska Statute 11.41.115 provides several defenses to murder that, if proved, would reduce the offense to manslaughter. One of these defenses is that the defendant acted in a "heat of passion." The rationale of allowing this defense is that a person who commits murder in response to serious provocation is less blameworthy and presumably less of a danger to society than a typical murderer.
AS 11.41.115(a).
Dandova v. State, 72 P.3d 325, 331 (Alaska App. 2003).
To prove the defense, a defendant must show he "acted in a heat of passion, before there had been a reasonable opportunity for the passion to cool, when the heat of passion resulted from a serious provocation from the intended victim." However, in order to qualify for an instruction, a defendant need only produce "some evidence" to support it. Once the accused has produced "some evidence," the State bears the burden of disproving heat of passion. Some evidence is a "term of art meaning `evidence which, if viewed in the light most favorable to the defendant, is sufficient to allow a reasonable judge to find in the defendant's favor on each element of the defense.'"
AS 11.41.115(a).
Howell v. State, 917 P.2d 1202, 1207 (Alaska App. 1996).
LaPierre v. State, 734 P.2d 997, 999 (Alaska App. 1987).
Dandova, 72 P.3d at 332 (citations omitted).
Merculief argues that the phone call he made to Harris provided evidence that there was serious provocation before the murder. "Serious provocation" is defined in the statute as follows:
conduct which is sufficient to excite an intense passion in a reasonable person in the defendant's situation, other than a person who is intoxicated, under the circumstances as the defendant reasonably believed them to be; insulting words, insulting gestures, or hearsay reports of conduct engaged in by the intended victim do not, alone or in combination with each other, constitute serious provocation.
As a matter of law, Merculief did not provide some evidence of "serious provocation." Merculief did not testify to the contents of his conversation with Harris, and the testimony of Stepetin established only that Merculief phoned Harris at the Coast Guard station. The jurors only knew that, during the phone call, Merculief sounded angry and asked Harris "what are you doing at my house with my wife?" The jury could not know if Harris admitted or denied the affair during the call. And there was no evidence presented that Harris said anything provocative to Merculief. There was no evidence from which the jury could find "serious provocation."
Assuming, arguendo, that the phone conversation with Harris could have provided "serious provocation," Merculief did not qualify for a heat of passion instruction. Under AS 11.41.115, a murder defendant cannot qualify for the defense of heat of passion, even when seriously provoked, if there has been a "reasonable opportunity for the passion to cool" between the time of the provocation and that of the murder.
In this case approximately eight hours elapsed between the phone call and the murder. It would be difficult for a defendant to demonstrate that his passions were aroused for this length of time. And, in this case, Merculief's actions in the intervening hours obviates any possibility that he could bear this burden: he apparently functioned quite normally during the intervening hours — he played video games with his children, socialized with friends, and even napped for a period of time. Even if we concluded that Merculief presented some evidence that Harris provoked him, there was no evidence to suggest that Merculief did not have a reasonable opportunity for his passion to cool. Furthermore, Merculief's actions after the telephone call were totally inconsistent with his claim that he was acting in the heat of passion.
Conclusion
For the reasons explained above, we conclude that Merculief was not entitled to a heat-of-passion instruction. Because Merculief did not present any evidence that his victim seriously provoked him or that he had no reasonable opportunity for his passion to cool, the trial court did not abuse its discretion in denying the requested instruction.
Accordingly, Merculief's conviction is AFFIRMED.
Although the majority opinion describes the events of July 23-24, 2001 in great detail, the pertinent facts can be described in three paragraphs:
Carl Merculief and his wife Kari Ann were estranged. Kari Ann and their two children were living in Saint Paul, while Merculief was living in Anchorage. During the Merculiefs' separation, Kari Ann commenced an affair with Timothy Harris, a Coast Guard officer stationed in Saint Paul.
In mid-July 2001, when Kari Ann learned that Merculief intended to return to Saint Paul, she obtained a restraining order against him. Merculief arrived in Saint Paul on the afternoon of July 23, 2001. He soon learned that Kari Ann had obtained the restraining order, and he also learned (from his child and also from a friend) that Kari Ann had been seeing Harris. In the early evening, around 7:00 p.m., Merculief telephoned Harris and spoke to him angrily. No evidence was presented of what Harris said during this telephone conversation, but a witness who overheard Merculief's end of the conversation testified that Merculief demanded to know, "What are you doing at my house with my wife?"
Following this conversation, Merculief spent the next seven hours playing games with his children, then taking a nap, and then socializing with friends. During this socializing, which started around midnight, Merculief began to drink and also began to dwell on his wife's estrangement and infidelity. Sometime between 3:30 and 4:00 a.m., Merculief and a friend drove to the Coast Guard station. While the friend waited in the vehicle, Merculief entered the Coast Guard station and killed Harris by shooting him several times.
The question presented in this appeal is whether the foregoing evidence is sufficient to require a jury instruction on the defense of heat of passion.
The defense of heat of passion mitigates what would otherwise be a murder to manslaughter. This defense is codified in AS 11.41.115(a). The elements of this defense are (1) that the defendant did in fact commit the homicide while in a heat of passion, (2) that this heat of passion resulted from a serious provocation by the victim, and (3) that a reasonable person in the defendant's circumstances (that is, a reasonable person who had been provoked to a heat of passion by the victim) would not have cooled down in the interval between the provocation and the homicide. See Dandova v. State, 72 P.3d 325, 330 (Alaska App. 2003).
