ZUBOFF v. STATE, A-8692 (Alaska App. 11-1-2006)

MANNHEIMER, Judge.

Grigori Zuboff shot and killed his brother, Elisei, on board the Fishing Vessel Ambition as it lay at anchor in Captain's Bay (off the Island of Unalaska) on September 1, 2001. For this conduct, Zuboff was convicted of first-degree murder. (Zuboff was also convicted of evidence tampering based on his post-shooting efforts to portray his brother's death as a suicide by moving his brother's body to another part of the vessel and then positioning the murder weapon on top of the body.) In this appeal, Zuboff challenges his convictions on three grounds.

The first claim of error involves the testimony of a psychiatrist hired by the defense to testify about Zuboff's mental state at the time of the shooting. Zuboff claims that the trial judge improperly restricted the scope of this expert witness's testimony.

The second claim of error involves the testimony offered by various witnesses that Zuboff's brother, Elisei, was a bully who committed numerous acts of violence against members of their family — including their mother, their sister and other brother, and Grigori Zuboff himself. On appeal, Zuboff claims that the trial judge improperly prevented the defense attorney from arguing, based on these prior acts of violence, that Elisei must have been the initial aggressor during the final confrontation between Elisei and Grigori.

The third claim of error involves the fact that Zuboff is a citizen of Brazil. The police did not notify the Brazilian consulate that they had arrested Zuboff. Zuboff asserts that, by their inaction, the police violated the Vienna Convention on Consular Relations — and that, as a result, his ensuing statements to the police must be suppressed.

As we explain here, Zuboff failed to preserve some of these claims of error, and Zuboff's remaining claims are meritless. We therefore affirm Zuboff's convictions. The superior court's ruling that limited the testimony of Zuboff's expert witness, a psychiatrist who was called to testify about Zuboff's mental state at the time of the shooting

In preparation for trial, Zuboff hired a psychiatrist, Dr. John Richard Smith, to evaluate Zuboff's mental state at the time of the shooting. Months before Zuboff's trial, the parties began to debate the proper scope of Dr. Smith's testimony.

In October 2002 (six months before Zuboff's trial), the State filed a motion arguing that if Zuboff was not going to take the stand at trial, then Zuboff should not be allowed to present his version of events to the jury through the hearsay testimony of a mental health professional who had interviewed Zuboff. The prosecutor raised this issue again in late January 2003, when the superior court held a hearing on pending motions.

The issue concerning Dr. Smith's testimony arose from the potentially conflicting directives of two evidence rules. Alaska Evidence Rule 703 states that expert witnesses may rely on facts or data that would not otherwise be admissible, so long as experts in that field would reasonably rely on that type of information when forming their opinions. But Alaska Evidence Rule 705(c) empowers trial judges to "exclude the underlying facts or data if the danger that they will be used for an improper purpose outweighs their value as support for the expert's opinion."

In Evans v. State, 645 P.2d 155 (Alaska 1982), the Alaska Supreme Court ruled that a trial judge acted properly when the judge prevented a psychiatrist from testifying about the portion of an evaluative interview in which a murder defendant claimed to have no memory of the crime. The trial judge excluded this testimony because the defendant's statements were hearsay ( i.e., they were otherwise inadmissible) and because, if the psychiatrist was allowed to give the proposed testimony, the defendant's version of events would be presented to the jury entirely through hearsay testimony.

Evans, 645 P.2d at 158, 161.

Even though the current Alaska Rules of Evidence had not yet taken effect at the time of Evans's trial, the supreme court noted that Evidence Rule 705(c) gives trial judges the authority to exclude this type of expert testimony if it appears that the jury will use the testimony for an improper purpose. The supreme court concluded that, in Evans's case, the trial judge "could reasonably have concluded that the [defendant's out-of-court] statements would have been used for an improper purpose — i.e., to prove the truth of what was said." Thus, the supreme court ruled, "the superior court did not commit error in excluding [the psychiatrist's proposed testimony concerning] the questioned statements."

Id. at 161.

Id.

Id. at 162.

Based on the supreme court's decision in Evans, the prosecutor in Zuboff's case argued that Zuboff's psychiatrist should not be allowed to testify that "Mr. Zuboff told me A, B, C, D, E, and F" unless Zuboff himself took the stand and testified to these same things. The prosecutor told the trial judge,

You don't get to use an expert as a hearsay funnel to interview the defendant in jail and then trot [the expert out] on the witness stand [to repeat what the defendant has said]. Now [the situation] changes, of course, if Mr. Zuboff testifies, [and] the expert observes [this testimony] and then offers an opinion based upon what he's seen in court — which is not the same thing as [having the expert give] hearsay [testimony]. . . .

The trial judge, Superior Court Judge Sharon L. Gleason, responded that she would reserve her ruling on the State's motion until Zuboff's trial, when she could evaluate this issue in the context of the litigation, aided by a detailed offer of proof as to exactly what the psychiatrist's proposed testimony would be:

The Court: My thought . . . [is] to preclude any hearsay testimony presented by the expert unless and until the issue [is] brought up, outside of the presence of the jury, and addressed at that point. . . . I'm not [necessarily] closing the door [to such testimony], because [depending on the] circumstances[,] some or all of the expert statements may be admissible — because, as both sides point [out], there's a balancing test [under Evidence Rule 705(c)] that the court looks to in [deciding] when the hearsay comes in. [But] looking at it two months before trial, I can't apply that balancing test [yet]. So my [ruling will] be: no testimony by the expert [regarding] any hearsay [statements of the defendant] unless and until we've taken up that issue outside the presence of the jury, and then . . . I'll hear what the [proposed] testimony would be, and I'll make a ruling at that point, balancing the impact of that hearsay and looking at the probability that the jury would be inclined to use that hearsay for a purpose other than [as] a basis for the expert's opinion — which, as I understand it, is one of the main concerns of [the evidence] rule.

The defense attorney then asked Judge Gleason to rule that the psychiatrist would, at least, be allowed to testify about opinions he had formed based on evidence that had already been submitted to the jury when the psychiatrist took the stand — even though that might include information that would be hearsay if introduced through the psychiatrist's own testimony:

Defense Attorney: I understand your ruling, and I'll ask you to amend it slightly. . . . I think that [our] expert needs to be allowed to discuss items of evidence that have already been submitted to the jury, [even though these items] would be hearsay for him. . . . [T]he whole idea is to protect the jury from . . . hearsay; [and] if the [jury has] already heard it, . . . there's no need to protect them from it, so I think that [the expert] should be allowed to discuss that.

The Court: [C]ertainly has a logical sound to it, Mr. [Defense Attorney]. But before any hearsay is brought up, we can take [that argument] up outside the presence of the jury. . . . But I do understand your point there.

. . .

[M]y ruling is that neither side can . . . solicit hearsay testimony from an expert without taking up the issue outside the presence of the jury. And then we'll take it as it comes, all right?

