Abruska v. State

ABRUSKA, Appellant, Mattfi Alaska, Appellee.

STATE

No. 7672. Appeals

Court of of Alaska.

Aug. Defender, Paine, Asst. Public S.

Gаlen Defender, Fabe, Bethel, and Dana Public Anchorage, appellant. for Merriner, Gen., Atty. M. Asst. Charles Gorsuch, Atty. Anchorage, and Norman C. Juneau, Gen., appellee. BRYNER, C.J., and COATS and

Before SINGLETON, JJ.

OPINION SINGLETON, Judge.

Mattfi Abruska was convicted of second- 11.41.110(a)(1). He re- degree murder. AS year ap- ninety-nine sentence. He ceived a af- peals his conviction and sentence. We firm. Joseph Nook. shot and killed

Abruska Littlefish, Abruska, Nook, and Zaukar two drinking men at Abruska’s other were day Nook was killed. Abruska house the argument, but Littlef- got Nook into an either man restrained Nook before ish Littlefish sat a blow. Nook and struck began discussing trap- their back down minute afterwards ping plans. Within a Nook heard shots and saw Littlefish two up looked and saw over. Littlefish double point- feet from Nook about seven Nook. Littlefish ing rifle at a .22 caliber Abruska, away rifle from got up, took the to hide the rifle. into the bedroom and went out, outside. Nook was When he came present men was the other two One of The other man asleep heard no shots. looking he was out a shot while heard Littlefish certain He turned and saw to cause seri- window. death or holding physical injury Abruska but not the rifle. ous person. another He immediately. The left the house argues man then was unconstitutionally de- by shortly safety passed officer village prived of an “intoxication defense.” Two ground thereafter saw Nook on the are other statutes relevant to an under- signaled officer Littlefish for the outside. standing arguments. of Abruska’s 11.- transported over. Nook was to come 81.900(a)(2) “knowingly” defines the term troopers hospital spoke where he the with as follows: personnel he died.

and medical before (2) person acts “knowingly” a re- with spect to conduct or to a bullets the entered circumstance Two from rifle had abdomen, provision defining a pаssing described of law probably Nook’s one person when ri- an offense the is that through Nook’s wrist first. Abruska’s aware live the conduct is of that fle fourteen bullets. Twelve nature or that the holds exists; told knowledge remained the rifle. circumstance when rounds Abruska in the particular Littlefish while Littlefish was still the of a existence fact is an gut. offense, the he had shot Nook in an knowledge house that element of that Abruska, troopers came to arrest he person When if a established of a aware stated, you, you “Fuck I’ll too.” existence, shoot probability substantial of its troopers later he asked told that person Abruska actually unless the it believes to leave and when Nook did exist; Nook twice person does not who is unaware so, got began Abruska his do rifle and or a conduct circumstance of which shooting. person the would have been had aware person not that beеn intoxicated acts points appeal. raises three Abruska on knowingly respect with to that conduct First, he contends the trial erred in court or circumstance. excluding intoxi- evidence of Abruska’s capacity. cation offered show diminished provides: AS 11.81.630 Second, he contends that the indictment Voluntary intoxication is not a defense (1) have been should dismissed because: offense, for an evi- prosecution to a but instructed; grand jury erroneously was the the defendant was dence that intoxicated (2) excul- prosecution present the failed to whenever may be offered it is relevant evidence; patory prosecution element negate an of the offense Finally, inadmissible utilized evidence. intentionally requires defendant contends his sentence excessive. Abruska cause a result. We will discuss each of Abruska’s conten- stat- to consider these We had оccasion turn. tions in (Alas- 655 P.2d 325 utes Neitzel 1982). In App. ka Neitzel we concluded I. had legislature that the foreclosed evidence violating was convicted of Abruska capacity to show diminished of intoxication 11.41.110(a)(1), provides: which re- except those as to all offenses (a) person crime of commits the quired to cause a result the mens intent in the second if notes the existence of Neit- rea. Abruska physi- with intent to cause serious holding. uncertain as to its zel but seems knowing injury cal another makes two lines of attack. He therefore substantially that the conduct is certain First, death or to cause mat he contends that as a person, legislature to another causes the statutory construction ter of any person. person’s death evidence of a permit intended to when intoxicated to past experience

