Summary
rejecting the State's claim that shooting into the air in an urban area would necessarily constitute second-degree weapons misconduct
Summary of this case from Glen v. StateOpinion
Court of Appeals No. A-8786.
February 21, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Stephanie E. Joannides, Judge, Trial Court No. 3AN-02-7598 CR.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W . Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Close to midnight on Saturday, August 24, 2002, several Anchorage police officers were in the McDonald's parking lot between Northern Lights and Benson Boulevards. The police were processing individuals they had detained for minor infractions when they heard gunfire coming from Benson Boulevard, southwest of their location. As a group of cars passed, heading eastbound on Benson, Officer Mitchell Paige stopped what he was doing and followed the car nearest to his location as it passed by. That car turned north onto Arctic Boulevard. As the car crossed Northern Lights, Officer Paige activated his emergency lights. The car turned right onto 27th Avenue and stopped.
Sitting in the passenger seat of this car was Gerardo Delreal. After some investigation, the police arrested Delreal. Ultimately, the State charged Delreal with one count of first-degree misconduct involving weapons, one count of second-degree misconduct involving weapons, and one count of fourth-degree misconduct involving weapons.
AS 11.61.190(a)(2), AS 11.61.195(a)(3) AS 11.61.210(a)(1), respectively.
At trial, the jury convicted Delreal of first-and second-degree misconduct involving weapons but acquitted him of the remaining charge. In this appeal, Delreal argues that the jury's verdicts were not supported by sufficient evidence. But viewing the evidence, and the reasonable inferences from the evidence, in the light most favorable to the verdicts, we conclude that sufficient evidence was presented to support the jury's verdicts. Accordingly, we affirm the superior court.
Background facts and proceedings
Officer Paige was sitting in his patrol car in the southwest portion of the McDonald's parking lot, close to the intersection of Benson and Arctic Boulevards. Paige was filling out paperwork when he heard what he believed were gunshots coming from the southwest. Officer Paige estimated that five to eight shots were fired without interruption.
At the time, Officer Patrick Martin and Sergeant Kathleen Lacey were also in the parking lot working on a traffic stop. They had their emergency lights activated. Both Officer Martin and Sergeant Lacey testified that they heard six to eight shots and that they heard no pause in the sequence of shots.
When Officer Paige heard the shots, he looked in the direction of the sound and saw four or five cars heading eastbound on Benson. Although Paige could not identify the car from which the shots had been fired, he decided to follow a car he thought might have been involved. That car turned north on Arctic Boulevard. As the vehicle crossed Northern Lights Boulevard, Officer Paige activated his emergency lights. The vehicle turned onto 27th Avenue and stopped.
The driver was Nancy Montano. Delreal was in the front passenger seat and was wearing a bullet-proof vest. Angel Robles was in the back seat behind Delreal. Montano's two-year-old daughter was also sitting in the back seat behind Montano.
Officer Paige found two handguns in the car, one under the front passenger seat and the other sitting on the dashboard in front of Delreal's seat. The pistol under the front seat was a Smith Wesson .40 caliber semi-automatic. According to Officer Paige, there was no evidence that the .40 caliber had been fired.
The pistol on the dashboard was a Taurus 9mm semi-automatic. The Taurus was loaded with a fifteen-round magazine containing twelve live rounds; a spent round was jammed in the pistol's chamber. A thirty-round extended magazine for the Taurus, twenty-six live rounds, was on the dashboard next to the pistol.
Delreal had eight rounds of 9mm ammunition in his jacket pocket. When the police returned to Benson Boulevard later, they found two 9mm shell casings near the intersection of Benson and Arctic. Delreal admitted to Officer Jeffery Martin that the pistols were his and that he had fired shots. Delreal told Officer Paige he had fired "at least two shots" from the 9mm Taurus.
The State called Montano as a witness, and she testified that she, Robles, and Delreal drove to the Northern Lights McDonald's around midnight because Montano's daughter was hungry. But when she saw the police cars, Montano testified that she drove through the parking lot and turned onto Benson because her daughter was not in a child's seat, and Montano did not want to get a ticket. She said she was stationary waiting at the stop light on Benson when another car pulled up to the light, and the occupants began "yelling stuff" at Robles. Montano then heard "several" gunshots and saw Delreal with his hand out the window. Montano said that Delreal told her to drive toward the police officers. Montano thought Delreal was trying to scare away the occupants of the other car.
