Kirby v. State, 5738

• Decision Date: 27 August 1982
• Docket Number: No. 5738,5738
• Parties: Roy C. KIRBY, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 963

649 P.2d 963

Roy C. KIRBY, Appellant, v. STATE of Alaska, Appellee.

No. 5738.

Court of Appeals of Alaska.

Aug. 27, 1982.

William H. Fuld, and Peggy Alayne Roston, Anchorage, for appellant.

Charles M. Merriner, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C. J., COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

A two-count indictment charged Roy C. Kirby with the murder of Jerry Hite. In a jury trial before Judge Ralph Moody, Kirby was found not guilty of Count I of the indictment charging murder in the first degree, AS 11.41.100(a)(1), but was found guilty of Count II of the indictment charging murder in the second degree (felony-murder), AS 11.41.110(a)(3). ¹ Kirby appeals to this court alleging various errors relating to the second count of the indictment. We have decided that Kirby's conviction must be reversed because the trial judge did not instruct the jury on the provisions of AS 11.41.115(c), the felony-murder merger doctrine.

It is undisputed that Kirby shot and killed Hite on June 22, 1980. The circumstances surrounding the murder, however, are subject to dispute.

On June 22, Kirby and a friend, Charles Boggs, met a man named Marcellus Shepherd in an Anchorage bar. According to Shepherd, Kirby asked him if he knew where Kirby could buy some cocaine. By contrast, Kirby testified that it was Boggs who talked to Shepherd about purchasing the cocaine. ² In any case, Kirby drove Boggs and Shepherd to the Coffee Cup where they met Jeanie Erickson. Shepherd knew Erickson and he introduced her to Kirby and Boggs. Kirby testified that he had never met Erickson before, although Erickson thought that she knew him. In fact, Erickson did not really know Kirby; she was merely confusing him with a friend's ex-boyfriend who was also named Kirby. In any event, Shepherd talked to Erickson about buying some cocaine, and Erickson agreed to arrange a sale.

Kirby then drove Boggs and Erickson to the home of Jerry Hite, located approximately one block from the Coffee Cup. Erickson was to purchase the cocaine for them at Hite's house. ³

According to Erickson, Boggs gave her a one-hundred dollar bill and Kirby gave her a twenty. ⁴ Kirby, however, claims that Boggs gave Erickson both bills. ⁵ Erickson took the money and never returned. She testified that she decided to keep the money and give it to Hite in payment of a debt she owed him. Erickson thus entered the house, gave the money to Hite, explained to him what she was doing, and left the house by sneaking around the back.

After waiting fifteen to thirty minutes, Kirby and Boggs decided that Erickson was not going to return. According to Kirby, he then said, "It's just $120, let's go," and they returned to the Coffee Cup where they once again met Shepherd. According to Shepherd, Kirby told him Erickson never came out of the house and asked him to go back to the house with him. However, Kirby testified that Boggs talked with Shepherd, who said that he had done business with Erickson before and could get the money back. Kirby then said, "Let's go" and drove them back to the house. Upon returning to Hite's home, Kirby and Shepherd went up to the house, leaving Boggs to wait in the car. Three different versions of what next transpired were related at trial.

According to Shepherd, Kirby knocked on the door and put his hand over the peephole. When someone approached the door from the other side, Kirby asked if "the girl" was there. When he was told that she was not, Kirby said he wanted either his money or the stuff. The door then opened a crack and a "split second" later Kirby was in the house. Shepherd could not tell whether Kirby kicked the door in or whether he just leaned on it. Kirby immediately held Hite up against the wall and placed a gun to his neck. At this point, Shepherd saw no gun but Kirby's. Still grappling, Kirby and Hite went down some nearby stairs to the basement. Shepherd followed them downstairs along with Kathy Aspeotis, who lived with Hite. Next, shots were fired and Shepherd saw a gun drop out of Hite's hand. Nothing was said prior to the shooting. Shepherd never saw Hite fire his gun, although he did see fire coming from Kirby's gun. After returning to the car, Kirby told Shepherd that he had had to shoot Hite because Hite fired first. They then went to a bar and Shepherd heard Kirby tell someone he had had to shoot a guy. ⁶

