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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GUY JEROME NORRIS, )
) Court of Appeals No. A-3887
Appellant, ) Trial Court No. 1KE-89-501 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1303 - July 30, 1993]
________________________________)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Thomas E. Schulz,
Judge.
Appearances: Susan Downie, Assistant Public
Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Richard W. Maki, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Guy Jerome Norris appeals his conviction for second-
degree murder, AS 11.41.110(a)(2). We affirm.
On the afternoon of May 8, 1989, Guy Norris and his
live-in companion Lisa Booth were drinking at their home in Port
Alice with some friends, Tim Elliott, Shawn Nieme, and Jim
Sanford. Nieme and Sanford left the home a little after 4:00
p.m.. Norris and Elliott proceeded to drink "a good portion" of
a half-gallon bottle of whiskey, and then started looking for
more.
Lisa Booth had hidden two pint bottles of Everclear
under a chair, intending to save them to celebrate her birthday
the next day. Elliott, however, disclosed the location of the
Everclear to Norris. Norris pulled out one of the pints and
started drinking from it.
When Booth realized that Norris had raided her liquor,
she became angry and punched Elliott in the face, causing his
nose to bleed. When Elliott was about to hit Booth, Norris told
him, "Go ahead. Kick her ass." Elliott, however, did not strike
Booth.
Norris and Booth began arguing. Booth started throwing
household knickknacks, but nothing more dangerous than a clam
shell. Elliott continued to sit on a couch, without fear for his
safety.
Norris attempted to restrain Booth, but every time he
released her she began to throw things again. Norris then picked
up a 30-30 Winchester lever-action rifle. He fired a shot into
the ceiling and a second shot into the wall. Because the
Winchester had a lever action, Norris was required to manually
work the lever down and back to feed a new round into the chamber
each time he shot the rifle.
Norris and Booth were both on their feet, as if they
were going to fight. Norris, still holding the rifle, swung
around and hit Booth in the eye with the butt of the weapon.
Booth landed in the corner, but got to her feet again. When she
and Norris resumed their struggle, Norris threw her to the
ground. (Norris is 6'2" and weighed 200 pounds; Booth was
5'5«" and weighed 140 pounds.)
As Booth lay on her back, Norris stood over her with
one foot on either side of her waist. Norris was still holding
the rifle, with a round chambered and his finger on the trigger.
Holding the rifle so that it pointed toward Booth's head, Norris
twice asked angrily, "Is this what you fucking want?" Then
Elliott, who was still sitting on the couch a few feet away,
heard a shot ring out. Booth died within seconds from a gunshot
wound through her neck.
After shooting Booth, Norris sat down in a chair. He
shook Booth's limp leg and declared, "The fucking bitch won't
give me no more problems."
Elliott left the house to call the police, then he
returned with Sanford. When Sanford retrieved Norris's
Winchester, he found that a new round had been levered into the
chamber.
A Ketchikan grand jury indicted Norris for first-degree
murder, AS 11.41.100(a)(1)(A). At trial, Norris was acquitted of
this charge but convicted of the lesser included offense of
second-degree murder.1
Norris's first argument on appeal concerns an
evidentiary ruling at his trial. Norris asked the trial judge to
allow him to introduce evidence of Booth's reputation for
violence and mental instability, arguing that this evidence would
help establish a claim of self-defense or, alternatively, would
demonstrate that Booth was reckless and unstable, a person likely
to grab the barrel of the rifle, causing it to discharge acciden
tally.
Superior Court Judge Thomas E. Schulz refused to allow
Norris to introduce evidence of Booth's reputation for violence
until the defense had presented some evidence of self-defense.
Under questioning by Judge Schultz, Norris's attorney revealed
that, although Norris planned to testify that Booth had grabbed
the rifle, thus causing it to discharge unintentionally, the
defense had no evidence indicating that Booth had had access to a
weapon or had otherwise posed an immediate threat of harm to
Norris. In light of these answers, Judge Schultz ruled that,
though Norris was free to testify about what happened and why he
did what he did, no evidence supported a claim of self-defense
and, thus, the proposed evidence of Booth's reputation for
violence was inadmissible.
