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Luch v. State

Court of Appeals of Alaska

January 19, 2018

ROBERT JAMES LUCH, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal 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.

          Diane 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. [*]

          OPINION

          MANNHEIMER, JUDGE.

         Robert 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.

         For the reasons explained in this opinion, we conclude that none of Luch's claims have merit, and we therefore affirm his conviction.

         Underlying facts

         In the 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.

         During 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 was seeing.

         In 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.

         On 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.

         Eleven 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.

         Luch 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.

         That 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.

         When 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 Jocelyn.

         Once 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.

         Marcelyn 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.

         When Jocelyn and Marcelyn realized that Luch was not coming for them, Marcelyn called her brother Brent, who came and picked them up.

         When 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.

         Brent 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 back upstairs.

         According 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.

         By the 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 his children.

         The 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.

         The 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.

         While 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."

         Jocelyn 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.

         Luch's claim that he was entitled to a jury instruction on the defense of heat of passion

         Luch 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.

         (a) Explanation of the defense of heat of passion under Alaska law

         The 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 injury.

         The 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". AS 11.41.115(a).

         For 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." Ibid.

         Although 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 11.41.115(e).

         Moreover, 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 him.

         Luch 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.

         (b) There was insufficient evidence that Luch was subjected to a "serious provocation " within the meaning of the heat of passion statute

         A 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 defense.[1]

         As we 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.

         Even 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 "serious provocation".

         The 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.

         As we 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.

         But in 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 were well-founded.

         At 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?", Luch responded:

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.

         Later 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.

         When 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.

         At common law, one classic example of "serious provocation" was the defendant's discovery of their spouse's adultery.[2] However, the common law required that the defendant find their spouse in flagrante delicto - that is, in the very act of committing adultery.[3] 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.

         Thus, 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).

         The 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 killing.

         Nor was 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.

         We 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.

         Luch's 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

         Shortly 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 call.

         Officer 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."

         Bakken 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 Luch's trial.

         (a) The content of Jocelyn's out-of-court statements, and the trial judge's rulings

         Jocelyn 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 in red.
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 your name?
Jocelyn: Please help me.
Officer Bakken: What's your name? ...

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