Defense Attorney: Fair enough. Thank you.

Zuboff's trial began nine weeks later, on April 1, 2003. On the first day of jury selection, the defense attorney asked for (and received) permission to have Dr. Smith sit through the entire trial — so that he would have personal knowledge of all the testimony presented.

On the morning of the sixth day of testimony (April 9, 2003), the prosecutor announced that he was nearing the end of the State's case-in-chief, and he discussed certain issues that would probably arise during the defense case. In particular, the prosecutor noted that the defense attorney apparently intended to call various members of the Zuboff family to testify about their family's history of violence and trauma — including the fact that Zuboff's father had committed suicide in the family home, so that all the children had seen the body. The prosecutor alerted Judge Gleason that the State might be asking her to rule on the extent to which, or the purposes for which, this testimony could properly be presented.

The defense attorney responded that this testimony would be relevant because Dr. Smith had relied on this information about the Zuboff family's history when he formulated his opinion about Grigori Zuboff's mental state:

Defense Attorney: [With regard to the members of the Zuboff family], they are here at enormous expense . . . because . . . the State . . . insisted that all the information that Dr. Smith relies upon to form his professional opinion come straight from the horse's mouth, [as] it were. . . . [So] we brought them here, and they're going to put on the record, per the State's insistence, all the information that Dr. Smith . . . relied upon to formulate his opinion.

Later that same day, the defense attorney called Dr. Smith to the stand, outside the presence of the jury, to have him outline his proposed testimony and to explain that his opinion was based, at least in part, on the history of violence in the Zuboff family.

Dr. Smith testified that he had been informed of the fact that Zuboff's father committed suicide in the family home, and of the fact that Grigori had grown up in an atmosphere of violence and intimidation, due to his brother Elisei's acts of violence toward other family members. Dr. Smith stated that "[w]hen you grow up in a violent family, which [Grigori Zuboff] did, it certainly affects the way in which you respond, either [through your own violence] or [in your reactions] to other people's violence. . . ."

Dr. Smith concluded that Grigori Zuboff's knowledge of those acts of violence affected his thinking:

Dr. Smith: [My] core opinion is that, after having been repeatedly humiliated and hit and slammed, . . . Grigori became very frightened of, and ultimately very angry about, his brother [Elisei], [and that he became] very reactive to any threats of violence from his brother.

. . .

[I conclude that, on the night of the homicide, Grigori was] enraged and frightened. . . . I [am of] the opinion that [Grigori], in his own mind, believed that he might have to defend himself from further violence — because, when his brother hit him the first time, he said [to Grigori], "Go to bed; I'll deal with that when we drop anchor."

(For purposes of later discussion, readers should be aware that the doctor's concluding assertion about the events of the homicide — i.e., the doctor's assertion that Elisei had purportedly threatened Grigori earlier in the evening by telling him, "Go to bed; I'll deal with [you later] when we drop anchor" — is not contained in any other evidence presented to the jury at Zuboff's trial. Rather, Zuboff recounted this version of events to Dr. Smith when Smith interviewed Zuboff for evaluative purposes, as described in the next two paragraphs. However, the precise issue that Judge Gleason was deciding at this point in the trial was whether the defense would be able to introduce evidence of Zuboff's father's suicide.)

During the prosecutor's cross-examination of Dr. Smith, the doctor acknowledged that his opinion concerning Zuboff's mental state at the time of the shooting was based in part on the narrative of events that Zuboff had provided during interviews with the doctor the preceding summer (August 2002).

According to Smith, Zuboff told him during these interviews that he (Zuboff) had armed himself "for his [own] protection, and to scare his brother." Smith said that, according to Zuboff, his brother Elisei "came bursting through the curtains [of the bunk room]" and that, when this happened, Zuboff "jumped up into a somewhat sitting position, and the gun went off [by accident]." Zuboff explained to Smith "that he had not intended to kill his brother, but rather to scare him [and to] protect himself."

With particular regard to the issue of the father's suicide, Smith testified that this suicide might help to explain why Zuboff was so concerned about intra-family violence that he decided to take the rifle to bed with him.

At the conclusion of this voir dire testimony, the defense attorney argued that evidence of the father's suicide should be admitted because (1) it was one of the bases of Dr. Smith's opinion, and (2) the underlying facts would be established through the testimony of Zuboff's mother, sister, and surviving brother:

Defense Attorney: You have ruled [that Dr. Smith] shall not be used as a "hearsay funnel" until such time as we get the [underlying information] established by non-hearsay means. Hence, the expenditure of all that money [obtaining the presence of] the mom [and] sis [and] brother.

. . .

[The father's suicide] explains Grigori Zuboff — and, for that matter, it helps explain Elisei Zuboff.

Following this argument, Judge Gleason ruled that the defense would be allowed to introduce evidence of the father's suicide.

Just after this ruling, the defense attorney delivered his opening statement to the jury. The defense attorney told the jurors that the deceased, Elisei Zuboff, was a physically large man and a dominating bully. The defense attorney said that the evidence would show that Elisei beat Grigori with an electric cord, with a coat hanger, and with his fists. Elisei terrorized Grigori, and the interaction between the brothers was a series of humiliations for Grigori.

The defense attorney further asserted that Grigori's shooting of Elisei had been an accident. According to the defense attorney, Grigori was drunk, and although he armed himself to defend himself from his brother, he was not familiar with the firearm.

Over the ensuing two days, the defense attorney presented the testimony of Zuboff's mother, Anicia Zuboff, Zuboff's surviving brother, Vasili Zuboff, and his sister, Alexandra Sanarov. In their testimony, these witnesses substantiated the defense attorney's assertions about Elisei: that he bullied the other members of the family and that, if he did not get his way, he would beat his siblings. According to the sister's testimony, Grigori got the worst treatment because he was the youngest.

In addition, the defense attorney presented the testimony of Robert Nottingham, a former security guard for Westward Seafoods in Unalaska. Nottingham witnessed Elisei assault Grigori approximately one week before the shooting. (According to Nottingham, Grigori was sleeping on a couch; Elisei lifted him up by his shirt and trousers and slammed him to the floor.)

Following this testimony from various witnesses about Elisei's acts of violence, the defense attorney announced that he intended to call Dr. Smith to the stand. The prosecutor immediately asked Judge Gleason to preclude Dr. Smith from offering an opinion about Grigori Zuboff's mental state at the time of the shooting.

The prosecutor argued that any opinion offered by Dr. Smith would be "inexorably tied to his interview with Mr. Grigori Zuboff" — thus raising the same hearsay problem that was presented in Evans v. State: "The defense [will be seeking to] elicit opinions from Dr. Smith that [were] formed based on an out-of-court interview [with the defendant] that I can't cross-examine". The prosecutor told Judge Gleason that Dr. Smith would not be capable of meaningfully explaining his conclusions about Zuboff's mental state unless the doctor referred to his extensive interviews with Zuboff himself.

