Opinion
Court of Appeals No. A-11617 No. 6597
03-07-2018
THEODORE LEE COOPER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nicholas R. Torres, (brief), Assistant District Attorney, Kenai, and Eric A. Ringsmuth, (supplemental brief), Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, and Jahna Lindemuth, Attorneys General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3KN-12-258 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge. Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nicholas R. Torres, (brief), Assistant District Attorney, Kenai, and Eric A. Ringsmuth, (supplemental brief), Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, and Jahna Lindemuth, Attorneys General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following a prolonged altercation with his former girlfriend, T.S., Theodore Lee Cooper was charged with sixteen criminal offenses, including kidnapping, felony sexual assault, and felony physical assault. At Cooper's trial, the jury acquitted Cooper of the majority of the charged offenses, including all of the charged felony offenses. The trial court also dismissed two of the misdemeanor counts at the close of the State's evidence.
The jury convicted Cooper of three counts of fourth-degree assault, one count of reckless endangerment, and one count of driving while license revoked. At sentencing, the superior court merged the fourth-degree assault guilty verdicts, resulting in a single conviction for fourth-degree assault. The court then sentenced Cooper to a composite sentence of 10 months to serve on the three misdemeanor convictions.
On appeal, Cooper challenges his merged fourth-degree assault conviction and his reckless endangerment conviction. He does not challenge his conviction for driving while license revoked. Cooper raises two claims of error. First, he asserts that the superior court erred when it refused to grant him a self-defense instruction for the assault charges. Second, he asserts that the superior court erred when it refused to allow his defense attorney to voir dire T.S. in the middle of trial regarding her use of Seroquel, a drug that is often prescribed as an antipsychotic.
For the reasons explained here, we conclude that there was "some evidence" supporting a claim of self-defense in this case, and the superior court therefore erred in failing to instruct the jury on self-defense. Because Cooper properly preserved this claim of error with regard to the assault charges, we reverse his merged fourth-degree assault conviction on this ground. However, because we cannot say that the superior court's mid-trial ruling regarding Seroquel was an abuse of discretion, we affirm Cooper's reckless endangerment conviction.
Relevant facts and procedural background
In mid-February 2012, Cooper picked up his former girlfriend, T.S., at her residence in Ninilchik so that the two of them could go shopping and T.S. could spend time with the dog that they owned together, who lived at Cooper's residence in Soldotna. Cooper and T.S. had previously dated, and they had maintained an occasional romantic relationship even after the breakup.
According to T.S., Cooper got angry with her during the ride to Soldotna and began assaulting her. T.S. admitted that Cooper did not have the use of his right arm, but she claimed that Cooper hit her with his left hand, while driving his car with his legs. T.S. testified that she fought back and tried to exit the moving vehicle, but that Cooper pulled her back. T.S. also testified that, at one point during the fight, she grabbed a partially full bottle of whiskey from the driver's side of Cooper's car and smashed it over the center console, shattering the bottle. According to T.S., Cooper's assault continued on and off throughout the car ride to Soldotna.
Another motorist on the highway observed what appeared to be a male driver assaulting his female passenger, and she called 911. The motorist reported that the vehicle was being driven erratically and that the driver had ahold of the passenger's hair with his right hand and was driving with his left hand. At trial, the motorist testified that it looked like the driver was smashing the passenger into the middle console, into the front part of the car, and over to the window on the side of the car. The motorist testified that the driver alternated between that and punching the passenger with his right hand.
At trial, Cooper's attorney argued that the motorist was mistaken about what she thought she had witnessed. The attorney pointed out that Cooper's right arm was not functional and that it would have been impossible for Cooper to pull or hit T.S. with his right hand. The attorney argued that what the motorist had actually seen was T.S. throwing herself around the car because she was violent and out of control. The attorney also suggested that T.S. had been trying to set Cooper up. In support of this claim, the defense attorney introduced evidence showing that, eleven minutes before the 911 call from the motorist, T.S.'s cell phone had sent a text message to Cooper's cell phone with the text message "nine one one now, bitch." When confronted with the text message sent from her phone, T.S. claimed to have no memory of sending the text.
