Opinion
Court of Appeals No. A-9883.
March 18, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-05-10504 CR.
Linda Wilson, Margi A. Mock, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Paul Heisey was indicted on two counts of assault in the second degree against Justin Quinn. In a trial conducted by Superior Court Judge John Suddock, a jury acquitted Heisey of the first count of second-degree assault, but convicted him of the lesser included offense of assault in the third degree. The jury convicted Heisey of the second count of assault in the second degree. Judge Suddock merged the two convictions into a single count of assault in the second degree for sentencing. Heisey appeals. We affirm.
AS 11.41.210(a)(1); AS 11.41.210(a)(2).
AS 11.41.210(a)(1).
AS 11.41.220(a)(1)(B).
AS 11.41.210(a)(2).
Factual and procedural background
1. Justin Quinn's testimony
Justin Quinn testified that in October of 2005 he was staying at the Brother Francis Shelter in Anchorage. Quinn had placed his ill wife in assisted living and was waiting for his disability determination, so he was staying at the shelter to save enough money for the up-front costs of renting an apartment. Quinn became acquainted with Heisey at the Brother Francis Shelter.
According to Quinn, he was waiting for the bus on either November 5th or 6th, 2005, to take him to his new apartment so that he could sign the lease, hand over the deposit and rent, and get the key. While he was waiting for the bus, Quinn met Heisey and offered to let Heisey stay with him for a couple of days. Quinn explained that he made this offer so that Heisey could get out of the shelter for a while and help Quinn get some thrift store furniture moved into his new apartment. In the early afternoon, Heisey accompanied Quinn to the apartment, which had no phone and no furniture except for an office chair.
Quinn testified that Heisey spent most of the afternoon at the apartment, but then left without telling him where he was going. Around 6:00 or 7:00 p.m., Quinn also left the apartment to go to the grocery store and met a man named Jesse Robinson, apparently for the first time. Quinn invited Robinson back to the apartment for steaks and "a drink or two." There was a bottle of vodka in the apartment that Quinn had consumed at least half of over the course of the day, although he believed that both Heisey and Robinson also had some of it. Sometime after 8:00 p.m., after Quinn and Robinson had finished their steaks, Heisey came back to the apartment. At some point, Quinn laid down on the floor to rest, and fell asleep.
Quinn had a hazy recollection of the subsequent events. He testified that he was awakened by Heisey "hitting [him] with his fists." Quinn testified that, "at one point, [Heisey had] put his knee into [Quinn's] chest. . . . Throughout this happening, [Heisey] had . . . wrapped his hand around [Quinn's] throat." Quinn blacked out during the assault, and the next thing he remembered, he was standing at the front door waiting for the police to arrive; he did not remember the ambulance ride. Quinn recalled that "[a]t some point, the frying pan came into play," and he "remember[ed] getting dinged by it."
2. Jesse Robinson and Sherrie Wilson's testimony
Jesse Robinson testified that after he and Quinn ate the steaks, he left the apartment to pick up his girlfriend, Sherrie Wilson, and was gone for about ten or twenty minutes. According to Robinson, when he reentered the apartment, he "saw the two guys fighting." Robinson testified that when he first saw them fighting, Quinn was standing up, but then Heisey hit Quinn with the frying pan and Quinn fell to the ground. Wilson testified that when she entered the apartment, Heisey was hitting Quinn with his fists "for no reason."
3. Paul Heisey's testimony
Heisey testified that he was injured at his job as a drywall stocker in Fairbanks in the summer of 2005 and ended up coming to Anchorage and living at the Brother Francis Shelter. Heisey testified that he went with Quinn to the apartment sometime midday on November 4th and stayed there for the night. The next day they went to a bar, and Heisey spent that night at the Brother Francis shelter. On Sunday, November 6th, at 10:00 a.m., Heisey got a ride back to Quinn's apartment so he could retrieve his belongings. Heisey testified that it was then that Quinn and Robinson were finishing their steaks and that he went to sleep in the back room. Quinn and Robinson went out for about two hours. Heisey testified that he woke up when they returned and had a drink with them. Robinson left around 1:00 p.m. and did not return until after the fight.