The prosecutor argued that even if Dr. Smith did not explicitly attribute his assertions of fact to the information he obtained during his interviews with Zuboff, the doctor would be unable to explain his opinion "without the jury deducing that [he] interviewed the [defendant], and [without their] accepting the [defendant's] out-of-court statements that [Dr. Smith] implicitly or expressly refers to for the truth of the matter[s] asserted[.]" The prosecutor asserted that there was no way the jurors could perform the "intellectual dance" of hearing the defendant's account of the shooting and then considering that account solely for the limited purpose of assessing whether Dr. Smith had formed a reasonable opinion concerning the defendant's mental condition at the time of the homicide.

In order to resolve this issue, Judge Gleason directed the defense attorney to make an offer of proof as to (1) what opinions Dr. Smith would offer, and (2) Dr. Smith's bases for those opinions. Accordingly, Dr. Smith took the stand a second time to give voir dire testimony.

Dr. Smith noted that he had been present in court and had heard all of the testimony thus far presented. But Dr. Smith further noted that forensic psychiatrists rarely base their opinions solely on the testimony presented in court proceedings. Rather, they gather information by interviewing the defendant, the defendant's family members, and others who have been able to make long-term and short-term observations of the defendant's behavior.

In Zuboff's case, Dr. Smith interviewed Zuboff's mother before trial, and he also interviewed Zuboff himself for more than seven hours over the course of two days.

In addition, Dr. Smith reviewed the grand jury testimony, the results of testing conducted earlier by a psychologist, the hand-written statement that Zuboff made following the shooting, and videotapes of the interviews that the police conducted with Zuboff and with Alexander Anfilofev, the other surviving member of the Ambition's crew.

(Alexander Anfilofev is Grigori Zuboff's first cousin. He was fifteen years old at the time of the shooting. When called as a witness at Zuboff's trial, Alexander claimed to have no memory of the details of Elisei Zuboff's death. Indeed, he claimed to have no memory of being in Dutch Harbor on the night that Elisei died. He attributed this lack of memory to a head injury that he sustained after the homicide. Judge Gleason ruled that this testimony was inconsistent with what Alexander told the police during post-shooting interviews — thus allowing the State to introduce Alexander's prior statements.)

When the defense attorney asked Dr. Smith to identify the materials that were important to his conclusions concerning Zuboff's mental state at the time of the shooting, the doctor replied: "[T]he police reports were important. The interviews with [Grigori's] mother and with Grigori himself were important. The videotapes were important. . . . I don't know that I can really exclude any of it." Dr. Smith then added, "[My opinion was] influenced by, but not exclusively influenced by, my interviews with Grigori."

The following colloquy then ensued:

Defense Attorney: Doctor, are you capable of telling the jury what your opinion or opinions are in this case without quoting Grigori Zuboff?

Dr. Smith: I can tell you what my diagnosis is [, and] I can tell you . . . my opinion of [what] his mental state was at the time of the shooting without specifically quoting [him]. But I could not answer those questions without having talked with Grigori and having evaluated his responses. . . .

And, a few minutes later, Dr. Smith indicated that he relied heavily on his interviews with Grigori when evaluating the effect that his father's death had on him.

In Dr. Smith's voir dire testimony, both during direct examination and later during cross-examination, Dr. Smith offered his opinion concerning Grigori Zuboff's overall mental health and his particular state of mind at the time of the homicide. With regard to Zuboff's overall mental health, Dr. Smith concluded that Zuboff suffers from dysthymia ( i.e., a chronic state of depression), as well as post-traumatic stress disorder "NOS" — i.e., of a type not specified in § 309.81 of the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual (more popularly known as the "DSM IV"). And, with regard to Zuboff's state of mind at the time of the shooting, Dr. Smith was of the opinion that Zuboff was both frightened and enraged when he took the rifle to bed with him, and later when he pulled the trigger and shot his brother Elisei. Dr. Smith concluded that, regardless of whether Zuboff purposely or accidentally pulled the trigger, Zuboff did not intentionally kill his brother — because, "at the moment the trigger was pulled, he was not in control of himself."

But on cross-examination, Dr. Smith conceded that he could not explain his opinion about Zuboff's mental state at the time of the shooting without offering his diagnosis of Zuboff's overall mental health — because both Zuboff's dysthymia and his post-traumatic stress disorder affected his judgement on the day of the shooting.

Moreover, Dr. Smith testified that two important bases for his conclusion about Zuboff's mental state at the time of the shooting were (1) the fact that Zuboff claimed not to have a clear memory of the instant when the shot was fired, and (2) the amount of alcohol that Zuboff had consumed prior to the shooting (again, as self-reported by Zuboff during his interviews with Dr. Smith).

Under questioning by the prosecutor, Dr. Smith conceded that he would not be able to explain his opinions as to why Zuboff felt the need to arm himself with a rifle, and as to the mental state that Zuboff was experiencing at the time of the shooting, without relying on what Zuboff told him during the interviews. Nor could Dr. Smith explain his opinions on these matters without relying on his diagnosis of Zuboff's underlying mental health — which, again, was based in large measure on what Zuboff told him.

Dr. Smith then proceeded to explain the basis for his opinion about Zuboff's mental state at the time of the shooting. Almost every facet of Dr. Smith's explanation appears to be based on what Zuboff told him about the incident.

A few minutes later, Judge Gleason cross-examined Dr. Smith herself. In response to the judge's questions, Dr. Smith stated that his ultimate conclusions about Zuboff's mental state — that Zuboff reasonably feared violence at the hands of his brother Elisei, and that Zuboff "was not in control of himself" when he pulled the trigger — were based, in part, on what Zuboff told him during the interviews in August 2002.

After the defense attorney heard Dr. Smith's responses to Judge Gleason's questions, he apparently sensed that Dr. Smith would not be allowed to express a direct opinion about Zuboff's mental state at the time of the shooting if that opinion was based on the content of the doctor's interviews with Zuboff. The defense attorney therefore asked Dr. Smith questions suggesting that the defense attorney would elicit a more limited form of testimony from the doctor — testimony based solely on the history of Zuboff's family, as related by Zuboff's family members.

The defense attorney asked Dr. Smith if he could testify without expressing any opinion concerning Zuboff's precise awareness or intent at the time of the shooting. Dr. Smith replied that he would be able to limit his testimony in this fashion, provided no one asked him questions on that subject. The defense attorney then asked Dr. Smith if, instead of expressing a direct opinion concerning Zuboff's mental state at the time of the shooting, he could frame his testimony solely in terms of the assertion that "people with [Grigori Zuboff's type of] life experience might . . . have this kind of reaction" to the situation. Dr. Smith said that he could limit his testimony in this fashion.

The voir dire examination of Dr. Smith ended soon after these questions and answers. Judge Gleason then asked the defense attorney to specify exactly what he proposed to have Dr. Smith say when Dr. Smith took the stand in the jury's presence.