The State impeached Montano with statements she made to the police on the night of the incident: that she had heard only one shot fired, that Robles told Delreal not to shoot at the other car, and that she did not know Delreal. Montano explained the inconsistent statements by stating that she had wanted to go home.
Delreal called Robles as a witness. Robles said he thought another car was responsible for the shots. Robles testified that he did not see Delreal with a handgun and was not even sure if Delreal fired anything. The State impeached Robles with his statements to the police that he did not know Delreal's name, did not know Montano's last name, and had not told the police about the other car.
Delreal testified in his own defense. Delreal remembered firing two shots in the air. At least three people in another car were yelling. Although Delreal did not know for sure if they were yelling at his car, he shot his handgun to let them know he had a gun. The State impeached Delreal with his statement to the police that he had previously had a confrontation with the men in the other car at Chilkoot Charlie's and that he could not say whether they were shooting at him.
The court instructed the jury on self-defense and defense of others. The jury found Delreal guilty of counts one and two but acquitted him of count three.
Discussion
Delreal argues that the evidence presented at trial was insufficient to sustain his convictions and that the superior court erred in denying his motion for acquittal. Delreal asserts that the State did not present sufficient evidence to prove either first-or second-degree weapons misconduct. Delreal also argues the State failed to disprove Delreal's self-defense claim.
But viewing the evidence in the light most favorable to the verdicts, a fair-minded juror exercising reasonable judgment could conclude that the State had proven the charges beyond a reasonable doubt.
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
Delreal and the others in the car with him claimed at trial that the gunfire occurred right at the intersection, while the car was stopped. But that scenario conflicted with the testimony of the officers who all heard gunfire before the group of cars, including the car Delreal was in, passed by heading eastbound on Benson. At trial, Delreal and his companions identified a threat from another car, but the night of the incident, neither Robles nor Montano complained that they were endangered by shooting from another car. A person commits first-degree weapons misconduct under AS 11.61.190(a)(2) if the person "discharges a firearm from a propelled vehicle while the vehicle is being operated and under circumstances manifesting substantial and unjustifiable risk of physical injury to a person or damage to property." A person commits second-degree weapons misconduct under AS 11.61.195(a)(3) if the person "discharges a firearm at or in the direction of a building with reckless disregard for a risk of physical injury to a person; or a dwelling."
Delreal argues that evidence presented at trial established that he fired the pistol up into the air. Delreal asserts there was no evidence that he "created any specific risk of injury to any person or damage to any property, or that he fired 'at or in the direction of' any building or dwelling."
But Delreal views the evidence in the light most favorable to himself. The State presented evidence at trial that Delreal's shooting did create a risk of injury to persons or damage to property. Delreal admitted to firing the gun while in the car. Officer Paige testified at trial that if a person leveled a gun and shot from near where the casings were found, in any direction, that person would hit a building or a residence. Officer Paige also testified that he had hit targets with a 9mm pistol from a hundred yards away.
Delreal argues that this evidence does not establish Delreal placed any person, property, or building at risk. Delreal argues the risk created by firing a weapon into the air is "remote and speculative." But it is solely the jury's decision how much weight to give a specific piece of evidence. The State emphasized in its closing argument that, regardless of what angle Delreal shot at, he would have presented a risk to buildings or persons.
See Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990) ("[T]he weight and credibility of evidence are matters for the jury to consider in reaching a verdict, not for the reviewing court to decide in ruling on the legal sufficiency of the evidence.").
And the jury had reason to doubt Delreal's testimony that he shot straight into the air. The State impeached Montano, Robles, and Delreal with their prior statements. A reasonable juror could find that Delreal did not shoot directly into the air and, therefore, based on Officer Paige's testimony regarding the surroundings, shot at buildings or homes.
Viewed in the light most favorable to the State, the evidence the State presented at trial was sufficient to establish that, under the circumstances, Delreal created a substantial and unjustifiable risk of injury to persons or damage to property and that Delreal fired at or in the direction of any building or dwelling.