Heisey went back to sleep after Robinson left and woke up later to loud music. He drank the last of the vodka with Quinn, at which point Quinn asked Heisey to help steal another bottle from the liquor store. Heisey refused, but Quinn "would not take no for an answer," and began poking Heisey in his injured shoulder and saying "come on, come on." Heisey continued to refuse, but Quinn said, "Let's wrestle for it," and began to pull Heisey to the ground. Heisey then pulled Quinn to the ground, put his hand on Quinn's neck for "a full second," and said that he had won and that Quinn should leave him alone.
As Heisey backed away from Quinn after this encounter, Quinn charged Heisey and punched him in the temple. Heisey then tackled Quinn and held him face down on the floor with his knee, eventually letting Quinn go for a second time. As Heisey attempted to leave, Quinn tackled him and began hitting him, but Heisey managed to get up and move into the kitchen. Quinn charged again, this time with a frying pan in his raised hand and making a noise "like ummmggghhh [or] a high whine." Heisey was afraid for his life. To avoid being hit by the pan, Heisey rushed and tackled Quinn and began to punch him. Heisey testified that the punching did not subdue Quinn; Quinn continued to come at Heisey until Heisey kicked him in the knee and pinned him face down on the floor again. Quinn overpowered Heisey, stood up, and continued to come at Heisey, who struck Quinn twice with the frying pan, stopping the aggression.
4. The aftermath
A neighbor called 911 during the altercation and eventually handed the phone over to Sherrie Wilson. Anchorage Police Officers Kristi Mercer and Ross Henikman responded to the call, noticing blood outside the entrance door. Quinn exited the apartment, and Officer Henikman went inside to find Heisey. There was a pool of blood soaked into the carpet in the entryway, blood spattered on the walls of the living room, and more blood in the bedroom. Officer Henikman observed a frying pan with a broken handle near the front door. Heisey was arrested and placed in the police car. Officer Henikman described Heisey's behavior as "very violent and belligerent." Heisey was taken to Providence Alaska Medical Center. Quinn was also taken to Providence for treatment and was released the same night.
The State charged Heisey with two counts of assault in the second degree. In the first count, the State charged Heisey with intentionally causing "physical injury . . . by means of a dangerous instrument" for strangling Quinn during the beating. In the second count, the State charged Heisey for recklessly causing "serious physical injury" for hitting Quinn with the frying pan and the other aspects of the beating. At trial, Heisey argued that he had acted in self-defense.
AS 11.41.210(a)(1). Effective August 15, 2005, the definition of "dangerous instrument" under AS 11.81.900(b)(15)(B) was amended to include "hands or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck." Ch. 20, § 1, SLA 2005.
On the first count, the jury convicted Heisey of the lesser included offense of assault in the third degree for "recklessly caus[ing] physical injury . . . by means of a dangerous instrument," a class C felony. On the second count, the jury convicted Heisey as charged. Judge Suddock merged the two convictions into a single conviction for assault in the second degree.
AS 11.41.220(a)(1)(B).
At sentencing, Heisey argued for the application of four mitigators, each related to his theory that Quinn had been the first aggressor and had provoked Heisey's violent reaction. Judge Suddock rejected the mitigators, sentencing Heisey to a composite sentence of 36 months with 18 months suspended, and 5 years of probation. Heisey appeals.