A. relevant to show be extent that presеnted he theory appreciation was that he risks Abruska tried on the See, e.g., he was intoxicated. engaged knowing in conduct it was others when Rhines, P.2d appreciate 899 n. 3 was unable to risk his Shane (Alaska 1983).1 generally agree posed reject We conduct to Nook. We Abrus- statutory arguments. that the limitations on ka’s of intoxication to show the use of evidence First, presumption there is no con preclud- capacity are aimed at diminished clusive or otherwise contained in the stat particular occasion ing showing that on legislature utes under consideration. The impaired so alcohol that he was requires jury beyond find reason appreciate the risks that his con- could not able doubt that the defendant knew that statutory presented duct to others. his conduct was certain to prevent would not evidence limitations physical injury cause serious or death to a prosecution defense that either person’s and in fact caused a death. person’s past experiences while drunk Thus, jury very could well find that a have alerted him to the would or would not specific person, regard per without to that presented that he to others when risks particular son’s state of intoxication at a intoxicated. Our review of the record es- time, appreciate did given not risk that tablishes, however, that Abruska did not his conduct would cause death or serious argument in court. make this the trial His injury to another and a could find fortiori argument to the trial court was limited to that he did not know that the conduct offering as to his intoxication on evidence reaching would cause death. In this con night he shot Nook show that was jury clusion the things ‍‌​‌‌‌‌​‌​​‌​‌​‌‌‌​‌‌​​​‌​​​​‌‌​‌​‌​​‌‌​​​‌‌​​​‌‌‍could consider such posed unaware of the risk that his conduct intelligence, physical as the actor’s abili preсise to Nook at that time. This is the ties, experience. and jury might well use of the evidence foreclosed the stat- mentally person find that a retarded wheth reject- utes. The trial court did not err in er or not he was intoxicated would not have ing proof. Abruska’s offer of appreciated the risk or risks that led to the

Abruska’s second line of attack if jury victim’s death even was con challenges constitutionality person greater intelligence of both the vinced that a appreciated limitation on the defense of intoxication in would have By the risk. 11.81.900(a)(2)and, by extension, same poor eye sight token a prohibition poor hearing might absolute of that defense in AS have been unaware of 11.81.630. Abruska contends that the stat risks that a more fortunate pre utes in effect perceived. Finally, person establish a conclusive have of limit sumption sobriety operates experience which as a ed regarding firearms or the guilty necessary directed verdict of on operation might of motor vehicles not have element of the second-degree appreciated offense of in the risks the circumstances murder, namely, necessary mens rea to in found himself at the constitute the offense. Abruska contends time his conduct in resulted another’s death, this presumption though reasonably prudent conclusive violates even Montana, the rule possessing typical experience Sandstrom more U.S. appreciated S.Ct. L.Ed.2d 39 would have those risks. In (1979). process He also summary, relies on the due whether actor was sober or equal protection and clauses of the state intoxicated at the time his conduct caused death, federal constitutions. He jury, reasons that another’s in order to con preventing him, there is no rational basis for vict must find that he would have him showing from appreciated flowing as a matter of fact that the risks from his con- Shane, person’s history driving Under such as acts done with malice or bad motives or arguably while intoxicated is admissible on the a reckless indifference to the interests of anoth- culpability, damages. issue of punitive an essential element in the er” in order to receive We that, extension, jury’s plaintiff’s right determination of the believe the evidence from punitive damages. Such evidence is admissible which it could be inferred that defendant would culpability plaintiff dangerous on the issue of because must be if intoxicated also would be ad- prove "outrageous, that defendant’s conduct was missible. Thus, uncertainty Abruska is We noted this duct had he been sober. Neitzel in our wrong he contends that the simply when discussion of the Model Penal Code draft- that it could find him jury preclude was instructed ers’ deсision to consideration of regardless subjective of his knowl- guilty intoxication in determining the issue of if that he was too intoxicated edge it found The person’s recklessness. line between a way the other. to know one knowing that his conduct is certain to cause death or serious reject pro also due We Abruska’s knowing that there is a substan- cess, equal protection, by extension tial risk that his conduct will cause death or arguments, punishment cruel and unusual (a physical injury paraphrase of the turn on the contention that no all of which standard) recklessness sufficiently close rationally conclude as a legislature could that our decision in Neitzel that there is no policy matter of intoxication should legislature’s constitutional violation considered on the issue of knowl be decision to eliminate consideration of intoxi- edge. Supreme The Alaska has con Court determining recklessness, cation in rejected arguments similar on sidered equally applicable here: leading case is a number of occasions. Vick weight pre- We mention first the 1969), rejected constitu where the court here, vailing clearly law which more than challenges a sentence tional and affirmed England, special has tended towards a being imposed on a chronic alcoholic this, Beyond rule for drunkenness. despite that he public drunk evidence point there is the fundamental need to drink. could not control his See potential consequences awareness of the Texas, 514, Powell v. 392 U.S. 88 S.Ct. also drinking capacity on the of excessive (1968). 2145, In 20 L.Ed.2d 1254 Evans v. beings gauge human the risks incident State, 155, (Alaska 1982), 160 645 P.2d dispersed in to their conduct is now so rendering an adopted court a rule accused’s it fair to our culture that we believe state irrelevant to the issue of intoxicаted postulate general equivalence between sanity. his The court said: risks created the conduct of the view, In our the rule which should and the risks created drunken actor voluntary govern becoming in Alaska intoxi- his conduct in drunk. Becom- support insanity an de- destroy temporarily cation will not ing so drunk as to fense, that all intoxication is to be perception and of powers the actor’s voluntary unk- regarded as unless it is plainly has no judgment is conduct which nowingly externally compelled. This value to counterba- affirmative social accepted many jurisdic- in has been danger. rule The potential actor’s lance It consistent with the tradition- tions. engaging in such culpability moral lies respon- common law view of individual al impres- are the Added to this conduct. sibility, as as with the statute which well posed litigating sive difficulties 11.70.030, case, governs this former AS any particular actor at the foresight of effect, now in AS and with the statute and the relative time when he imbibes 11.81.630. really [Footnotes omitted.] where intoxication rarity of cases engender as distin- unawareness State, does P.2d 1099 O’Leary v. 604 See also imprudence. Those consid- guished from 1979); State, (Alaska 566 McKinney v. balance, propose, on 1977); lead us to 653, (Alaska erations McIntyre P.2d 664-66 that unawareness declare State, that the Code P.2d 379 would have the actor 1963). of a risk of which de- he been sober be aware had been ultimately premised These cases are immaterial. clared have uncertainty among those who on the State, quoting at 655 P.2d and the use of alcohol as Neitzel studied alcoholism Code, Draft Tentative Penal ability to A.L.I. Model precise people’s effects on to its (1959). the dis- 2.08, Since at 8-9 acts. No. 9 consequences of their appreciate the § The knowledge clarity of a fаct statute is not a model of as tinction between will result a risk that the fact knowledge of to which element the term “knowing” degree, conclude that we a matter The applies. proposed in construction allow of intoxi- not to evidence decision only possi- the text above is the sensible knowledge is a deci- issue on the cation find bility. “knowing” applies To legislative prerogative. sion within the conduct would mean that defend- factual Therefore, legislature’s Alaska regarding culpability ant’s the circum- and knowl- that recklessness determination only stances would have to be “reckless- not the same is edge be treated should ly.” 11.81.610(b)(2). This would be Ramos, Ariz. State v. irrational. See manslaughter, 11.41.120(a)(1). under AS (1982). Further, light 11.81.610(b)(1), of AS “knowing” surplusage the term would be B. applied “Knowing” as conduct. can- disposes of foregoing discussion result, apply because stat- arguments which constitutional those сlearly require ute does not the defend- clearly presented to the trial court ant to know that a death will result. It argu- repeated in this court. Those knowledge is the defendant’s he acts interpreta- on ments are based Abruska’s that his under circumstances such act is 11.41.110(a)(1). interpreta- His tion of AS substantially certain to cause death or part interpretations tion is on the based makes his conduct previously given the Revised that we have blameworthy so to constitute murder. It elements of Criminal Code. divides the Therefore, “knowing” apply must to the conduct, categories: into three offenses circumstances. results; circumstances, surrounding in- corresponding mental states: and four accepted We have Abruska’s construction knowingly, recklessly, and with tentionally, for purposes resolving of the statute his negligence. criminal Neitzel v. constitutional claims. This is also the con- In his Abruska sets P.2d аt 328-30. brief placed struction on the statute in his stat- following interpretation of the out the arguments court below. arguments: ute as the basis is, however, There another construction prosecu- In the second of the statute in effect that would render case, in this three crit- tion at issue the second-degree under AS murder 11.41.- (1) shooting ical elements are conduct— 110(a)(1) an for intentional offense firearm; sur- with a circumstances permissi- voluntary might be a intoxication rounding the under conduct—conditions defense, ble see AS ll.8l.630. substantially certain that which was 11.41.110(a)(1) result from Alaska Statute states that death or serious Joseph shooting; and of of person result —death commits the crime murder in “[a] corre- knowing Nook. The the second if ... that [Citation omitted.] (1) “knowing- sponding mental states are to substantially conduct is certain cause conduct; (2) ly” “knowingly” for for the physical injury or serious to another death circumstances; (3) “recklessly” and person any death person, the causes the of is, for the result. That the substantive meaning The of this person.” statute specifies the cul- statute on that phrase, interpretation on the of the turns pable mental state for the circumstances “knowing that the conduct is “knowingly;” culpable is other two to cause death or serious certain gen- are mental states inferred from injury.” “knowingly” The definition controlling eral statute construction of 11.81.900(a)(2), para- in the first set out AS respect culpability. with to statutes [Ci- part incorporates 1 A most graph supra, tations omitted.] 2.02(2)(b) Penal of Model Code §§ 2.02(2)(b) 2.02(7). The Model Penal Code qualifies § his construction language: provides: in the following statute knowingly respect self-explanatory. noted, acts with It is to be how- ever, of an a material element offense “knowingly” that term re- is when: stricted to awareness of the nаture of one’s conduct or of the

