*1 JEFFRIES, Petitioner, Michael V. Alaska, Respondent.
STATE
No. S-11507.
Supreme Court of Alaska. 26,2007.
Oct.
914 *2 displayed that jury could find Jeffries
able
human
to the value of
"extreme indifference
life,"
second-degree
required
a
murder
as
for
11.41.110. There was
under AS
conviction
Jeffries,
drinking aleohol-
after
home,
beverages at
drove from his home
ic
club,
at least six
where he drank
social
him-
to drive
beers
he decided
before
passenger
Jeffries was
and a
home.
self
intoxicated,
alcohol
extremely
with a blood
his
percent,
0.27
when he drove
level of about
directly
slowly in front of an oncom-
car
and
well-lit,
icy,
five-lane street.
ing car on
for
convictions
Evidence
Jeffries's
to attend sub-
driving, court orders
a condition of
programs,
abuse
and
stance
drinking alco-
that he abstain from
probation
finding
height-
had a
permitted
hol
he
grossly
ened awareness
highly dangerous. We hold
intoxicated was
the evidence was sufficient
verdict, and affirm.
AND
II. FACTS
PROCEEDINGS
intoxicated,
grossly
Michael Jeffries
While
February
an automobile and caused
drove
injured
fatally
his
2000 traffic accident that
passenger, Beulah Dean. The two
front seat
on DeBarr Road in Anchor-
were eastbound
Steiner,
Quinlan
Defend-
Assistant Public
from a social
age, driving home at 8 P.M.
Defender,
er,
Brink,
K.
Public
and Barbara
served,
had been
when
club where alcohol
Anchorage, for Petitioner.
abrupt
made an
left
turn-but
Jeffries
Rosenstein,
speed-directly
Attor-
in front of Mark Ber-
M.
Assistant
slow
Kenneth
General,
post-
ney
Special
geron's oncoming
Prosecutions
car. The
Office
westbound
Anchorage,
David Mar-
Appeals,
on the five-lane street where the
ed
General, Juneau,
Attorney
Respon-
quéz,
forty-five
per
collision occurred was
miles
Bergeron
dent.
thir-
hour and
was
about
ty-five
per
There was a thin
miles
hour.
Justice,
BRYNER,
Before:
Chief
layer
packed
in the center lane from
snow
MATTHEWS, EASTAUGH, FABE, and
There was a sheen of
which Jeffries turned.
CARPENETI,
Justices.
icy
and the road was
ice in the traffic lanes
dark, but
the street
slippery.
It was
OPINION
streetlights.
Bergeron
with
was "well-lit"
investigating detective believed that
and the
EASTAUGH, Justice.
Bergeron's car
on at the
headlights of
were
I.
INTRODUCTION
right
The
front corner
time of the collision.
passenger
door
Bergeron's
car struck
a traffic accident
Michael Jeffries caused
Dean, penetrating more than
beside Beulah
injured
juryA
fatally
passenger.
passenger
compart-
inches into the
un-
twelve
second-degree
convicted him of
was
fatally injuring Dean. She
ment and
der
11.41.110.
court of
af-
AS
after.
hospital
to a
but died soon
firmed. We
a reason-
taken
consider here whether
blood
content was 0.27 cated. The
guilty
found
of see-
alcohol
murder,
percent
seventy
it
tested about
ond-degree
when
was
while intoxicat-
after the accident. There
evi
minutes
ed,
suspended
license.