On appeal, Norris implicitly concedes that he presented
no evidence of self-defense.2 However, Norris argues that
Booth's reputation for violence was relevant in other ways.
Specifically, Norris argues that he armed himself with the rifle
because he knew that Booth could be violent and he feared that
Booth might attack him with a weapon. Norris asserts that the
jury had to determine whether his act of arming himself was
reasonable, and he further asserts that evidence of Booth's
character for violence would have helped the jury make this
determination.
We reject Norris's argument. Assuming that Norris's
fear of Booth's potential for violence motivated him to pick up
the Winchester in the first place, Norris was not convicted for
the mere act of arming himself. Norris not only picked up the
rifle, but he hit Booth in the head with it, then knocked her
down again, straddled her, and pointed the barrel toward her head
as she lay prostrate. At this point, the rifle discharged,
killing Booth. Given this progress of events, the reasonableness
of Norris's initial decision to pick up the rifle had essentially
no bearing on Norris's guilt of second-degree murder. Whatever
Booth's reputation might have been, and however it might have
affected Norris's decision to pick up the rifle, that reputation
would not affect the reasonableness of Norris's act of
threatening an unarmed and helpless person with a loaded firearm
when he feared no immediate danger from her.
Moreover, the record of Norris's trial shows that
Norris succeeded in presenting this evidence to the trial jury
despite Judge Schulz's ruling. The testimony at the trial is
replete with evidence that Booth was prone to violent outbursts.
Tim Elliott testified that, on the night of Booth's death, she
hit Elliott with her fist and caused his nose to bleed. Norris
testified that, less than a month before her death, Booth had
stabbed him with a knife during an argument. According to
Norris's testimony, Booth had attempted to stab his chest, but
Norris had fended off the blow, receiving instead a wound to his
wrist that left a scar. Norris also testified that, on the night
of Booth's death, Shawn Nieme had asked to borrow Norris's truck
and rifle to go hunting. Booth began screaming, tried to grab
the rifle, then ran out of the house to take the keys out of the
truck. Later in the evening, when Norris tried to restrain Booth
from throwing things, Booth hit Norris in the mouth, cutting his
lip. A photograph of Norris's injured lip was introduced at
trial. Norris also testified that Booth pulled out a portion of
Norris's beard during their final altercation and told him, while
he stood over her with the rifle, that she would kill him in his
sleep with a knife.
In sum, the jury heard evidence clearly indicating that
Booth was not a timid or retiring person. Moreover, because this
testimony was not confined to Booth's reputation but instead
delved into numerous specific acts of violence, it exceeded the
scope of evidence that would have been admissible under Alaska
Evidence Rules 404(a) and 405 if Judge Schulz had ruled in
Norris's favor. Evidence of Booth's reputation for violence
would have added nothing to Norris's case. We uphold the trial
court's ruling.
Norris next challenges several of the trial court's
jury instructions.
Norris asserts that the trial judge failed to give the
jury an adequate explanation of "proximate cause". We have
reviewed the trial court's instructions and find them adequate.
In any event, Norris's case does not present a proximate cause
issue. Even viewed in the light most favorable to the defense,
the evidence shows that Norris knocked Booth to the ground and
stood over her, armed with a rifle. If, as Norris testified, the
rifle discharged because Booth grabbed it and attempted to pull
it from his grasp, Norris's conduct would still be a "substantial
factor" in causing Booth's death. See State v. Malone, 819 P.2d
34, 36 (Alaska App. 1991). A victim's attempt to disarm an
assailant presents a classic example of unbroken proximate cause:
[A]ny response of a human being to harm or
threat of harm is a consequence of whatever
[conduct] produced [the] harm or threat, and
insofar as the response is a normal one this
actual causation is recognized by law. Hence
an act resulting in harm or threat of harm is
the proximate cause of further harm caused by
[a] response thereto. ...
