from the Superior Court, Third Judicial District No.
3AN-10-11122 CR, Anchorage, Jack W. Smith, Judge.
Phillip Paul Weidner and A. Cristina Weidner Tafs, Weidner
& Associates, Anchorage, for the Appellant.
L. Wendlandt, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
James Luch was convicted of first-degree murder for shooting
and killing his wife, Jocelyn. In this appeal, Luch argues
that the trial judge committed error by failing to instruct
the jury on the defense of heat of passion. Luch also
contends that the trial judge made several erroneous
evidentiary rulings at his trial.
reasons explained in this opinion, we conclude that none of
Luch's claims have merit, and we therefore affirm his
summer of 2010, Robert Luch and his family-his wife Jocelyn
and their four children (Brent, Delia, Letitia, and Marcelyn)
- moved back to Anchorage from their winter home in Arizona.
One night in June, Luch awakened and noticed that the
telephone was in use. When he picked up the receiver, Luch
discovered that his wife Jocelyn was speaking with a man -
Bryan Fuqua. Luch exchanged words with Fuqua. During their
short but heated conversation, Fuqua indicated that his
relationship with Jocelyn either was, or would shortly
become, sexual. After hearing this, Luch hung up the phone.
He woke up the children, and he angrily accused Jocelyn of
having an affair.
the next several months, the family lived in a state of
uneasy tension. Luch and Jocelyn spoke little, and Jocelyn
began staying out late, sometimes not coming home until the
following day. The couple's daughter Marcelyn later told
the police that, during this period, Luch repeatedly
threatened to kill both Jocelyn and the man he believed she
August, two of the Luchs' children (Delia and Letitia)
moved back to Arizona to attend college. This left four
people in the Anchorage household: Luch, Jocelyn, and their
children Marcelyn and Brent.
September 17, 2010, Luch purchased a handgun, purportedly for
protection at the family cabin near Sutton. Luch did not
inform Jocelyn of this purchase; the only other family member
who knew about the gun was Luch's son Brent.
days later, on the morning of September 28, 2010, Luch
learned that a car he had loaned to his daughter Delia had
been impounded in Arizona. Luch was incensed, and he began
yelling at Delia on the telephone. Brent overheard this
conversation and tried to calm things down, but Luch turned
on Brent, and a fist fight ensued. Luch's daughter
Marcelyn eventually intervened and stopped the fight, but
Luch was still angry.
then drove to the hotel where his wife Jocelyn worked and
tried to see her, purportedly so that he could tell her about
the impoundment of Delia's car and his fight with Brent.
When Jocelyn could not leave her work station immediately,
Luch parked his vehicle behind the hotel and waited for
several hours, becoming angrier as time passed. Eventually,
Luch drove home without Jocelyn, and Brent and Marcelyn later
picked Jocelyn up.
same night, Marcelyn and Jocelyn were scheduled to run in a
race held at Kincaid Park. A friend of Jocelyn's, a
runner named Steve Crook, came to pick them up. At the last
minute, Marcelyn decided not to go.
Luch learned that Marcelyn had not accompanied Jocelyn to the
race, he insisted that Marcelyn go with him to Kincaid Park
to confirm that Jocelyn was actually at the race. At the
park, they stood near the finish line and watched as hundreds
of racers crossed the finish line, but they did not see
the race was over, Marcelyn called Jocelyn on her cell phone.
Jocelyn said that she was at a nearby bunker. (Kincaid Park
was built on the site of a former missile installation.)
Marcelyn suggested to Luch that he drive to the bunker while
she walked over there and found Jocelyn. But as Marcelyn was
walking toward the bunker, Jocelyn spoke to her again on the
phone: Jocelyn corrected herself and said that she was not at
the bunker, but rather at the adjacent Kincaid chalet.
Marcelyn was unable to inform Luch of this new information
because she (Marcelyn) had his cell phone.
went to the chalet and found her mother, but Luch did not
arrive to pick them up. Luch had apparently driven around the
Kincaid parking lot, honking repeatedly and becoming
increasingly agitated, until finally he drove home alone.