had
alco
dence
been
appealed, arguing
that extreme-
*3
beverages
day
holic
before noon on the
of his
indifference murder should be reserved for
accident,
drinking
morning,
that after
in the
in
operates
cases which
intoxicated driver
elub,
he drove to a social
where he consumed
in
particularly dangerous
his vehicle
at least
more beers before he drove home
six
thorough
heedless manner. After a
review
and caused the fatal accident. There was
law,
of Alaska and nationwide case
the court
also evidence
Jeffries
have been
that
appeals agreed
superior
with the
court
driving
po-
while he was
home. A
past
that Jeffries's
driving
convictions for
empty
Hice
found an
beer can on the
officer
intoxicated,
repeated
par
his
refusal to
floor on the driver's side of the car. As the
ticipate in court-ordered treatment
for
observed,
alco
appeals
"[vliewing
court of
later
abuse,
despite
hol
his decision to drive
presented
light
the evidence
at trial
State,
suspension
Heense
prior
most favorable to the
or revocation for
Jeffries downed
convictions,
approximately twenty beers over the course DWI
as well as his "extreme
of several hours.1
intoxication"
night
on the
of the accident
were sufficient to
charge
allow murder
charge
Jeffries was indicted on a
of see-
go
jury,
to the
even if the defendant did not
11.41.110(2)@)
ond-degree murder under AS
engage
"egregiously dangerous
in
driving.2
engaging
for
in conduct
resulted in
holding,
rejected
Given this
the court also
manifesting
death under cireumstances
ex-
contention that the evidence of the
Jeffries's
treme indifference to the value of human life.
convictions and Jeffries's
failure to
DWI
charged
manslaughter, neg-
He was also
comply with court-ordered substance abuse
homicide,
ligent
driving while intoxicated
treatment
and abstinence from alcohol
(DWT),
was
suspended
awith
license.
unduly prejudicials.3
irrelevant and
trial,
prosecution
At
introduced evi-
long 'history
dence of Jeffries's
granted
petition
hearing.
We
Jeffries's
jury
while intoxicated. The
heard evidence
convictions,
Jeffries had six
DWI
IIL. DISCUSSION
suspended
that his license had been
since
1989, that
partici-
he had four times failed to
A. The Evidence of Jeffries's Extreme
pate in court-ordered
pro-
substance abuse
Indifference
to the
of Human
Value
grams,
probation
and that as a
condition
Life
To
Rea-
Was Sufficient
Allow a
he had been ordered to abstain from drink-
Jury
sonable
To
Him
Convict
of Sec-
alcohol,
ing
objected
Jeffries
to the admis-
ond-Degree Murder.
irrelevant, unfairly
of this evidence as
sion
prejudicial,
improper
character evidence.
challenges
superior
acquit.
court's denial of his motion to
In
After the close of evidence Jeffries moved
.
reviewing
acquit,
the denial of a motion to
we
judgment
acquittal
for a
on the second-
must determine whether there is
rele
"such
degree
argued
murder count. He
present
adequate
state had failed to
evidence which
sufficient evidence vant
exhibit,
conclusion
a reasonable mind that
there
in
was
a manner that
he
defendant's]
was no reasonable doubt as to [the
ed extreme indifference to the value of hu-
guil
making
this determina
superior
man
life. The
court denied Jef-
t."4
motion;
tion,
so,
doing
part
fries's
it relied
we "will consider
those facts in the
history
prosecution
while intoxi-
record most favorable to the
(Alaska App.
Id. at
2004).
4. Dorman v.
Id. at 193.
1981) (alteration
original).
that knowl
concluded
jury may The court
as a
inferences
such reasonable
conduct,11
rea for
edge is the mens
from them."
have drawn
the mens rea for
sur
second-degree
recklessness
convicted
.
the result.12
rounding cireumstances and
(a)@)
11.41.110. Subsection
under AS
four fac
appeals also identified
The court of
person
that a
com
provides
of this statute
determining
must consider
tors
if
degree
"the
the second
mits murder
displayed
has
whether a defendant
engages in conduct
knowingly
of human life:
to the value
indifference
person under
of another
in the death
results
conduct;
(1)
utility
actor's
the social
manifesting an extreme indif
cireumstances
This
human life."6
value of
(2)
to the
of the risk his conduct
ference
magnitude
provision is
Alaska case
State
preting this
preting the Model
by the Alaska
Code,
of the court of
offense,
states
When
which
explained
must be
the
determining what
provision,
law,
adapted
court
legislature
proved for
appeals
that both
but
"adopted
Penal Code.
also to authorities
we follow the
8
and look
in 1978.7
each element of
the Model Penal
culpable mental
*4
large
in Neifzel v.
