Opinion
Court of Appeals No. A-10336 Trial Court No. 3AN-06-4186 CR No. 5788
01-04-2012
LENG MOUA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
MANNHEIMER, Judge, concurring
Leng Moua was convicted of first-degree murder for stabbing his "cultural wife" multiple times following a prolonged argument in their home. Moua argues that the jury was improperly instructed on the heat-of-passion defense. He argues that Superior Court Judge Michael L. Wolverton failed to explain the term "proportionality." But "proportionality" is a common term with no special legal meaning in the context in which it was used, so absence of the definition did not amount to plain error.
Moua also argues that another paragraph in the same instruction stated that a reasonable person is a reasonable, mentally healthy person, but did not specify that the jury was to evaluate whether Moua acted reasonably from the standpoint of a person "in the defendant's situation." But the term "reasonable person" was defined to refer to a reasonable person in the defendant's situation in three other places, twice in the same jury instruction and again in a separate instruction defining that term. There was no error in this part of the instruction.
Background
In April 2006, Leng Moua stabbed and killed his "cultural wife" in their home following several hours of heated argument. At trial, Moua presented a heat-of-passion defense, arguing that he should be convicted of manslaughter, rather than murder. The jury was given a ten-paragraph instruction on the heat-of-passion defense that included the following three paragraphs:
[Paragraph 4] "Serious provocation" means 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.
[Paragraph 5] A provocation is adequate to mitigate murder to manslaughter if it was such as might naturally induce a reasonable person in the defendant's shoes in the passion of the moment to lose self-control and commit the act on impulse and without reflection. An element of proportionality
is implicit in the heat-of-passion statute's requirement that the provocation be serious.
[Paragraph 6] When these instructions use the term "reasonable person" or "reasonably believe," they mean a reasonable, mentally healthy person whose thinking is not influenced by mental disease or defects that skew or affect his ability to form reasonable thought processes or to act in a reasonable fashion or a person whose faculties are skewed by alcohol or drugs.
The jury also received the following separate one-paragraph instruction defining the "reasonable person" standard: "The 'reasonable person standard applies when a reasonable person in the defendant's situation would have concluded that the victim engaged in an act of serious provocation, even if the victim did not actually do so."
At the conclusion of the trial, Moua was convicted of first-degree murder. He now appeals.
Discussion
Where the jury instructions include a correct statement of law, we review a judge's decision on whether to provide a further explanation for abuse of discretion.But a party must object to a jury instruction in the trial court and distinctly state the grounds for the objection to preserve a claim of error.
See Buchanan v. State, 561 P.2d 1197, 1207 (Alaska 1977); Stoneking v. State, 800 P.2d 949, 950 (Alaska App. 1990).
Alaska R. Crim. P. 30(a); see also Alaska R. Crim. P. 46 (indicating that in order to preserve a claim, a party must, "at the time the ruling or order of the court is made or sought, make[] known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor").
The trial judge's failure to instruct the jury on the definition
of "proportionality" was not plain error.
Moua raised three objections in the trial court with respect to paragraph five of the heat-of-passion instruction. The first was that the paragraph was inappropriate because it was not part of the pattern heat-of-passion jury instruction. The second was that the words "reasonable person" in the paragraph were not followed by "in the defendant's shoes." And third, Moua's attorney stated that if the court was going to add language about proportionality, she wanted the language to state that "an element of proportionality is implicit in the heat of passion statute's requirement that the provocation be serious." In response to these objections, the court added "in the defendant's shoes" to the paragraph and replaced the State's proposed wording regarding proportionality with the language Moua preferred.
This language comes directly from Lindeman v. State, Mem. Op. & J. No. 4356, 2001 WL 219747, at *3 (Alaska App. Mar. 7, 2001) (quoting Howell v. State, 917 P.2d 1202, 1207 n.4 (Alaska App. 1996)).
On appeal, Moua argues that the term "proportionality" was not defined for the jury. But at trial, he did not ask the judge to define "proportionality" or raise any concern that the jury would not understand the meaning of that word.
In Williams v. State, this court reviewed a claim similar to Moua's. In Williams, the defendant had claimed that a jury instruction on theft by receiving was erroneous because the term "recklessly" was not defined for the jury. At trial, the defendant objected to the instruction, but on the separate grounds that the evidence was insufficient to support the instruction. We concluded that the objection based on failure to define "recklessly" was not properly preserved in the trial court and the defendant was therefore required to show plain error. Similarly, Moua's failure to ask the judge to define "proportionality" means that he must now demonstrate plain error.
648 P.2d 603 (Alaska App. 1982).
Id. at 608.
Id.
Id.
The heat-of-passion defense applies only when the defendant is provoked by the intended victim and the provocation is "serious." We have specifically stated that "an element of proportionality [is] implicit in the heat of passion statute's requirement that [the] provocation be 'serious.'"
See Howell, 917 P.2d at1207 (quoting AS 11.41.115(a)).
