A 41-year-old Wasilla man this week lost his bid to appeal a 2012 first-degree murder conviction in the shooting death of his neighbor.
The Alaska Court of Appeals rejected Phillip Jackson Bailey's appeal despite agreeing that a Palmer Superior Court jury shouldn't have heard about his marijuana dealing to establish a potential murder motive, according to an opinion by the three-judge panel handed down Wednesday.
Bailey is serving an 80-year sentence at Wildwood Correctional Center just north of Kenai.
Bailey and 41-year-old construction worker Dale Prater both lived in an apartment building on North Fanciful Place in Wasilla. Prater often went to Bailey's apartment to smoke marijuana, according to the opinion. Prater did time himself for a 1989 murder in Oklahoma, according to the opinion and media accounts from the time.
The day of the October 2011 shooting, Prater showed up at Bailey's apartment and sat in the kitchen with Bailey and his friend Stacy Stroud as the men passed around a large Winchester knife, according to the opinion.
At one point, Prater showed them how to "silently approach someone from behind and 'slit his throat,'" it said. Bailey took that as a threat directed at him, he testified during trial.
Prater left to buy cigarettes for Bailey. Stroud testified that when Prater came back an hour later, Prater handed Bailey his cigarettes, said, "Take it off my tab" or, "Add it to my tab" and smiled, according to the opinion. She said that as Prater turned away, Bailey said, "That's what I thought," drew his gun and shot Prater in the back of the head.
Several guests in the apartment fled and Bailey called 911 and waited outside for police, the opinion says.
He later told a Wasilla police officer that he was "concerned that Prater wanted to steal his guns and his Permanent Fund dividend," according to the opinion. Bailey, who had recently separated from his wife, also said he thought Prater was trying to undermine his relationship with his 7-year-old daughter.
The night of the shooting, Bailey told the officer he decided to shoot Prater after he left to get the cigarettes.
But during trial, Bailey said Prater told "him he could stab Bailey or cut his throat, and that he could 'take' or torture Bailey's daughter while Bailey was 'helpless,'" the opinion says. He referenced Prater's murder conviction, his stories of stabbing a fellow inmate in jail and how he would smile before he stabbed someone to throw them off guard.
Bailey testified that after Prater "threatened him" with the knife, he got his gun, the opinion says. He said he tried to stop Prater from coming back into the apartment, but Prater forced his way in and cornered him in the kitchen. When Bailey said he was calling police, he testified, Prater said he would cut his throat. When Prater handed him the cigarettes and smiled, Bailey said, he thought he was turning to reach for a sword on the kitchen counter or the Winchester knife, and meant to stab him.
He intentionally shot Prater in the back of the head, Bailey told the jury.
Bailey's appeal centered on three claims of error: Superior Court Judge Gregory Heath's limiting a proposed self-defense expert's testimony; the introduction of his marijuana dealing as possible motive; and Heath's denial of a motion for mistrial based on the marijuana dealing as motive.
The appeals court found Heath acted within his discretion when he limited a retired Anchorage police officer's self-defense testimony and denied the mistrial motion.
The judges, however, agreed that it was an error to let a state prosecutor introduce the marijuana-dealing motive "because the state had not established any nexus between the marijuana dealing and the murder." But the trio found the error was "harmless" because of the way the trial played out -- talk of pot sales and a possible theft of $40 didn't get much attention from either side.
"Given this record, we conclude that the evidence that Bailey sold marijuana to his neighbors, although admitted in error, did not appreciably affect the jury's verdict in this case," states the opinion, written by Judge Marjorie Allard.