(i) speci- existence of if the element involves nature of fied (e.g., or the facts or that his conduct attendant circumstanc- circumstances stolen, es, is property right he is aware that his conduct of that that one has no exist; etc.). building, that circumstances nature or such enter a for- Under the mulations of the Model Penal Code (§ 2.02[2bii]) and the Illinois Criminal (ii) if the element involves result of (§ 5[b]), is, conduct, “knowingly” Code in one prac- he is that it is his aware 4— phase, synonymous almost “inten- tically certain his conduct will that tionally” giv- in that a achieves cause such a result. “knowingly” prac- en result when he “is 2.02(2)(b) (Proposed Penal Code Model § tically certain” that his conduct will 1962) (emphasis supplied). Official Draft cause that result. The distinction be- 2.02(7)provides that: Section tween “knowingly” “intentionally” knowledge of the existence of a When appears in that highly contеxt technical fact particular is an element an of- semantic, and the Revised Penal Law fense, knowledge such is established if a employ “knowingly” does not word high probability person is aware of a defining offenses. result Murder of existence, actually its he believes unless variety, example, common law for is com- it does not exist. (§ mitted intentionally or at all 125.- 2.02(7). at Id. § 25[1]; 9-l[a]). cf. Ill.Crim.Code § 11.81.900(a)(2) however, Significantly, 15.05, N.Y. Penal Law Practice Commen- § provision omits achieves (McKinney 1975) at (emphasis taries given “knowingly” prac- result when “is original).3 tically certain” will that his conduct cause that result. Alaska statute Illinois the Model Penal Code based follows 15.05(2)2 upon govern New York permitting “knowingly” Penal Code the term § “knowingly” 4-5(b) which likewise limits to cir- result.4 Illinois Criminal Code 38 § The New provides cumstances conduct. York or acts knows “[a] omitting knowledge reason legislature’s knowledge of ... knowingly or with [t]he explained conduct, as to results as follows: the stat- result described offense, con- (subd. 1) defining ute when he is “Intentionally” and “know- prac- (subd. 2; sciously that such result is aware ingly” cf. former Penal Law tically his conduct.” 3[4]) concepts, certain to be caused are familiar and the § 4-5(b) (Smith-Hurd largely revised thereof are Ill.Ann.Stat. ch. definitions § prac- provides: Although result is York one can "know” that a The New statute occur, "intentionally” tically more certain "Intentionally.” 1. A acts inten- purposeful tionally respect properly state connotes active with to a result or conduct defining a an a is achieved. described statute offense of with which result mind II, objective his is to such when conscious cause at 17 Alaska Code Revision Part Criminal engage or to conduct. (Tent.Draft 1977) result in such (Commentary proposed AS “Knowingly.” knowingly A acts (a)(2) defining 11.15.140(a)(1) respectively respect with to conduct or to a circumstance Intentionally "knowingly.” “intentionally" and defining a an described statute offense Knowingly). aware is when he is that his conduct of such nature or that such circumstance exists. 11.41.110(a)(1), of draft 4.The tentative 1975). (McKinney Law § N.Y.Penal 15.05 murder, degree treated which one of established intentionally caus- knowingly causing death appar- 3. The Alaska Law Revision Commission ing synonomous. Criminal See Alaska death as ently agreed: 1977). I, (Tent.Draft It at 18 Code Revision Part "Knowingly" may culpable serve as I, Id., Part was from the Illinois statute. derived state for of an mental an element offense Commentary at 97. result; which is a “intends” result. 9-l(a) Homicide,” 19). 1979). prac- Code 38 Law of 17 to The Illinois Criminal § tical view of such a distinction lies in the provides: penalties, differentiation of discussed be- kills an individual with- who low. commits murder justification out lawful if, cause performing the acts which

