Toomey v. State, 3088

• Decision Date: 04 August 1978
• Docket Number: No. 3088,3088
• Citation: 581 P.2d 1124
• Parties: Vincent TOOMEY, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1124

581 P.2d 1124

Vincent TOOMEY, Appellant, v. STATE of Alaska, Appellee.

No. 3088.

Supreme Court of Alaska.

August 4, 1978.

Robert Coats, Asst. Public Defender, Fairbanks, Brian Shortell, Public Defender, Anchorage, for appellant.

Steven J. Call, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.

OPINION

RABINOWITZ, Justice.

Vincent Toomey appeals his conviction for robbery ¹ on the ground that the superior court erroneously instructed the jury on the issue of self-defense.

The facts in this case were contested at trial. For purposes of review, we examine Toomey's version of the events in order to determine whether an issue of self-defense was presented.

On February 14, 1976, Toomey and two friends went to a bar and restaurant in Fairbanks known as the Sunset Strip. Toomey estimated that he consumed between two "six-packs" and a case of beer. His friends became involved in an affray with another patron and were evicted from the premises. Toomey left with his friends. Shortly thereafter, one of the friends returned to the bar and, when the friend did not emerge, Toomey re-entered. The bartender and the manager evicted Toomey and beat and kicked him. ²

Toomey then appropriated an automobile which was idling in the parking lot and drove to his brother's residence where he obtained a .44 magnum revolver and a 45/70 rifle. ³ He then returned to the Sunset Strip. Toomey testified that by that time, he had decided merely to look for his friends.

Toomey was in the process of parking the vehicle when its owner, Patricia Bucher, and David Ensley, a friend of Bucher's, and an unidentified third individual appeared. Bucher demanded that Toomey get out of her car. Toomey said, "Well, don't get all shook, lady," and got out of the vehicle. During this encounter, Bucher grabbed Toomey's parka and then entered her car. ⁴

Ensley then ran at Toomey, raising what appeared to be a poolstick. Ensley testified that he intended to hit Toomey. ⁵ The third individual was also moving toward Toomey. At this time Toomey pulled out the revolver, pointed it at Ensley and ordered him to "hold it." Ensley and the third individual stopped where they were; Ensley dropped the poolstick case.

Toomey then pointed the revolver at Bucher and ordered her out of the car. She got out and, with Ensley and the third person, moved behind a nearby car. Toomey then got into Bucher's car and departed from the scene. Subsequently he was arrested by Alaska State Troopers asleep in the car at a restaurant parking lot, approximately a forty-five minute drive from Fairbanks.

Although we do not pass upon the strength of Toomey's case, we think sufficient evidence was presented to the jury to place in issue the question of self-defense. ⁶ While ordinarily one who provokes a difficulty forfeits the opportunity to claim self-defense, ⁷ it is established that where the initiator abandons his aggressive posture and then is subjected to an assault or attempted assault, the privilege of self-defense may be asserted. ⁸

From the testimony presented, a jury could have concluded that, when Toomey retook the car, he had abandoned his criminal activity and was in reasonable fear of attack collectively from Bucher, Ensley and the third individual, ⁹ and that escaping after seizing the car at gunpoint was a reasonable response. Accordingly Toomey was entitled to have the jury instructed as to the defense of self-defense. ¹⁰

Toomey's sole specification of error in this appeal is that the superior court's instruction on self-defense impermissibly shifted the burden of proving self-defense on to him. ¹¹ In the case at bar, the superior court gave the following instruction as to the burden of proof:

The burden of proving every fact material and necessary to a conviction by competent evidence beyond a reasonable doubt is on the State and does not at any time or under any circumstance shift from the State. ¹²

Despite the foregoing, Toomey contends that the superior court erred in its self-defense instruction because it informed the jury that:

The defense is ordinarily not available to a person who provokes a difficulty from which he attempts to extricate himself with excessive force unless there is a clear showing that such person abandons his initial purpose and retreats from the difficulty initially provoked and is placed in danger thereafter by an aggressive act of another.

