Klumb v. State

SINGLETON, Judge,

concurring and dissenting.

I agree with the court’s resolution of all the issues except its treatment of the issue of self-defense. The court holds that the trial court committed prejudicial error in instructing the jury in the language of McMahan v. State, 617 P.2d 494, 502 (Alaska 1980), cert. denied, 454 U.S. 839 , 102 *913 S.Ct. 146 , 70 L.Ed.2d 121 (1981). While I agree that this court’s decision in Brown v. State, 698 P.2d 671 (Alaska App.1985) is irreconcilable with McMahan and with the supreme court’s earlier opinion in Bangs v. State, 608 P.2d 1 (Alaska 1980), I would deem this irreconcilability fatal to Brown rather than to the earlier Alaska Supreme Court decisions. This follows the general rule that decisions of higher courts take precedence over the decisions of lower courts. The court’s action today is one more instance of an unfortunate trend to ignore inconvenient precedents of the Alaska Supreme Court. See, e.g., Johnson v. Fairbanks, 703 P.2d 442, 444 (Alaska App. 1985) (Singleton, J., dissenting), petition for hearing granted (Alaska, September 19, 1985), and Harris v. State, 678 P.2d 397, 411 (Alaska App.1984) (Singleton, J., concurring and dissenting) rev’d, Stephan v. State, 711 P.2d 1156 (Alaska, 1985).

Perhaps a further word is necessary to clearly articulate what I consider to be the difference between McMahan and Bangs on the one hand, and Brown and this ease on the other. Long before the supreme court decided Bangs and McMahan , the rule was well established that an “initial aggressor” could not claim self-defense. Thus, the person who throws the first punch, shouts the first insult, or fires the first shot forfeits any right to claim self-defense in responding to the violence he provokes. Neither McMahan nor Bangs was necessary to elucidate that rule. In McMa-han and Bangs the supreme court went beyond traditional law governing “initial aggressors,” and extended the forfeiture rule to include those who have a prior grievance with the deceased and seek him out while armed with a deadly weapon. In those circumstances, the defendant may not be an initial aggressor as a matter of fact (in the cited cases he uniformly testified he was not), but he is deemed to be an initial aggressor as a matter of law for purposes of forfeiting the right to self-defense. It is clear that the supreme court reached this conclusion on policy grounds: that one who arms himself under similar circumstances “knows or reasonably should know that the encounter may result in mortal combat” with the attendant risk to innocent bystanders as well as the immediate participants in the affray. Bangs, 608 P.2d at 5 , quoting State v. Millett, 273 A.2d 504, 510 (Me. 1971). See also Brown, 698 P.2d at 677 (Singleton, J., concurring and dissenting). It must be stressed that in Bangs and McMahan , and in Millett , a case relied on by the supreme court in McMahan and Bangs , there was some evidence from which a jury could find that the defendant did not “provoke the affray” beyond arming himself and seeking out one who he knew was dangerous.

In Brown and the instant case, our court has simply rejected the supreme court’s alternate legal basis for holding one to be an “initial aggressor,” thereby forfeiting the right to self-defense. Under this court's view, only the person who fires the first shot, strikes the first blow, or speaks the first insult can be deemed an initial aggressor, regardless of the risks he foresees when he arms himself and seeks out the deceased. Such a view is at odds with Alaska Supreme Court precedent. I therefore dissent from this court’s decision to reverse Klumb’s conviction.