Judge Suddock did not err in preventing Heisey from introducing evidence of Quinn's specific incidents of conduct to establish Quinn's character for violence
Heisey argues that Judge Suddock erred in refusing to allow him to introduce evidence of specific instances to demonstrate Quinn's character for violence. Under Alaska Rule of Evidence 404(a)(2), Heisey could properly introduce character evidence showing Quinn's propensity for violence, which would circumstantially corroborate his assertion that Quinn was the first aggressor. In turn, the State could rebut evidence of Quinn's character for violence by introducing character evidence showing either Heisey's character for violence or Quinn's peaceful nature. Under Evidence Rule 405, testimony regarding a person's character is generally limited to the witness's opinion of the person's character for violence or his knowledge of the person's reputation for violence. However, the opposing party is permitted to inquire into specific instances concerning the character trait on cross-examination. The theory behind this rule is that a party must be allowed to cross-examine the witness as to specific instances of behavior in order to "rebut an assertion concerning a person's character."
See Allen v. State, 945 P.2d 1233, 1240 (Alaska App. 1997); McCracken v. State, 914 P.2d 893, 898 (Alaska App. 1996).
Alaska Evid. R. 404(a)(2); see also Allen, 945 P.2d at 1236, 1240 (noting that, while character evidence as to peacefulness of a victim was previously the only way to rebut a claim that the victim was the first aggressor, the 1994 amendment to Evidence Rule 404(a)(2) "authorize[d] trial courts to admit evidence of a defendant's character for violence" for that purpose).
Alaska Evid. R. 405(a); see also Allen, 945 P.2d at 1239.
Allen, 945 P.2d at 1239.
Heisey argues that, because Quinn testified as to his own character for nonviolence, Heisey should have been allowed to cross-examine Quinn about specific instances in which Quinn had acted violently. During his cross-examination of Quinn, Heisey asked whether it was true that a "part of [Quinn's] schizoaffective disorder [was] that [Quinn got] angry very easily." Quinn replied that he had "never been a violent man" and that "harming others . . . goes way against what I believe." Affirming this point, Quinn testified that he had "never been . . . accused of a violent crime." Heisey's attorney then approached the bench and asked Judge Suddock to permit him to cross-examine Quinn regarding his reputation for violence at Providence Alaska Medical Center and about a related charge of malicious destruction of property. Heisey contended that, since Quinn had testified he was not a violent person, Heisey could now introduce specific instances of violence to rebut Quinn's testimony. Judge Suddock considered whether Quinn's testimony had indeed "opened the door" to impeachment about specific incidents. Judge Suddock ultimately ruled that Heisey could explore the fact that the hospital generally required security personnel to be present when Quinn was at the hospital because of Quinn's reputation for violence there. However, Judge Suddock ruled that Heisey could not inquire into the specific charges that Quinn had maliciously destroyed hospital property. Heisey argues that this was error.
Judge Suddock could properly determine that Heisey was not entitled to elicit character evidence from Quinn on cross-examination and then impeach Quinn's testimony by cross-examining Quinn about specific instances of violent conduct. We have previously resolved a related issue under Alaska Rule of Evidence 608, which deals with the admissibility of character evidence for truth and veracity. In Lahmeyer v. State, where a babysitter was charged with sexually abusing a child, we addressed whether a party could evoke opinion testimony about a witness's character for truthfulness on cross-examination, and then impeach that same witness with specific instances under Rule 608. Lahmeyer, during cross-examination of the children's mother, had asked "whether she had ever been in a position where [her daughters] had not been trustworthy." The mother responded, "No," and later elaborated that the children had only told "little teenie lies." Sometime later, Lahmeyer attempted to recall the mother in order to question her about two specific instances in which the children told "big" lies. Lahmeyer contended that the Alaska Rules of Evidence allowed this inquiry to impeach the mother's testimony about the children's character for truthfulness. The trial judge did not allow the mother to be recalled.
765 P.2d 985 (Alaska App. 1988).
Id. at 987.
Id. at 986.
Id.
Id.
Id.
Id.