the death: (a)(2) is to define Subsection intended which, great lacking

(1) intends to kill or do conduct actual intent He either another, great bodily kill that individual or or do harm or knowl- bodily harm to occur, edge in- such acts will cause death that such a result will or knows that another, knowledge probability or of the to that individual or volves the offender’s acts will cause death or that such acts create a He knows great bodily harm. is used “Knows” great strong probability of death or bodi- 4-5(b), again as defined in but Section another; or ly that individual or harm to ‍‌​‌‌‌‌​‌​​‌​‌​‌‌‌​‌‌​​​‌​​​​‌‌​‌​‌​​‌‌​​​‌‌​​​‌‌‍danger great of death or attempting committing He is bodily harm is lesser than that described voluntary man- felony other than forcible preceding in the subsection. Several slaughter. describing probability ap- methods of this (Smith-Hurd 9-l(a) Ill.Ann.Stat. Ch. § [discussing pear in the statutes and cases 1979). depraved approaches various heart commentary Illinois statute 11.41.110(a)(2), murder similar to AS provision of this discusses the relevant interpreted is which Neitzel v. statute as fоllows: (Alaska App.1982) 655 P.2d 325 ]. (a)(1) intended to define Subsection conduct, culpable types most the two Clearly, sharp dividing no lines can be which are within the older definition drawn, “strong the Committee chose but acting either with ac- “express malice”— probability” plainest description as great bodily to kill or do tual intent the situation which lies between the harm, knowledge that death or or with “practical certainty” preceding (or great bodily practically harm will subsection, “likely cause” and and the to) “Intends” is used as certain result. unjustifiable risk” of “substantial 4-4: conscious defined in section “his manslaughter provision involuntary accomplish objective purpose is to 9-3, (§ using “recklessly” defined in result,” bodily great death or harm. 4-6). phrase to re- This would seem § intent, resulting from a This is the actual quire a minimum of further definition action, many rational choice of instructions, ready jury permit and to as deliberation or statutes have described comparison the other two situations which, premeditation as noted —terms mentioned, requires the evidence when definition, above, require yet further thereon. instructions have been defined in terms which mean Comments, id. at 17-19. Committee no more than actual intent. “ comparison of these various stat- Knows” is used as defined in section From a 4-5(b): utes, legis- the Alaska consciously appears aware that clear that “he is ... 11.41.110(a)(1) language in AS such result is certain to be caused lature chose —“knowing is substantial- certainty of result that the conduct conduct.” Absolute standard; ly certain to cause death or impractical would be an but parallels person” practical certainty describes to another standard —that which, Illinois defini- culpability, Penal Code and that conduct its Model govern “knowing” used to substantially equal culpability tions when of of i.e., intent, result, is aware that such the actor the act done with actual but which certain” to be caused distinguishable culpability “practically result is logically 11.41.110(a)(1) was also AS probability from the of result described his conduct. 41-1503(l)(c) (a)(2) (See Moreland, Statute “The modeled on Arkansas in subsection