Model Penal
not
measure"
approach
In inter
only
inter
©
These factors
since 1982 and
imizethe
seeable
conduct will result
creates
(3)
(4)
distinguish extreme-indifference
manslaughter.
the actor's
any precautions
including
harm
risk,
have been in use
provide
[13]
and the likelihood that
knowledge of the
both
in that
the actor takes to
the nature of
proper
harm;
framework
risk;
murder
Alaska
fore-
min
and
the
to the Model Pe
The commentaries
criminal code di
revised
and Alaska's
Code
suggest
that extreme-indifference
into
nal Code
a eriminal offense
vide the elements
conduct,
actors to be con
is intended to allow
surrounding cir murder
categories:
three
actions,
not
if their
cumstances,
Applying
victed of
result.9
this
and
11.41.110(a)(2),
the court of
knowing
regard to the re
to AS
or
with
purposeful
framework
death,
equivalent
indif
sulting
demonstrate
"perform
the conduct
appeals found
human life.14Accord
to the value of
act,"
surrounding cireum-
ference
the
ing an
commentaries, "there is a kind of
ing to the
"an extreme indiffer
manifest
stances must
fairly
life,"
that cannot
be dis
that the
homicide
human
reckless
value of
ence to the
tinguished grading
terms from homicides
person.10
of another
is "the death
result
'
Fairbanks,
respect
person
'intentionally'
City
acts
with
456
that "a
(quoting
v.
5.
Martin
1969).
462,
(Alaska
P.2d
466
the word
in AS
result,"
"intentionally"
11.41.110(a)(2)
conduct,
the actor's
modified
result,
11.41.110(@)(2).
appeals correctly conclud
the
the court of
6. AS
legislature
person
did not mean
ed that the
(Alaska
kill the victim in order to com
had to intend to
P.2d
1202
State,
7.
698
Pears v.
1985)
(citing
655 P.2d
second-degree
Neitzel
Neitzel, 655 P.2d
mit
murder.
See
(Alaska
Instead,
App.1982)).
appeals concluded
at 326.
the court of
legislature meant that
actor must act
that the
regard
"knowingly"
to conduct.
Id. The
P.2d at 332.
Neitzel,
8. See
portion
legislature
has codified this
Neifzel
328-29
9.
11.41.110(a)(2) by substituting
Neitzel
amending
AS
("[Tlhe
App.1982)
Code,
Model Penal
the Tenta-
"intentionally."
"knowingly"
Ch.
term
Draft,
segregate
Code
mate:
Revised
tive
1,§
SLA 1988.
categories:
offenses into three
rial elements of
conduct;
(2)
(1)
the circum-
the nature
Neitzel,
333-34.
conduct;
(3)
surrounding
stances
conduct.").
results of the
(citing
Fretcurr, Retamnm-
Id. at 336-37
Groroe
Wayne
4.3,
(1978);
§
Criminal Law
259-62
mo
Id. at 333.
HanpBoox
Scott,
Crmimat Law
on
Larave & Austm
(1972)).
§
at 541-45
occurred, AS
11. Id.When Neitzel's offense
11.41.110(a)(2)
second-degree murder
stated
(1980) (re-
§
Code
210.2 cmt.
Model Penal
"intentionally performs an
occurs when a
commentary
Code as
the Model Penal
person."
vised
act that
the death of another
results in
1962).
adopted
added.)
(Emphasis
AS 11.81.900 states
Because
knowingly."
purposely
or
committed
evidence,
court
intervene if
whole,
as "an
Recklessness is defined
awareness
viewed as a
reasonably
cannot be
risk,
interpreted
demonstrating
as
type
the creation of substantial homicidal
justifiable by
great
risk too
to be deemed
heightened
equivalent
recklessness that is
any
purpose that
the actor's conduct
valid
purposeful
knowing
or
homicide.
served."