In response, the defense attorney told Judge Gleason that he did not wish to have Dr. Smith offer a diagnosis of Zuboff's overall mental health. The defense attorney stated, "I'd be happy to . . . not have [Dr. Smith] say `PTSD' [ i.e., post-traumatic stress disorder]. I didn't elicit that from him. . . . Or `dysthymia'. I mean, this is the State setting up a straw man so they can knock it down."

Moreover, the defense attorney told Judge Gleason that he did not wish to have Dr. Smith offer an opinion as to whether Zuboff intended to kill his brother, or whether Zuboff acted in self-defense. The defense attorney stated, "[I]f you don't want the doctor to say, `In my opinion, [Zuboff] was acting in self-defense' . . . [and if] you don't want [the doctor] to say, `In my opinion, [Zuboff] didn't have the intent to kill his brother', I agree [with that limitation]."

Instead, the defense attorney told Judge Gleason, he only wanted Dr. Smith to testify about the kinds of reactions that one might expect to see in people who had the same sort of family history as Zuboff. The defense attorney stated, "[Dr. Smith] may have an opinion about what was [actually] going on in Grigori Zuboff's brain [at the time of the shooting]. But I think what [Dr. Smith] can [properly] address is [the topic of] people who have been subjected to the things that [have been described — the doctor's] assessment [of] what sort of reactions [this category of people would] have. Are those [reactions] unusual?".

At another point in the discussion, the defense attorney offered a similar clarification of his position to Judge Gleason:

Defense Attorney: I'm seeking to have the jury understand how someone in Mr. Zuboff's position could react. Now, whether he did [in fact] react in this way, I think, is the jury's question, okay? That's the province of the jury. But [I want Dr. Smith to testify about] how [people in that situation] could react, and why they could react [that way], given life history and experience. . . . [It would be] hypothetical [testimony, but] grounded in the reality of this particular family's life experience, okay?

The defense attorney also told Judge Gleason that he wanted to have Dr. Smith offer an opinion regarding Zuboff's fear of his brother, and he argued that such an opinion would be admissible because a jury is entitled to infer a person's mental state from the surrounding circumstances. At this point, Judge Gleason interrupted the defense attorney:

The Court: And that's why I'm so troubled with this evidence. . . . We're not talking about "inferring" it. We're talking about some person with [a] psychiatrist's credentials coming and saying [to the jurors], "I've done your job, ladies and gentlemen. I've looked at all the circumstantial evidence [in this case], with my psychiatric background, and here's . . . what Mr. Zuboff must have been thinking. And, by the way, I also talked to him for seven hours — [something] that you haven't had the opportunity to do." That troubles me.

Defense Attorney: I can understand the Court's concern [about] that, and I can address that. . . . [But I still wish to have Dr. Smith testify about Zuboff's subjective fear], and also [the objective] reasonableness of [that] subjective fear. . . . [I want Dr. Smith to testify about the] objective reasonableness of [that] fear, basically, by putting it into the context of this particular 16-year-old's experience.

Despite the defense attorney's seeming insistence on having Dr. Smith offer an opinion concerning the reasonableness of Zuboff's fear, the defense attorney declared a few moments later that he did not wish to have Dr. Smith offer an opinion about the reasonableness of Zuboff's fear, but only to provide the psychiatric framework from which the jurors might conclude that Zuboff's fear was reasonable. The defense attorney told Judge Gleason that he proposed to have Dr. Smith testify only that "it [was] consistent with [the doctor's] knowledge of psychiatry, and [his] examination [of this case], for someone in Mr. Zuboff's position, with Mr. Zuboff's life history, to have reacted to this situation by feeling X."

The defense attorney at first asserted that there was no substantial hearsay problem with Dr. Smith's testimony, if his testimony was limited in this fashion, because almost all of the pertinent information was found in the testimony of Zuboff's family members and in the statements that Zuboff made to the police (statements that the prosecutor had introduced). However, the defense attorney then admitted that, even in this limited context, Dr. Smith's opinion might be based, in part, on statements Zuboff made during their interviews — statements concerning his emotions on the night of the shooting, and specific instances of assaultive violence at the hands of his brother that were not mentioned in the other witnesses' testimony.

Based on the defense attorney's foregoing remarks and explanations, Judge Gleason said to the defense attorney:

The Court: What I'm hearing [you say is that], from your perspective, what might be appropriate is for the doctor to testify that [the defendant] might have had subjective fear at the time [of the shooting].

Defense Attorney: Yeah — [that if Zuboff was fearful], it would be consistent with [the doctor's] knowledge of people in this situation . . .

The Court: All right.

Defense Attorney: . . . that they were subjectively fearful.

The prosecutor responded to this last clarification by arguing that Dr. Smith should not be allowed to testify at all — not even to "the possibility [that Zuboff experienced] subjective fear [in] the moments before the shots [were] fired". The prosecutor contended that, no matter how Dr. Smith's testimony might be limited, the doctor "[could] not divorce himself meaningfully from his interview with [Zuboff]", and thus his testimony should be barred under Evidence Rule 705(c) as applied by the supreme court in Evans.

A few minutes later, Judge Gleason announced her decision. The judge ruled that Dr. Smith would be allowed to testify about his background and training, and his review of Zuboff's case. Dr. Smith would further be allowed to testify that, based on his review of the case, it was possible that Zuboff entertained a subjective fear of his brother at the time of the shooting. In other words, she rejected the prosecutor's position; instead, she agreed that Dr. Smith could give the testimony outlined by the defense attorney in the last above-quoted exchange.

Judge Gleason explained that she was limiting Dr. Smith's testimony in this fashion — that is, precluding Dr. Smith from offering his diagnosis of Zuboff's overall mental health, and his conclusion that Zuboff was, in fact, acting in fear and rage when he shot his brother — because, as Dr. Smith candidly admitted during voir dire, these opinions were based on the hearsay statements that the doctor received from Zuboff during their lengthy interview. Judge Gleason concluded that Dr. Smith's resulting opinions were "inextricably intertwined with that interview", and that it would be "difficult . . . to eliminate those conversations" when Dr. Smith explained his conclusions to the jury.

Judge Gleason clarified that Dr. Smith would be allowed to testify that he had interviewed Zuboff, but he would not be allowed to describe the details of that interview. Moreover, Dr. Smith would not be allowed to testify about his particular diagnoses in Zuboff's case — his conclusions that Zuboff suffered from dysthymia and post-traumatic stress disorder.

However, the defense attorney would be allowed, through the posing of hypothetical questions, to elicit Dr. Smith's opinion that, based on Smith's review of the case, it is possible that Zuboff acted in fear of his brother, or in rage at his brother, at the time of the shooting.

The defense attorney did not ask Judge Gleason for further clarification of her ruling. Instead, he proceeded to call Dr. Smith to the stand (this time, in the presence of the jury) for what proved to be relatively short testimony.