1269 second-degree 211.1(2)(b) as Model Penal conduct punishes (Proposed Code § that knows that con- murder if the actor 1962). Official Draft The issue in Mill substantially certain to duct cause seri- aggravated turned on whether assault un- Arkansas, injury to another.5 ous existing der then Alaska should law be Illinois, “knowingly” permits like the word interpreted specific general aas intent or modify to a result.6 intent statute. The distinction was rele- legislature If intended the the Alaska because vant Mill wished to offer evidence “knowing” used in 11.41.- term as AS capacity of diminished due to intoxication 110(a)(1) modify a result rather than to Supreme pre- Alaska Court was circumstances, surrounding conduct or pared to hold capacity that diminished due “knowingly” in of AS 11.81.- definition negate to intoxication cannot be invoked to to 900(a)(2) inapplicable 11.41.- would be AS general criminal intent. 585 P.2d at 551. since, 11.81.900(a)(2) 110(a)(1) applies AS aggravated argued The defendant as- only surrounding or circum- to conduct should interpreted specific sault as a be Thus, 11.81.900(a)(2)’s stances. AS restric- crime in support intent relied on the phrase “a who is tive unaware Model Penal Code. The state countered per- conduct or circumstance which the gen- that the Model Penal Code described per- son have been aware had that part. eral intent offense at least knowingly son intoxicated acts not been pointed conduct respect with to that or circum- state that under the out Model stance,” apply to would not 11.41.- knowingly "purposely Penal Code or caus- 110(a)(1) voluntary intoxication would ing bodily suffice for injury” would permissible if “knowing” be defense can Although “purposely” offense. the term equated “intending.” be with implies requirement specific of a intent permits 11.81.630 evi Alaska Statute injury, to cause the state reasoned term “negate dence to an element of intoxication “knowingly” requires general intent. The requires offense that defendant supreme quoted definitions in court intentionally cause a result.” The commen Model Penal as follows: Code tary “knowingly” provision to New York’s knowingly A acts “Knowingly. the line “know establishes that between respect element of a material an with ing” conduct will cause death that one’s offense when: “intending” imperceptibly death is significantly, the thin. More Alaska Su

preme virtually the terms Court treated (ii) result if the involves a element synonymous it addressed similar is when prac- conduct, that it is he is aware P.2d sues in Mill tically his cоnduct will cause certain that (Alaska 1978), denied, cert. U.S. such a result.” (1979). L.Ed.2d 34 There S.Ct. The court then said: Model the court discussed Penal Code law, Perkins In his on criminal treatise aggravated 211.1(2)(b) as which defines § “purpose” and “knowl- notes that both “attempts sault who to cause punish one of the Mod- edge” as in the revision used knowingly bodily purposely causes intent. deadly Penal can constitute weapon.” el Code another with knowingly “Knowingly.” person acts provides A Statute 41-1503 in relevant Arkansas part: respect conduct or attendant with to his aware that his con- he is circumstances when second A commits in the such circum- or that duct is of nature if: knowingly acts stances exist. (c) purpose causing with the respect conduct when he is of his a result person, physical injury to another he causes that his practically certain aware any person. the death of a result. conduct cаuse such will (1977). 41-1503(l)(c) Ark.Stat.Ann. 41-203(2) (1977). Ark.Stat.Ann. 41-203(2) provides: 6. Arkansas Statute

