Opinion
Court of Appeals No. A-12653 No. 6837
11-20-2019
THOMAS COTTAM JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-14-01346 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Thomas Cottam Jr. was found guilty of one count of first-degree murder and two counts of second-degree murder after he killed Steven Garcia with a machete. Garcia's injuries included multiple stab and chop wounds to his head, neck, torso, and right hand.
AS 11.41.100(a)(1)(A) and AS 11.41.110(a)(1), (a)(2), respectively. Cottom was also convicted of one count of first-degree vehicle theft for taking Garcia's car after killing him. AS 11.46.360(a)(1). That conviction is not at issue in this appeal.
At trial, Cottam asked the superior court to instruct the jury on two defenses: self-defense and heat of passion. Cottam did not testify at his trial, but the jury heard the statements Cottam made to the police in which he confessed to killing Garcia. Cottam asserted that Garcia came at him with a machete, that Cottam then "blacked out," and that when Cottam regained consciousness, he was standing over Garcia's body, holding the machete. Based on Cottam's statements to the police, the superior court agreed to instruct the jury on self-defense. However, the court refused to instruct the jury on heat of passion.
On appeal, Cottam argues that the superior court erred when it refused to instruct the jury on the heat of passion defense. As defined in AS 11.41.115(a), the defense of heat of passion includes three elements: (1) that the defendant committed the homicide while in a heat of passion, (2) that their passion was the result of a serious provocation by the victim, and (3) that they committed the homicide before there was a reasonable opportunity for their passion to cool. A defendant is entitled to a jury instruction on the heat of passion defense if the defendant presents "some evidence" of each of these three elements. "Some evidence" means "evidence which, 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 every element of the defense."
See Luch v. State, 413 P.3d 1224, 1229 (Alaska App. 2018).
Id.
Id.
Viewing the evidence in the light most favorable to Cottam, we agree that Cottam presented some evidence of each element of the heat of passion defense, and that the superior court therefore erred when it refused to instruct the jury on that defense.
Cottam told police that Garcia attacked him with a machete. Because being attacked with a machete is sufficient to excite an intense fear in a reasonable person, we conclude that Cottam presented some evidence that he was subjected to serious provocation by the victim. Similarly, because Cottam told police that he killed Garcia immediately after being attacked, we conclude that Cottam presented some evidence that he committed the homicide before there was a reasonable opportunity for any passion to cool.
This leaves us with the first element of the heat of passion defense: whether there was some evidence that Cottam was, in fact, acting in the heat of passion when he killed Garcia. Here, the key question is whether "the totality of the circumstances might fairly have given rise to an inference of heat of passion[.]" The defendant need not explicitly claim that they were overwhelmed by passion.
LaPierre v. State, 734 P.2d 997, 1001 (Alaska App. 1987).
Id.
The facts of this case are closely analogous to the facts of our unpublished opinion in Horton v. State. Horton was charged with attempted murder and first-degree assault for repeatedly stabbing his girlfriend. Several people tried to intervene and stop the assault, but Horton was only subdued after repeated blows from a wooden bed slat.
Horton v. State, 2018 WL 2364067 (Alaska App. May 23, 2018) (unpublished).
Id. at *1-2.
At trial, Horton testified that his girlfriend attacked him with a knife and that he "went into defense mode" and "blacked out." There was no other direct evidence of his mental state during the attack. On appeal, we held that Horton had presented some evidence that he was acting in the heat of passion during the assault, despite his failure to testify about his own mental state during the attack. In reaching this conclusion, we wrote that, "Horton's frenzied attack on [his girlfriend], as well as the number of people and the kind of force that was required to subdue him, reasonably support an inference that Horton was in the throes of emotion and out of control when he repeatedly stabbed [his girlfriend]."
Id. at *3-4.
The same inference is reasonably supported by the evidence in Cottam's case. Although no witnesses testified to Cottam's behavior during the attack, the severity of the injuries sustained by Garcia, combined with Cottam's claim that he blacked out and then woke up standing over Garcia's body and holding a machete, support the inference that Cottam was in the throes of emotion and out of control when he repeatedly hacked at Garcia with a machete.
We therefore conclude that Cottam presented sufficient evidence as to each of the three elements of the heat of passion defense, and that the superior court erred when it refused to instruct the jury on that defense. We now turn to the consequences of this decision.
The jury found Cottam guilty of three separate counts of homicide: first-degree murder under AS 11.41.100(a)(1)(A) (i.e., intentional killing); second-degree murder under AS 11.41.110(a)(1) (i.e., killing "with intent to cause serious physical injury"); and second-degree murder under AS 11.41.110(a)(2) (i.e., killing "under circumstances manifesting an extreme indifference to the value of human life"). Because the heat of passion defense does not apply to extreme indifference murder under AS 11.41.110(a)(2), our decision in this case has no impact on that verdict.
The judgment in this case inaccurately refers to the two second-degree murder counts as "dismissed." As a matter of law, this was incorrect. In fact, the jury's three murder verdicts merged at sentencing into a single conviction for first-degree murder. See Hurd v. State, 107 P.3d 314, 322 (Alaska App. 2005), where we explained that it is incorrect to "dismiss" merged counts, and that it does not violate the double jeopardy clause to reinstate merged counts that the trial court incorrectly labeled as "dismissed."
AS 11.41.115(a); see Luch, 413 P.3d at 1229. --------
We therefore REVERSE the jury's verdicts finding Cottam guilty of first-degree murder and second-degree murder under AS 11.41.110(a)(1). Cottam is entitled to a new trial if the State wishes to pursue these charges.