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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JACKIE RUSSELL ADAMS,
                                                      Court of Appeals No. A-11450
                            Appellant,               Trial Court No. 3AN-12-1048 CR

                     v.
                                                                OP INION
STATE OF ALASKA,

                            Appellee.                   No. 2639 — March 1, 2019


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Larry D. Card, Judge.

              Appearances: Marjorie Mock, under contract with the Public
              Defender Agency, and Quinlan Steiner, Public Defender,
              Anchorage, for the Appellant. Tamara E. deLucia, Assistant
              Attorney General, Office of Criminal Appeals, Anchorage, and
              Craig W. Richards (initial brief) and Jahna Lindemuth
              (supplemental brief), Attorneys General, Juneau, for the
              Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Jackie Russell Adams appeals his conviction for second-degree
murder. 1 Among other things, Adams asserts that he is entitled to a new trial because,
during the State’s closing argument, the prosecutor openly suggested that if the jurors
returned an erroneous verdict, this verdict would be corrected later by the courts.
              We agree with Adams that the prosecutor’s argument was improper, and
we further conclude that this improper argument requires reversal of Adams’s
conviction.


       Background facts


              Adams was convicted of second-degree murder for stabbing and killing
Andrew Wilson at the Inlet Inn in Anchorage in January of 2012.
              On the evening in question, both men had been among the people drinking
in Adams’s hotel room. After Wilson spit onto the carpet, Adams physically escorted
Wilson out of the room and locked the door (leaving Wilson in the hallway). From the
hallway, Wilson kicked the door twice. Adams opened the door and came out of the
room, into the hallway, where he and Wilson tussled.
              Eventually, the two men stopped fighting, and Adams returned to his room.
But a little later, Wilson kicked the door again. This time, when Adams opened the door,
there was another scuffle. At the end of this scuffle, Adams re-entered the room holding
a steak knife, and he declared that he had stabbed Wilson. Wilson was in fact stabbed
in the stomach, and he later died from this wound.
              At trial, Adams’s attorney conceded that Adams stabbed Wilson, but the
defense attorney contended that Wilson had been drunk and violent, and that Adams had



   1
       AS 11.41.110(a)(1) or (2).

                                          –2–                                         2639

stabbed Wilson in self-defense, or in defense of the other people in the room, or in
defense of the premises against a violent intruder.
              The jury rejected these defenses and found Adams guilty of second-degree
murder.


       Facts relating to the prosecutor’s improper argument to the jury


              At the close of Adams’s trial, during the defense closing argument,
Adams’s attorney discussed the jury instruction defining the concept of “reasonable
doubt.” This instruction (Alaska Criminal Pattern Jury Instruction 1.06) stated in
pertinent part:

                    Proof beyond a reasonable doubt must be proof of
              such a convincing character that, after consideration, you
              would be willing to rely and act upon it without hesitation in
              your own important affairs.

              During his summation, Adams’s attorney urged the jurors to equate the
concept of “proof beyond a reasonable doubt” with the kind of convincing proof that the
jurors would require before deciding to withdraw life support from a loved one:

                     Defense Attorney: [Proof beyond a reasonable doubt
              requires you to have] the same degree of confidence that you
              would have to have in ... another important affair in your life,
              and to act without hesitation in that important affair.
                     . . .
                     Important affairs in your life, ladies and gentlemen.
              What would those be? ... Well, important affairs presumably
              would be ... the same types of stakes that we’re dealing with
              here: things where you have to make a decision that cannot
              be changed.

                                           –3–                                    2639

                     . . .
                   Permanent, irreversible decisions. ... That’s the type
             of decision you’re about to make in this case. ... There’s
             only one really good example I can think of, frankly. ...

                     [Objection by the prosecutor; the trial judge declines
                     to intervene]

                    [Defense Attorney continues:] Important affairs in
             your life. Potentially, ladies and gentlemen, one example of
             that might be terminating life support for a loved one. ...
             It’s a decision, an extremely important decision, that you
             may have to make at some point in your life. Maybe some of
             you have already had to make that decision; I don’t know.
             But it’s an important affair in your life. It’s permanent; it’s
             irreversible. That’s analogous to the decision that you are
             being asked to make in this case.