1270 consequences “intending includes those of interpreta-

“Intent that result.” This (a) represent very purpose which tion is consistent with the current Model (regardless act is done of for which an Penal Code which seems to treat knowl- (b) occurrence), are likelihood edge conceptual equiva- and intent as the substantially certain to known to be intent, lent specific of common law desire).” (regardless of result negligence recklessness and criminal as the equivalent general Criminal Law at common Perkins, law intent p. R. purposes (1969). of the intoxication appears Thus it clear that defense. See, e.g., Model Penal Code, provision dealing Model Penal Code with 2.08 com- § (Tent.Draft deadly weapon mentary 9, 1959). does assault with a re- at 2-9 No. But see Bailey, United States v. quire specific bodily inju- intent to do U.S. ry- 394, 403-06, 624, 631-32, 100 S.Ct. (knowledge L.Ed.2d 586-88 585 P.2d at 549.7 (knowingly) corresponds loosely gen- Mill, prior summary, In a case decided State, Bidwell v. intent); eral 656 P.2d code, of our criminal to revision (Alaska App.1983). supreme interpreted phrase, court “knowing interpretation substantially that his conduct This of the statute renders equivalent second-degree to cause a result” as the knowingly killing certain however, Contrary opinion, consequences to the statement in the Mill to limited which are (Second) discussing Perkins is the Restatement desired. If the actor knows that the conse- certain, certain, (1965), quences substantially Torts rather than the are § 8A Model act, ahead, Perkins, goes to result from Penal R. Criminal Law 746-47 and still Code. is treated the law as if he had in fact nn. 41-43. Perkins continues: produce proba- desired to the result. As the position This is substance taken bility consequences that the will follow de- Institute, Law the Institute drafters [American creases, and becomes less than substаntial (Second) of the Restatement What Torts]. certainty, the actor’s conduct loses the charac- by "substantially is meant certain to result" is intent, recklessness, ter of and becomes mere layman speak something what the of as probability § as defined in 500. As the de- happen," lawyer "bound and a would refer further, only creases and amounts to a risk to as an concomitant.” The cau- "inevitable follow, that the result will it becomes ordi- Institute, wording copied tious from the re- nary negligence, § as defined in 282. All philosophical any- sulted from doubt whether important place have three torts, their in the law of thing properly can be said to be “bound to liability but attached to them will happen." [Citation omitted.] differ. referring Id. at 747 n. 43. Perkins is to the (Second) 8(a) § Restatement of Torts ‍‌​‌‌‌‌​‌​​‌​‌​‌‌‌​‌‌​​​‌​​​​‌‌​‌​‌​​‌‌​​​‌‌​​​‌‌‍commen- (Second) 8(a), Restatement of Torts which § tary at 15. provides: The Restatement’s treatment of intent to in- through- Intent. The word "intent" is used "knowledge" closely par- clude both “intent” Subject out the Restatement of this to denote allels the treatment these terms received in the consequences that the actor desires to cause Model Penal Code. The Restatement's treat- act, of his or that he believes that the conse- § ment of recklessness in 500 combines "reck- quences are certain to result negligence” they "culpable lessness” and are from it. defined in the Model Penal Code and utilizes an particularly sig- comment this section objective theory part require which does not nificant: subjective knowledge of the risk. It is therefore Comment, "Intent,” (a) as it is used recklessness, consistent with the definition of Torts, throughout the Restatement of has ref- i.e., culpable negligence, adopted O’Leary consequences erence to the of an act rather (Alaska 1979). It gun than thе act itself. When an actor fires a consistent, however, completely with the is not Desert, in the midst of the Mohave he intends 11.81.900(a)(3), "recklessly” in AS definition pull trigger; but when bullet hits a subjective appreciation requires present who is in the desert without (Second) Compare risk. Restatement of Torts knowledge, the actor’s he does not intend that 11.81.900(a)(3) (defining 500 with AS “reck- § lessly”) limited, used, result. "Intent" is wherever it is 11.81.900(a)(4) (defining crimi- and AS consequences of the act. negligence). nal See Alaska Criminal Code Re- (b) consequences All which the actor de- II, (Tent.Draft 1977) at vision Part 17-19. intended, bring 11.15.140(3) sires to about are as the word (Commentary proposed AS not, is used in this Negligence). Restatement. Intent and Criminal Recklessness