Jocelyn and Marcelyn realized that Luch was not coming for
them, Marcelyn called her brother Brent, who came and picked
Jocelyn and the children arrived home, Luch was sitting in
his recliner in the downstairs living room. He repeatedly
accused Jocelyn of not having run the race.
and Marcelyn soon went to their bedrooms upstairs. Jocelyn
also went upstairs and began preparing for bed. Luch came
upstairs and confronted her - accusing her of lying about
participating in the race, and accusing her of seeing another
man. Jocelyn assured Luch that she had been at the race, and
she denied any wrongdoing, but Luch was not convinced. He
went downstairs to the garage, where he retrieved the newly
purchased handgun from a locked storage room. He then went
to Luch's testimony at trial, he did not retrieve the gun
with the intent of harming his wife. Rather, Luch told the
jury that he intended to use the gun "to posture, to
stage." Luch testified that, by simply displaying the
gun to Jocelyn, he hoped to convince her that he was willing
to shoot any man she was seeing, so that she would then
"relay a message" to this man.
time Luch returned upstairs, Jocelyn had gone into the
bathroom. Luch followed her there. Shortly thereafter,
Marcelyn heard Jocelyn say, "Don't push me" -
and then she heard two gunshots. Marcelyn and Brent rushed
into the hallway, and Marcelyn saw Luch leave the bathroom
and go downstairs carrying the handgun. Luch said nothing to
children had to force their way into the bathroom because
Jocelyn's body was blocking the door. Jocelyn was still
alive, but she was bleeding from two gunshot wounds. Brent
located Jocelyn's cell phone and called 911.
police arrived within minutes. Anchorage Police Officer Mark
Bakken entered the house and stayed with Jocelyn until an
ambulance arrived. During that brief conversation, Jocelyn
told the officer that Luch had shot her because she wanted to
divorce him and she refused to return to Arizona with him.
this was happening, Luch took the handgun back to the storage
room of the garage, and he then left the house. The police
found Luch walking down the street. Luch told them,
"I'm the one you want."
was taken to the hospital, but she died from her wounds. Luch
was indicted for this homicide under alternative theories of
first- and second-degree murder.
claim that he was entitled to a jury instruction on the
defense of heat of passion
contends that the trial judge committed error by rejecting
his attorney's request for ajury instruction on the
defense of "heat of passion". We will first
describe the law in Alaska regarding heat of passion, and
then we will explain why Luch was not entitled to a jury
instruction on this defense.
Explanation of the defense of heat of passion under Alaska
defense of heat of passion is defined in AS 11.41.115. This
statute declares that heat of passion is a partial defense to
two types of murder:
• a homicide charged under AS 11.41.1 OO(a)(1)(A) -
i.e., an intentional killing that would otherwise be
first-degree murder, or
• a homicide charged under AS 11.41.110(a)(1) -
i.e., a killing that would otherwise be
second-degree murder because it resulted from an assault
where the defendant intended to inflict serious physical
injury, or where the defendant knew that the assault was
substantially certain to cause death or serious physical
defense of heat of passion applies to instances where the
defendant "acted in a heat of passion ... result[ing]
from a serious provocation by the intended victim", and
where the defendant assaulted the victim "before there
[was] a reasonable opportunity for the passion to cool".
purposes of the heat of passion defense, the term
"serious provocation" is defined to mean
"conduct... sufficient to excite an intense passion in a
reasonable [and unintoxicated] person in the defendant's
situation, ... under the circumstances as the defendant
reasonably believed them to be". AS 11.41.115(f)(2).