For
reckless homicide to be
only way
Jeffries contends that the
to en-
manslaughter,
as murder instead of
classified
sure a clear distinction
manslaugh-
between
the factfinder must
find that "the actor's
ter and extreme-indifference murder
is to
risk,
disregard of the
under
conscious
objec-
reserve murder for
in which the
cases
cireumstances, manifests
indiffer
physical
tive risk of death or
injury
serious
ence to the
of human life.17
value
posed by
"very
the defendant's actions is
commentaries advise that the factfinder must
high."
law,
This is a correct statement of the
whether
determine
indifference to
"extreme
agree
we do not
implicit
but
with his
conten-
the value of human life" exists:
objective
posed by
risk
tion
recklessness is so extreme that it
Whether
"very
conduct was not
high."
demonstrates
similar
indifference
[as
the case from
factors
mally
single
convincing
tor's
compensate for lack of evidence as to anoth
ence to the value of human life is
er.
driver
dence favorable to the defendant as to a
one for the
less extreme recklessness
ished as
purposeful
make it clear that recklessness
the trier of fact under instructions which
fairly
ther clarified.
edge should be treated as murder
Thus, although attempting
conduct
while intoxicated
factor
who causes a death
Because the
provide
be assimilated to
manslaughter.
evidence as to one factor
factfinder, only rarely
in
demonstrates extreme indiffer
going
knowing
It must be left
test
to a
Neitgel
question
in
usually
jury.
[18]
homicide]
which
purpose
eulpable
analysis prevent
whether an ac
should be
Neitgel's
to drive nor
renders
particularly
*5
directly
or knowl
primarily
that can
- cated
will evi not a
pun
only
four
two miles until he collided head-on with another
indifference murder were affirmed on
ran a red
miss,
road at
eventually collided with
screaming
sengers in the back of his
ple, the intoxicated defendant swerved across
period
in
tionally dangerous manner over an extended
er.21 And in Pears v.
crashed
car.
defendant
Alaska
road, causing
and then drove at an excessive
defendant
of time.
wrong
eighty-five
when he could not
light
operated
ran
correctly
for him to
side of a divided
without
stop signs
In
S#iegele
drove on the left side of the
their vehicles in an
Ratliff
an accident and a near-
miles
even
State,
another
v.
per
and red
stop,
v.
State,
slowing.22
truck
negotiate
State,
hour with
the intoxicated
many
highway
car
the intoxi
lights
who were
for exam
when he
appeal
excep
finally
a corn
pas
manslaughter,19
might
such conduct
Although
the defendants
in those cases
found
requisite
engaged
egregious
to demonstrate
extreme indif
driving
conduct
Neitgel
Jeffries,
point
ference if the other
factors all
this does not
mean
his
-
strongly
greater
culpability.
driving
towards
egregious.
was not
fact
prima
15.
another
is sufficient
to establish
necessary
facie case of recklessness
for man-
Neitzel,
slaughter).
(quoting
921]
2, Magnitude
utility
driving
has held that
the
of
risk;
of the
nature and
"
- likelihood of foreseeable harm
"marginal,
intoxicated is
at best47 and "sub
stantially
utility
driving
of
reduced"
argues
driving
that his actual
was
sober.48
particularly egregious
and did not create
very high
"a
risk of death." He minimizes
disagree
We
with those decisions insofar
by
the
of
riskiness
his behavior
characteriz-
they suggest
home while in
as
ing
"poorly
it as a
executed left turn." We
necessarily
utility.
toxicated
has some social
unpersuaded
are
this characterization.
out,
points
public
As the state
awareness of
risky
Jeffries's conduct was much more
dangers
the
of drunk
has increased in
typical drunk-driving
the conduct
acci-
years,
recent
as have
there
penalties. While
dent for two reasons.
is,
certainly utility
driving,
utility
First,
suggests
the evidence
that Jeffries's
circumstances, completely
in rare
except
ne
judgment
error in
was severe.