If, in the effort to save himself from appar
ent death or great bodily injury, one grabs a
firearm which has suddenly been pointed at
him, and the force thus exerted by him causes
a fatal discharge not intended by the
pointer, the act of pointing the weapon has
caused the death.
R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), pp. 794-95
(footnote omitted).
Norris next contends that the trial court's instruction
on the elements of second-degree murder allowed the jury to
convict him without unanimously agreeing on the criminal conduct
Norris had committed. The challenged instruction told the jurors
that, to convict Norris of second-degree murder, they had to
unanimously agree:
that [Norris] knowingly engaged in conduct
under circumstances manifesting an extreme
indifference to the value of human life; and
... [that Norris's] act or conduct caused the
death of Lisa Booth.
Norris asserts that this instruction could have led to a non-
unanimous verdict because jurors having different views of the
facts could join in voting for Norris's conviction of second-
degree murder. According to Norris, some jurors may have
believed his testimony that the rifle discharged accidentally
when Booth grabbed it, but they still could have viewed Norris's
act of threatening Booth with a loaded rifle as conduct
manifesting an extreme indifference to the value of human life;
other jurors could have rejected Norris's testimony, concluding
that Norris acted with extreme indifference to the value of human
life because he knowingly pulled the trigger and shot Booth.
Norris's argument misapprehends the nature of the
unanimity requirement. In State v. James, 698 P.2d 1161, 1165
(Alaska 1985), the Alaska Supreme Court adopted the rule on jury
unanimity announced in People v. Sullivan, 65 N.E. 989 (N.Y.
1903). In Sullivan, the defendant was charged with first-degree
murder under alternative theories: that the killing was
premeditated, or that the killing was unintentional but occurred
while the defendant was perpetrating a felony. The jury was not
called upon to specify which theory of first-degree murder they
thought proved. On appeal, the defendant asserted that the
jury's use of a general verdict violated his right to jury
unanimity. The New York Court of Appeals disagreed:
It is not necessary that a jury, in order to
find a verdict, should concur in a single
view of the transaction disclosed by the
evidence. If the [jury's] conclusion may be
justified upon either of two interpretations
of the evidence, the verdict cannot be
impeached by showing that a part of the jury
proceeded upon one interpretation and part
upon the other. So, in this case, it was not
necessary that all the jurors should agree
... that there was a deliberate and
premeditated design to take the life of the
deceased, or in the conclusion that the
defendant was at the time engaged in the
commission of a felony, or an attempt to
commit one. It was sufficient that each
juror was convinced beyond a reasonable doubt
that the defendant had committed the crime of
murder in the first degree as that offense is
defined by the statute.
People v. Sullivan, 65 N.E. at 989-990 (emphasis added) (citation
omitted), quoted in State v. James, 698 P.2d at 1164.
Similarly, in State v. Arndt, 553 P.2d 1328 (Wash.
1976), another case quoted with approval in James, the Washington
Supreme Court upheld a conviction for larceny (by fraud) over an
assertion that the verdict had not been unanimous. The jury had
been instructed that the defendant could be convicted if she:
either made a false statement [concerning
the] circumstances affecting her eligibility
[or] need for [public] assistance, or ...
failed to reveal any material ... circumstanc
es affecting her eligibility [or] need for
assistance, or ... failed to promptly notify
the county ... of any change in [her income.]
Arndt, 553 P.2d at 1329, quoted in James, 698 P.2d at 1165. The
Washington court held that, while jurors must unanimously agree
that the defendant is guilty of the crime charged, "it is unneces
sary ... that there be ... unanimity as to the means by which the
crime is committed[,] provided there is substantial evidence to
support each of the means charged." Arndt, 553 P.2d at 1330,
quoted in James, 698 P.2d at 1165.