Delreal also argues there was insufficient evidence to prove the required mental state. To prove first-degree weapons misconduct, the State had to show that Delreal knowingly discharged the weapon and was reckless with respect to the circumstance that discharging the weapon would endanger people or property. A person acts "recklessly" with respect to the result of criminal conduct when "the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur[.]" Delreal argues the State failed to prove he acted recklessly in firing the weapon because "[a] bullet fired straight into the air would not pose a realistic risk of injury to anyone." According to Delreal, because the risk of harm was so speculative and remote, it was impossible for him to be aware of that risk and consciously disregard it.
AS 11.81.900(a)(3).
But this claim suffers from the same deficiency as Delreal's claim above regarding the actus reus component of first-and second-degree weapons misconduct because Delreal views the evidence in the light most favorable to himself.
Finally, Delreal argues the State did not disprove that he acted in self-defense. But again, Delreal views the record in the light most favorable to himself. The jury was not required to view the evidence in that light. There is sufficient evidence in the record for a juror exercising reasonable judgment to conclude beyond a reasonable doubt that Delreal did not act in self-defense.
Conclusion
The judgment of the superior court is AFFIRMED.
Delreal was brought to trial on two felony weapons charges: (1) first-degree weapons misconduct under AS 11.61.190(a)(2) — discharging a firearm from an operating motor vehicle under circumstances manifesting a substantial and unjustifiable risk of injury to persons or damage to property; and (2) second-degree weapons misconduct under AS 11.61.195(a)(3) — discharging a firearm at or in the direction of a dwelling, or at or in the direction of a building with reckless disregard for the risk of injury to persons.
I agree with my colleagues that, viewing the evidence in the light most favorable to the State, the evidence presented at Delreal's trial was sufficient to establish his guilt of both of these offenses. However, I conclude that Delreal's conviction for the latter charge (second-degree weapons misconduct) is flawed because the jury was misinstructed concerning the definition of this offense.
The State's basic theory at trial was that Delreal, while riding in a car near the intersection of Benson and Arctic Boulevards in Anchorage, fired several shots from a handgun. Delreal's defense was that the occupants of an adjacent vehicle started shooting at him, and that he responded by firing his own gun twice. Moreover, Delreal asserted that he had not fired these two shots at his attackers; rather, he had fired the shots into the air — to warn his assailants that he, too, was armed, and that they should cease their attack.
At Delreal's trial, a dispute arose as to whether (leaving aside potential issues of self-defense) Delreal would be guilty of second-degree weapons misconduct if he had fired his gun into the air.
As explained above, second-degree weapons misconduct under section 190(a)(3) requires proof that the defendant discharged a firearm "at or in the direction of" a dwelling, or "at or in the direction of" any other building if the defendant is aware that there is a substantial and unjustifiable risk that the bullet will inflict injury to persons. Delreal's attorney argued that a person who fires a gun into the air does not violate this statute. The prosecutor responded that, under the laws of physics, all bullets that are fired into the air eventually fall to earth — and that, therefore, anyone who fires a pistol into the air while standing in an urban area (that is, an area containing dwellings and other buildings) necessarily discharges a firearm "at or in the direction of" these buildings.
The trial judge declined to resolve this legal issue. Rather, she allowed the parties to argue their positions on this issue to the jury.
At the conclusion of Delreal's trial, the prosecutor argued to the jury that, even if the jurors believed that Delreal had only fired his gun into the air, Delreal was nevertheless guilty of discharging a firearm "at or in the direction of" a dwelling or other building — because bullets eventually fall to earth, and because there are a number of dwellings and other buildings in the vicinity of the intersection of Benson and Arctic Boulevards. For the reasons I am about to explain, I conclude that it was error for the prosecutor to argue this theory of the case to the jury.
The statute in question, AS 11.61.195(a)(3), was enacted in chapter 89, section 1 of the 1997 Session Laws. Section 2 of this same session law enacted a companion statute, AS 11.61.210(a)(3), which declares that a person commits fourth-degree weapons misconduct if they discharge a firearm "with reckless disregard for a risk of damage to property or a risk of physical injury to a person under circumstances other than those described in AS 11.61.195(a)(3)(A)" — in other words, under circumstances other than when the firearm is discharged "at or in the direction of" a building.
Both the wording of these statutes and the fact that the legislature paired
them in the same session law shows that the legislature viewed section 195(a)(3)(A) and
section 210(a)(3) as standing in the relation of greater offense and lesser offense. That is, the legislature viewed the conduct covered by section 195(a)(3)(A) as a heightened or more serious form of the conduct covered by section 210(a)(3).
