Wilson v. State

• Decision Date: 20 July 1970
• Docket Number: No. 1140,1140
• Parties: William Hunter WILSON, Jr., Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 633

473 P.2d 633

William Hunter WILSON, Jr., Appellant, v. STATE of Alaska, Appellee.

No. 1140.

Supreme Court of Alaska.

July 20, 1970.

Brian J. Brundin, Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellant.

G. Kent Edwards, Atty. Gen., Juneau, and Kenneth O. Jarvi, Asst. Dist. Atty., Anchorage, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ and CONNOR, JJ.

BONEY, Chief Justice.

On January 21, 1969, William Hunter Wilson, Jr., was indicted on charges of burglary in a dwelling and assault with a dangerous weapon. ¹ Jury trial was commenced on March 18, 1969, and on March 19, verdicts were returned finding Wilson not guilty of burglary and guilty of the assault. Wilson now appeals his conviction of assault with a dangerous weapon.

Two conflicting versions of the facts leading to Wilson's arrest were related at trial. Richard Tast testified at the trial that on January 15, 1969, at 3:00 a. m., he had been asleep on the living room couch of his home in Anchorage when he was awakened by a noise. Upon awakening, Tast saw an intruder, Wilson, crouched on the living room floor behind a table. Tast asked Wilson to identify himself, but Wilson, remaining silent, started to move toward Tast. A struggle ensued. Tast testified that in the course of the struggle he became aware that Wilson was in possession of a knife, that he disarmed Wilson and managed to subdue him. After Wilson was subdued, Tast held him at gun point and summoned the police. While awaiting the arrival of police, Wilson told Tast that he had come to Tast's home on behalf of his sister, who had recently been accosted; Wilson explained that a friend had indicated Tast's home as the residence of his sister's assailant. However, when Wilson got a close look at Tast's face in the light, he stated that he was mistaken and that Tast was not the same person who had attacked his sister.

A second version of the incident was given by Wilson to an Anchorage police officer in an interview conducted shortly after his arrest. Wilson did not take the stand at his own trial, but his version of the story was introduced through the testimony of the police officer who had questioned Wilson, and was also corroborated by a police report written several hours after the interview. Wilson told the police that the night before his arrest he had been attacked in the Malemute Bar by a person known to him only as Floyd. Floyd attacked Wilson with a knife, claiming that Wilson had raped either Floyd's sister or wife (Wilson could not remember which one he had been accused of raping). Wilson was able to escape from Floyd, whereupon he ran into another bar and called the police to report the incident; however, according to Wilson, the police never showed up.

Wilson stated that he made inquiries about the identity of his assailant and proceeded to an address that was given to him. He also stated that he was at that time in possession of a hunting knife belonging to a friend. Wilson claimed that when he arrived at the house where his assailant allegedly resided, he knocked at the back door and a male voice told him to enter. Upon entering the residence, Wilson allegedly tripped and fell over a step separating the hallway from the living room; as he fell to the floor the knife which he was carrying slipped out of its sheath, and he reached to pick it up. According to Wilson, it was at this time that Tast jumped from the couch and attacked him. Wilson stated that he repeatedly shouted at Tast to allow him to put down the knife, but Tast gave him no opportunity to do so. Finally, according to Wilson, he was able to get away from Tast momentarily and throw the knife away into the kitchen, thus ending the struggle.

On appeal, Wilson contends that the trial court committed error in refusing to grant defense counsel's request for an instruction on self-defense. Apparently defense counsel first raised the issue of self-defense in chambers at some time prior to closing arguments, when a request was made to the court for a 'standard' instruction to the jury on self-defense. The trial court denied the requested instruction, ruling that the request was improper because defense counsel had not raised the issue of self-defense in his opening statement, ² and because defense counsel had failed to submit the requested instruction in writing. ³

It is quite clear that if evidence had not been presented to show that Wilson knocked at Tast's door and was asked to enter, Wilson's claim of self-defense could not be sustained. ⁴ Although it is clear that neither an officer nor a private person may employ more than necessary force in making an arrest, ⁵ there is no indication here that Tast used any excessive or unnecessary force to restrain Wilson.