Id. at 1207 n.4 (quoting Roark v. State, 758 P.2d 644, 647-48 (Alaska App. 1988)).
The word "proportionality" as used in connection with the heat-of-passion defense has the same meaning as the common, non-legal definition. Non-legal dictionaries describe "proportional" as "corresponding in size, degree, or intensity";"[p]roperly related in size, degree, or other measurable characteristics"; or "corresponding in size or amount or degree." The jury was not likely to be confused by this term. So the failure to instruct the jury on the definition of "proportionality" was not plain error.
Webster's Ninth New Collegiate Dictionary 944 (1990).
American Heritage Dictionary of the English Language 1453 (3d ed. 1992).
Oxford American Dictionary 536 (1980).
See Williams, 648 P.2d at 608 (holding that the failure to define "recklessly" where defendant did not ask for a definition in the trial court was not plain error where the word's meaning was "well within the comprehension of the average juror and the code definition appear[ed] to be a common sense definition of the term"); Thomas v. State, 391 P.2d 18, 25 (Alaska 1964) (holding that the failure to instruct jury on definition of "steal" was not error where the defendant never requested such an instruction and where the jury was otherwise properly instructed on the law).
The trial judge's failure to include "in the defendant's
situation" in the paragraph describing a reasonable person
as someone who is mentally healthy was not plain error.
At trial, Moua made two objections to paragraph six. As with paragraph five, he argued that paragraph six was inappropriate because it was not part of the pattern instruction. He also argued that this part of the instruction did not apply to his case because the language was taken from a case involving a defendant who, unlike Moua, may have been suffering the effects of a concussion at the time of the offense.
Moua does not raise either of these arguments on appeal. Instead, he now claims that paragraph six is an incorrect statement of law because it does not specify that the reasonable person it references is a reasonable person in the defendant's situation. Moua did not request that the trial court add "in the defendant's situation" to paragraph six, so his claim is subject to review for plain error.
Moua is correct that, when the jury considered whether serious provocation existed, they were required to view the situation from the standpoint of a reasonable person in Moua's situation. "Serious provocation" means "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 11.41.115(f)(2); see also Howell, 917 P.2d at 1207 ("[T]he existence of serious provocation must be determined through the eyes of a reasonable (and sober) person standing in the defendant's shoes.").
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Moua might have a better argument if this paragraph was the only discussion of the term "reasonable person" in the jury instructions. But the term "reasonable person" was described as a reasonable person "in the defendant's situation" or "in the defendant's shoes" in three other places — two within the heat-of-passion instruction itself, and once in a separate instruction devoted solely to the definition of "reasonable person."
We conclude that the jury was clearly and explicitly instructed that "reasonable person" meant a reasonable person in Moua's situation. Paragraph six merely clarified that the term "reasonable person" meant a mentally healthy person whose thinking was not influenced by alcohol, drugs, or mental disease. There was no error in this part of the instruction, much less plain error.
Conclusion
We AFFIRM the superior court's judgment. Judge MANNHEIMER, concurring.
I agree with my colleagues that there was no error in the jury instructions dealing with the "reasonable person" standard, but I reach this conclusion for slightly different reasons.
As Judge Bolger's lead opinion explains, the jurors were repeatedly told that they should evaluate Moua's claim of heat of passion under the "reasonable person" standard — and that this standard required the jurors to assess whether Moua reacted to the alleged provocation in the same manner as a "reasonable person in [Moua's] situation".
This "reasonable person" test has two separate components, and it potentially raises two questions: First, what exactly does the law mean by "reasonable person"? And second, what exactly does the law mean by "in the defendant's situation"?
In some cases, the trial judge may deem it prudent to clarify that "reasonable person" means a sober reasonable person. Or, as in Moua's case, the trial judge may perceive a need to clarify that "reasonable person" means a mentally healthy reasonable person.
Similarly, in some cases, the jurors may need to know that the phrase "in the defendant's situation" does not refer to the defendant's actual situation (assessed in hindsight), but rather to the situation as the defendant reasonably perceived it at the time.
But when a trial judge believes it is advisable or necessary to give the jurors a supplemental instruction along these lines, the judge is not required to keep repeating the whole "reasonable person" test in its entirety, as long as it is clear to the jurors that the supplemental instruction simply provides a more detailed definition of a particular portion of the test — either a more precise definition of "reasonable person" or a more precise definition of "in the defendant's situation".
In Moua's case, it is clear — and it would have been clear to the jurors — that the challenged portion of the jury instruction (paragraph 6 of the instruction) was not intended to supplant the "reasonable person" test that was described in other portions of the jury instructions. Reading the instructions as a whole, the jurors were clearly informed that their task was to evaluate whether Moua acted reasonably, given his situation. The challenged portion of the instruction simply provided more information about one aspect of this governing test — more information about what the law means by a "reasonable person".
For these reasons, there was no error at all (much less plain error) in paragraph 6 of the challenged jury instruction.