In our view, this portion of the trial court's self-defense instruction does not assign a burden of proof upon any party. The questioned language that there must be a "clear showing that such a person (who asserts self-defense) abandons his initial purpose . . . ," is merely a correct statement of one circumstance in which the defense is inapplicable. It does not remove from the state the burden of proving that there was no abandonment of purpose. ¹³

We find we are in agreement with the Supreme Court of Maine's observations in State v. Millett, 273 A.2d 504, 508 (Me.1971), where the court said that once it has concluded as a matter of law that the self-defense issue has been properly tendered,

the trial court need only instruct jury as to the elements of self defense. (The court) will have no occasion to speak of burden of proof other than to explain the State's burden of proving guilt beyond a reasonable doubt.

Affirmed. ¹⁴

BURKE, J., concurs.

BOOCHEVER, C. J., and CONNOR, J., dissent.

BURKE, Justice, concurring in the result.

In my view Toomey was not entitled to Any instruction on his claim of self- defense. Assuming, Arguendo, that Toomey had a right to defend himself against the threat posed by the advance of David Ensley and his unidentified companion, I fail to understand how that right would extend to his actions against Patricia Bucher, the victim of the robbery. See State v. Banks, 539 P.2d 173, 175 (Ariz.App.1975). As stated in State v. Millett, 273 A.2d 504, 511 (Me.1971), "When the jury was permitted to consider the claim of self-defense at all, the defendant was accorded more than he was entitled to on the evidence presented."

Thus, I concur in the result agreed upon by my brothers Rabinowitz and Matthews.

BOOCHEVER, Chief Justice, with whom CONNOR, Justice, joins, dissenting.

I agree with the majority that, when Toomey retook the car, an issue was presented as to whether he had abandoned his criminal activity, was in reasonable fear of attack collectively from Bucher, Ensley and the third individual and as to whether escaping after seizing the car at gunpoint was a reasonable response. I also agree that Toomey was entitled to have the jury instructed as to the defense of self-defense. I would hold, however, that the court's instructions impermissibly shifted the burden of proving self-defense to Toomey.

The majority apparently agrees that, once the issue of self-defense was properly raised by the evidence, the state had the burden of proving the absence of self-defense. ¹ The trial court, however, instead of instructing the jury that the issue of self-defense had been raised by the evidence, instructed as follows:

The defense is ordinarily not available to a person who provokes a difficulty from which he attempts to extricate himself with excessive force Unless there is a clear showing that such person abandons his initial purpose and retreats from the difficulty initially provoked and is placed in danger thereafter by an aggressive act of another. (emphasis added)

Toomey's objection to this instruction was overruled, and his requested instruction indicating that the state had the burden of proving that the vehicle was not taken in self-defense was refused. The jury was instructed that there must be a "clear showing" of abandonment. ² Obviously, the state could not have the burden of making such a clear showing as that would be directly against the state's interest. The jury could be left with no other impression than that Toomey had the burden of clearly showing that he had abandoned his initial purpose. I do not see how that impression could have been changed by the general instruction on burden of proof which was given earlier.

Despite the fact that self-defense was in issue, the burden of proof beyond a reasonable doubt remained on the state as to all elements of the offense. ³ Thus, the state had the burden of showing that Toomey had not abandoned his initial purpose and that he was not placed in a situation where he had a reasonable apprehension of imminent danger. As the court was requested by the defendant to instruct on this issue, in my opinion, it was error to refuse to give an instruction on the burden of proof as to the elements of self-defense. ⁴

1 AS 11.15.240 provides:

Robbery. A person who, by force or violence, or by putting in fear, steals and takes anything of value from the person of another is guilty of robbery, and is punishable by imprisonment in the penitentiary for not more than 15 years nor less than one year.

The Grand Jury indictment charged Toomey with the following:

That on or about the 14th day of February, 1976, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, Vincent Patrick Toomey did wilfully, unlawfully and feloniously, by force and violence and by putting Patricia A. Bucher in fear with a revolver, take from the person of said Patricia A. Bucher property of value, to-wit: A blue and white 1972 Chevrolet, Monte Carlo, Texas License DLJ194 valued at approximately $3,000.00.

Toomey was sentenced to five years imprisonment.

2 Toomey is unsure whether one of his assailants was the manager or the owner of the club.

3 Entry was effected by use of a key.

4 Toomey was wearing the revolver beneath his parka when he got out of the car; the rifle remained in the forward section of the vehicle.

5 Although Toomey apparently...