Thus, contrary to Norris's argument, jurors need not
agree on a single interpretation of the evidence. They may reach
differing conclusions as to what exactly was said or done during
a particular episode, so long as they are all convinced that the
defendant's conduct and culpable mental state(s) during that
episode satisfy the elements of the crime. See State v. Handran,
775 P.2d 453, 456-57 (Wash. 1989), in which the court held that
it made no difference whether the jury believed that the
defendant had kissed the victim without permission or had struck
her, since both alleged acts of assault had occurred during the
same, continuing course of conduct and each act independently
constituted an assault.
In Norris's case, the jurors may indeed have been split
on the issue of whether Norris intentionally fired the rifle into
Booth's neck. However, even if some (or all) jurors believed
that the rifle discharged accidentally when Norris stood over
Booth and she grabbed the barrel, this interpretation of the
evidence would still support the jury's verdict of second-degree
murder.3 The jury instruction satisfied the rule of law adopted
by the supreme court in James.
Norris argues that the second-degree murder instruction
was broad enough to "encompass two separate incidents". We do
not agree. In any case, the evidence presented at Norris's trial
did not reveal two separate incidents. The murder charge against
Norris was based on the incident that occurred at his and Booth's
home on the afternoon of May 8, 1989. The trial evidence was
unambiguously directed toward litigation of that event. Norris
also argues that the instruction allowed the jurors to convict
him even if they believed that the conduct manifesting Norris's
extreme indifference to the value of human life was different
from the conduct that caused Booth's death. Again, we disagree
with Norris's interpretation of the instruction, and again we
note that only one criminal episode was being litigated.
Norris's final attack on the second-degree murder
instruction concerns the trial court's failure to explain that
"extreme indifference to the value of human life" is a more
culpable variant of recklessness. Norris did not raise this
argument in the trial court. We therefore review the issue for
plain error only. Alaska Criminal Rule 30(a); Larson v. State,
569 P.2d 783, 788 (Alaska 1977).
In Neitzel v. State, 655 P.2d 325, 332-33 (Alaska App.
1982), this court construed AS 11.41.110(a)(2) to require proof
that a defendant
knowingly engage[d] in conduct causing the
death of another which[,] in light of the
circumstances[,] is reckless to the point
that it manifests an extreme indifference to
the value of human life.
See also 655 P.2d at 337: "In differentiating reckless murder
[i.e., second-degree murder under AS 11.41.110(a)(2)] from
reckless manslaughter, the jury is asked to determine whether the
recklessness manifests an extreme indifference to the value of
human life." Norris argues that, without this clarification, the
jurors might have failed to understand that they could not find
Norris guilty of manifesting extreme indifference to the value of
human life unless, at a minimum, they found that Norris either
(1) had perceived and consciously disregarded a substantial and
unjustifiable risk that his conduct would cause the death of
another, or (2) had failed to perceive this risk because of
intoxication. See AS 11.81.900(a)(3) (defining "recklessly").
The State concedes that the second-degree murder
instruction failed to inform the jurors of the relationship
between "extreme indifference to the value of human life" and the
lesser culpable mental state of "recklessness". However, the
State contends that the jury instructions nevertheless apprised
the jury of the requirement that Norris be subjectively aware of
the risk to human life. In fact, the State argues, the jury
instructions required the State to prove a higher culpable mental
state than the law requires.
As noted above, the second-degree murder instruction
told the jurors that they had to be convinced that Norris
"knowingly engaged in conduct under circumstances manifesting an
extreme indifference to the value of human life". From this
phrasing, the State asserts, the jurors would have concluded that
"knowingly" was the culpable mental state applicable to
"circumstances manifesting an extreme indifference to the value
of human life". The jurors were additionally told that
"knowingly", when applied to a circumstance, required proof that
the defendant "[was] aware that ... the circumstance exist[ed]".