Aspeotis told a second version of the events. According to her, about thirty to forty-five minutes after Erickson left she heard a pounding on the door. It was Kirby, who wanted to come in and look through the house. Hite put the chain on the door and asked Aspeotis to get his gun, which she apparently did. Hite then opened the door with the chain on it, and it was immediately kicked in. Kirby grabbed Hite and put his gun to Hite's neck. Hite's gun remained at his side. There was never any indication that Kirby was even aware that Hite had a gun. Kirby did not touch or grab the arm or hand that held Hite's gun and did not order Hite to drop the gun. Kirby and Hite, followed by Aspeotis and Shepherd, went down the stairs to the basement. Even though there was very little talking, Kirby did tell Hite not to shove him and Hite said he was not doing anything. Then, without any questions asked, and without Hite having done anything, Kirby's gun went off. Hite fell, sat up, and fired his gun. Kirby and Shepherd fled. While passing Aspeotis, Kirby pointed his gun at her and she heard a click, although she did not know what it was. ⁷

Lastly, we have Kirby's version of the events. According to his account, after they drove to Hite's house Shepherd asked Kirby to accompany him to the door. Apparently Shepherd figured that since Erickson thought she knew Kirby he would be able to talk to her. ⁸ Overall, it was Shepherd's and not Kirby's idea to go to the house. Kirby concluded that Shepherd's interest in his reputation motivated him to attempt to get the money back from Erickson. Kirby agreed to accompany Shepherd even though he did not really expect Erickson to return the money. Kirby assumed that the trip to the door of the house would only take a moment; either Erickson would return the money or she would not, and that would be that. Kirby claimed that he did not care whether Erickson turned over the money or not.

In any case, Kirby and Shepherd went up to the house and had a two to three minute conversation with Hite through the door. Hite denied that Erickson had even come to the house. At this point, the door opened a crack and Kirby saw that Hite had a gun in his hand. Just as Kirby was turning to tell Shepherd that they should leave, Shepherd kicked in the door. ⁹ Since he was leaning against the door at time, Kirby sort of fell in. While shouting to frighten Hite, Kirby grabbed Hite's left hand (his gun hand). ¹⁰ Kirby then drew his gun ¹¹ and put it to Hite's head as the momentum of the entry led them to stumble down the nearby stairs together. According to Kirby, he spoke in a normal tone as they descended the stairs. Both while traveling down the stairs and at the bottom of the stairs Kirby claimed to have said to Hite that he just wanted to talk and then leave. Kirby also stated that he asked Hite to drop his gun, but that he refused.

It was Kirby's contention that he and Hite never really engaged in any struggling. While descending the stairs, they were merely jostling to maintain their balance. Once they got downstairs there was no struggling at all. Kirby then let Hite go, took one step, and heard Hite's gun go off. He felt a bullet go by his ear and hair. Kirby was not certain as to what happened next. At the time of the incident Kirby did not know with certainty whether he had shot Hite. (Afterwards he had to ask Shepherd if he had hit Hite.) After Kirby stopped shooting no more shots were fired. Due to the continuous roar, Kirby could not tell whether Hite had fired any shots while Kirby had been shooting. Kirby and Shepherd then fled the scene.

Kirby's main contention on appeal is that the trial court erred in refusing to instruct on AS 11.41.115(c), known as the felony-murder merger doctrine. Kirby was convicted of murder in the second degree for a violation of AS 11.41.110(a) (3), the felony-murder provision. Specifically, Kirby was convicted of killing Hite during the commission of a first degree burglary. The burglary which Kirby allegedly committed or attempted to commit involved either entering or remaining unlawfully in Hite's house with the intent to commit a crime-either assault or robbery. The burglary was aggravated to first degree burglary because Kirby was armed with a firearm during its commission. AS 11.46.300. ¹²

AS 11.41.115(c) reads as follows:

A person may not be convicted of murder in the second degree under § 110(a)(3) of this chapter if the only underlying crime is burglary, the sole purpose of the burglary is a criminal homicide, and the person killed is the intended victim of the defendant. However, if the defendant causes the death of any other person, the defendant may be convicted of murder in the second degree under § 110(a)(3) of this chapter. Nothing in this subsection precludes a prosecution for or conviction of murder in the first degree or murder in the second degree under § 110(a)(1) or (2) of this chapter or of any other crime, including manslaughter or burglary.

The commentary to the code, 1978 Senate Journal Supp. No. 47, at 11-12 (June 12, 1978), explains this section as follows:

Subsection (c) was referred to at Criminal Law Subcommission meetings as the "felony-murder merger doctrine." In considering this extremely limited exemption from the felony-murder rule, it must be recalled that the purpose of the rule is to diminish the risk of unintentional or even accidental killings during the commission of violent felonies. One of these felonies, burglary in the first degree, occurs when a person...