Jeffrics was
gated by
grave danger posed
society
to
attempting to make a left-hand turn across
extremely
an
intoxicated driver.
In this
Road,
DeBarr
speed
five-lane street with a
case,
extenuating
there was no evidence of
hour,
forty-five
limit
per
against
miles
cireumstances,
such as the need to take a oncoming traffic.
traveling
Jeffries was
as
critically
family
ill friend or
member
slowly
per
pulled
as ten miles
hour when he
hospital
any
or the lack
alternative means
directly
Bergeron's
in front
oncoming
car.
friends)
taxis, buses,
(e.g.,
getting
home
or
on,
Bergeron's headlights
although
were
might
require
a conclusion that
Jef-
dark, streetlights
it was
lit the street well.
utility.
had some
fries's
limited social
Bergeron
traveling
post-
was
at or below the
addition,
there
record
limit,
speed
ed
probably
thirty-five
at about
drinking
that Jeffries had been
morn
per
icy
miles
hour. The street was
ing
drinking
of the accident and that after
he
slippery.
Bergeron
enough
"had about
drove to a social club where he consumed at warning
gas"
to take
foot
[his]
off the
before
attempting
least six
beers before
collision,
enough
stop
but not
time to
or
Also,
drive home.
have contin
Bergeron's
swerve to avoid the accident.
car
driving.
to drink while
A
ued
he was
witness
passenger
hit Jeffries's
door-almost
to the accident testified that "the entire vehi
point
impact
center of the car. The
dem-
alcohol,"
cle smelled like
one of the
badly
onstrates
either
mis-
responding police
judged
speed
car
officers discovered a beer
altogether
failed to see it. His
can on the floor on
ten
the driver's side of the
per
permit
miles
hour was too slow to
him to
obliged
vehicle. A reasonable
is not
safely
Bergeron's oncoming
cross
in front of
give
extremely
any
drunk driver
credit
passenger gravely
car and left Jeffries's
and .
utility
"merely
attempting
social
predictably
impact.
vulnerable
ato side
especially
drive home."" This is
so after he
has chosen to consume aleohol
the morn
Second,
highly
Jeffries was
intoxicated on
home,
car,
ing
gets
behind
of a
the wheel
night
apart-
of the accident.
to a
drives
social elub to continue his
supervisor
ment maintenance
testified that
drinking,
rolling
by trying
before
the dice
during
Jeffries smelled of beer
an encounter
home, perhaps
drive
the car while with Jeffries between 10:30
and noon on
A.M.
driving despite already being grossly
day
intoxica
In response
of the crash.
to the
ted.49
supervisor's
inquiry
concerned
about
Jef-
(Alaska require
798P.2d
Ratliff
conclusion that
defendant's
App.1990).