T.S. testified that when they arrived at the house that Cooper shared with his mother, T.S. went into the garage apartment, which was Cooper's living space. T.S. claimed that she tried to lock herself in the garage, but Cooper was able to get in through the house.
T.S testified that Cooper continued to assault her in the garage apartment — grabbing her neck, putting his knee on her throat, pulling her hair, and hitting her in the face and arms. T.S. claimed that Cooper bit her tongue "[a]lmost halfway off" and that Cooper grabbed her vaginal area, causing the vaginal jewelry that T.S. wore to tear her labia.
T.S. also testified that she fought back against these attacks. She admitted to hitting Cooper with a laptop computer, breaking the laptop in the process. T.S. also admitted hitting Cooper, ripping his shirt, and grabbing his crotch.
At trial, Cooper's defense attorney pointed out that there was very little independent corroboration of T.S.'s account of the fight or of her alleged injuries. The later medical examination of T.S. did not show any injury to T.S.'s labia, and it did not corroborate T.S.'s claim that her tongue had been bitten "almost halfway off." The defense attorney also emphasized that T.S.'s version of events was internally inconsistent and also inconsistent with the testimony of the only neutral witness — Cooper's neighbor, who came to Cooper's garage to return Cooper's dog.
According to T.S., the neighbor knocked on the door in the middle of Cooper's attack on T.S. T.S. testified that she opened the door and that her face was bloody. She also testified that she asked the neighbor for help, but that the neighbor ignored her, returned the dog, and left.
The neighbor recounted a very different version of events. According to the neighbor, he could hear "raised voices" when he knocked on the garage door to return the dog. Cooper then emerged to retrieve the dog. Cooper did not appear to be injured. As Cooper was returning to the garage, the neighbor saw T.S. leave the garage and get into the passenger's seat of Cooper's car. According to the neighbor, T.S. did not ask him for help or say anything to him. The neighbor testified that he did not get a "good look" at T.S., but he did not see any injuries or blood on her face or clothing.
In response to further questioning, T.S. admitted that she went to Cooper's car to look for her glasses around this time. She then returned to the garage apartment. T.S. could not explain why she returned to the garage apartment rather than leaving or seeking help.
According to T.S., when she returned to the apartment, Cooper continued his attack — kicking and grabbing at her as she tried to call 911. T.S. testified that she managed to place the 911 call and that she ran outside as soon as she saw the police car.
Sergeant Robbie Quelland responded to the 911 call. At trial, Sergeant Quelland testified that he saw T.S. running towards him with blood on her face and clothing, and that she was screaming "help me, help me." He described T.S. as "hysterical" and difficult to understand.
Sergeant Quelland then contacted Cooper, who appeared to be intoxicated and who admitted to drinking. Cooper had blood on his face and what the defense attorney argued to the judge were defensive wounds on his hands. At trial, Sergeant Quelland admitted that Cooper's injuries appeared worse than T.S.'s injuries.
Cooper told Quelland that he and T.S. had been fighting about their relationship. Cooper also told Quelland that he "did not fuck [T.S.] up; she did it to herself." T.S. was transported to the hospital so that her injuries could be evaluated and treated. Cooper declined medical treatment.
T.S.'s daughter was called as a defense witness at trial. The daughter testified that T.S. told her that Cooper had kidnapped her while T.S. was shopping. T.S. denied telling her daughter that story.
Based on T.S.'s version of events, Cooper was charged with sixteen criminal offenses, including two counts of kidnapping, one count of second-degree sexual assault (for allegedly grabbing T.S.'s vagina), one count of second-degree assault and two counts of third-degree assault (for allegedly strangling T.S.), three counts of fourth-degree assault (for injuries to T.S.'s scalp allegedly inflicted when Cooper pulled her hair, for injuries to her face allegedly inflicted when Cooper punched and pushed her, and for injuries to her body allegedly inflicted when Cooper scratched her), one count of interfering with a report of a crime involving domestic violence, one count of driving under the influence, one count of driving while license revoked, two counts of reckless endangerment (one count for endangering T.S. in the car and one count for endangering a motorist who witnessed the incident), one count of fourth-degree weapons misconduct (for possessing a firearm while intoxicated) and one count of third-degree weapons misconduct (for being a felon in possession of a concealable firearm).