1271 first-degree capacity inten- of evidence of through diminished redundant 11.41.100(a)(1). killing.8 AS tionally ambiguities See intoxication. Given the knowing statute, would be to view complexities The alternative in pre- I am not 11.41.110(a)(1)as redundant murder in AS pared say to that the trial court committed called reckless murder. of what we have plain error in interpreting not AS 11.41.- Neitzel, 11.41.110(a)(2).9 655 P.2d AS See 110(a)(1) requiring as an offense that the Marcy, In P.2d People 331-32. v. 628 at “intentionally defendant cause a result” (Colo.1981), Supreme Court making evidence of intoxication relevant.10 engaging that in con- concluded Colorado legislature may In fact the have drafted manifesting an duct “under circumstances AS 11.81.630 to limit an intoxication de- human extreme indifference value of require fense to statutes which an intent to virtually indistinguishable from life” is in cause a result order to eliminate the “knowing that his conduct problems in discussed this section of the physical certain to cause death Therefore, opinion. the trial court’s deci- Neitzel, person.” injury to another See deny right rely sion to Abruska the to on a in n. 3. This court noted 655 P.2d at 338 capacity defense diminished based on intox- Neitzel, however, legisla- that the Alaska ication is affirmed. provisions the two clearly ture considered Id., citing Supp. No. 47 at 9-10 distinct. II. (1978),following p. (legis- 1414 2 J. Senate 11.41.110(a)(2)). commentary on lative challenges Abruska makes three legislature as the possible It is that viewed argues The state that his indictment. relationship between apparently viewed forfeited these claims because his provisions, might reckless murder the two untimely. motions were Alaska See knowing offense be a lesser-included 12(e), 16(f)(3)(challenges to evi R.Crim.P. State, murder. See Nicholson or indictment are forfeited unless dence (Alaska (lesser App.1982) includ- pretrial, example at the omnibus raised penalty). need not have a lesser ed offense true, hearing). appears this is While Judge Christopher R. Cooke Superior Court However, necessary pursue it is not on the merits of each claim. We ruled interprеtation of the statute fur- proper per where the trial court have held that argued has never that he ther. Abruska untimely pretrial challenge to the mits an of intentional mur- was in effect convicted 12(e) Rule pursuant to Criminal indictment specifically relied on the der. Nor has challenge, the merits of that support his offer and rules on of AS 11.81.630 terms 11.41.100(a)(1) was, provides: part, Statute the Alaska Law Revision Alaska 8. This (a) proposal. person See Alaska Criminal commits the crime of murder Commission A I, (Tent.Draft 1971), if, at degree Code Revision Part cause the with intent to in the first Stern, 11.41.110(a)(1). proposed AS See abo person person, the death of another Code, Proposed Revbed Criminal Alaska (1) any person. death of causes the I, (1977). L.Rev. 40-42 U.C.L.A.—Alaska equally the “substantial unclear 10.It 11.41.110(a)(1) (2) provide: Statute 9. Alaska plain prong error rule has prejudice” (a) the crime of murder commits been met hеre. the second if the statute a construction of Even if such physical intent to cause serious might be benefited. adopted, Abruska were knowing injury that the to another offense murder is a lesser-included If reckless substantially certain to cause death conduct is penal- knowing have the same murder and both person, another or serious reckless ty, is no defense to but “intoxication” any person; person causes the death of murder, open the reversal would leave then a [or] the trial court could possibility on remand intentionally performs an act See simply judgment on reckless murder. enter in the death of another that results 1984). State, manifesting App. an extreme 690 P.2d 745 under circumstances Nix v. to the value of human life. indifference ignore should not the claim on forfei- foreman and juror we another were curious grounds. Morgan ture 661 P.2d about the two counts of the indictment (Alaska App.1983). n. 1 1103 & We when it was first read persisted asking questions address the merits of Abruska’s therefore about the elements of why claims. each and both were needed. After the presented, evidence had been the foreman First, Abruska contends the again questions. asked prose- similar The jury erroneously grand was instructed. He responses cutor’s part were for the most notes that a two-count indictment was technically correct, probably the best presented grand jury. to the Both counts ones that could have been made under the 11.41.110(a)(1). derived from AS The first circumstances.11 challeng- Abruska is not charged that shot Nook count Abruska ing the fact that the indictment inwas two with a firearm with the intent to cause counts, or that one count was dismissed physical injury resulting in death. before trial. charged The second count that Abruska Second, argues Abruska that the indict knowing shot Nook with firearm that his ment should have been dismissed for fail substantially conduct was certain to cause present exculpatory ure to evidence to the physical injury death or serious and did grand jury. State, 154, Frink v. 597 P.2d cause death. The first count was dis (Alaska 1979). 165 trooper talked with prior argues missed to trial. Abruska Joseph died, Nook hospital at the before he prosecutor gave the two erroneous instruc trooper Nook told the that Abruska tions which tainted the deliberations of the had shot argues him. Abruska that Frink grand jury. Abruska contends that on by was allowing trooper violated the during grand jury three occasions the in testify to this grand statement before the prosecutor, prosecutor struction the jury ample qualifying “without possible referred to the outcome at trial. contradictory statements made three interprets prosecutor’s He statements people” other who talked to Nook at the threatening grand jury as that if it did hospital. The evidence Abruska refers to not return a true on II bill Count and if an “qualifying” was of a nature the sense intoxication defense were successful as to qualified that it statements of Nook which I, there Count would be no conviction essence, were harmful In Abruska. Further, jury. trial Abruska contends that grand Abruska would jury have had the prosecutor error occurred when the told people told that three other talked to Nook grand jury grand jury that “the can testimony and that their supported an in make a decision either on or both ference that Nook denied that Abruska had [counts]_ It’s not an either/or alterna- shot him. tive, questions both or both counts should decision, go jury for their if the Abruska misunderstands grand jury returns a true bill on both.” prosecutor duty rule of Frink. The has interprets language requir- Abruska this produce evidence which will substantial ing grand jury to return a true bill on ly negate guilt, develop tend to not but one or both cоunts. present evidence for the defendant or to points out, As the state “possibly review the evidence favorable” to the de State, 438, entire record prosecu- Dyer establishes that the fendant. 666 P.2d 444 (Alaska improperly. grand jury State, tor did not act App.1983); The Tookak v. 648 decision, words, part grand jurors As noted in IB of this the line both counts. In other "intending “knowing between a result” and wanted to know the difference between the two the result is answer, certain to follow from prosecutor’s counts. The which fo- very grand the actor's conduct” is thin. Some defense, explained cused on the intoxication jurors recognized why this and wondered may only be what difference. prosecutor sought containing an indictment (Alaska App.1982). error. The testimony “experimentation” More- P.2d over, inconsistency mere fact of was minimal if error occurred it was [be- “[t]he other does inculpatory and hаrmless. tween evidence] automatically convert all [inconsistent] exculpatory evidence.” Pres-

evidence into III. (Alaska State, ton v. 615 P.2d ninety-nine received maximum 1980). year arguing sentence.12 In that this sen- excessive, tence is alleged exculpatory upon Abruska relies evidence testimony Page a nurse consists of the thought