The defense attorney examined Dr. Smith in conformity with the position that the defense attorney had outlined during his final exchange with Judge Gleason (quoted above). That is, the defense attorney had Dr. Smith testify that, based on his review of the case, including his interviews with the defendant, it was possible that, at the time of the shooting, Zuboff had a subjective fear that his brother Elisei would injure him. It was further possible, the doctor testified, that Zuboff was "seized by subjective rage" at that time.

The defense attorney did not ask Dr. Smith to link Zuboff's possible fear and/or rage to his family history of violence (as evidenced by the accounts of his family members), even though such testimony would seemingly have been permitted under Judge Gleason's ruling.

The defense attorney did, however, have Dr. Smith testify about the "flight or fight" response in humans, and the fact that this response is linked to parts of our nervous system that control our subconscious reactions. For example, Dr. Smith explained, some nerves run directly from the retina to the amygdala — thus allowing us to react to a potential threat even before our conscious brain analyzes the incoming sensory data from our eyes, especially if we are already in a heightened state of alert.

The amygdala is an almond-shaped brain structure located toward the back of the head. It is essential for decoding other people's emotions and for reacting to threatening stimuli; many of the body's alarm circuits converge in the amygdala. Source: McGill University's "The Brain from Top to Bottom", found at the web site: http://www.thebrain.mcgill.ca/-flash/i/i_04/i_04_cr/ -i_04_cr_peu/i_04_cr_peu.htm (last visited 9/26/06).

Shortly after the prosecutor finished his cross-examination of Dr. Smith, Judge Gleason excused the jury for the evening so that the parties could discuss the scope of the defense attorney's re-direct examination of Dr. Smith. A little later, the court recessed for the day. When the parties returned to court the next morning, Zuboff's attorney announced that the defense would rest. The defense attorney never sought to re-open the issue of the scope of Dr. Smith's testimony.

On appeal, Zuboff claims that Judge Gleason committed error when she "refused to allow Dr. Smith to share his expert opinions with Zuboff's jury" — in particular, his "opinion [that] Zuboff did not intentionally shoot his brother because his actions were automatic and not the product of [conscious] thought". In addition, Zuboff claims that Dr. Smith should have been allowed to explain his diagnosis that Zuboff suffered from dysthymia and post-traumatic stress disorder, and to testify that, because of these mental disorders, Zuboff was acting with "intense passion" when he shot his brother. And Zuboff claims that Judge Gleason committed error by precluding Dr. Smith from testifying "that Zuboff believed that he had to act to defend himself[,] and that [this] belief was objectively reasonable".

But as can be seen from our description of the proceedings in the superior court, the defense attorney expressly told Judge Gleason that he did not wish to elicit this kind of testimony from Dr. Smith. As we explained above, the defense attorney stated that he would "be happy" not to have Dr. Smith testify about his diagnosis of dysthymia and post-traumatic stress disorder. The defense attorney further stated that he would "agree" if Judge Gleason precluded Dr. Smith from expressing any opinion as to whether Zuboff actually intended to kill his brother when he fired the shot, or whether Zuboff acted in self-defense. Finally, the defense attorney told Judge Gleason that he did not want Dr. Smith to express his conclusion that Zuboff was actually acting from fear when he shot his brother.

Instead, the defense attorney said that he wanted to employ hypothetical questions to elicit Dr. Smith's opinion that someone with Zuboff's history of family turmoil and violence might feel fear or rage if they were placed in the same situation that Zuboff found himself in. The defense attorney told Judge Gleason that he proposed to have Dr. Smith testify only that "it [was] consistent with [the doctor's] knowledge of psychiatry, and [his] examination [of this case], for someone in Mr. Zuboff's position, with Mr. Zuboff's life history, to have reacted to this situation by feeling [fear and/or rage]." And, over the prosecutor's objection, this is what Judge Gleason allowed the defense attorney to do.

We accordingly conclude that Zuboff's various claims of error were not preserved in the trial court.

Zuboff raises two additional claims of error related to the scope of Dr. Smith's testimony. These claims arise from the prosecutor's cross-examination of Dr. Smith, and the parties' ensuing disagreement as to how the defense attorney might respond to the prosecutor's questions during the defense attorney's re-direct examination of Dr. Smith.

As explained earlier, Dr. Smith sat in the courtroom throughout Zuboff's trial. During the prosecutor's cross-examination of Dr. Smith, the prosecutor reviewed various portions of the testimony tending to show that Zuboff intentionally shot his brother, and that Zuboff later took active steps to mislead the police and to impede their investigation into the homicide.

The prosecutor asked Dr. Smith if he was aware that Zuboff had asked his cousin, Alexander Anfilofev, for instructions on how to assemble and load the rifle that Zuboff later used to shoot his brother. The prosecutor asked Dr. Smith if he recalled the evidence that Zuboff was drunk on the night of the shooting. The prosecutor asked Dr. Smith if he was aware that there was no evidence indicating that Elisei Zuboff was armed at the time of the shooting, or that Elisei had made any threats to Grigori in the five minutes before the shooting. The prosecutor also asked Dr. Smith if he was aware that Grigori Zuboff repeatedly lied to the police about what happened, that Zuboff told his mother that he could not remember how Elisei died, and that Zuboff apparently threatened Alex Anfilofev in an effort to get him to conceal the truth about what had happened. To each question, Dr. Smith answered that he was aware of this information.

The prosecutor then stopped. He did not ask Dr. Smith whether any of this information made a difference to his evaluation of the case. Indeed, it is unclear how any of this information undermines Dr. Smith's primary assertion on direct examination — his assertion that, because of the Zuboff family's history of turmoil and violence, Grigori Zuboff might have been fearful or enraged (or both) when he shot his brother. Accordingly, the defense attorney might well have asked Judge Gleason to strike this entire series of questions and answers as being irrelevant.

However, Zuboff does not assert that the prosecutor misdescribed the evidence in this series of questions. And, in any event, Judge Gleason interrupted the cross-examination to remind the jurors that "the evidence speaks for itself", and that the prosecutor's questions were not, themselves, evidence.

When the parties went in camera to discuss the defense attorney's potential re-direct examination of Dr. Smith, Judge Gleason asked the defense attorney to describe the question(s) he wanted to ask on re-direct. The defense attorney said that he had one proposed question that might raise problems: he wanted to ask Dr. Smith about Grigori Zuboff's assertion that, earlier on the day of the shooting, his brother Elisei had told him (following a quarrel), "Wait until we get to anchor".

As explained above, and as the defense attorney conceded during this discussion, this purported statement of Elisei Zuboff was not found in the evidence presented at Grigori Zuboff's trial. Rather, the only source for this statement was Grigori's own account of the events of that day, as related to Dr. Smith during the evaluative interviews. Moreover, according to Grigori's account, his brother Elisei made this statement well before the shooting — while the Ambition was still on its way to the harbor. The prosecutor explained that this is why, when he questioned Dr. Smith about whether the doctor was aware of any evidence that Elisei had threatened Grigori, the prosecutor limited his question to the few minutes before the shooting.