However, the statute limits the scope of "serious
provocation" by adding that "insulting words,
insulting gestures, or hearsay reports of conduct engaged in
by the intended victim do not, alone or in combination with
each other, constitute serious provocation."
heat of passion is a defense to first-degree murder charged
under AS 11.41.100(a)(1)(A) or second-degree murder charged
under AS 11.41.110(a)(1), it is only a partial defense. Heat
of passion does not exonerate the defendant; instead, it
reduces the crime to manslaughter. See AS
because the heat of passion statute declares that this
defense applies only to charges of first-degree murder under
AS 11.41.100(a)(1)(A) and charges of second-degree murder
under AS 11.41.110(a)(1), Luch could only claim heat of
passion with respect to one of the murder charges against
was indicted for first-degree murder under AS
11.41.100(a)(1)(A), so the heat of passion defense
potentially applied to that charge. But Luch was indicted for
second-degree murder, not under AS 11.41.110(a)(1), but
rather under AS 11.41.110(a)(2) - i.e., causing
Jocelyn's death while engaging in conduct manifesting an
extreme indifference to the value of human life. The defense
of heat of passion does not apply to charges under this
subsection of the second-degree murder statute.
There was insufficient evidence that Luch was subjected to a
"serious provocation " within the meaning of the
heat of passion statute
defendant is entitled to have the jury instructed on a
defense if the defendant presents "some evidence"
of that defense. In this context, the phrase "some
evidence" is a term of art. It means evidence which, if
viewed in the light most favorable to the defendant, is
sufficient to allow a reasonable juror to find in the
defendant's favor on every element of the
explained in the preceding section of this opinion, the
elements of the defense of heat of passion are (1) that Luch
shot his wife "in a heat of passion", (2) that this
passion was the result of a "serious provocation"
(as that phrase is defined in the statute), and (3) that Luch
shot his wife before there was a reasonable opportunity for
his passion to cool.
when the evidence in this case is viewed in the light most
favorable to Luch's proposed defense, there was
insufficient evidence that Luch was subjected to a
governing statute, AS 11.41.115(f)(2), defines "serious
provocation" as "conduct... sufficient to excite an
intense passion in a reasonable [and unintoxicated] person in
the defendant's situation, ... under the circumstances as
the defendant reasonably believed them to be". Here, the
alleged "serious provocation" was the purported
fact that Luch's wife was having an affair.
explained earlier in this opinion, there was evidence that,
several months before the shooting, Luch learned
that his wife might have been having an affair - in
particular, the testimony about the overheard phone call, and
about Jocelyn's refusal to explain why she was spending
several nights a week away from the marital home.
Luch's trial testimony, he conceded that his relationship
with his wife was significantly better in the two months
immediately preceding the shooting. And there was no evidence
that Luch knew or even reasonably believed at the time of the
shooting that Jocelyn was having an affair. There was plenty
of evidence that Luch suspected that his wife was
having an affair at that time, but even Luch conceded in his
trial testimony that he did not know whether his suspicions
trial, Luch's attorney asked him whether his suspicions
intensified on the day of the killing (September 28, 2010),
after Luch went to pick up Jocelyn from work and ultimately
left without her. Luch's attorney asked him, "At
[that] point, are you thinking she's cheating?",
Possibly. I - I don't want to believe that. I want to
trust my wife very badly. ... I want to believe the best
scenario, so I'm trying to resist going that direction in
my thought. But there's, of course, there's a,
there's some doubts. I'm not sure.
that day, after the incident in Kincaid Park where Luch was
unable to locate Jocelyn at the race, Luch was waiting at
home when Jocelyn and the children (Marcelyn and Brent)
arrived home from Kincaid Park. According to Luch, he was
"festering" because he strongly suspected that his
wife had not run the race at Kincaid Park - that she was
"off on another tryst". But Luch added that he was
not sure about this. He explained that he was "trying to
hold it all together" because "there might be
something [he was] not aware of - for instance, the
possibility of "a mechanical breakdown", or a
"different finish line" to the race.