See AS 11.41.300(a)(1)(C); AS 11.41.420(a)(1); AS 11.41.210(a)(1); AS 11.41.-220(a)(1)(B); AS 11.41.220(a)(1)(A); AS 11.41.230(a)(1); AS 11.56.745; AS 28.35.-030(a)(1); AS 28.15.291(a)(1); AS 11.41.250; AS 11.61.210(a)(1); and AS 11.61.200(a)(1), respectively.
Prior to trial, Cooper's attorney filed notice that Cooper would be raising a self-defense claim as to all of the assault charges. When the parties discussed jury instructions, the defense attorney requested that the trial judge instruct the jury on self-defense, arguing that there was "some evidence" that T.S. was the one who was out of control, attacking herself and Cooper, and that any injuries inflicted by Cooper were only in self-defense. The superior court denied this request, conceding that self-defense was "something that could be argued" in this case, but ruling that Cooper had failed to show "some evidence" justifying a self-defense instruction.
During closing argument, the defense attorney argued that T.S. was the one who was violent and out of control, and that most of her injuries were self-inflicted. The attorney asserted that T.S. was either "not telling the truth" about what happened, or that "she believes things that aren't true because she's mentally ill," or "[m]aybe some combination of both." The defense attorney emphasized the multiple inconsistencies in T.S.'s story, and the attorney alluded to T.S.'s strange behavior on the witness stand.
The attorney also argued that the evidence did not support the State's claim that Cooper had "recklessly" caused any injuries to T.S. Instead, he argued, the evidence showed that Cooper was, at most, trying to fend off T.S. while "getting his butt kicked." There were no objections to this line of argument. However, in accordance with the trial judge's earlier ruling, the jurors were not instructed on self-defense, nor were they told that it was the State's burden to prove that Cooper had not acted in self-defense beyond a reasonable doubt.
Following deliberations, the jury acquitted Cooper of all of the felony charges and some of the misdemeanor charges. The jury convicted Cooper of three counts of fourth-degree assault (which were later merged at sentencing), one count of reckless endangerment, and one count of driving while license revoked.
As already noted, the trial judge dismissed the fourth-degree weapons misconduct charge and the reckless endangerment charge involving the other driver prior to the jury's deliberations.
This appeal then followed.
Why we conclude that the trial judge erred when he refused to give the jury a self-defense instruction
Whether a trial court erred in failing to give a self-defense instruction is a question of law that we review de novo.
Hamilton v. State, 59 P.3d 760, 771 (Alaska App. 2002).
A trial judge is required to instruct a jury on self-defense whenever there is "some evidence" to support that defense. "Some evidence" is evidence that, when viewed in the light most favorable to the defendant and with all reasonable inferences drawn therefrom, would allow a reasonable juror to find in the defendant's favor on each element of the defense. The "some evidence" burden is not a heavy one. As long as the defendant produces some evidence to support each element of the defense, any weakness or implausibility in the evidence is irrelevant and it becomes a matter for the jury, not for the court.
Id. at 770.
Id.; see also Lamont v. State, 934 P.2d 774, 777 (Alaska App. 1997); Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995).
Lamont, 934 P.2d at 777; see also Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982).
Here, as the trial judge appears to have implicitly recognized with his comment that self-defense was something that "could be argued," there was "some evidence" that Cooper was acting in self-defense. Although Cooper did not testify to his version of events, T.S.'s own description of the events partially supported Cooper's claim of self-defense. T.S. testified that she attacked Cooper — breaking a laptop computer on him, ripping his shirt, hitting him, and grabbing his crotch. The jury also saw evidence of Cooper's injuries — which the responding officer testified appeared more serious than T.S.'s injuries. Although T.S. claimed that she used force against Cooper only in her own self-defense, there was other evidence that undermined the credibility of this claim, including evidence that suggested that T.S. was trying to set Cooper up.