A defendant prosecuted for murder is entitled to have the jury instructed on a heat of passion defense if the evidence shows "some evidence" of this defense. The phrase "some evidence" is a term of art; it means that, viewing the evidence in the light most favorable to the defendant, the evidence is sufficient to allow a reasonable juror to find in the defendant's favor on each element of the defense. Dandova, 72 P.3d at 332. I conclude that the evidence in Merculief's case fails to support at least two of the three necessary elements of heat of passion.
First, there was no evidence of serious provocation. Admittedly, the evidence showed that Merculief had good reason to suspect that his wife was having an affair with Harris. And, as we noted in Dandova, the victim's act of committing adultery with the defendant's spouse was "the quintessential provocation at common law". But AS 11.41.115(f)(2) declares that the "serious provocation" needed to support a heat of passion defense can not consist of hearsay reports of the victim's conduct. Thus, even though Merculief's children and friends informed him that his wife was seeing Harris, this was legally insufficient to establish serious provocation. Merculief does not argue otherwise.
Dandova, 72 P.3d at 339.
See Dandova, 72 P.3d at 337.
In his brief to this Court (and as reiterated at oral argument), Merculief suggests that his telephone conversation with Harris provided the serious provocation needed to support a heat of passion defense. The problem with this suggestion is that there was no evidence presented as to the content of this telephone call, other than a bystander's testimony that Merculief angrily asked Harris, "What are you doing at my house with my wife?"
Merculief's question does not yield much, if any, information about what Harris said during the phone conversation. Merculief already knew (or strongly suspected) that his wife was having an affair with Harris; that is why Merculief telephoned Harris in the first place.
Indeed, in his arguments to this Court, Merculief concedes that there is no way of knowing whether (a) Harris confirmed that he was seeing Merculief's wife, or (b) Harris denied that he was seeing Merculief's wife, and Merculief found this denial unconvincing. This is fatal to Merculief's claim that "serious provocation" occurred during the telephone conversation. It is, essentially, a concession that the evidence provides no reasoned basis for concluding that Harris said anything to provoke Merculief.
One might propose that Harris must have said something to provoke Merculief, since Merculief later became so angry that he shot and killed Harris. But this reasoning is circular: it begins with the fact that Merculief killed Harris, and then works backward to infer that Harris must have done something to provoke the killing. Any such conclusion would be based on pure speculation. As we said in Hilbish v. State,
One can certainly conjure scenarios involving . . . heat of passion that would arguably be consistent with the evidence at trial; in this sense, [the defendant might] plausibly maintain that the evidence at trial does not rule out the possibility of . . . heat of passion. . . . But the state was under no obligation to assume the burden of disproving [heat of passion] until there was some evidence affirmatively suggesting [this defense]. [A defendant does not meet the] burden of establishing heat of passion as an affirmative defense merely because the evidence at trial did not disprove it.
891 P.2d 841, 852 (Alaska App. 1995). For these reasons, I conclude that Merculief failed to present some evidence of serious provocation.
Second, and equally important, even if we assume that there was some evidence that Merculief was subjected to serious provocation, there was no evidence that Merculief committed the homicide while in a heat of passion directly engendered by this provocation.
As explained above, Merculief killed Harris some seven to eight hours after the telephone conversation that supposedly provided the serious provocation required to support a heat of passion defense. Merculief's immediate response to this supposed provocation was to spend time playing with his children. Merculief's next response to the supposed provocation was to take a nap. And, after taking this nap, Merculief went out to socialize with friends.
At this point, Merculief began drinking and, while drinking, he slowly worked himself into a homicidal rage. But the fact that Merculief was murderously angry when he killed Harris does not mean that he acted in a heat of passion. To support a heat of passion defense, there had to be some evidence that Merculief's rage was directly initiated by the purported provocation — that it was "a sudden, impulsive reaction attributable to the heat of the moment".
Commonwealth v. Garcia, 824 N.E.2d 864, 872-73 (Mass. 2005).
Here, the requisite connection between the purported provocation and Merculief's passion is entirely lacking. Merculief's reaction to the purported provocation was to play video games with his children and then take a nap. If he indeed acted in passion, his passion arose only later, after he began to drink and to ponder his situation.
The heat of passion defense applies only when the homicide is "committed in a sudden . . . passion engendered by adequate provocation". The defense is not available to someone who initially reacts to a provocation with coolness, but who then later becomes homicidally angry after mulling over the provocation. In Merculief's case, whatever may have been said in his telephone conversation with Harris, there is no evidence that this telephone conversation directly initiated a homicidal passion in Merculief.
Rollin M. Perkins Ronald N. Boyce, Criminal Law (3rd edition 1982), p. 84 (emphasis added).
Compare Missouri Statute § 565.002(7), which requires proof of a "passion directly caused by and arising out of provocation by the victim . . . which . . . arises at the time of the offense and is not solely the result of former provocation".
For these reasons, I agree that Merculief was not entitled to a jury instruction on heat of passion.
My colleagues conclude that Merculief's proposed heat of passion defense fails on yet another ground. They reason that, given the seven or eight hours between the telephone conversation and the homicide, a person in Merculief's situation should have cooled.
Although I do not necessarily disagree with this assessment, the point is moot. There is no evidence that Merculief actually acted in the heat of passion; that is, there is no evidence that Merculief killed Harris while in the grip of a sudden passion attributable to the heat of the moment. The question of whether someone who did act in the heat of passion would have had sufficient time to cool is therefore moot.