             As noted in this excerpt from the trial transcript, when the prosecutor
objected to the defense attorney’s argument, the trial judge declined to intervene.
Instead, the judge told the prosecutor that he would simply caution the jury to disregard
any arguments of counselthat misstated the law. But the judge never indicated, one way
or the other, whether he thought that the defense attorney’s argument actually misstated
the law.
             Havingreceived this response from the trial judge, the prosecutor addressed
this issue in her rebuttal summation. She told the jurors that the defense attorney’s
analogy was wrong:

                    Prosecutor: [The defense attorney] talked repeatedly
             about this term “permanent and irrevocable”, and [argued to
             you that] ... you should equate [your decision in this case]
             to your life’s [decisions] that are permanent and irrevocable.

                                          –4–                                       2639

              I would disagree. I think everybody in this room knows that
              there’s a number of procedures after this court hearing
              happens.

                      Your decision is an important one, and I [by] no means
              mean to trivialize the burden of proof beyond a reasonable
              doubt. It’s a high burden. But if he wants, Mr. Adams can
              ask the judge to set aside the verdict. He can appeal it to the
              Court of Appeals. You know that there’s a Supreme Court
              after that. It is not a permanent and irrevocable ... decision.

              At this point, Adams’s attorney objected. He argued that the various ways
in which the trial result might later be judicially altered “are not considerations the jury
should be thinking about.” In response, the judge cautioned the jurors to disregard any
arguments of counsel that misstated the law. But, just as in the preceding bench
conference, the judge gave the jurors no indication as to whether he thought that the
prosecutor had, in fact, misstated the law.
              Having received this response from the trial judge, the prosecutor then
restated her point (without further objection):

                     Prosecutor: [Your verdict] is not permanent and
              irrevocable, the way it is when you decide to kill a loved one.
              Don’t let that hyperbole skew your decision.

              Following deliberations, the jury found Adams guilty of second-degree
murder.




                                           –5–                                         2639

       Why we conclude that both the prosecutor’s and the defense attorney’s
       arguments were improper


              The concept of “proof beyond a reasonable doubt” is difficult, if not
impossible, to define with precision. At the time of Adams’s trial, Alaska Criminal
Pattern Jury Instruction 1.06 defined “proof beyond a reasonable doubt” as evidence
which, upon consideration, is so convincing that a person would be willing to act upon
it, without hesitation, in their own important affairs. We recently criticized this
formulation in Roberts v. State, 394 P.3d 639, 644 (Alaska App. 2017). 2
              Here, when Adams’s defense attorney delivered his summation to the jury,
he urged the jurors to equate the concept of “proof beyond a reasonable doubt” with the
kind of convincing proof that the jurors would require before deciding to withdraw life
support from a loved one.
              This argument was improper because it suggested that the jurors should
decide Adams’s case as if they had a powerful, if not overwhelming, personal interest
in the outcome. The defense attorney told the jurors that they should not be satisfied
with the State’s evidence unless it was so convincing that they would be willing to act
on it, without hesitation, when making a decision that was fraught with emotion and
which would have irrevocable and irremediable consequences for one or more people
whom they loved.
              When the prosecutor objected to the defense attorney’s argument, it would
have been better if the trial judge had told the jurors that the defense attorney’s argument
was improper for these reasons, and if the judge had reminded the jurors that they had
been selected precisely because they were capable of being disinterested judges of
Adams’s case — capable of deciding Adams’s guilt or innocence without having their

   2
       This pattern instruction was later amended in light of our decision in Roberts.

                                            –6–                                          2639

decision “influenced by sentiment, prejudice, [or] passion.” 3 Indeed, the jurors had
taken an oath to abide by this standard.
              But after the prosecutor obtained no remedy from the trial judge, she
responded to the defense attorney’s argument with improper argument of her own.
              When the prosecutor addressed the defense attorney’s argument duringher
rebuttal, the prosecutor did not focus solely on the impropriety of the defense attorney’s
analogy (a decision whether to withdraw life support from a loved one). Instead, the
prosecutor also urged the jurors not to view their decision as final — assuring the jurors
that, if they made a mistake, the trial judge or an appellate court would fix it later. This
argument was almost certain to mislead the jurors regarding the importance and finality
of their decision.
              It is true that trial judges have the authority to vacate a jury’s verdict and
grant a new trial under Alaska Criminal Rule 33(a) based on “any claim of trial error or
pretrial error that would justify reversal of [the] conviction”, or based on the judge’s
assessment that the verdict is against the clear weight of the evidence. 4
              But this authority is circumscribed. For example, when a defendant claims
that the jury’s verdict is against the weight of the evidence, a judge may grant a new trial
only if the judge concludes that the jury’s verdict is manifestly against the weight of the
evidence — i.e., that the jury’s view of the evidence “is plainly unreasonable and
unjust.” 5 Likewise, claims that a verdict should be overturned based on newly