The prosecutor then told Judge Gleason that his question about Elisei's lack of threatening behavior had been based on the content of the prosecutor's own pre-trial interview with Dr. Smith. The prosecutor made an offer of proof that, when he interviewed Dr. Smith, he asked Dr. Smith:

Prosecutor: . . . "Did Mr. Zuboff ever say that his brother threatened him?" "No." "Did he ever say that his brother said anything in the moments before he was shot?" "No." "Made a threatening gesture?" "No." "Raised fist?" "No." "Angry words?" "No."

The prosecutor told Judge Gleason that he was relying on this exchange when he formulated his question to Dr. Smith, and that he consciously "[was] trying to tailor [the] cross[-examination] of Dr. Smith to avoid kicking the door open to the hearsay content [of Dr. Smith's interviews with Zuboff]."

After hearing this, Judge Gleason asked the defense attorney to explain how, given the timing of Elisei Zuboff's purported statement to Grigori, "wait until we get to anchor", evidence of this statement would be relevant to rebut Dr. Smith's answer that Elisei made no threat to Grigori in the five minutes before the shooting. Here is the defense attorney's reply:

Defense Attorney: Because the entire gist of the [prosecutor's] cross[-examination was] that [Dr. Smith] is someone [who,] if you pay him enough, he'll just say [anything] without any sort of basis. And the basis has been considerably truncated by [previous] rulings of [this] Court, . . . and then it's further and artificially truncated by [the prosecutor's] question.

After hearing this argument, Judge Gleason ruled that the prosecutor's question had been narrowly drawn, expressly limited to the few minutes before the shooting, and that therefore any statements that Elisei Zuboff may have made earlier in the day did not materially rebut Dr. Smith's answer to the prosecutor's question. The judge accordingly declined to allow the defense attorney to elicit this portion of Grigori Zuboff's interview with Dr. Smith.

We conclude that Judge Gleason did not abuse her discretion when she made this ruling concerning the scope of re-direct examination.

Following this ruling, the defense attorney raised one other issue. He argued that, because the prosecutor's questions adverted to the fact that Grigori Zuboff had lied to the police when they interviewed him about the homicide, Dr. Smith should be allowed to testify that the police had employed coercive interrogation tactics, and that they had badgered Zuboff until he finally gave them the answers they wanted.

The defense attorney conceded that many of Zuboff's statements to the police were, in fact, lies. However, the defense attorney argued that, because of the police officers' coercive interrogation tactics, some of the other "inaccurate" statements that Zuboff gave to the police were not actually "lies".

When Judge Gleason asked the defense attorney to describe the precise question that he wished to ask Dr. Smith, the defense attorney replied that he wanted to ask Dr. Smith:

"You've seen the [police] questioning of . . . Mr. Zuboff. And you've noted . . . the things [that] they said to him, the things [that] they did to him. [And] you're aware . . . of Mr. Zuboff's situation, . . . and [the] relative timing of the questioning. [And] you're aware of Mr. Zuboff's education [and] experience. Does [all of this] impact it? [And, if so,] how?"

The prosecutor objected that the defense attorney's proposed question went beyond Dr. Smith's field of expertise — that the defense attorney was basically asking Dr. Smith to evaluate the psychological effects of particular forms of interrogation techniques. Judge Gleason disagreed. She expressed the tentative ruling that, although Dr. Smith might not be qualified to "get into the psychiatric aspect" of police interrogation methods, the defense was nevertheless entitled to have Dr. Smith clarify what he meant when, during cross-examination, he seemingly agreed with the prosecutor that Zuboff had "repeatedly lied". When the prosecutor continued to argue this point, Judge Gleason reiterated that she believed "it's a fair thing, on re-direct, [for Dr. Smith] to want to clarify [his earlier answers]".

But at this point, the defense attorney interrupted the discussion to declare that he was not satisfied with Judge Gleason's proposed resolution of this issue, even though that proposed resolution favored him:

Defense Attorney: If all you're going to let me do is ask the doctor if he wants to explain his answer, and [to let the doctor] basically say, "Well, sometimes [Grigori Zuboff] lied, but sometimes he was just confused." — but not give any sort of basis for saying that — [then,] I'm just making him more of a hired gun, and that's . . .

The Court: That's what I would allow you to do. And I [understand you to be saying that] you're not willing to do that, or not wanting to do that. . . . I understand your view on that, but we're not going to go down the road of [having Dr. Smith offer] an assessment of the [police] interview techniques [that produced the defendant's] statements, are we? . . . That wasn't part of the [doctor's expertise].

Defense Attorney: Well, he's not an expert on the Reid technique [of interrogation], but . . . he definitely does have some opinions on some of the things that [are involved] — you know, the condition of the subject, Mr. Zuboff, and the questioning of the officers, and how the two interact.

At the end of this colloquy, the prosecutor again objected that Dr. Smith was not qualified as an expert on interrogation techniques and how interrogation techniques might elicit false statements from a suspect, either generally or under particular conditions.

Following a little further discussion, Judge Gleason ruled that Dr. Smith would not be allowed to express a professional opinion on the effect of the police interrogation techniques in Zuboff's case. She told the defense attorney:

The Court: I don't see us going down that road on re-direct. . . . [I]f you wanted [Dr. Smith] to clarify specifically why he made the statement [about Zuboff repeatedly lying to the police], [why] he responded "yes" to [the prosecutor's question], he can do so. But I'm hearing that he's not (indiscernible).

On appeal, Zuboff argues that Judge Gleason committed error when she "refused to allow Dr. Smith to analyze the various factors that explained why Zuboff was not truthful in his statements to the police". But Judge Gleason had several good reasons for declining to allow this testimony.

First, Dr. Smith's explanation would have been collateral at best. The defense attorney did not contend that Zuboff had never lied to the police when they interviewed him. In fact, as explained above, the defense attorney conceded that many of Zuboff's statements to the police were lies. Thus, Dr. Smith's answer to the prosecutor's question was correct, even under the defense attorney's view of the case: Zuboff had repeatedly lied to the police.

The defense attorney told Judge Gleason that the point of his proposed re-direct examination was to attempt to show that not all of Zuboff's false statements to the police had been knowingly false. Given the context, this was a collateral point.

Second, when the prosecutor objected that the proposed re-direct examination would elicit answers beyond Dr. Smith's expertise, the defense attorney apparently conceded that this was so. The defense attorney admitted to Judge Gleason that Dr. Smith "[was] not an expert on the Reid technique" (a method of police interrogation discussed in Miranda v. Arizona).