On appeal, we concluded that Lahmeyer had elicited the character testimony on cross-examination and held that under Rule 608, "a party cannot make a witness a character witness for truth and veracity for the purpose of later cross-examining that witness by bringing out specific acts." Applying the holding of Lahmeyer in a later unpublished opinion, we wrote that "[a]n attorney can not cross-examine an opposing witness about the truthfulness of a second witness and then, under the guise of impeaching the witness's answer, introduce evidence of specific instances in which the second witness may have been untruthful."
Id. at 988.
Tso v. State, Alaska App. Memorandum Opinion and Judgment No. 2938 at 19 (June 29, 1994), 1994 WL 16196195 at *8 (citing Lahmeyer, 765 P.2d at 987-88).
Applying this authority, we conclude that Judge Suddock could determine that Heisey should not be allowed to impeach Quinn by asking about specific instances of violent behavior under these circumstances.
Heisey next argues that Quinn's conviction for malicious destruction of property was admissible to impeach Quinn under Evidence Rule 609. That rule allows a party to attack a witness's credibility by admitting evidence that the witness has been convicted of a crime involving dishonesty or false statement.
The commentary to Evidence Rule 609 appears to limit admissibility "to convictions involving crimes such as perjury, fraud, forgery, false statement," or other similar crimes which involve "the deceit envisioned by the rule." In his brief, Heisey represents that "Quinn's conviction was for violent behavior at Providence that resulted in damage to property. The conduct was violent in nature, even though no particular person was injured, and the damage was limited to hospital property. It would have significantly contradicted Quinn's testimony." Heisey has not shown that Quinn's conviction for malicious destruction of property was a crime of dishonesty or false statement. Therefore Judge Suddock did not err in refusing to allow Heisey to introduce this testimony under Evidence Rule 609.
Commentary to Alaska Evid. R. 609.
Heisey argues that Judge Suddock also erred in refusing to allow him to question Carolyn Seeganna, a psychiatric nurse practitioner at Providence Alaska Medical Center, about specific incidents where Quinn was violent in the context of drug-seeking behavior. But Nurse Practitioner Seeganna was Heisey's witness; she testified on direct examination that Quinn had a reputation for violence. As we have previously discussed, this was the proper way for Heisey to introduce evidence of Quinn's character for violence. Under Evidence Rule 405, Heisey was not permitted to question Nurse Practitioner Seeganna about specific instances to demonstrate Quinn's character for violence. Judge Suddock did rule that Heisey could introduce evidence that Quinn had returned to the hospital the day after the fight to request more painkillers, even though Quinn had been given or prescribed enough painkillers for several days. Furthermore, Heisey was allowed to establish that Quinn had a history of polysubstance abuse, without going into specific incidents. Therefore, Heisey was allowed to introduce substantial evidence related to Quinn's substance abuse, which would circumstantially corroborate Heisey's claim that Quinn had become violent when Heisey refused to help him get more alcohol. Judge Suddock did not err in limiting Heisey's cross-examination by refusing to allow Heisey to introduce evidence of specific instances of violent behavior. This was a proper application of Evidence Rule 405.
Heisey's argument that he should have been allowed to introduce evidence of Quinn's mental health problems
Heisey next argues that Judge Suddock erred in limiting his ability to cross-examine Quinn about his mental health problems and introduce extrinsic evidence of specific incidents of Quinn's paranoia. Quinn testified on direct examination at trial that, prior to the assault, he "had no fear about anything happening," but that afterwards he had flashbacks and was "always looking for someone lurking around the corner." Heisey argued that this testimony opened the door for Heisey to impeach Quinn with evidence of prior incidents and inconsistent statements tending to show that, contrary to Quinn's assertion on direct examination, Quinn was paranoid before the assault. Judge Suddock disagreed, ruling that Heisey could elicit testimony regarding how Quinn's paranoia might have affected his perceptions and behavior on the night of the assault, but that any impeachment using specific instances of past paranoia was clearly "impeachment on a collateral matter." Heisey argues that this was error.