The State therefore concludes that, from the phrasing of the
second-degree murder instruction and its juxtaposition with the
instruction defining "knowingly", the jurors must have inferred
that Norris could not be convicted of second-degree murder unless
the State proved that Norris was aware, not simply that his
conduct posed a substantial and unjustifiable risk to human life,
but that his conduct manifested an extreme indifference to the
value of human life.
The State's interpretation of the jury instructions
carries considerable force. We additionally note that the man
slaughter instruction implicitly informed the jury that second-
degree murder required proof of greater culpability than reckless
ness. Under this instruction, Norris was to be convicted of
manslaughter only if he recklessly killed another person "under
circumstances not amounting to murder in the first or second
degree". Finally, we note that the prosecuting attorney, in his
summation to the jury, accurately apprised the jury of the
relationship between "recklessness" and "extreme indifference to
the value of human life":
Now we get up into a higher standard, and now
we start talking about ... the defendant
engaging in conduct under circumstances mani
festing an extreme indifference to the value
of human life. Not just reckless[ness] any
more, but now you've got to be reckless to
the point of having extreme indifference to
the value of human life.
The prosecutor's wording of the test closely matches this court's
definition in Neitzel. The parties' arguments can cure defects
or omissions in jury instructions. O'Brannon v. State, 812 P.2d
222, 229 (Alaska App. 1991). Thus, even if the jury did not
interpret the instructions to require proof of "knowing" indiffer
ence to the value of human life, we find that the prosecutor's
explanation of the relationship between recklessness and extreme
indifference rectified the omission in the jury instructions.
For all these reasons, we conclude that the deficiency
in the second-degree murder instruction does not amount to plain
error.4
We turn now to Norris's sentencing arguments. Norris's
offense, second-degree murder, is an unclassified felony that
carries a minimum penalty of 5 years' imprisonment and a maximum
penalty of 99 years' imprisonment. AS 11.41.110(b) and AS 12.55.
125(b). In Page v. State, 657 P.2d 850, 855 (Alaska App. 1983),
this court established a benchmark sentencing range of 20 to 30
years for second-degree murder.
Judge Schulz sentenced Norris to 50 years'
imprisonment. Norris contends that Judge Schulz failed to make
any findings to justify this departure from Page's benchmark
sentencing range.
At sentencing, the prosecutor argued that, although
unclassified felonies are not governed by presumptive sentencing,
several aggravating factors listed in AS 12.55.155(c) applied to
Norris's case by analogy. Among these were: that Norris had a
criminal history of aggravated or repeated instances of
assaultive behavior, (c)(8)5; that Norris's offense was committed
against a member of his social unit, (c)(18)(A); and that
Norris's conduct was among the most serious included in the
definition of second-degree murder, (c)(10). For his part,
Norris asserted that two of the mitigators listed in AS
12.55.155(d) applied to his offense: that he had committed the
offense under some degree of duress or coercion, (d)(3); and that
Booth had provoked the crime to a significant degree, (d)(7).
While Judge Schulz did not make formal findings
regarding these aggravators and mitigators, his sentencing
remarks demonstrate that he agreed with the prosecutor about the
aggravators and disagreed with Norris about the proposed
mitigators. In the following passage, Judge Schulz rejected
Norris's mitigators:
[U]nder no set of facts that this court
has been presented with ... would [anything]
have justified resort to a weapon in this
case. To argue, as Mr. Norris has ... , that
Lisa [Booth's] prior conduct in breaking
windows in the house or in throwing things at
him, or even punching his friends, or him,
somehow justified his picking up a 30-30
rifle, knocking her down to the floor, and
subsequently shooting her, is ridiculous in
my judgement. There isn't even a small
scintilla of a self-defense argument there,
or any other kind of justification. Nowhere
in the evidence in this case, at the trial or
now, did it ever appear that Lisa [Booth] had
in her hand or even relatively close to her
... any kind of a dangerous weapon.
One of the men that she struck ... at
the cabin that night testified at the trial.