utility,
might
*9
had at least some social
one
imagine
also
circumstances
a defen-
in which
Neitzel,
bidden from alcohol time argues correctly The state that there is no recent most There is no claim accident. evidence that any precautions Jeffries took knowledge did not have actual of his fact, minimize the risk of his conduct. In past driving and of the convictions past Jeffries's to follow orders to requiring get court orders him to treatment. failures participate in programs substance abuse short, significant there was to refrain from heightened driving drinking Jeffries had a either awareness of conduct, of his need dangerousness a willful precau- refusal to take demonstrate completely any refrain from driving and to tions to minimize the risk. A reasonable completely any drinking, refrain from and of jury properly could have taken Jeffries's re- danger driving intoxicated. fusal evaluating into account in whether he exhibited extreme indifference to the value of Superior Judge Hensley As Court Dan A. | human life. explained in determining that evidence of past problems Jeffries's with alcohol was rel- inquiry:
evant to this jury weighing 5. A reasonable these drinks, drives, [A] who causes an factors could convict accident, arrested, gets goes jail, is or- murder. treatment, dered to aleohol ordered not to agree with the admonition Pears .We again, drink and then drinks and drives charge "a second-degree and then again, drinks and drives and then again, only only rarely drinks and should appropriate drives has the be in a motor " understanding intellectual of the risks as- vehicle homicide.55 But Jeffries is distin but also guishable typical driving sociated with intoxicated driver very has the understanding. real Which in heightened his awareness of the risk re my view heightened is relevant to show the sulting past history his of drunk awareness of Experience those risks. license, offenses and the revocation of his his © the best teacher. intoxication, extreme level of and his inher ently dangerous conduct his car superior court was correct its assess- directly in front of an car that ment. An had intoxicated driver with a record as opportunity no long as to react."56 possibly Jeffries's cannot The evidence al unaware significant pose jury threat that his lowed a reasonable actions to conclude that eyes society. jury A reckless, reasonable conduct was not but emphasize 54. We dissenting opinion it would not have prose- been 56. The asserts that [al proper to have inferred from Jef charge cutor now will be able to murder whenev- past fries's DWIs that he was while intox- repeat high er a with a offender blood alcohol icated 2000. See Alaska R. Evid. February reading causes fatal accident." Dissent at 926. 404(b) (providing that evidence of bad acts prior holding today, This overstates the we reach may not be admitted to show that defendant readers should not assume that the dissent accu- character). conformity acted in But it is rately holding. describes the effect of our Our undisputed that Jeffries was intoxicated at the conclusion that there was sufficient evidence to time of the accident. The is whether dispute just sustain turns not on Jeffries's verdict Jeffries's mental state demonstrated extreme in- extremely high record and his level of in- difference to the value of human life. Jeffries's case-specific toxication but also on evidence- knowledge danger while ex- including expert both crime-scene evidence and tremely inquiry. intoxicated is relevant to this testimony-that extremely incapaci- Jeffries was actually engage tated when he did drove Pears v. 903, 906 n. 1 App.1983). egregiously dangerous driving. *11 community that it was deemed neces- indifference to extreme also demonstrated sary drinking altogeth- him prohibit from life. human the value of er. Superior Did Not Abuse Court B. The Finally, pro argues Jeffries that the by Admitting Evi- Discretion Its probation bative value of both the condition Failure To Com- dence of Jeffries's repeated participate and his failure to plete Treatment and His Alcohol "outweighed by the program treatment was that He Not Probation Condition danger prejudice."60 of unfair As noted Consume Alcohol. above, probative this evidence was of Jef- argues that of Jeffries evidence heightened of the risk of fries's awareness complete court-ordered alcohol his failures acknowledge his We that evidence actions. probation and his condition which treatment violated court orders could Jeffries drinking alcohol on the prohibited him from jury negative opinions to form tempt prejudi night question was irrelevant and character. But we about Jeffries's hold appeals reasoned that this cial. The court probative value of evidence out this heightened evidence demonstrated Jeffries's weighs any prejudice might unfair Jeffries of the risks of his conduct.57"We awareness usually impossi it have suffered. Because is superior court's admission of evi review the present ble to direct evidence of a defen discretion dence under abuse of stand state, mental indirect evidence that dant's Erroncously