We deal first with Heisey's argument that he should have been allowed to introduce extrinsic evidence of Quinn's prior paranoid behavior, such as medical records or Nurse Practitioner Seeganna's testimony, to impeach Quinn's statement that he had "no fear about anything happening" prior to the assault. As Judge Suddock correctly recognized, the effect of the assault on Quinn's psyche was not at issue.
In Moss v. State, Moss argued that, in his trial for rape, he should have been allowed to impeach the victim's testimony that she was not a habitual marijuana user and had only hitchhiked once before. As an offer of proof, Moss claimed that the victim's husband would testify that the victim once smoked marijuana on a regular basis and had hitchhiked fifteen to twenty times, all in direct contradiction to the victim's testimony at trial. The Alaska Supreme Court held that the trial court did not err in prohibiting such impeachment. Because the central issue in the case was whether the victim consented to intercourse, and Moss did not claim that the victim had been using marijuana that evening, the questions about her marijuana use and hitchhiking habits were "plainly collateral in nature." "While Moss could properly seek to question the victim's credibility," the court wrote, "the established rule is that this may not be done by extrinsic evidence on a collateral matter."
620 P.2d 674 (Alaska 1980).
Id. at 676.
Id.
Id. at 677.
Id. at 676.
Id. at 677 (citing Fields v. State, 487 P.2d 831, 846 (Alaska 1971)).
Here, as in Moss, the proposed impeachment by extrinsic evidence went to a collateral matter — Quinn's level of paranoia before and after the assault. Because the psychological effect of the assault on Quinn was not at issue, just as the victim's prior use of marijuana was not at issue in Moss, Judge Suddock properly excluded impeachment by extrinsic evidence relating to it.
Next, Heisey argues that Judge Suddock erred in refusing to allow him to impeach Quinn by questioning him "on his prior repeated visits to the hospital and other mental health providers when he had complained of paranoia." Heisey contends that he should have been able to impeach Quinn's testimony "that he was more paranoid after the incident with Heisey than he had been in the past . . . " and that the evidence was "relevant to the reasonableness of Quinn's conduct and whether he was the first aggressor." But the record shows that Heisey was able to elicit from Quinn that his mental disorder made him hear voices and experience anxiety even before the assault. Thus Heisey was able to elicit the information that, contrary to Quinn's assertion on direct examination, Quinn was hearing voices and experiencing anxiety as a result of his mental disorder long before the assault. And Heisey was able to fully argue to the jury that Quinn's mental illness made it more likely that Quinn was the first aggressor. We therefore conclude that Heisey was able to adequately cross-examine Quinn on this issue and argue it to the jury. Why we conclude that Judge Suddock did not abuse his discretion in allowing the State to call two correctional officers to testify about Heisey's character for violence
See Stumpf v. State, 749 P.2d 880, 901 (Alaska App. 1988) (noting that "the scope of cross-examination is a matter within the trial court's discretion," and an abuse of that discretion will occur "only when the jury did not otherwise receive information adequate to allow it to evaluate the bias and motives of a witness").
Heisey presented evidence of Quinn's character for violence. Under Alaska Rule of Evidence 404(a)(2), the State could then rebut evidence that Quinn was a violent man by introducing evidence of Heisey's character for violence. Heisey does not dispute the fact that the State could introduce evidence of his character for violence. However, Heisey claims that the testimony of the two correctional officers was unfairly prejudicial under Alaska Evidence Rule 403 because: (1) it notified the jury that Heisey was incarcerated; (2) the testimony of these witnesses was not in the proper form; and (3) the correctional officers based their testimony on their interactions with Heisey after the incident for which Heisey was charged.
See Allen, 945 P.2d at 1236 (stating that Rule 404(a)(2) "authorizes trial courts to admit evidence of defendant's character for violence . . . to rebut a claim that the victim was the first aggressor").
