from the Superior Court, Third Judicial District, Trial Court
No. 3AN-11-05289 CR Anchorage, Gregory A. Miller, Judge.
Cynthia L. Strout, Attorney at Law, Anchorage, for the
Timothy W. Terrell, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
a jury trial, Marquinn Jones-Nelson was convicted of
first-degree murder in connection with the shooting death of
Devante Jordan. Jones-Nelson now appeals his murder
appeal, Jones-Nelson raises two claims. First, Jones-Nelson
argues that the superior court improperly limited his
cross-examination of three of the State's witnesses.
Specifically, Jones-Nelson contends that the court erred when
it refused to allow his attorney to elicit testimony from
these witnesses about Jordan's reputation for violence or
about Jordan's prior violent acts until the defense
attorney had first presented "some evidence" of
self-defense - i.e., other evidence (apart from the
anticipated testimony of these three witnesses) to support
each of the elements of a claim of self-defense. Jones-Nelson
acknowledges that the "some evidence" test is the
standard that governs whether a self-defense instruction is
warranted, but he argues that this same test does not govern
a judge's decision whether to admit evidence.
State concedes that the trial court was wrong to require this
foundational showing as a prerequisite to the admission of
evidence of Jordan's reputation for violence or
Jordan's prior violent acts. We agree. However, for the
reasons explained in this decision, we conclude that the
error was harmless.
Jones-Nelson argues that the superior court gave an incorrect
instruction to the jury on the law of self-defense. We agree
with Jones-Nelson that this instruction was incomplete and
potentially misleading: it failed to explicitly tell the
jurors that, when they evaluated whether Jones-Nelson's
use of deadly force was reasonable, they were required to
judge his decision under the circumstances as they reasonably
appeared to Jones-Nelson at the time (rather than under the
circumstances as they turned out to be in retrospect).
after carefully reviewing the record (in particular, the
other jury instructions on self-defense and the final
arguments of the parties), we conclude that this error did
not appreciably affect the jury's verdict.
facts and proceedings
evening of March 23, 2011, Jones-Nelson and two of his
friends attended a party at an Anchorage apartment. Jordan
and some of his friends attended the same party.
point, Jordan confronted Jones-Nelson in a bedroom, accusing
him of spreading the rumor that Jordan was a police snitch.
During this confrontation, Jordan came within three feet of
Jones-Nelson, and he was acting aggressively. However, Jordan
ultimately left the room and returned to sit with his friends
in the kitchen.
Jordan's friends who lived in the apartment, Nikita
Sanders, could see that Jordan was angry. She asked him if he
was "good," and Jordan replied that he was. But
Jordan then asked another friend, Parrish Harris, whether he
should "drop" Jones-Nelson. Sanders heard this
comment, and she told Jordan, "Not in my
Jones-Nelson was still in the bedroom, he did not hear
little later, Jones-Nelson called Harris into the bedroom and
told him to fetch Jordan. Harris did so; moments later,
Jordan came into the bedroom.
to the testimony later given by Jones-Nelson and two of his
friends (Dorian Topps and Dionte Wren), Jordan approached
Jones-Nelson in an aggressive manner. He came within a foot
and a half of Jones-Nelson, stood over him, and asked,
"What's up?" (Jordan, who was about 6 foot 3
inches tall and weighed 170 pounds, was significantly bigger
than Jones-Nelson, who was 5 foot 7 inches tall and weighed
about 135 pounds.)
to the defense witnesses, Jordan looked like he was going to
hit Jones-Nelson. In addition, Topps (one of
Jones-Nelson's friends) testified that he saw Jordan
reaching for a handgun in his waistband as he approached
Jones-Nelson. However, Wren (Jones-Nelson's other friend)
testified that he did not see Jordan with a firearm, nor did
he see Jordan actually try to hit Jones-Nelson.
of this discrepancy in the testimony, it is undisputed that
Jones-Nelson pulled out a handgun and started shooting at
Jordan. Jones-Nelson fired two shots in quick succession, at
which point Jordan turned and ran toward the kitchen. As
Jordan ran away, Jones-Nelson fired four more shots. Jordan
died as a result of his wounds.
the shooting, Jones-Nelson fled the apartment, accompanied by
Wren and Topps. Jones-Nelson's girlfriend was waiting
outside in a car, and the four drove away from the apartment.
When Jones-Nelson's girlfriend asked him what happened,
Jones-Nelson replied that he had just "smoked"
Jordan. Jones-Nelson later disposed of the handgun by tossing
it over a bridge.
next day, Jones-Nelson contacted a person to obtain a fake
birth certificate and other false documents so that he could
leave Alaska under a false identity. The person that
Jones-Nelson contacted was secretly a federal informant, and
she alerted the authorities to Jones-Nelson's plan. The
police arrested Jones-Nelson when he went to retrieve the
false documents. When Jones-Nelson was interviewed following
his arrest, he denied being at the scene of the shooting.
trial, there was no dispute that Jones-Nelson shot and killed
Jordan. The only question was whether this shooting was
justified by self-defense.
opening statement, Jones-Nelson's counsel asserted that
Jones-Nelson shot Jordan in self-defense, after Jordan
approached Jones-Nelson in an aggressive and threatening
manner. The defense attorney told the jury that it would hear
evidence of Jordan's reputation for violence, as well as
specific incidents of Jordan's violent behavior. The
defense attorney asserted that this evidence would show the
reasonableness of Jones-Nelson's perception that Jordan
was going to hurt him, and the reasonableness of
Jones-Nelson's decision to use deadly force in response
to this perceived threat.
Jones-Nelson and his friend Topps testified that Jordan
approached Jones-Nelson in an aggressive manner, and that
Jordan reached into his waistband for a gun. (As we noted
earlier, Jones-Nelson's other friend, Wren, testified
that he did not see Jordan reach for a gun.) Jones-Nelson
testified that when he saw Jordan reaching for a gun, he was
afraid that he would be pistol-whipped or shot, so he grabbed
a revolver from the window ledge and started shooting at
Jordan. Jones-Nelson conceded that, after the first few
shots, Jordan dropped his gun and ran, but Jones-Nelson
testified that he kept firing because he was afraid that
Jordan's friends might have guns and might come to
prosecutor argued that neither Jones-Nelson nor his friend
Topps were credible witnesses, and that their testimony about
Jordan reaching for a gun was false. The prosecutor asserted
that Jones-Nelson never subjectively believed that he needed
to use deadly force to repel an imminent attack.
jury ultimately rejected Jones-Nelson's claim of
self-defense and convicted ...