Section 210(a)(3) covers any act of discharging a firearm under circumstances where there is a substantial and unjustifiable risk of harming persons or property. Section 195(a)(3)(A) is a more serious offense — a class B felony rather than a class A misdemeanor — because it requires proof that the firearm was discharged "at or in the direction of" a building.
Second-degree weapons misconduct is a class B felony; see AS 11.61.195(b). Fourth-degree weapons misconduct is a class A misdemeanor; see AS 11.61.210(d).
As the prosecutor pointed out at Delreal's trial, bullets fired into the air almost inevitably return to earth. Thus, any act of unjustifiably discharging a firearm into the air in the middle of a city could be seen as creating a risk of harm to persons or property — a violation of the lesser statute, section 210(a)(3).
But because any unjustifiable discharge of a firearm into the air in a city apparently violates section 210(a)(3), the canons of statutory construction require us to look for some objective distinguishing feature to define the difference between this misdemeanor offense and the class B felony defined by section 195(a)(3)(A) — the act of discharging a firearm "at or in the direction of . . . a building with reckless disregard for a risk of physical injury to a person".
The obvious answer is that section 195(a)(3) requires proof, not just that the firearm was discharged under circumstances where one might reasonably fear that the bullet would hit a building, but rather proof that the firearm, when discharged, was pointed "at or in the direction of" a building.
This conclusion is bolstered by the discussion of SLA 1997, chapter 89, as it made its way through the 20th Legislature.
This session law began as Senate Bill 70 (20th Legislature). As originally proposed, the provisions that ultimately became section 195(a)(3) and section 210(a)(3) would have been enacted as entirely new statutes — AS 11.61.310 and AS 11.61.330. But the gist of these two provisions was basically the same. Under SB 70, it would be a class B felony to discharge a firearm "at or in the direction of a building with reckless disregard for a risk that the building is occupied", and it would be a class A misdemeanor to discharge a firearm under any circumstances "[in] reckless disregard for a risk of physical injury to a person or damage to property".
SB 70 (20th Legislature) (as originally proposed).
This bill was considered by several legislative committees during the winter and spring of 1997. At each committee hearing, the felony provision — the provision that would ultimately become section 195(a)(3) — was described as a law to protect people against drive-by shootings.
For instance, at the meeting of the Senate Health, Education, and Social Services Committee on February 21, 1997, the sponsor of SB 70, Senator Dave Donley, told the Committee that his bill "addresse[d] a gap in [Alaska's] current criminal justice laws":
Currently it is only a misdemeanor in Alaska to discharge a firearm into a building, even if there's a high possibility that someone is living in that building. SB 70 elevates that particular misuse of a firearm to a felony.
Minutes of the Senate Health, Education, and Social Services Committee, February 21, 1997, Tape 97-16, Side A, Log No. 478.
Senator Donley further explained that he had used the word "building" instead of "dwelling" so that the law would "cover the circumstances of someone shooting into a store or a place where people work."
Minutes of the Senate HESS Committee, February 21, 1997, Tape 97-16, Side A, Log No. 478.
It should be noted that when Senator Donley described his bill to the committee, he consistently described the forbidden conduct as shooting "into" a building. This is a further indication that the statutory phrase "at or in the direction of a building" was intended to mean instances in which the firearm was pointed at or in the direction of the building.
As explained above, this narrow interpretation of "at or in the direction of a building" is consistent with the fact that Senator Donley asked the legislature to make this conduct a class B felony. It is further bolstered by the fact that Senator Donley also proposed (this time, unsuccessfully) that juveniles who committed this crime would be automatically waived to adult status. That is, Senator Donley proposed that children would automatically be tried and sentenced as adults if they discharged a firearm "at or in the direction of a building" with reckless disregard for the possibility of injury to people.
SB 70 (20th Legislature), § 5. See Minutes of the Senate HESS Committee, February 21, 1997, Tape 97-16, Side A, Log Nos. 478 and 324. (For some reason, the log numbers for this tape run backwards, at least as transcribed in the Legislative Affairs Agency's "Infobase" of legislative committee minutes.)
This automatic waiver proposal makes little sense if the statute were construed as broadly as the State now proposes — i.e., construed so that it covers essentially every act of recklessly discharging a firearm in a city. Senator Donley was obviously thinking of drive-by shootings where the person who discharged the firearm was aiming at the building.