Before addressing Heisey's arguments, we first set out the testimony of the two correctional officers. Correctional Officer Ty Johnston testified that he had known Heisey for about one year, had interacted with him, and had seen him interact with others. Johnston testified that he had "formed an opinion as to Mr. Heisey's reputation for violence or for peacefulness." He testified that Heisey was "more violent."
On cross-examination, Heisey established that Johnston was not a doctor or medical professional and was not treating Heisey for any medical condition. At this point, the State argued to Judge Suddock that by questioning Johnston about his profession, Heisey had "opened the door" for the State to establish that Johnston was a correctional officer. Judge Suddock ruled that, although he believed it was appropriate to introduce evidence that Johnston was a correctional officer, he would not allow the State to do so on redirect examination.
The State then called Correctional Officer John Conant. Conant testified that he worked for the Department of Corrections. Conant stated that he had known Heisey for about nine months, he had seen Heisey interact with others, and he had had frequent contacts with Heisey. When asked if he had "formed an opinion" about Heisey's "reputation for violence" from his personal contacts with Heisey, Conant testified that he had, and that Heisey's reputation "[went] more towards violence."
Heisey first argues that the testimony of the correctional officers was unfairly prejudicial because, through their testimony, the State "alerted the jury to the fact" that Heisey was incarcerated. But Johnston never testified that he was a correctional officer. Although Conant testified that he was a correctional officer, he never said that his observations of Heisey had occurred in jail. Under these circumstances, we conclude that Judge Suddock could properly find that the probative value of the correctional officers' limited testimony was not outweighed by the danger of unfair prejudice.
Heisey also argues for the first time on appeal that he was unfairly prejudiced because the correctional officers were asked for their "opinion as to [Heisey's] reputation" and they based their testimony on their interactions with Heisey after the incident for which Heisey was charged. Because Heisey did not raise these arguments below, he must show plain error. To establish that Judge Suddock's failure to exclude this testimony under Evidence Rule 403 was plain error, Heisey "must show that no competent judge would have failed to see" that the evidence complained of was "fatally prejudicial to the fairness of [Heisey's] trial." We conclude that Heisey has failed to show plain error.
Fuzzard v. State, Alaska App. Memorandum Opinion and Judgment No. 4746 at 5 (Aug. 20, 2003), 2003 WL 21981931 at *2.
Heisey's first objection is to the form of the question posed to the correctional officers. The correctional officers were asked about their "opinion[s] as to [Heisey's] reputation for violence." Evidence Rule 405 allows proof of character "by testimony as to reputation in any community or group in which the individual habitually associated or by testimony in the form of an opinion." Under Rule 405, either form of testimony is permissible, but here the correctional officers were asked to express a hybrid "opinion" about Heisey's "reputation." Heisey claims that this unfairly prejudiced him because the "testimony was presented as reputation evidence" when the correctional officers were really testifying about their personal opinions.
Even if Heisey is correct that the jury erroneously understood the correctional officers' testimony to be reputation evidence rather than opinion evidence, Heisey has not explained how this would prejudice him. For this reason we conclude that Heisey has failed to establish plain error.
Heisey's second objection is that the correctional officers based their testimony on their interactions with Heisey after the assault in question. Heisey cites Wigmore on Evidence, which states that a defendant's reputation after he has been charged with a crime of violence is not admissible to prove his character for violence at the time of the charged offense, since "a false reputation is likely to be created, a reputation based perhaps in part upon rumors about the very act charged."
5 Wigmore on Evidence § 1618 (Chadbourn rev. 1974).
We acknowledge that character evidence is not admissible if it is based on knowledge of (or rumors concerning) the underlying crime with which the defendant is charged. However, here it appears from the correctional officers' testimony that their opinions as to Heisey's character for violence were based primarily on their own personal observations of Heisey and their interactions with Heisey. It does not appear that the correctional officers' opinions were influenced by the underlying charges against Heisey. We therefore do not find plain error.