admitted evidence is ard.58 establishes that the defendant was informed appreciably harmless if "it did not deemed dangerousness of the of his actions is often jury's affect the verdict." essential to establish the defendant's aware case, challenged ness of the risk. this regard to the evidence of his failure With highly probative. evidence is treatment, to obtain substance abuse argues that while "a rational inference of IV. CONCLUSION drinking] may knowledge be [of risk treatment, We hold that an intoxicated driver upon completed based similar guilty if of extreme-indifference murder all upon inference be based a failure to [cannot] © factors, together, permit four Neitzel taken complete treatment." jury reasonable to find extreme indifference argument unpersuasive. A to the of human value life. Evidence of jury could infer that Jeffries's awareness of intoxication, inherently dangerous dangerousness society heightened was driving, heightened conduct while aware- participate the court orders dangers ness of the while intoxicat- programs substance abuse as a condition highly ed is relevant to this determination. probation. jury Because a reasonable could find Jeffries argues that the evidence that he guilty of extreme-indifference murder on the prohibited drinking night was on the presented, we AFFIRM the deci- probation the accident the terms of his sion of the court of that affirmed his irrelevant because it "does not tend to estab- judgment and commitment. knowledge dangers lish a reject argument while intoxicated." this We MATTHEWS, Justice, FABE, with whom persistent as well. As result of his Justice, joins, dissenting. driving probation condition ordered Jeffries MATTHEWS, Justice, FABE, with whom not to drink. The could infer that this Justice, joins, dissenting. probation condition reinforced Jeffries's Today's opinion that his holds that a drunken driv- awareness posed great guilty serious matter that such a risk er who causes a fatal accident can be (Alaska 1969). 457 P.2d 59. Love App.2004). 60. Alaska R. Evid. 403. Peters, City Bethel v. (Alaska 2004). if high of reckless murder he has a blood For both manslaughter, murder and *12 Therefore, harm to be prior aleohol content and a record of foreseen is a death. significant distinction is the likeli join I do not in while intoxicated. this con- in was meant to be confined to cases which templated tional or reckless conduct that which is persuading ette.2 clusion. governs knowing committee which recommended the gree or intentional amples der statute makes it clear that the statute death or serious of the statute were murder: legislative history of such conduct offered knowing that a encompassed "substantially person is similar physical injury."1 closely murder. Conduct was con shooting of our reckless mur resembles an inten in play degree certain to cause into a tent or by Russian roul phrase second-de the senate of risk to in adoption The ex that automobile has some that death or ter. Where murder result, thousand and still intoxicated. The someone though significant and avoidable risk of ter if his act causes death. Driving an hood that a death will result death substantially reduced when the driver close will hit cated an act must create a much greater defendant's act. Where the defendant's act has limited social utility, may person driving [3] make him be as low as one chance in a and serious odds kill qualify social home after the bars guilty that physical charged, seriously injure for utility a of manslaugh legally a manslaugh very slight injury however, although intoxi risk will is view, my In too way much-even agree I with those cases and authorities attempting too much-and then to drive safe- suggest if a fatality by caused ly death, substantially is not certain to cause drunken driver is to be murder rather risk, comparable nor is it in terms of or in manslaughter, engaged the driver must have mind-set, utility terms of or anti-social with egregiously in unsafe maneuvers such as ex examples. these As the court of speeding, treme wrong-way driving, or run observed in Nettzel v. ning stop lights.4 State: Merely being drunk and 11.41.110(a)(1). presence AS part. of malice on his In the case, however, present the facts show a devia report concerning 2. The senate states AS regard tion from established standards of 11.41.110(a)(2): safety markedly life and the of others that is degree different in from that in found most (a)(2) Subsection describes conduct average vehicular homicides. In the very "substantially similar to the certain" homicide, proof (a)(1).... there is no example clause in subsection An driver has acted while intoxicated with the provision conduct covered this would be purpose wantonly intentionally putting shooting through a tent under circumstances danger. person where the defendant did not know a the lives of Rather, others driv ing impaired abilities were so that he reckless persuading play was inside or ly put danger simply by being others on the [sic] "russian roulette." attempting things any road and to do Commentary on the Alaska Revised Criminal Code, case, 10, present Supp. driver would do. In the Senate howev Journal No. 47 at er, danger only by did not arise Senate Journal 1399. defendant's Rather, determining to drive while drunk. (Alaska App.1982). 