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Herman v. State7/12/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4248 - July 12, 2000]
Appeal from the Superior Court, Fourth Judicial District, Bethel, Richard D. Savell, Judge.
On December 30, 1996, Daniel C. Herman stabbed Clint Cole in the chest at Herman's residence in Red Devil, a small village on the Kuskokwim River. Cole died of internal bleeding. The State indicted Herman for second-degree murder and the jury convicted Herman of this offense at trial.
In this appeal, Herman claims that the State presented materially misleading testimony at grand jury and argues that the superior court should have dismissed his indictment because of that evidence. However, we find no abuse of discretion in the superior court's refusal to dismiss the indictment.
Herman next argues that the superior court erred by allowing evidence of Cole's reputation for peacefulness during the State's case-in-chief. Herman concedes that the evidence was admissible but objects to the order of proof. We find no abuse of discretion in the order of evidence at trial.
Herman also argues that the superior court should have provided the jury with his proposed instruction on his theories of self-defense and accident. But we conclude that the superior court's jury instructions were not an abuse of discretion.
Herman next maintains that Judge Savell erred by providing the jury with a variable speed tape recorder to listen to a tape-recorded telephone call between Herman and a trooper that occurred shortly after the homicide. Judge Savell cautioned the jury that the voices might be distorted if played at a slower speed. We conclude that Judge Savell did not abuse his discretion.
Finally, Herman argues that his sentence is excessive. We conclude that Herman's sentence is not clearly mistaken and affirm.
Facts and proceedings
Clint Cole was a friend of Herman's family and had gone to school with Herman's son. On December 30, 1996, Cole appeared at Herman's residence in Red Devil. Present when Cole arrived at the house were Herman, Herman's wife, Herman's son (Jason Herman), and Roland Welker, who was staying in an apartment unit adjacent to Herman's residence.
Cole and Herman began drinking. Their conversation became contentious and, according to Herman, Cole started throwing Herman around the room. All who were present in the house were able to see the dispute except Herman's daughter and her children, who were upstairs. The reported dispute ended about 9:30 p.m. when Herman fatally wounded Cole by stabbing him in the chest with a knife. Cole was not armed. Cole was 6 feet, 5 inches tall; Herman is 5 feet, 6 inches tall. An autopsy showed that the fatal wound was just over 60 inches above Cole's heel. The autopsy also showed that Cole had a blood alcohol level above .30 when killed.
After stabbing Cole, Herman's wife called Richard C. Wilmarth, also a Red Devil resident, and asked Wilmarth to fly Cole to medical help. Wilmarth advised her to call an air ambulance service because he could provide no life support in his small plane. Herman called LifeAlaska and requested an air ambulance but cancelled the request in a few minutes because Cole was dead. Herman called Wilmarth several other times and asked to be flown out somewhere and dropped off so he would not have to spend his life in jail.
Herman also called Cole's employer, Mark J. Warren, the owner of the Stoney River Lodge where Cole worked as the winter caretaker. Warren was in Vancouver, British Columbia, when Herman reached him. Herman told Warren that he had killed Cole and that Cole was lying on his kitchen floor. Warren said that Herman's
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