Why we conclude that Judge Suddock did not err in denying Heisey's motion for judgment of acquittal
Heisey argues that Judge Suddock erred in denying his motion for judgment of acquittal. Heisey was convicted of assault in the second degree for "recklessly caus[ing] serious physical injury" to Quinn. Heisey contends that his motion for judgment of acquittal should have been granted because no fair-minded juror could find that Heisey caused "serious physical injury" to Quinn. Alaska Statute 11.81.900(b)(56) defines "serious physical injury" as:
AS 11.41.210(a)(2).
(A) a physical injury caused by an act performed under circumstances that create a substantial risk of death; or (B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy.
Ultimately, Judge Suddock found that the jury could have determined that Heisey's use of the frying pan, a blow forceful enough to "break the handle, dent the frying pan, and cause a linear non-depressed skull fracture[,] was sufficiently dangerous" to create a substantial risk of death.
In determining whether there is sufficient evidence to support a conviction, we review the evidence in the light most favorable to upholding the verdict. We then determine whether "a fair-minded juror exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt."
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Id.
We conclude that sufficient evidence was presented here for a fair-minded juror exercising reasonable judgment to determine beyond a reasonable doubt that Heisey performed an act under circumstances that created a substantial risk of death. According to Quinn, he was sleeping when Heisey began hitting him in the face with his fists. Quinn testified that he was "on the ground being pinned down, and choked, and punched, and hit." Quinn testified further that Heisey "was hitting [Quinn] with his fists," that Heisey had "put his knee into [Quinn's] chest," and "wrapped his hands around [Quinn's] throat." Quinn testified, "I basically blacked out at a certain point. I remember being hit by a frying pan." Quinn testified that he blacked out both during and after the assault and did not remember the ambulance ride.
AS 11.81.900(b)(56)(A).
Although Heisey described the assault in terms of self-defense, he admitted to hitting Quinn twice with the frying pan hard enough that, on the second strike, it made "like a dong noise," and broke. Heisey testified that this second blow to Quinn's head with the frying pan was what "made [Quinn] stop." Officer Henikman testified that the pan was "a metal, stainless steel type frying pan." Robinson testified that Quinn was standing when Heisey hit him with the frying pan, and the force of the blow knocked Quinn to the ground. The medical testimony showed that Quinn suffered a linear non-depressed skull fracture.
Viewing all of this evidence in the light most favorable to the verdict, a reasonable juror could conclude that Heisey's conduct was "performed under circumstances that create a substantial risk of death." We therefore affirm Judge Suddock's ruling on Heisey's motion for a judgment of acquittal.
Why we conclude that Judge Suddock did not err in denying Heisey's proposed mitigating factors
Heisey proposed four mitigating factors, all of which were based on his contention that he was defending himself from Quinn. At sentencing, Heisey did not present any witnesses or other evidence to support the existence of these mitigators. Instead, Heisey relied on the evidence presented at trial.
AS 12.55.155(d)(3) ("the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant's conduct"); AS 12.55.155(d)(6) (". . . the defendant acted with serious provocation from the victim"); AS 12.55.155(d)(7) (". . . the victim provoked the crime to a significant degree"); AS 12.55.155(d)(16) (". . . the defendant acted in response to domestic violence perpetrated by the victim against the defendant and the domestic violence consisted of aggravated or repeated instances of assaultive behavior").
Heisey was required to establish the mitigating factors by clear and convincing evidence. Judge Suddock found that, from observing the evidence at trial, he had no idea whether Quinn provoked the assault. He therefore concluded that Heisey had not established any of the mitigating factors by clear and convincing evidence. Judge Suddock's evidentiary findings are supported by the record. We therefore conclude that Judge Suddock did not err in rejecting Heisey's proposed mitigating factors.
AS 12.55.155(f)(1).
Conclusion
The judgment of the superior court is AFFIRMED.