In denying Cooper's request for a self-defense instruction, the trial court relied on two prior cases from this Court: Hilbish v. State and Hamilton v. State. But these two cases were clearly distinguishable. Both cases involved deadly force where the victim was killed, and the defendant's claim of self-defense was entirely speculative and without any evidentiary basis.
Hilbish v. State, 891 P.2d 841 (Alaska App. 1995).
Hamilton v. State, 59 P.3d 760 (Alaska App. 2002).
Hamilton, 59 P.3d at 770-71; Hilbish, 891 P.2d at 851-52.
Hilbish involved a woman who was convicted of shooting and killing her long-term boyfriend and the father of her children. The circumstances of the shooting were unknown because there were no witnesses to the shooting, the victim was dead, and Hilbish did not testify. At trial, Hilbish tried to claim self-defense based on the victim's threatening behavior towards her that had occurred days before the shooting, and evidence suggesting that the victim may have had an angry verbal exchange with another man (purportedly Hilbish's lover) approximately twenty minutes before the shooting. On appeal, we affirmed the trial judge's refusal to instruct the jury on self-defense.
Hilbish, 891 P.2d at 844, 851-52.
Id.
Id.
Id.
Hamilton involved a defendant who was convicted of stabbing his friend to death for unknown reasons. The evidence showed that Hamilton entered his friend's house in the middle of the night when everyone was sleeping, armed with a knife and with his face covered with a bandana. Hamilton's claim of self-defense was based on the apparent lack of motive, the testimony of the victim's wife who woke to see her husband struggling against the knife-wielding Hamilton, and a wound on Hamilton's leg that may have occurred during this struggle. We again upheld the trial judge's refusal to instruct the jury on the defendant's claim of self-defense, concluding that there was no evidentiary basis for such a claim, even when viewing the evidence in the light most favorable to the defendant.
Hamilton, 59 P.3d at 763, 770.
Id. at 770-71.
Id.
Here, in contrast, there was an evidentiary basis for Cooper's claim of self-defense. That is, there was evidence (including T.S.'s testimony, the officer's testimony, and the photographic evidence) that, viewed in the light most favorable to Cooper's proposed defense, supported his defense attorney's claim that Cooper was, at most, trying to fend off T.S.'s attacks while "getting his butt kicked." Indeed, the defense attorney was essentially allowed to make this quasi self-defense argument to the jury (without any objection), despite the trial judge's refusal to instruct the jury on the governing law and the applicable burden of proof.
Cf. Greenwood v. State, 237 P.3d 1018, 1023 (Alaska 2010) (noting that "a strong argument can be made that a trial judge should err on the side of giving instructions on a proposed defense in order to prevent the jury from considering its own understanding of what [the proposed] defense is in the absence of an instruction from the court") (internal quotations and citations omitted).
Having concluded that the trial court erred in failing to instruct the jury on self-defense, we must now determine which of Cooper's convictions must be reversed on that basis. At oral argument, Cooper's appellate attorney conceded that the defense attorney only requested a self-defense instruction for the assault charges and the appellate attorney acknowledged that the reckless endangerment conviction should not be reversed on this ground.
Following oral argument, we requested supplemental briefing on whether the trial attorney had properly preserved his request for a self-defense instruction as to all of the fourth-degree assault charges that resulted in guilty verdicts. We noted that, during the discussion on jury instructions, the trial attorney made clear that Cooper was not claiming self-defense with regard to the bump on T.S.'s head or the laceration to her lip, which the defense attorney argued were self-inflicted and caused by T.S. banging her head against the car and smashing the whisky bottle so that it shattered and cut her lip.
Based upon the parties' supplemental briefing and our further review of the trial testimony, we conclude that the factual basis for the jury's guilty verdicts on the assault charges is too unclear for us to fairly say that the defense attorney waived any claim of self-defense with respect to any of these charges.
The record shows that the jury convicted Cooper of recklessly causing physical injury to T.S.'s face (Count VII), recklessly causing physical injury to T.S.'s scalp (Count VIII), and recklessly causing physical injury to T.S.'s body (Count IX). At trial, T.S. testified about multiple injuries to her face, scalp, and body, and she was not consistent about when those injuries occurred or how they were caused. Because we cannot determine whether the jury's guilty verdicts on these three charges rest solely on injuries that Cooper's attorney alleged were self-inflicted, we conclude that reversal of all three guilty verdicts is required.