During this same Committee hearing, Captain Ted Bachman of the Alaska State Troopers testified in favor of the bill. He told the Committee that he "supported any tools available to stop what seems to be an ever-increasing incidence of drive-by shootings in urban areas and other criminal uses of firearms."
Minutes of the Senate HESS Committee, February 21, 1997, Tape 97-16, Side A, Log No. 324.
One month later (on March 26, 1997), Senator Donley appeared before the Senate Judiciary Committee to explain his bill. He told the Committee that his bill was intended to "make it a felony offense to fire a gun into a building". (Again, note Senator Donley's description of the prohibited conduct as firing a gun "into a building".) He further told the Committee that he had drafted this bill "[as a] result of frustration expressed by police officers when attempting to prosecute drive-by shootings".
Minutes of the Senate Judiciary Committee, March 26, 1997, Tape 97-24, Side A, Log No. 000.
Under current law, unless proof is available that the person shooting the firearm knew the house was occupied at the time of the shooting, the offender can only be charged with a misdemeanor, unless property damage was more than $500, in which case the charge would be [only] a class C felony.
Minutes, Senate Judiciary Committee, March 26, 1997, Tape 97-24, Side A, Log No. 000 et seq.
Similarly, at the meeting of the House Judiciary Committee on May 1, 1997, Assistant Attorney General Anne Carpeneti told the Committee that "she understood from the sponsor [ i.e., Senator Donley] that the purpose [of the felony provision was] to criminalize, at a higher level, drive-by shootings of buildings."
Minutes of the House Judiciary Committee for May 1, 1997, Tape 97-75, Side A, Log No. 1864.
Based on this legislative history, I conclude that section 195(a)(3) was not intended to apply to all instances in which a person recklessly discharges a firearm in a city or other area where there is a risk that a falling or ricocheting bullet might strike a dwelling or other building. Rather, section 195(a)(3) was intended to apply to a narrower range of conduct: discharging a firearm when it is pointed "at or in the direction of" a building (or, as Senator Donley repeatedly told his fellow legislators, firing a gun "into" a building).
I further note that, even if this legislative history merely demonstrated a lingering ambiguity in the meaning of the phrase "at or in the direction of" a building, this Court would be obliged to resolve this ambiguity against the government. That is, we would be obliged to construe the phrase narrowly, rather than in the expansive manner that the State suggests. As this Court declared in Ned v. State, when judicial analysis of a criminal statute leaves "significant doubt whether the legislature intended [criminal] liability to be this broad . . ., we must resolve our doubt in favor of the defendant." 119 P.3d 438, 447 (Alaska App. 2005).
Citing Brookins v. State, 600 P.2d 12, 17 (Alaska 1979); Wells v. State, 102 P.3d 972, 976 (Alaska App. 2004); Whitesides v. State, 88 P.3d 147, 151 (Alaska App. 2004); State v. ABC Towing, 954 P.2d 575, 579 (Alaska App. 1998); Magnuson v. State, 843 P.2d 1251, 1253 (Alaska App. 1992); State v. Andrews, 707 P.2d 900, 907-08 (Alaska App. 1985); State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App. 1983).
Because section 195(a)(3) has this narrower meaning, it was error for the prosecutor to ask, and for the trial judge to allow, the jury to convict Delreal of this offense simply for having discharged his pistol into the air.
I am not saying that Delreal's version of events was necessarily true. The State's evidence certainly raised an inference that Delreal did not merely fire his pistol into the air. But the problem here is that the jurors were told that they could convict Delreal of violating section 195(a)(3) even if they believed that his version of events was true — i.e., even if they believed that Delreal fired his pistol into the air. This was error. Under AS 11.61.195(a)(3), the State was required to prove that Delreal pointed his pistol "at or in the direction of" a building.
Normally, this analysis would lead to the conclusion that Delreal is entitled to a new trial on this count of the indictment. However, at sentencing, the superior court merged Delreal's conviction for second-degree weapons misconduct with his conviction for first-degree weapons misconduct (discharging a firearm from a vehicle while it was being operated), and the court imposed only a single sentence for this combined conviction.
The superior court's action mooted the flaw in the process leading to Delreal's conviction for second-degree weapons misconduct. Otherwise, I would have voted to reverse Delreal's conviction on this count.