Jocelyn got home, Luch repeatedly accused her of not having
run in the race. But Jocelyn did not respond to these
accusations; instead, she went upstairs after a few minutes
and started preparing for bed. Luch followed her upstairs and
confronted her - accusing her of lying about participating in
the race, and accusing her of seeing another man. Jocelyn
assured Luch that she had been at the race, and she
denied any wrongdoing, but Luch was not convinced. At that
point, Luch went to the garage, obtained the handgun, and
returned to his wife's bathroom.
common law, one classic example of "serious
provocation" was the defendant's discovery of their
spouse's adultery. However, the common law required that the
defendant find their spouse in flagrante delicto -
that is, in the very act of committing
adultery. Reflecting this principle, Alaska's
statutory definition of "serious provocation", AS
11.41.115(f)(2), expressly declares that a "serious
provocation" cannot be based on hearsay reports.
when a defendant claims that they committed a deadly assault
in response to a discovery of adultery, that
"discovery" must be based on the defendant's
personal knowledge, and not the defendant's suspicions or
conclusions based on hearsay accounts (which are expressly
excluded by the statute).
fact that, several months before the shooting, Luch may have
had good reason to believe that Jocelyn was having an affair
does not mean that Luch was experiencing a "serious
provocation" when, on the day of the race, he could not
find Jocelyn where he expected her to be. Luch never claimed
that he had personal knowledge of his wife's adultery,
and there was no evidence that Jocelyn admitted adultery to
him. In fact, the evidence was that Jocelyn denied any
wrongdoing when Luch confronted her on the day of the
there evidence that Luch reasonably believed that
Jocelyn was committing adultery. Although Luch repeatedly
expressed suspicions that his wife was having an affair, he
conceded on the stand that his doubts about his wife's
fidelity were unconfirmed, and that he knew there were other
potential explanations for his failure to see Jocelyn at the
finish line of the race at Kincaid Park.
therefore hold that Luch failed to present some evidence that
he was subjected to a "serious provocation" as that
term is defined in AS 11.41.115(f)(2). Because of this, we
affirm the trial judge's decision not to instruct the
jury on the defense of heat of passion.
contention that the trial judge committed error by allowing
the prosecutor to introduce evidence of Jocelyn 's
statements to a police officer soon after the shooting
after the Luch children entered their parents' bedroom
and discovered that Jocelyn had been shot, they called 911.
Anchorage Police Officer Mark Bakken responded to the 911
Bakken found Jocelyn lying on the bathroom floor in a fetal
position, clutching her stomach. He confirmed that Jocelyn
had been shot, and he testified that she was in pain and
scared. According to Bakken, Jocelyn repeatedly asked him for
help, and she expressed her belief that she was "not
going to make it."
radioed for medical assistance, and he waited with Jocelyn
until the paramedics arrived, holding her hand to give her
emotional support. While they were waiting for the
paramedics, Officer Bakken asked Jocelyn about her physical
condition and how she had sustained her injuries. The audio
recording of this conversation was introduced by the State at
The content of Jocelyn's out-of-court statements, and the
trial judge's rulings
told Officer Bakken that she and her husband were getting
divorced, that her husband had threatened to kill her, and
that he had shot her twice. Regarding her physical condition,
Jocelyn told Officer Bakken that she was in pain and that she
"[couldn't] make it any longer." Here is a
transcription of Jocelyn's statements to Officer Bakken
about the shooting:
Jocelyn Luch: Please help me.
Officer Bakken: Okay, hold on, we're ...
Jocelyn: Please help me.
Officer Bakken: Who shot you?
Jocelyn: My husband.
Officer Bakken: Okay. 26C, go ahead and send medics
Jocelyn: Help me. Please help me. [He is outside
killing himself.] (Initially transcribed as indiscernible.)
Officer Bakken: Okay, we got him right now.
What's his name?
Jocelyn: Robert Luch. (Indiscernible).
Officer Bakken: She's saying- she's
confirmed the suspect is Robert, [her] husband Robert. We
have him (indiscernible).
Jocelyn: Please help me.
Officer Bakken: Okay, (indiscernible). What's
Jocelyn: Please help me.
Officer Bakken: What's your name?