   3
       Alaska Criminal Pattern Jury Instruction 1.07 (2011).
   4
       Angasan v. State, 314 P.3d 1219, 1222 (Alaska App. 2013).
   5
      White v. State, 298 P.3d 884, 885 (Alaska App. 2013), quoting Taylor v. State, 262
P.3d 232, 234 (Alaska App. 2011).

                                           –7–                                         2639

discovered evidence “are not favored by the courts, and ... are viewed with great
caution.” 6
              An appellate court has even less authority to second-guess a jury’s
weighing of the evidence. An appellate court must uphold a jury’s verdict unless, even
viewing the evidence (and all reasonable inferences to be drawn from it) in the light most
favorable to the jury’s verdict, no reasonable person could have concluded that the
government had proved its case. 7
              In other words, even though our legal system provides certain avenues for
challenging a jury’s verdict, there are significant limits on judicial authority to interfere
with a jury’s decision. The prosecutor was technically correct in saying that the jury’s
decision was not as final and irrevocable as a decision to withdraw life support. But the
prosecutor’s argument was materially misleading to the extent it suggested that the
judiciary could correct any mistake the jurors made. That is simply not true.
              In addition, the prosecutor’s remarks could be interpreted as downplaying
the importance of the jury’s decision. One implication of the prosecutor’s remarks is the
suggestion that, if the jurors were having a difficult time deciding whether the State had
proved Adams’s guilt, they could simply return a mutually agreeable verdict and then
trust that things would be sorted out later by the courts.


   6
       Angasan, 314 P.3d at 1222. See also Wayne R. LaFave, Jerold H. Israel, Nancy J.
King, and Orin S. Kerr, Criminal Procedure (4th ed. 2015), § 24.11(d), Vol. 6, p. 739:

   Courts are naturally skeptical of claims that a defendant [who was] fairly convicted,
   with proper representation by counsel, should now be given a second opportunity
   because of new information that has suddenly been acquired. ... Accordingly, rather
   exacting standards have been developed for the motion for new trial based on newly
   discovered evidence.
   7
       See, e.g., Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).

                                            –8–                                         2639

                The courts of several other jurisdictions have found this type of
prosecutorial argument to be reversible error.             For example, in Johnson v.
State, 8 the Maryland Court of Appeals (that state’s highest court) ruled that a similar
argument entitled the defendant to a new trial.
                In Johnson, the defense attorney urged the jury to “think very, very
carefully” before reaching its verdict, because a verdict “is not exchangeable” and “not
returnable tomorrow.” 9 In rebuttal, the prosecutor told the jurors that the defense
attorney “[was] not being quite honest [with] you” when the defense attorney
characterized the verdict as final. 10 The prosecutor told the jurors that the defense
attorney’s assertion was misleading because a defendant can appeal a guilty verdict, and
because “[a defendant has] rights of the appeal [that] go all the way up to the [United
States] Supreme Court.” 11
                The Maryland high court concluded that the prosecutor’s argument was
reversible error:

                The message conveyed by the [prosecutor’s] remarks was
                plain ... . The implication was that the jurors need not be
                unduly concerned about convicting Johnson. If the convic­
                tion turned out to be improper, it may be wiped out on appeal
                ... . One of the most egregious errors counsel can make is to
                attempt to put the responsibilities of the jurors on some other
                body.

Johnson, 601 A.2d at 1096.

   8
        601 A.2d 1093, 1098 (Md. 1992).
   9
        Johnson, 601 A.2d at 1095.
   10
        Id. at 1094.
   11
        Ibid.

