Weston v. State

COMPTON, Justice,

dissenting.

I dissent. There is no evidence from which a reasonable juror could have entertained a reasonable doubt whether Weston acted in self-defense, or whether he would have been justified in doing so.

The court cites Weston’s statements that he was scared when Ahsoak came at him with a knife and that he was still seared after he had disarmed Ahsoak and they continued to struggle, as evidence that Weston acted out of fear for his own safety when he slit Ahsoak’s throat. Weston v. State, 682 P.2d 1119, 1122 (Alaska 1984).1 However, there is simply no evidence that Weston acted out of fear; his own testimony precludes that interpretation of the evidence. In response to questions from his counsel about the course of events once Ahsoak had fallen and Weston had pinned him to the floor, Weston testified:

Q When you got on top of him what were you feeling?
A I was still angry.
Q How angry were you?
A Very angry.
Q What happened?
[[Image here]]
A At that point I told him I was gonna kill'him.
[[Image here]]
Q Why were you going to kill him?
A I was angry. I was really angry at that time.
Q Why — why were you — why were you angry?
A Becuase he called me a Yupik thief.' I was also — he was also coming— coming at me with a knife.
Q That had made you angry?
A Yes.

The court states that Weston’s testimony is contradictory, Weston, 682 P.2d at 1122, but in truth, it is quite consistent. He acknowledged feeling fear on Ahsoak’s attack, but once he had gained the upper hand, he no longer felt fear, but anger.

Q When you told him that you were going to kill him, Miller, did you mean it?
A No, I did not.
Q Did you — what do you mean by that?
A My force and anger killed Mr. Ahs-oak. But back in my mind, my mind said don’t.
[[Image here]]
Q Did you try not to do it?
A Yes. But it was my anger.

In addition, there is no evidence that, had Weston actually believed slitting Ahsoak’s throat was necessary, such a belief would have been reasonable under the circumstances. Under Alaska law a person has a duty to retreat, if he may do so in complete safety, before using deadly force in self-defense. AS 11.81.335(b). The evidence fails to show why Weston could not have retreated when Ahsoak fell to the floor.

The presence of other weapons in Ahs-oak’s house may have had a bearing on *1124Weston’s ability to retreat in safety, but there is no evidence that Weston was aware of the presence of these other weapons. A basic tenet of the doctrine of self-defense is that “One who invokes the privilege of self-defense is neither limited by, nor entitled to the benefit of, unknown factors.” R. Perkins, Criminal Law 994 (2d ed. 1969). The court believes a jury could infer that Weston knew of the weapons’ presence because he had been in the house drinking for several hours. Weston, 682 P.2d at 1122 n. 3. That inference seems extremely tenuous support for a finding, which this court must impliedly have made, that retreat in safety was not possible.

Further, even if Weston could not have retreated in safety, he was still required to use only the force necessary under the circumstances. Another basic tenet of the doctrine of self-defense is that- “Deadly force is unreasonable, if non-deadly force is obviously sufficient to avert the threatened harm _” R. Perkins, supra, at 993.

While, as the court notes, the law does not require detached reflection in the presence of an uplifted knife, Weston, 682 P.2d at 1121-1122, some consideration of the options available to a victim must be required. This is especially true once the victim is no longer faced with the immediate threat of death, but has gained the advantage in a struggle. Weston had the knife; he could have used it to threaten Ahsoak while he (Weston) took possession of one of Ahsoak’s fire-arms. He could have grabbed Ahsoak by the collar and hauled him across the street to the police station. There is no evidence that any less drastic alternatives would have been ineffective, and all would have been infinitely more reasonable than slitting Ahsoak’s throat three times, while Ahsoak lay pinned beneath Weston, begging for his life.

I would hold that the trial court’s failure to instruct the jury on self-defense was not error.

APPENDIX

MS GREENE: Call Miller Weston.

THE COURT: Mr. Weston, if you’d be kind enough to come forward to the witness chair, attach the microphone with a clip and remain standing while the clerk administers an oath.

THE COURT: Raise your right hand.

Thank you.

MILLER WESTON

called as a witness on his own behalf testified as follows on

DIRECT EXAMINATION
(Oath administered)
A I do.
THE COURT: Be seated please.
State your name and spell your last name.
A Miller Z. Weston, W-e-s-t-o-n.
THE COURT: Thank you. Ms Greene?
MS GREENE: Thank you.
BY MS. GREENE:
Q Mr. Weston, on the 9th of June, 1980 did you kill Donald Ahsoak?
A Yes, I did.
Q Why did you kill him?
A Because I was afraid; he was coming at me with a knife. He was also calling me Yupik thief.
Q Miller, are you — where are you originally from?
A I’m originally from Nunivak Island.
Q Where is that located?

. Weston's testimony that he killed Ahsoak because he “was afraid” is appended. His testimony that he was "still scared” after the knife was dislodged, read in context, discloses that he and Ahsoak were struggling when he was "still scared.” This was before Ahsoak fell to the floor and Weston pinned him down.