And my impression of his testimony was that
he wasn't particularly bothered by the
incident. So there just is no reason ... for
the 30-30 to have ended up in Mr. Norris's
hands.
Judge Schulz addressed aggravator (c)(18)(A) when he
declared that Booth had been Norris's "wife, [or] certainly the
functional equivalent of that; that was the nature of their
relationship". Judge Schulz addressed aggravator (c)(8) when he
stated that Norris's "[past] legal difficulties go back a long
time", and that they "involve assaultive conduct [on] more than
one occasion, including one prior felony." Finally, Judge Schulz
implicitly found aggravator (c)(10) when he concluded that:
Mr. Norris, extremely intoxicated and very
angry himself, put that rifle down close to
Lisa [Booth's] neck and pulled the trigger.
And that's how Lisa [Booth] died. So this
case does not approximate manslaughter. It
is on the upper end of the second-degree
murder cases.
Norris argues that his conduct did not approach the
blameworthiness of first-degree murder (intentional homicide).
Norris relies upon his version of the offense (that he did not
point the rifle at Booth, and that the rifle discharged only
because Booth grabbed it), as well as on the fact that the jury
rejected first-degree murder and second-degree murder under
subsection (a)(1) (that is, these jurors refused to find that
Norris had acted with intent to kill or intent to cause serious
physical injury or with knowledge that his conduct was
substantially certain to cause death or serious physical injury).
However, Judge Schulz was not bound by the jury's view
of the evidence. See Brakes v. State, 796 P.2d 1368, 1370-73
(Alaska App. 1990). In his sentencing remarks quoted above,
Judge Schulz rejected Norris's version of events and explicitly
found that Norris had "put the rifle ... to [Booth's] neck and
pulled the trigger". This conclusion finds substantial support
in the evidence. Even if Norris (because of his intoxication or
otherwise) lacked an intent to kill Booth, Judge Schulz was
justified in concluding that Norris's conduct and mental state
approached the culpability of first-degree murder. Given Judge
Schulz's finding that Norris's offense was an aggravated second-
degree murder, Judge Schulz was authorized to consider sentences
above the 20- to 30-year benchmark range. State v. Krieger, 731
P.2d 592, 595-96 (Alaska App. 1987); Page, 657 P.2d at 855.
In addition to Norris's criminal history, Judge Schulz
also heard the testimony of a defense expert, psychologist David
Doleshal. Doctor Doleshal testified that Norris had a history of
substance abuse, that many of Norris's offenses seemed to be
alcohol related, that Norris was defensive about his anti-social
behavior, and that Norris had told him he saw no need for counsel
ing. Nevertheless, Dr. Doleshal believed that Norris could
benefit from long-term therapy.
Judge Schulz commented that, based on Dr. Doleshal's
report as well as the letters sent by Norris's family and
friends, he had abandoned his initial view that Norris should
receive a sentence appropriate to a serious first-degree murder
case, and had come to a more favorable view of Norris's offense.
Nevertheless, Judge Schulz noted that Norris had a serious
problem with alcohol and that, despite "plenty of warning over a
long, long period of time", Norris refused to confront this
problem. He accepted the idea that Norris was still amenable to
treatment, but, echoing Dr. Doleshal, he found that Norris would
require long-term, intensive treatment.
Judge Shulz, moreover, believed that Norris's lengthy
criminal history was a "significant indicator of what we can
expect [from Norris] in the future", and that, given this history
and the seriousness of Norris's present offense, the sentencing
goal of rehabilitation should not receive great weight in
determining Norris's sentence. Instead, Judge Schulz concluded
that Norris's sentence should stress the sentencing goals of
reaffirmation of societal norms and specific deterrence
(deterring Norris from future criminal acts).