                                             –9–                                   2639

                 Other courts have reached similar conclusions.               In Borgen v.
State, 12 the prosecutor told the jury, during closing argument in the penalty phase of the
trial,    that     “some     other     court     will   rectify”     any     mistake   they
made. 13 The Texas Court of Appeals condemned this argument:

                 The argument was calculated to and probably did give the
                 impression to the jury that, no matter what it did, a higher
                 court would ensure ultimate, perfect justice for [the]
                 appellant, and that therefore [the jury] need not concern itself
                 with assessing a punishment that it sincerely felt was proper.
                 This was ... expressly contrary to our system of criminal
                 justice, for it[,] in effect, told the jury that it could deal
                 harshly with appellant at the punishment stage, rather than
                 concerning itself with an honest effort to determine a proper
                 punishment.

Borgen, 682 S.W.2d at 623.
                 Likewise, in Howell v. State, 14 the Mississippi Supreme Court reversed the
defendant’s conviction because the prosecutor repeatedly told the jury that its verdict was
not final and could be appealed. 15 The Mississippi court emphasized the danger that the
jury would mistakenly believe that any erroneous findings of fact were readily
correctable on appeal:

                 The jury was not informed that the jurors ... were the ones
                 who determined the facts, not the appellate court. Just the
                 opposite was left in the minds of the jurors. The


   12
         682 S.W.2d 620 (Tex. App. 1984).
   13
         Borgen, 682 S.W.2d at 622.
   14
         411 So.2d 772 (Miss. 1982).
   15
         Howell, 411 So.2d at 773.

                                               – 10 –                                  2639

              [prosecutor’s] argument could only leave in the jurors’ minds
              [the mistaken impression] that if they decided a close,
              contradicted [question of] fact and found the defendant
              guilty[,] the appellate court could change that finding.

Howell, 411 So.2d at 777.
              We agree with these courts that it is error for a prosecutor to assure the jury
that any mistakes in its verdict can and will be remedied later, either by the trial judge
or on appeal. In Adams’s case, the prosecutor may not have directly assured the jurors
that they could count on the judiciary to correct their mistakes, but the prosecutor’s
remarks implied as much.
              Even though Adams’s attorney overstepped the bounds of proper argument
when he offered his “terminating life support for a loved one” analogy for “proof beyond
a reasonable doubt”, this was no justification for the prosecutor’s remarks. The
prosecutor’s remarks were clearly improper. The trial judge should have sustained the
defense attorney’s objection to those remarks and should have given an immediate
curative instruction.


       Why we conclude that the prosecutor’s argument requires reversal of
       Adams’s conviction


              Our next task is to decide whether the prosecutor’s improper argument
requires reversal of Adams’s conviction, or whether it was harmless error.
              Several times in the past, both this Court and the Alaska Supreme Court
have dealt with cases where a prosecutor made arguments to the jury that potentially
disparaged or undermined the procedural protections afforded to criminal defendants by




                                           – 11 –                                       2639

our constitution. 16 As shown by these cases, the supreme court has applied two different
standards when assessing whether a prosecutor’s improper argument requires reversal
of a defendant’s conviction.
                In cases where the prosecutor’s improper argument did not deny a
constitutional right of the defendant, the supreme court has used the “appreciably
affected the verdict” test (i.e., the test that applies to non-constitutional error) to assess
whether the prosecutor’s improper argument required reversal of a criminal conviction.
                For example, in Brown v. State, 601 P.2d 221 (Alaska 1979), the prosecutor
argued, at the close of the trial, that the defendant was no longer entitled to the
presumption of innocence “because [the] State [has] proven, beyond a reasonable doubt,
that he is guilty [of the charged crimes].” 17 This argument was improper because, as a
matter of law, the defendant’s presumption of innocence continues until such time as the
jury reaches a verdict of guilty. 18
                Nevertheless, the supreme court declared that the “harmless beyond a
reasonable doubt” test does not apply unless the court concludes, not only that the




   16
       See, e.g., Goldsbury v. State, 342 P.3d 834, 835 (Alaska 2015) (the prosecutor
commented on the fact that only the victim and the defendant knew what happened, and that
the victim was the one who testified at trial); State v. Gilbert, 925 P.2d 1324, 1326-27
(Alaska 1996) (the prosecutor commented on the defense attorney’s failure to call a witness
who, according to the defendant’s testimony, could corroborate his alibi);Brown v. State, 601
P.2d 221, 225-26 (Alaska 1979) (the prosecutor told the jury that, because of the strength of
the State’s evidence, the defendant was no longer cloaked in the presumption of innocence);
Graham v. State, 656 P.2d 1192, 1193-94 (Alaska App. 1982) (the prosecutor improperly
commented on the defendant’s invocation of his right against self-incrimination).
   17
        Brown, 601 P.2d at 225.
   18
        Ibid.

