Grant v. State

• Decision Date: 09 January 1981
• Docket Number: No. 3750,3750
• Citation: 621 P.2d 1338
• Parties: Michael A. GRANT, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1338

621 P.2d 1338

Michael A. GRANT, Appellant, v. STATE of Alaska, Appellee.

No. 3750.

Supreme Court of Alaska.

Jan. 9, 1981.

J. Randall Luffberry, Palmer, for appellant.

Michael J. Stark, Asst. Atty. Gen., Daniel W. Hickly, Chief Prosecutor and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

OPINION

MATTHEWS, Justice.

On the night of September 27, 1976, Michael Grant was visiting a friend, Jary Crutchfield, at his home in Bethel. Crutchfield received a telephone call informing him that Phil Lacey had entered the ice cream parlor Crutchfield managed. Since Lacey had been forbidden to go there by Crutchfield because of his past behavior toward female employees, Crutchfield decided to drive to the ice cream parlor and Grant accompanied him. When they arrived, they found that Lacey had gone and decided to look for him at the Wild Goose Saloon. They entered the saloon, separated, and Crutchfield found Lacey. The two had an animated discussion and left the saloon, followed by an interested crowd of spectators, to engage in a fist fight. Lacey then drew a pistol and pointed it at Crutchfield. Crutchfield yelled to Grant, who was standing in the crowd of onlookers, "Mike he's got a gun, he's got a gun." Grant ran across the street to his house, grabbed a shotgun, loaded it with one shell and ran back toward where he had last seen Lacey and Crutchfield. On the way, Grant heard one shot, which he assumed was discharged from Lacey's pistol. When he arrived, he confronted Lacey, who was still holding the pistol. He did not see Crutchfield and assumed that he had been shot. According to Grant he pointed his shotgun at Lacey and told him to drop the pistol or he would shoot. Lacey fled around to the back of the saloon, but was intercepted by Grant who again warned him to stop or he would shoot. Lacey then headed into a swamp in near total darkness. Grant, intending, as he testified, to frighten Lacey into stopping, discharged his firearm after losing sight of Lacey. The police arrived soon thereafter and Grant informed them that he had Lacey pinned down in the swamp. The police found Lacey lying in knee-deep water and transported him to the hospital because he appeared to be having cramps. At the hospital, it was discovered that Lacey was suffering from minor wounds caused by shotgun pellets.

An indictment was issued charging Grant with assault with a dangerous weapon in violation of AS 11.15.220, ¹ stating that Grant "did unlawfully and feloniously assault Phillip N. Lacey, by shooting Phillip N. Lacey with (a) shotgun." Grant was tried and found guilty of the lesser included misdemeanor of careless use of firearms in violation of AS 11.15.200, which provides in part:

Careless use of firearms. (a) A person who intentionally, and without malice, points or aims a firearm at or toward a person, or discharges a firearm so pointed or aimed at a person, or points and discharges a firearm at or toward a person or object without knowing the identity of the object and maims or injures a human being, is guilty of the careless use of firearms, and upon conviction is punishable by a fine of not more than $1,000, or imprisonment for not more than one year, or by both.

Grant appeals on multiple grounds. We find one of them to have merit, and thus reverse.

We first address Grant's contention that the indictment should have been dismissed because the prosecuting attorney failed to explain to the grand jury the law concerning the defense of force used while effecting an arrest.

In the recent case of Oxereok v. State, 611 P.2d 913 (Alaska 1980), a contention was raised that the prosecutor should have instructed the grand jury on the defense of diminished capacity as well as the implications of the possibility that the defendant may have acted in the heat of passion. We rejected this argument and did not express any view as to whether the prosecutor ever had a duty to instruct on affirmative defenses: "While (the prosecutor) probably anticipated the fact that at trial the defendant might rely on the defense of diminished capacity, or claim that he acted in the heat of passion, we see no reason for the prosecutor, at the indictment stage, to urge consideration of those possible defenses on the grand jury in this case." 611 P.2d at 917.