384 U.S. 436, 448-455; 86 S.Ct. 1602, 1614-17; 16 L.Ed.2d 694 (1966).

It is true that the defense attorney told Judge Gleason that, even though interrogation techniques were not Dr. Smith's field of study, Dr. Smith "definitely [had] some opinions on some of the things that [are involved] — you know, the condition of the subject, Mr. Zuboff, and the questioning of the officers, and how the two interact." But without an offer of proof that Dr. Smith was qualified to render an expert opinion on these subjects, the fact that Dr. Smith may have held these opinions was irrelevant.

Third, and finally, it is unclear how Dr. Smith could have explained his opinions on this issue — i.e., how the police interrogation techniques might have subjectively affected Zuboff — without delving into his psychiatric diagnosis of Zuboff's overall mental health, or without explaining his conclusions about Zuboff's mental state at the time of, or immediately following the shooting. As we explained above, the defense attorney had already declared that he did not wish to elicit Dr. Smith's testimony on these subjects, and the defense attorney did not tell Judge Gleason that he wanted to revisit these issues.

For all of these reasons, we conclude that Judge Gleason did not abuse her discretion when she precluded the defense attorney from asking Dr. Smith to evaluate the police interrogation techniques on re-direct examination.

The superior court's ruling that limited the arguments that the defense attorney could make to the jury based on Elisei Zuboff's prior acts of violence

During the defense case at Zuboff's trial, various members of Zuboff's family — his mother (Anicia Zuboff), his surviving brother (Vasili Zuboff), and his sister (Alexandra Sanarov) — all testified that the victim of the homicide, Elisei Zuboff, bullied the other members of the family and beat them when they crossed him or did not accede to his wishes. Grigori Zuboff's sister, Alexandra, declared that Grigori got the worst treatment because he was the youngest sibling.

In addition, a former security guard for one of the Dutch Harbor seafood processors testified that, during the week before the homicide, he observed Elisei pick Grigori up and slam him to the floor. (Apparently, Elisei was angry because he believed that Grigori was not adequately performing his duties as a member of the crew.)

All of this testimony was admitted without objection (or, more precisely, without any objection that is pertinent here). But at the end of Zuboff's trial, during the drafting of the jury instructions, a disagreement arose concerning the types of argument that the defense attorney might properly make based on this evidence.

Zuboff's attorney asserted that, based on this evidence of Elisei's acts of violence, he could properly make four arguments to the jury: (1) that Elisei was the "first aggressor" — i.e., that Elisei had likely attacked Grigori in the moments before Grigori shot him; (2) that Grigori Zuboff was subjectively in fear of his brother Elisei at the time of the shooting; (3) that Grigori's fear of Elisei was reasonable; and (4) that Grigori's use of force against Elisei was reasonable under the circumstances.

The prosecutor conceded that arguments (2), (3), and (4) were proper. However, the prosecutor asserted that it would be improper for the defense attorney to make argument (1) — the argument that Elisei was the first aggressor.

The prosecutor's position was based on this Court's decisions in McCracken v. State, 914 P.2d 893 (Alaska App. 1996), and Allen v. State, 945 P.2d 1233 (Alaska App. 1997).

In McCracken, this Court recognized that "evidence concerning the victim's character for violence is potentially admissible for two reasons" in homicide and assault prosecutions:

First, [this evidence] may tend to demonstrate who was the initial aggressor in the confrontation. Second, it may tend to demonstrate that the defendant's fear of imminent deadly force at the victim's hand was reasonable.

When evidence of the victim's character for violence is introduced for the first purpose (to show who was the initial aggressor), the evidence is introduced for the very purpose normally barred by the evidence rules: to prove that the victim acted in conformity with his or her trait for violence. . . . [For this purpose,] the defendant's prior knowledge of the victim's character is immaterial because the purpose of the evidence is to circumstantially prove a question of historical fact: was the victim the initial aggressor during the encounter between the defendant and the victim?

On the other hand, when evidence of the victim's character for violence is introduced for the second purpose (to prove the reasonableness of the defendant's fear of imminent deadly attack), it is not being used as "character evidence" in the usual sense. Although evidence of a victim's reputation for violence or a victim's past acts of violence may, indeed, tend to show that the victim had a violent character, the primary relevance of the evidence is not to prove the victim's violent character, nor to prove that the victim acted in conformity with a violent character at the time of the incident in question. Rather, the primary relevance of this evidence is to prove the defendant's state of mind when he or she used deadly force against the victim — in particular, the reasonableness of the defendant's fear that the victim was about to attack with deadly force.

McCracken, 914 P.2d at 898.

The following year, in Allen, this Court held that when either the State or the defendant wishes to introduce evidence for the first of these purposes — i.e., wishes to introduce evidence of either the victim's or the defendant's propensity for violence, offered as circumstantial evidence that the victim or the defendant acted true to character and was indeed the first aggressor on the occasion being litigated — Alaska Evidence Rules 404 and 405 preclude that party from offering evidence of specific bad acts. Instead, these two rules limit the party's proof to reputation or opinion evidence concerning the victim's or the defendant's character for violence.

[W]hen a defendant raises a claim of self-defense and the court admits evidence of either the victim's or the defendant's character for violence or non-violence, this evidence is not admitted to prove an essential element of the crime or of the defense. The character evidence is relevant, not because character is an essential element of self-defense, but because the participants' character is circumstantial proof of the participants' likely conduct during the episode in question. This being so, Evidence Rule 405 limits the parties to the use of reputation or opinion evidence when they seek to prove the victim's or the defendant's character.

Allen, 945 P.2d at 1240.

The prosecutor noted that the evidence of specific instances of Elisei's violent conduct had been admitted under the theory that Grigori's awareness of his brother's past violent actions was relevant to prove the reasonableness of Grigori's fear of Elisei and the reasonableness of Grigori's act of arming himself and (potentially) Grigori's act of pointing the weapon at his brother (depending on what view of the evidence the jury adopted). But, based on McCracken and Allen, the prosecutor argued that this evidence of Elisei's specific acts of violence was not admissible on the separate issue of who was the first aggressor during the final encounter between Elisei and Grigori.

During the parties' debate on this issue, Judge Gleason perceptively noted that the question presented in Zuboff's case was somewhat different from the problem presented in McCracken and Allen. The presentation of evidence at Zuboff's trial was already concluded. Thus, the question was not whether the defense might offer evidence of Elisei's specific acts of violence to prove that he was the first aggressor. Rather, the question facing the court was whether, given the fact that evidence of specific bad acts had been admitted (for other purposes), the court should limit the jury's use of that evidence to the purposes for which it had been admitted.

In other words, since the Alaska Evidence Rules would have barred Zuboff from introducing evidence of Elisei's specific acts of violence for the particular purpose of proving that Elisei was the first aggressor, should the trial court bar the jury from using the evidence for that purpose? Although McCracken and Allen do not directly answer this question, Alaska Evidence Rules 404(b)(1) and 405 suggest that a trial court should limit the jury's use of the evidence in this situation.