                                            – 12 –                                       2639

prosecutor’s argument was improper, but also that it actually had the effect of denying
one of the defendant’s constitutional rights:

                       [W]here the error denies a constitutional right, ...
                reversal is required unless the error is found to be harmless
                beyond a reasonable doubt. However, we have never held
                that the standard of harmless beyond a reasonable doubt
                applies merely because a constitutional right is involved.
                While it is true that a constitutional right, the right to the
                presumption of innocence, is involved here, we believe that
                the instructions given by the judge both before the trial and
                before the jury’s deliberations were sufficient to ensure that
                the defendant enjoyed that right and therefore no
                constitutional right was denied. ...

                      We are convinced that the court’s instructions
                prevented the error from rising to the level of plain error.

Brown, 601 P.2d at 226 (emphasis in the original) (citations omitted).
                Similarly, in State v. Gilbert, 925 P.2d 1324 (Alaska 1996), the prosecutor
suggested that the jury might reasonably draw an adverse inference from the fact that the
defense did not call a particular witness (a witness who purportedly could have
corroborated the defendant’s alibi), but the supreme court concluded that the error was
not constitutional. The supreme court noted that the prosecutor prefaced his remarks by
expressly telling the jurors that “Mr. Gilbert had [no] burden of proving anything”, and
the defense attorney echoed this principle in his summation. 19 The court further noted
that the trial judge had expressly instructed the jurors that the government bore the sole
burden of proof, and that this burden was proof beyond a reasonable doubt. 20


   19
        Gilbert, 925 P.2d at 1328 n. 8.
   20
        Ibid.

                                            – 13 –                                    2639

                 The supreme court concluded that the attorneys’ other statements to the
jury, along with the court’s jury instructions, “were sufficient to ensure that the burden
of proof did not shift to the defendant.” 21 The court therefore treated the error as non-
constitutional, and the court employed the “appreciably affected the verdict” test when
assessing whether the prosecutor’s comment required reversal of the defendant’s
conviction. 22
                 But in cases where the record revealed that the prosecutor’s improper
comment had the effect of denying a defendant’s constitutionalrights, the supreme court
has held that the defendant’s conviction must be reversed unless the error is shown to be
harmless beyond a reasonable doubt (the test that applies to constitutional errors).
                 For instance, in Goldsbury v. State, 342 P.3d 834 (Alaska 2015), the
supreme court concluded that the prosecutor’s adverse comment on the defendant’s
failure to take the stand at trial was constitutional error because “the language used [by
the prosecutor] was manifestly intended or was of such a character that the jury would
naturally and necessarily take it to be a comment on the failure of the accused to
testify.” 23 Thus, the supreme court ruled that the error would require reversal of
Goldsbury’s conviction unless the court was convinced that the error was harmless
beyond a reasonable doubt. 24
                 We think that this case is closer to Goldsbury than to Brown and Gilbert.
The challenged remarks were a prominent part of the prosecutor’s rebuttal summation,
and one obvious implication of the prosecutor’s remarks was that the jurors did not need


   21
        Ibid.
   22
        Id. at 1328-29.
   23
        Goldsbury, 342 P.3d at 837.
   24
        Id. at 837-38.

                                            – 14 –                                     2639

to worry too much about reachingthe proper verdict, because the judiciary would correct
any mistake the jurors made. These remarks created a significant possibility that, if one
or more jurors found it difficult to reach a decision in Adams’s case, those jurors would
nevertheless acquiesce in a verdict because of the mistaken belief that some other entity
— either the trial judge or an appellate court — bore the ultimate responsibility of doing
justice in Adams’s case.
               We thus conclude that the jurors would naturally and necessarily have
drawn an improper inference from the prosecutor’s remarks — the inference that the
jurors could rely on the courts to cure any mistake in their verdict.
               We must then ask whether this improper inference was negated or cured by
the trial judge’s instructions to the jury. 25
               We note that in both Brown and Gilbert, the supreme court relied on the
trial court’s jury instructions as a basis for concluding that the prosecutor’s statements
did not result in a denial of the defendant’s constitutional rights, and that the error was
therefore non-constitutional. 26 In Goldsbury, on the other hand, the supreme court first
concluded, based solely on the nature of the prosecutor’s statements, that the error was
constitutional, and then the court relied on the trial court’s jury instructions to conclude
that the error was harmless beyond a reasonable doubt. 27
               Given this discrepancy in the case law, it is unclear whether a trial court’s
jury instructions are a factor to be considered when determining whether a prosecutor’s