3. 655 P.2d being driving, addition to intoxicated while defendant drove in a manner that could be E.g., Fleming, United States v. 739 F.2d depraved disregard taken to indicate of human (4th Cir.1984). Fleming In the defendant life, particularly light of the fact that because speeds traveled for some six miles of from he was drunk his reckless behavior was all the hour, seventy per swerving to one hundred miles dangerous. at times into traffic lanes before ulti- Id. at 948. See also Pears v. mately losing crashing control into another (Alaska (intoxicated App.1983) n. 1 de seventy eighty per thirty- car at miles hour in a recklessly, speeding, running fendant "drove mile-per-hour zone. The Fourth Circuit was through stop signs stop lights failing distinguishing Fleming's concerned with conduct yield signs"; "emphasize[d] slow for court that a manslaughter. doing so the court stat- charge second-degree murder should ed: rarely appropriate in a motor vehicle homi homicides, majority charge sup In the vast of vehicular cide. The murder in this case is accused has not exhibited such wanton and facts"); Stiegele these] ported (mur- disregard App.1986) reckless for human life as to indicate convictions, may normally of a history to drive it success of DWI attempting without not murder.5 cases to obtain but to be easier such manslaughter, turn out can be than a conviction of of murder conviction an unintend may generate opinion Today's manslaughter. now will be able prosecutor A result. ed repeat offender stated, whenever I would revers‘e charge For the reasons reading second-degree causes a murder conviction. aleohol high blood go to charge will The murder fatal accident. will be instructed jury and the *13 prior DWI the defendant's may consider
it might record But the defendant's record. merely charge were if the admissible
not be murder.6 Given than
manslaughter rather jury's deliberations likely impact on Perkins, (2d § at 37 [quoting Crmanat Law 1 ve- drunk driver's when affirmed der conviction Ed.)] attempting process of road hicle left of "vi- eighty-five We do not believe an inference miles an hour: negotiate at a turn knowledge val- indifference to the prior ciousness'' or "extreme "Stiegele's substantial negotiating may past, impossibility it ue of human life" be drawn curve and the finding justify a that Stie- high-speed although persistent, habits of an ac- served doing knowing that in so gele attempted turn cused. passen- substantially certain to cause he was 766, v. 204 Ga. at 158. See also Park Id. deaths"). gers' (1949) (intoxicated driver 832, S.E.2d 834-35 stopped in the road rear ended a truck who 547, Md.App. E.g., v. Blackwell because "no not be convicted of murder could (alternative (1977) holding). In Black- A.2d 153 dis- concomitant circumstances other sufficient second-degree murder the court reversed well ... would show it was the evidence closed driver who struck of an intoxicated conviction destroy naturally human such an act as tended history prior had a cyclist. defendant The life"); Jensen, 197 Kan. State and there was evidence intoxicated ("'the (1966) the defendant was fact weaving before vehicle that the defendant's intoxicating the influence of while under traveling within but it was and after the accident shown, being suffi- liquor more is not without explained The court limit. implication of malice itself to cient of was insufficient evi- there its conclusion law"); Thacker, a matter as People jury question part present a of malice to dence (1991) (legal- 516, 520 A.D.2d 570 N.Y.S.2d as follows: attempted suc- ly who without intoxicated driver truck before fatal accident should cess to control pass attempts another car who [A] motorist murder); Common- been convicted of not have may acting be with such curve" on "blind McLaughlin, 142 A. wealth v. 293 Pa. negligence causes the death that if he criminal (mere (1928) fact that defendant was 215-16 resulting will traffic accident he another in at the time of accident could intoxicated manslaughter. guilty And such a motor- be on for murder based malice sustain conviction fully great creating a human as ist conduct). from wanton and reckless inferred shoots into a house or train hazard as one who kicks," guilty "just of murder if loss who is E.g. superior case exercised court in this that in the act The difference is of life results. by ruling Evidence Rule 403 its discretion under there is an element of vicious- of the shooter prior be admit- record would not the defendant's indifference to the value of ness-an manslaughter charge because the de- ted in the act of the life-that is not found human prejudicial would be record which it is this viciousness motorist. And fendant's probative. act "wanton" as well as "wilful." makes the question, it is submitted, that can be fur cated drivers whose convictions of extreme- notes intoxi