Judge Schulz's remarks demonstrate a careful consider
ation of the sentencing goals specified in AS 12.55.005 and State
v. Chaney, 477 P.2d 441 (Alaska 1970). Norris argues that the
superior court should have taken a more favorable view of his
offense and should have given more weight to his prospects for
rehabilitation. But under Asitonia v. State, 508 P.2d 1023, 1026
(Alaska 1973), the sentencing judge has primary responsibility
for weighing these sentencing goals in a particular case. We are
to disturb the sentencing judge's determination only if it is
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974). Our review of the record convinces us that Judge Schulz's
sentencing decision is not clearly mistaken.
The judgement of the superior court is AFFIRMED.
_______________________________
1 The case was presented to the jury under two theories of
second-degree murder: subsection (a)(1) - conduct that the
defendant intends to cause serious physical injury or knows is
substantially certain to cause death or serious physical injury;
and subsection (a)(2) - conduct manifesting extreme indifference
to the value of human life. The jury found Norris guilty under
the second theory.
2 Indeed, Norris testified at trial that he hit Booth with
the rifle simply because he was "sick of her breaking
everything."
3 Compare Christie v. State, 580 P.2d 310, 320-22 (Alaska
1978), in which the defendant was charged under an assault
statute requiring proof that the defendant had acted with either
an intent to kill or an intent to wound. The supreme court
upheld the defendant's conviction even though the jurors may have
been split concerning whether the defendant acted with intent to
kill or simply with intent to wound.
4 We note that Alaska's criminal pattern jury instructions
(1989 edition) exacerbate the error present in Norris's case. As
currently constituted, the pattern jury instructions suggest the
following second-degree murder instruction when a defendant is
charged under AS 11.41.110(a)(2):
First, that the event in question oc
curred at or near [the named place] and on or
about [the named date];
Second, [that] the defendant's conduct
caused the death of [the deceased];
Third, that [the defendant] knowingly
engaged in this conduct; and
Fourth, [that] the conduct was performed
under circumstances manifesting an extreme
indifference to the value of human life.
The pattern instructions contain no supplemental instruction on
the definition of "extreme indifference to the value of human
life", nor do they indicate in any other way that this culpable
mental state is an aggravated form of recklessness. Thus, the
jury might fail to understand that second-degree murder requires
proof of either (1) the defendant's subjective awareness of the
risk to human life or (2) the defendant's failure to perceive
this risk because of intoxication.
Moreover, unlike the instruction given in Norris's case, the
pattern second-degree murder instruction separates the phrase
"knowingly engaged in conduct" from the phrase "under
circumstances manifesting an extreme indifference to the value of
human life". Thus, the pattern instruction loses the potential
curative value of linking the culpable mental state "knowingly"
with the "circumstances manifesting ... extreme indifference".
We recommend that trial judges supplement the pattern
instruction with a definition of "circumstances manifesting an
extreme indifference to the value of human life" based on the
discussion in Neitzel, 655 P.2d at 336-37. See State v Johnson,
720 P.2d 37, 38-39 & n.3 (Alaska 1986).
5 In 1975, Norris was charged with second-degree assault in
Washington for assaulting a police officer; he received a
deferred disposition with probation for 5 years. In 1977,
Norris's probation was revoked and he was sentenced to 10 years'
imprisonment. In 1981, Norris was charged with third-degree
criminal mischief and fourth-degree assault in Ketchikan. He was
convicted of criminal mischief and a reduced charge of disorderly
conduct. Norris had another disorderly conduct conviction in
1981, and two more in 1982. In 1985, Norris was convicted of
third-degree misconduct involving weapons (carrying a concealed
weapon).
Norris was also convicted of reckless endangerment in 1985
for firing a rifle in the home where he and Booth were living.
When the police arrived, Norris asserted that there was no
problem because he had fired the bullet into the ceiling. When
the police officer suggested that Norris's actions had endangered
the people living upstairs, Norris replied that he did not care
because it was his house and he would do what he wanted. The
officer then told Norris that he would have to seize the rifle;
Norris responded by moving toward the rifle and telling the
officer he was going to kill him.