Zuboff's proposed argument — that Elisei's prior acts of violence tended to prove that he was the first aggressor during the final encounter between the brothers — implicitly rests on an assertion about Elisei's character. Separated into its components, the defense attorney's argument was this: (1) the fact that Elisei committed specific acts of violence in the past tends to prove that he was a characteristically violent person; and (2) because Elisei was a characteristically violent person, it is likely that he acted true to character during his final encounter with Grigori.

But under Evidence Rule 404(b)(1) and Evidence Rule 405(a), evidence of a person's specific acts of violence is not admissible to prove the person's character for violence. Moreover, in cases where evidence of a person's specific acts of violence is admitted for other purposes — thus escaping Rule 404(b)(1)'s ban — courts routinely give limiting instructions to the jury, directing the jury to refrain from using this evidence as proof of the person's character. Thus, it would seem that Judge Gleason had the authority to prevent Zuboff's attorney from arguing that Elisei's prior acts of violence showed that Elisei was the first aggressor.

See Alaska Criminal Pattern Jury Instruction 1.29 (revised 1999). See also Clark v. State, 953 P.2d 159, 165 (Alaska App. 1998); Toomer v. State, 890 P.2d 598, 600 n. 4 (Alaska App. 1995); Miller v. State, 866 P.2d 130, 135 (Alaska App. 1994).

When Judge Gleason asked the defense attorney for his position on this matter, the defense attorney declared that it was ultimately irrelevant whether the Alaska Evidence Rules precluded him from using this evidence to argue that Elisei was the first aggressor. The defense attorney stated that his argument was based on the due process clause and a defendant's constitutional right to present a defense. The attorney contended that, whatever the Evidence Rules might say on this point, a defendant's right to present a defense would trump any contrary evidence rule.

But when Judge Gleason asked the defense attorney to provide authority for this position, the defense attorney had none to offer. In fact, this Court has repeatedly held that a defendant's right to present a defense does not include a right to introduce evidence in disregard of the rules of evidence. See Cleveland v. State, 91 P.3d 965, 973-75 (Alaska App. 2004); D'Antorio v. State, 837 P.2d 727, 735-36 (Alaska App. 1992); Bright v. State, 826 P.2d 765, 771-72 (Alaska App. 1992); Garroutte v. State, 683 P.2d 262, 267 (Alaska App. 1984).

For these reasons, we conclude that Judge Gleason was probably correct when she prohibited the defense attorney from arguing, on the basis of Elisei Zuboff's prior violent acts, that Elisei had probably attacked Grigori during their final encounter. We say that the judge's ruling was "probably" correct because we conclude that we need not definitively resolve this issue. Instead, we conclude that this issue is moot — because the defense attorney ultimately told Judge Gleason that her resolution of this legal question was not going to affect the defense attorney's intended summation to the jury.

As explained above, the defense attorney argued that the evidence of Elisei's specific acts of violence was relevant to four separate issues: (1) to prove that Elisei attacked Grigori during their final encounter; (2) to prove that Grigori Zuboff was subjectively in fear of his brother Elisei at the time of the shooting; (3) to prove that Grigori's fear of Elisei was reasonable; and (4) to prove that Grigori's use of force against Elisei was reasonable under the circumstances. The prosecutor argued that the evidence of Elisei's prior acts of violence could not be used for the defense attorney's first stated purpose, but the prosecutor conceded that the evidence was relevant to the other three purposes mentioned by the defense attorney.

Shortly after the prosecutor stated his position on this matter, the defense attorney told Judge Gleason: "You know, Judge, just for peace to break out, I'll withdraw [ground] one . . . and just go with the second, third, and fourth." The prosecutor responded that, if this was the defense attorney's position, then the State's proposed instruction on this issue (proposed Instruction 25) would apparently be acceptable to both parties. Judge Gleason interjected, "Well, [that's] right," and she asked the defense attorney, "Then what's wrong with [the] State's [proposed Instruction] 25, as modified [slightly in its wording]?" The defense attorney answered, "I would accept that."

Despite the defense attorney's apparent acquiescence, Judge Gleason pressed the defense attorney, asking him again if he intended to argue that Elisei's prior acts of violence demonstrated that Elisei attacked Grigori during their final encounter. After considerable temporizing, the defense attorney told Judge Gleason that he did not intend to make that precise argument — although he still contended that the law would allow him to make this argument if he chose to. A few moments later, the defense attorney reiterated his position; he told Judge Gleason that, "as long as I'm not precluded from [the arguments I have outlined], I can live with this."

Despite the apparent resolution of this issue, Judge Gleason took a short recess to re-read the McCracken decision. When the court went back on record, Judge Gleason announced that she believed that this evidence could not be used for the purpose of arguing that Elisei was the first aggressor in the final encounter with Grigori. The defense attorney responded, "I can argue [the defendant's] case without going there. . . . I don't concede the point [of law], but I can argue [the case] without going there."

This record demonstrates that, although the defense attorney still disagreed with Judge Gleason's resolution of this point of law (as an intellectual matter), he repeatedly declared that the resolution of this legal debate had no effect on his plans for arguing Zuboff's case to the jury. Thus, the point of law that Zuboff now argues on appeal was not preserved in the superior court.

Nor has Zuboff shown plain error. As we explained in Simon v. State, an error is not "plain" unless it was "so obvious that any competent judge or attorney would have recognized it." 121 P.3d 815, 820 (Alaska App. 2005). "If a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails." Id.

Here, Zuboff's position is at best debatable. For the reasons we explained earlier, Judge Gleason's resolution of this issue was a reasonable interpretation of the law. Accordingly, her ruling was not plain error.

The failure of the Unalaska police to contact the Brazilian consulate after they took Zuboff into custody

Grigori Zuboff was born in Brazil, and he lived there until he was eight years old. Although Zuboff told the police that he was a United States citizen, it appears that Zuboff may have been (or may additionally have been) a citizen of Brazil at the time of his arrest.

Based on his Brazilian citizenship, Zuboff argues that the Unalaska police violated Article 36(1)(b) of the Vienna Convention on Consular Relations when, following their arrest of Zuboff, they failed to contact the Brazilian consulate and failed to inform Zuboff of his right to contact the Brazilian consulate.

Signed April 24, 1963, and adopted 1970, 21 U.S. Treaties 77, 101; T.I.A.S. No. 6820.

Because Zuboff told the police that he was a United States citizen, we doubt that the Unalaska police can be faulted for failing to consider Zuboff's potential rights as a foreign national. But in any event, the United States Supreme Court recently held that the exclusionary rule does not apply to violations of the Convention on Consular Relations. Sánchez-Llamas v. Oregon, ___ U.S. ___, ___; 126 S.Ct. 2669, 2680-82; 165 L.Ed.2d 557 (2006). That is, even if the Unalaska police violated Article 36(b)(1) of this Convention, Zuboff would not be entitled to the suppression of any evidence.

Conclusion

The judgement of the superior court is AFFIRMED.