Why we conclude that the trial court's ruling refusing to allow Cooper's attorney to voir dire T.S. on her use of Seroquel does not constitute reversible error
Because our reversal of the merged misdemeanor assault convictions does not affect Cooper's reckless endangerment conviction, we must also address Cooper's other claim on appeal — his claim that the trial court erred in refusing his request to voir dire T.S. outside the presence of the jury on why she was prescribed the drug Seroquel.
This issue arose because, during T.S's physical examination at the hospital, T.S. told the SART nurse that she was taking Valium, Albuterol, and Seroquel. Seroquel is an antipsychotic used to treat schizophrenia, bipolar disorder, and (more infrequently) major depressive disorder. T.S. also told the same nurse that she had "lost a chunk of time" — about "45 minutes" — during the events in question.
See Wikipedia, Quetiapine https://en.wikipedia.org/wiki/Quetiapine (Last visited Feb. 14, 2018). --------
Prior to trial, Cooper's attorney requested that the trial court order the Alaska Psychiatric Institute (API) to produce any records on T.S. so that the court could conduct an in camera review of those records for relevant information. The attorney supported this request for T.S.'s mental health records with an affidavit from Cooper that indicated (1) that T.S. had told Cooper that she had previously been at API; (2) that T.S. took multiple medications, including medications that are used to treat mental illness; and (3) that T.S. had previously displayed a variety of bizarre behaviors consistent with some kind of mental illness — including, but not limited to, mood swings, violent attacks without provocation, banging her head repeatedly into walls, and sitting motionless and staring blankly for hours at a time.
The trial court agreed that there was a sufficient basis for ordering the psychiatric records and the court issued a subpoena for the records. However, in response to the subpoena, API reported that it had no records for T.S. No further discovery requests occurred.
Later, in the middle of trial, Cooper's attorney requested to voir dire T.S. outside the presence of the jury concerning her reported use of Seroquel. The defense attorney argued that T.S.'s use of Seroquel was relevant to whether she suffered from the type of mental illness that "would affect her ability to ... accurately perceive and recall events[.]" The defense attorney acknowledged that he had no expert to address the significance of a diagnosis of psychosis to the jury should T.S. admit to such a diagnosis. The defense attorney also acknowledged that Seroquel was also prescribed for reasons other than psychosis. The defense attorney argued, however, that his request to voir dire T.S. was a reasonable one, and he asserted that if T.S.'s answer was that she merely took Seroquel for depression and anxiety, he would drop the issue and would not ask any questions in the presence of the jury. The trial judge refused to allow this limited voir dire, characterizing it as "a fishing expedition."
On appeal, Cooper argues that the trial court abused its discretion when it refused to allow his attorney to voir dire T.S. outside the presence of the jury regarding her use of Seroquel. We agree with Cooper that this request was not unreasonable, given the offer of proof regarding T.S.'s suspected mental health issues that he had already provided to the trial court during pretrial discovery.
But our review of this claim of error is complicated by the fact that the request to voir dire T.S. on her Seroquel prescription was not timely. Instead, it took place in the middle of trial. In addition, because the request was not granted, we do not know whether T.S.'s answers would have been useful to the defense, or whether T.S. would even have been able to provide any clear answer about her Seroquel prescription. The record is clear, however, that Cooper's defense attorney had no additional evidence to present on this issue, and that the only evidence that would have been admitted would have been information that T.S. herself was willing (and able) to give.
Given the untimeliness of Cooper's request and the limited nature of the evidence that Cooper could have received from that request, we cannot say that the trial court's ruling was an abuse of discretion or that it resulted in any actual prejudice to Cooper's defense. Accordingly, we reject this claim on appeal, and we affirm Cooper's conviction for reckless endangerment.
Conclusion
The merged fourth-degree assault conviction and the underlying guilty verdicts are REVERSED. The judgment of the superior court is otherwise AFFIRMED.