attending App.1983), she heard where we said: Nook who me”; (2) say Nook that “Nick shot a doctor It would appear appropriate ... that one Nook allegedly say who also heard was [second-degree convicted of murder] door; through shot a district twenty should receive a sentence of from attorney, trooper ques present while thirty years. to Nook, tioned stated that Nook told the who however, say, We went that aggra- on to trooper see that he did not Abruska shoot vating permit circumstances would enhanc- context, him. In it is clear that the district ing up ninety-nine years, sentence attorney Nook have believed understood Page properly himself was found to be shot him and that the nurse’s Abruska Wortham, a worst v. offender under State statements, context, in doctor’s 1975), (Alaska justify- 537 P.2d exculpatory have been little value. The of ing ninety-nine year his maximum sen- remaining mainly consists of a evidence report A lengthy presentence tence. of series statements about circumstanc very high this ease documented number shooting es of the conflict somewhat physically of incidents of abusive behavior with each other and with the other evidence life, during Abruska his adult and the ‍‌​‌‌‌‌​‌​​‌​‌​‌‌‌​‌‌​​​‌​​​​‌‌​‌​‌​​‌‌​​​‌‌​​​‌‌‍presented grand jury. It to the is difficult insight extreme lack Abruska has into of conflicting to see how statements Nook the cause of Abruska filed that behavior.13 substantially negate can be said to Abrus- allegations” report a “denial of presentence State, guilt. ka’s Tookak v. 648 P.2d See allegation denying every of felo- “each and (in light implicat at 1021 all the evidence of unsupported by information nious conduct ing Tookak, the failure of other witnesses specific some as well as indictment” him meet of identify did not the test many sentencing, of those instances. At negating guilt). probation officer interviewed who complains Finally, report prepared presentence testified the indictment should have been dismissed and violent con- about Abruska’s extreme presented because inadmissible evidence of duct. grand jury, hearsay, in the form of evidence, Judge upon this testimony speculation, and about the re Based awas worst Cooke found that Abruska experimentation by improper

sults an found that Judge offender. Cooke trooper investigating shooting. We provocation. He not murder was argu without carefully have reviewed Abruska’s pattern a severe ed that while there was light ments of the record and find no history long of violent Second-degree is an of- established that he has unclassified fense, 11.41.110(b). distinguish presump- are his case There no AS behavior which serves (Alaska 1985) penal- State, tive minimum and maximum terms. The P.2d 1198 Pears from v. ninety-nine respectively years. ties are five and (youthful convicted second-de- offender first 12.55.125(b). gree homicide while vehicle murder for motor less a sentence of intoxicated should receive only prior felony 13. While one Abruska has twenty years). than verified, sentencing at information conviction abuse, many past of Abruska’s alcohol acts were committed while Abruska

of violence Alaska, Appellant, STATE of not intoxicated which indicated that was v. even were Abruska rehabilitated terms ROARK, Appellee. Charmaine abuse, prospects the overall of his alcohol for his rеhabilitation would be minimal. Alaska, Appellant, STATE Judge that the Cooke concluded nature and v. murder, pattern circumstances of the LaBADIE, Appellee. Donna L. others, of cruel and violent behavior to prospect the minimal for rehabilitation of Alaska, Appellant, STATE of justified Abruska all a “worst offender” v. Wortham, characterization. See State v. ELLIS, Appellee. Rallo S. Having 537 P.2d at 1120. reviewed the record, say Judge Alaska, we cannot Cooke Appellant, STATE of finding was incorrect that Abruska was v. a worst offender or that the sentence im- Danny THOMPSON, Appellee. Lee posed clearly was mistaken. See McClain Alaska, Appellant, STATE 1974).14 judgment superi- and sentence of the JACKSON, Appellee. Brooks E.

or court are AFFIRMED. Alaska, Appellant, STATE v. BRYNER, COATS, Judge, Chief Margaret RESSLER, Appellee. A. Judge, concurring. Alaska, Appellant, STATE of join Judge Single-

We in the result which ton join reaches. However we do not v. рart

the extended discussion in IB of the BROWN, Appellee. Patricia opinion. appears This discussion to us to Alaska, Appellant, STATE of unnecessary be to the resolution of this case. McHALE, Appellee.

Arthur Alaska, Appellant, STATE OLSON, Appellee. Lawrence D. No. A-704. Appeals

Court of of Alaska. Sept. 1985. behavior, Generally, impose lishing a trial court should not a continuous course of violent maximum sentence without the benefit may impose of a a maximum sentence without psychological evaluation of the case, defendant. See requiring such an evaluation. In this Salud v. App.1981). pretrial psychiatric ‍‌​‌‌‌‌​‌​​‌​‌​‌‌‌​‌‌​​​‌​​​​‌‌​‌​‌​​‌‌​​​‌‌​​​‌‌‍report trial court had a report Failure to obtain such a sua argue updated the defense does not that an Where, however, sponte may plain be error. report Abruska at sentenc would have benefited request the defendant does not an evaluation ing. plain therefore find no error. We and the court has extensive information estab

Case Details

Case Name: Abruska v. State

Court Name: Court of Appeals of Alaska

Date Published: Aug 30, 1985

Citation: 705 P.2d 1261

Docket Number: 7672

Court Abbreviation: Alaska Ct. App.