Grant relies on People v. Karassik, 90 Misc.2d 839, 396 N.Y.S.2d 765 (Sup.Ct.1977), in attempting to persuade us to accept his argument. In Karassik the court held that the prosecutor did not have a duty to charge the grand jury with an affirmative defense which, while "a viable and arguable issue, is not so obviously applicable as to make the failure to charge a denial of due process." The court distinguished the case before it from two prior cases which involved "clear showings of evidence of such a nature that the charging of the appropriate affirmative defense would almost surely have resulted in a failure to indict. In fact, the evidence was so clear that the failure to charge the affirmative defense could be deemed a denial of fundamental justice." 396 N.Y.S.2d at 771.

The standard expressed in Karassik as triggering a duty to explain the law pertaining to affirmative defenses is not present in this case. Grant's defense that he was in the process of effecting an arrest and used no more force than necessary to do so created a legitimate issue for the jury. However, it was not a defense which, had it been presented to the grand jury, would "almost surely" have led to a failure to indict.

We next address Grant's claims of error regarding the superior court's failure to give certain jury instructions pertaining to a private person's right to use deadly force in effecting a felony arrest and a private person's right to use reasonable force in the protection or defense of others.

Since he was only indicted for the second incident, Grant argues that his proposed instruction No. 1 ² was necessary to prevent him from being found guilty of either assault with a dangerous weapon or careless use of firearms for the first time he pointed his shotgun toward Lacey but did not fire.

We think the instructions given by the trial court made it clear that it was the second pointing, during which the shooting occurred, which was charged by the indictment. The jury was required to find "that at the time and place alleged, the defendant Michael A. Grant, did willfully, unlawfully, and feloniously assault Phillip N. Lacey by shooting Phillip N. Lacey with said shotgun." In addition, an examination of the final arguments of counsel leaves no doubt that the jury understood it was the shooting incident they were to evaluate for criminality. ³

Grant argues that his proposed instructions Nos. 6 and 7 ⁴ should have been presented to the jury rather than those given by the court. ⁵ The State contends that the instructions actually given by the court adequately apprised the jury that a private person may use "reasonable, necessary and proper force" to effect an arrest of a fleeing felon.

The court did not instruct the jury that a private person may use deadly force, or necessary and proper force, to effect the arrest of an actual felon. ⁶ The State suggests in its brief that the court's instruction in which it quoted AS 12.25.070 was sufficient. ⁷ However, AS 12.25.070 only speaks to the force that a private person may use to subject a person already arrested to continued arrest and detention. By analogy, it might seem that no different standard should apply to the force needed to make an arrest in the first instance. ⁸ However, the prosecutor in his final argument to the jury, argued that the standard implicit in AS 12.25.070 did not apply to this case because there was no arrest. ⁹ Given the prosecutor's remarks and the State's position here, ¹⁰ we hold that the jury should have been instructed that a private person may use such means as may be necessary and proper to effect the arrest of an actual felon, including deadly force.

Grant objects on a number of grounds to the giving of lesser included offense instructions. The court instructed essentially that the jury could find Grant guilty of careless use of firearms if it was not satisfied that the crime of assault with a dangerous weapon had been proven. ¹¹

Grant first argues that the instruction should not have been given because the elements of careless use of firearms are not necessarily included in assault with a dangerous weapon. We cannot agree. The court instructed the jury that in order to find Grant guilty of assault with a dangerous weapon it must find, among other things, "that at the time and place alleged, the defendant Michael A. Grant, did willfully, unlawfully and feloniously assault Phillip N. Lacey, by shooting Phillip N. Lacey with said shotgun." The court also instructed the jury that "feloniously" means with criminal intent and evil purpose. The jury could have found that Grant acted without criminal intent or evil purpose. Therefore, it could have acquitted him of assault with a dangerous weapon, but convicted him of careless use of firearms, since evil purpose is irrelevant to that charge. See Elisovsky v. State, 592 P.2d 1221 (Alaska 1979); AS 11.15.200(a).

Grant next argues that the court's instruction on careless use of firearms would have allowed the jury to find him guilty of the crime of careless use even though the discharge was intentional. AS 11.15.200 careless use of firearms) is a three part statute which prohibits the following conduct:

1. Intentionally and without malice pointing or aiming a firearm at or toward a person;

2. Discharging a firearm which is pointed or aimed, intentionally and without malice, at a person.

3. Pointing and discharging without malice, a firearm at or toward a person or object without knowing the identity of the object and maiming or injuring a human being.

The first portion of the statute...