Walker v. State

• Decision Date: 23 December 1983
• Docket Number: No. 7163,7163
• Citation: 674 P.2d 825
• Parties: Scott A. WALKER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 825

674 P.2d 825

Scott A. WALKER, Appellant, v. STATE of Alaska, Appellee.

No. 7163.

Court of Appeals of Alaska.

Dec. 23, 1983.

Walter Share and William P. Bryson, for appellant.

David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

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

OPINION

COATS, Judge.

On the thirteenth day of May, 1981, Scott Walker, Dale Willhite, and Timothy Hopkins burglarized the residence of Harvey Noble and obtained several firearms. On the twenty-ninth day of May they planned to burglarize the residence of Mildred Walatka. The three apparently intended to burglarize the residence when it was unoccupied, but when Walker knocked on the door to make sure no one was home, Mrs. Walatka's son, Herbert Oakley, opened the door. The three claimed they had car problems and needed to use the telephone. They were allowed to enter. While Scott Walker was using the telephone, Willhite pulled a gun. The three then proceeded to take ivory and jewelry which was in the home. They then forced Mrs. Walatka and Herbert Oakley into a car at gunpoint. They drove to a bank and Mrs. Walatka was forced to withdraw some money from the bank. Then Mrs. Walatka and Mr. Oakley were driven out of town and shot to death.

Walker was tried for two counts of first-degree murder, two counts of kidnapping, one count of robbery, one count of burglary and two counts of theft. The jury acquitted Walker of the two counts of murder but convicted him on the other counts. Trial Judge S.J. Buckalew sentenced Walker to a total of eighty-nine years' imprisonment. Walker appeals his conviction and sentence to this court. We affirm.

Walker admitted at trial that he agreed to participate in the burglary of the Walatka residence. However, he claimed that from the moment that Willhite pulled his gun he had to go along with the greater crimes out of fear for his own safety. He claimed that had he not participated, Hopkins and Willhite would have killed him. Judge Buckalew instructed the jury on the defense of duress, which is an affirmative defense under the revised criminal code. AS 11.81.440 provides that:

Duress. (a) In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use of unlawful force upon him or a third person, which force a reasonable person in his situation would have been unable to resist.

(b) The defense of duress is not available when a person recklessly places himself in a situation where it is probable that he will be subject to duress.

Since duress is an affirmative defense, the defendant has the burden of establishing that defense by a preponderance of the evidence. ¹

Walker objected to the court's instructions at trial, arguing that placing the burden on him to prove his defense by a preponderance of the evidence is a violation of substantive due process. He has renewed that argument on appeal. Walker contends that once he had introduced some evidence of the defense of duress, it was then the duty of the prosecutor to prove beyond a reasonable doubt that he did not act under duress.

In the case of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970), the Supreme Court held that substantive due process required "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." This holding was reaffirmed in Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881, 1889, 44 L.Ed.2d 508, 519 (1975), and Patterson v. New York, 432 U.S. 197, 210-11, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281, 292-93 (1977). However, in Patterson the court stated:

We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. "[I]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime." The legislature cannot "validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt."

Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond a reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution's burden that a new constitutional rule was required. This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses--for whatever reasons--mean that those States that strike a different balance are in violation of the Constitution.

Id., 432 U.S. at 210, 97 S.Ct. at 2327, 53 L.Ed.2d at 292-93 (footnotes and citations omitted). This language appears to us to establish the fact that the United States Supreme Court wished to give state legislatures considerable leeway in defining defenses to crimes. While holding firm to the general proposition that the constitution requires the prosecution to shoulder the traditional burden of showing the guilt of the accused beyond a reasonable doubt, the court allows the burden of proof to be placed on defendants for at least some affirmative defenses.

Walker argues that if he acted under duress he did not have any criminal intent to commit a crime. He argues that his criminal intent is an essential element of the crime which the state must prove beyond a reasonable doubt. However, Professors LaFave and Scott state that:

The rationale of the [duress] defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather it is that, even though he has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.

W. LaFave & A. Scott, Criminal Law, § 49, at 374 (1972). According to this analysis, duress appears to be appropriately classified as an affirmative defense. It also appears that by placing the burden of proof on the defendant to establish duress by a preponderance of the evidence, the legislature has not placed the government in a position where it does not have to prove the essential elements of the crime beyond a reasonable doubt. The government still had to prove that Walker committed all the elements of the crimes of which he was convicted. However, once the government proved that Walker committed the crimes, Walker had to show that he was justified in committing the crimes in order to prove the defense of duress. We believe that the legislature did not violate substantive due process by placing the burden of proof on Walker to prove the defense of duress by a preponderance of the evidence. ²

The trial court instructed the jury that "the defense of duress is not available when a person recklessly places himself in a situation in which it is probable that he will be subject to duress." The trial court also told the jury that "culpable mental state" means "intentionally, knowingly, recklessly or with criminal negligence." (Emphasis supplied.) Walker argues that the trial court erred in not giving an instruction defining recklessness. He concedes that he did not object to the instructions on this ground. He therefore has to establish that failure to define recklessness constitutes plain error. We are to find plain error only "where necessary to prevent a miscarriage of justice." Dimmick v. State, 449 P.2d 774, 776 (Alaska 1969). We have previously concluded that a trial court's failure to define the term "recklessly" was not plain error in Williams v. State, 648 P.2d 603, 608 (Alaska App.1982). We said:

The meaning of "recklessly" is well within the comprehension of the average juror and the code definition appears to be a common sense definition of the term. We do not find that the failure to define the term "recklessly" constituted plain error. [Footnotes omitted.]

We see no reason to depart from that holding. We find no error.

Walker next argues that the trial judge committed plain error in his instructions on accomplice testimony. Walker points out that the jury was told that he could be convicted if they found he "either committed an offense or was an accomplice to an offense." He also points out that the jury was told that the testimony of an accomplice was to be viewed with distrust:

If you find from the evidence that one or more of the witnesses in this case were...