Thus, assuming for the present that the jury did not believe that Wilson had been asked to enter the house, we are faced with a situation where Wilson entered Tast's home at 3:00 a. m., armed with a knife, in search of a man who had previously assaulted him with a knife. Tast was awakened by Wilson and was able to subdue him although he was, himself, unarmed. Surely we could not say that the use of bare hands against an armed intruder constitutes unnecessary force; absent some showing of excessive force Wilson would have no right to resist Tast's efforts to restrain him. Our conclusion is consonant with recent decisions of this Court. In Miller v. State, 462 P.2d 421, 426 (Alaska 1969) we stated:

The control of man's destructive and aggressive impulses is one of the great unsolved problems of our society. Our rules of law should discourage the unnecessary use of physical force between man and man. Any rule which promotes rather than inhibits violence should be re-examined.

In accordance with this reasoning, we held in Miller that a person had no right to use force to resist a peaceful, but unlawful arrest made by a police officer.

In Gray v. State, 463 P.2d 897, 909 (Alaska 1970), we held that in certain limited factual circumstances the right to claim self-defense may even be forfeited:

(A) person who commits an armed robbery forfeits his right to claim as a defense the necessity to protect himself against the use of excessive force by either the intended victim of the robbery or by any person intervening to prevent the crime or to apprehend the criminal, absent a factual showing that at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed.

We need not extend the narrow holding in Gray to the facts of the present case, since it is sufficient to observe that here there was no evidence of excessive force.

If it is assumed, however, that the jury may have been disposed to believe that Wilson had knocked on the door of Tast's home, and that he had in fact been asked to enter, the situation changes somewhat. Under this theory, Wilson would no longer have been an intruder, and, arguably, he would have been entitled to defend himself had Tast initiated the altercation. But the circumstances under which the instruction on self-defense was requested below make it unnecessary for us to speculate as to what kind of self-defense instruction Wilson might have been entitled to.

Wilson's counsel requested only that a 'standard' instruction on self-defense be given. Such an instruction would have been too broad and therefore inappropriate since, as has already been pointed out, Wilson could have properly claimed self-defense only on the theory that he had entered Tast's home lawfully. In Cherry v. Stedman, 259 F.2d 774, 777-778 (8th Cir. 1958), it was held:

A party cannot claim error in the refusal to give a requested instruction which is not entirely correct, or which it is not possible to give without qualification, or which is so framed as to be capable of being misunderstood. (Citations omitted.)

We think this statement is applicable to the instant case. ⁶ Without delving into what, exactly, a 'standard' instruction on self-defense would comprise, it is safe to venture that such an instruction would not have been sufficient to alert the jury to the fact that Wilson's right to claim self-defense was entirely contingent upon the jury's belief that he had entered Tast's home lawfully, after having knocked and after being asked to enter. Similarly, such a 'standard' instruction could not have fairly apprised the jury of Tast's right to restrain and arrest intruders in his own home. For these reasons, the requested instruction would not have been entirely appropriate, and the trial court correctly rejected it.

The question arises independently whether the court should have formulated, on its own motion, a sufficiently narrow instruction on the issue of self-defense.

In Pepsi Cola Bottling Co. v. Superior Burner Service Co., 427 P.2d 833 (Alaska 1967), we concluded that despite a party's failure to request a correct instruction, the court was nonetheless bound under certain circumstances to act on its own in formulating an appropriate charge. In Pepsi Cola, we stated:

Assuming appellant's requested limiting instruction was erroneous, the trial court correctly refused to give it. But this is not the end of our inquiry. Numerous authorities have concluded that if the defective, or erroneous, requested instruction directs the court's attention to an issue which the jury has not been instructed upon but which is necessary to enable the jury to intelligently determine the case, 'the court's error in failing to charge may not be excused by technical defects in a request to charge.' (Citation omitted.) 427 P.2d at 833.

However, we think that the instant case is distinguishable upon its facts from the Pepsi Cola case. The Pepsi Cola case dealt with an instruction limiting the purposes for which certain evidence could be considered by the jury. There, counsel had repeatedly requested both during the trial and at the time of submitting proposed jury instructions, that an instruction...