   25
      See Goldsbury,342 P.3d at 839; Gilbert, 925 P.2d at 1328 n. 8, 1329; Brown v. State,
601 P.2d 221, 225-26 (Alaska 1979).
   26
        Brown, 601 P.2d at 226; Gilbert, 925 P.2d at 1328 n. 8.
   27
        Goldsbury, 342 P.3d at 837-38.

                                             – 15 –                                    2639

improper remarks were an error of constitutional dimension, or whether the jury
instructions are only relevant when evaluating whether the error was harmless.
              However, this distinction is irrelevant to our decision of Adams’s case —
because, as we have already explained, the trial judge refused to intervene to clarify these
matters for the jury, even after the defense attorney objected to the prosecutor’s
argument. The judge cautioned the jurors to disregard any arguments of counsel that
misstated the law — but the judge gave the jurors no indication as to whether he thought
that the prosecutor had, in fact, misstated the law.
              Thus, even if an appellate court should consider a trial court’s jury
instructions when assessing whether a prosecutor’s improper remarks amounted to a
constitutional error or only a non-constitutional error, it makes no difference to our
decision in Adams’s case because no pertinent curative instructions were given.
              Because the prosecutor told the jurors that they could rely on the judiciary
to correct any mistakes in their verdict, and because the trial judge did nothing to alert
the jury to the error in the prosecutor’s improper argument, we conclude that the
prosecutor’s improper argument was an error of constitutional dimension: it undermined
Adams’s right to insist that the government prove its case beyond a reasonable doubt.
The prosecutor essentially told the jurors that they should not be overly concerned if they
were having difficulty deciding what verdict to render, because they could rely on the
courts to set things right later.
              We must now ask whether this error was harmless beyond a reasonable
doubt, given the evidence in the case and the way it was litigated. 28 Based on our
review of the record, we conclude that the error in Adams’s case was not harmless
beyond a reasonable doubt.


   28
        See Goldsbury, 342 P.3d at 839.

                                           – 16 –                                      2639

               Adams acknowledged that he caused Wilson’s death by stabbing him. The
question litigated at trial was whether Adams acted in self-defense — or, more precisely,
whether the State had proved beyond a reasonable doubt that Adams’s claim of self-
defense had no merit.
               Given the actions of both Adams and Wilson that night, as well as their
states of intoxication, Adams’s claim of self-defense was at least arguable. And as we
have explained, the prosecutor’s improper remarks created a significant possibility that,
if one or more jurors found it difficult to resolve Adams’s claim of self-defense, those
jurors would nevertheless acquiesce in a guilty verdict because of the mistaken belief that
the judiciary, and not the jurors themselves, bore the ultimate responsibility of doing
justice in Adams’s case.
               For these reasons, we conclude that the State has failed to show that this
error was harmless beyond a reasonable doubt. Accordingly, Adams’s conviction must
be reversed.


       If Adams is retried, the trial judge should revisit the jury instruction on the
       justified use of deadly force to resist a burglary


               At Adams’s trial, the judge (over defense objection) modified the pattern
jury instruction on the justified use of deadly force to resist a burglary. Specifically, the
judge told the jurors that the use of deadly force is not justified when a person resists a
burglary if the burglary was committed solely for the purpose of damaging property
inside the building.
               We are unaware of any legal basis for the judge’s modification of the
pattern jury instruction on this issue. That pattern instruction is based on the wording
of AS 11.81.350(c)(2): “A person in possession or control of any premises ... may use


                                           – 17 –                                        2639

... deadly force upon another when and to the extent the person reasonably believes it is
necessary to terminate what the person reasonably believes to be a burglary in any degree
occurring in an occupied dwelling or building.”
             Should this question arise on retrial, the trialjudge should either instruct the
jurors in accordance with this statute, or the judge should explain his legal basis for
concluding that this statute does not authorize the use of deadly force against a burglar
who enters an occupied dwelling with the intent to damage property inside the dwelling.


      Conclusion


             The judgement of the superior court is REVERSED.




                                          – 18 –                                        2639

