The Alaska Court of Appeals upheld Wednesday the sentence of a Soldotna man who beat his girlfriend for an hour, then held a six-hour standoff with Alaska State Troopers when they came to arrest him. He argued the victim provoked him.
In August of 2013, armed with a handgun, James Michael Cook searched the phone of his girlfriend, Mitsy Long. When he found text messages to another man, Cook attacked Long.
“For approximately one hour, Cook beat M.L. with his hands, feet, and a half-inch copper pipe,” the Court of Appeals wrote. “Cook knocked M.L. against a wall and pushed her down a staircase. During the assault, Cook tied M.L.’s hands behind her back and placed a rag in her mouth so she ‘wouldn’t scream anymore.’ When M.L. would begin to lose consciousness, Cook would throw water on her to wake her up. Throughout the attack, Cook repeatedly threatened to kill M.L.”
Long had requested a long-term protective order against Cook a week earlier, but the order had not yet been served. According to the Peninsula Clarion, Cook switched license plates on his vehicle, making it harder for Troopers to find him, serve the order, or arrest him.
(Note: The Court of Appeals decision seeks to protect Long’s identity using her initials. However, the Alaska Court System published her name as part of her protective order.
Earlier this month, Rep. Tammie Wilson (R-North Pole) tried to attach an amendment to HB 8, a bill clarifying that law enforcement personnel should treat protective orders from tribes and other states like State of Alaska protective orders. Wilson’s amendment would have prohibited publication of a protective order “if the publication would likely reveal the identity or location of the party protected under the order,” but it failed in a caucus-line vote on the House floor. House majority members encouraged Wilson to refine the concept and submit it as a separate bill.)
Another woman petitioned in 2010 for a long-term protective order against Cook, but she did not appear in court for it to take effect.
Troopers located Cook at the home of a friend, Robin Hilton, a week after he beat Long.
When Troopers tried to arrest him, Cook held a gun to his head and threatened to shoot himself.
After Troopers backed out of the house, the Court of Appeals writes, “Cook walked onto the porch… with the rifle under his chin. He threatened to shoot the troopers if they did not shoot him first.”
During the ensuing six-hour standoff, Cook fired at least two shots at Troopers, forcing them to shut down Jones Road.
Finally, Troopers smashed the house’s windows and threw in canisters of chemical agents. They were able to arrest Cook, who was incapacitated by the chemicals.
Cook pleaded guilty to first-degree assault for beating Long, third-degree weapons misconduct for concealing a firearm as a convicted felon, and third-degree assault for firing at the Troopers.
Superior Court Judge Carl Bauman sentenced Cook to 12 years to serve, ruling against his claim that he beat Long due to serious provocation from the victim.
AS 12.55.155 allows sentences outside the presumptive range if “the defendant acted with serious provocation from the victim” or “the victim provoked the crime to a significant degree.”
This is called the heat of passion defense.
In Roark v State, the Court of Appeals wrote, “The concept of proportionality has traditionally been applied to the heat of passion defense… The requirement of proportionality involves a common sense balancing of the seriousness of the defendant’s crime against the seriousness of the provocation.”
In addition to the concept of proportionality, the Court of Appeals wrote in Howell v State that “the concept of reasonableness plays a factor in determining whether a given defendant’s emotional condition qualifies as ‘passion.’”
“[A]ny person in a committed relationship… would be seriously upset by learning that the other person had been unfaithful,” Bauman acknowledged during Cook’s sentencing.
But Bauman said the hour-long assault provided “ample time for any reasonable human to cool down, calm down, [and] stop the beating.”
The Court of Appeals agreed with Bauman’s assessment of the heat of passion mitigator, citing Roark and Howell.
The Court of Appeals also rejected Cook’s claim that threatening the Troopers was among the least serious examples of third-degree assault. The Court noted that third-degree assault requires one person’s fear of imminent physical injury, while Cook shot at multiple Troopers.
“In short, Cook’s conduct was not among the least serious within the definition of the offense, and the sentencing judge properly rejected this mitigator,” the Court of Appeals ruled.