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Jeffries v. State (05/14/2004) ap-1931
Jeffries v. State (05/14/2004) ap-1931
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL V. JEFFRIES, )
) Court of Appeals No.
A-8167
Appellant, )
Trial Court No. 3AN-00-1160 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1931 May 14, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Dan A. Hensley,
Judge.
Appearances: Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This appeal requires us to examine the distinction
between two degrees of criminal homicide: manslaughter as
defined in AS 11.41.120(a)(1), which requires proof of the
defendants recklessness; and second-degree murder as defined in
AS 11.41.110(a)(2), which requires proof of a recklessness so
heightened as to constitute an extreme indifference to the value
of human life.
In prior cases, we have upheld second-degree murder
convictions for intoxicated drivers who killed other people. But
in each of those instances, the defendant drove in ways that were
manifestly extremely dangerous (even leaving aside the fact that
the defendants perceptions and reactions were impaired due to
intoxication). In the present case, the defendants physical acts
of driving included only one reported lapse: he made a left turn
directly in front of an oncoming car.
To prove Jeffriess extreme indifference to the value of
human life, the State relied heavily on evidence that Jeffries
had numerous prior convictions for driving while intoxicated,
that his license had been revoked for the previous ten years,
that he had been drinking all day in violation of the conditions
of his probation, and that he had previously refused several
times to participate in court-ordered alcohol treatment programs.
On appeal, Jeffries argues that this is an improper way to prove
extreme indifference. He asserts that extreme indifference must
be proved solely by the quality of the defendants conduct during
the episode in question.
Jeffries contends that his particular act of careless
driving the dangerous left turn was not particularly egregious
compared to the acts of careless driving that would typically
lead to manslaughter convictions. Because Jeffriess physical
conduct involved only a single dangerous left turn, he argues
that he should have been convicted only of manslaughter.
For the reasons explained here, we conclude that
Jeffriess suggested construction of the second-degree murder
statute is too narrow. We have examined court decisions from
jurisdictions that (like Alaska) have second-degree murder
statutes derived from the Model Penal Code. We have also
examined court decisions from jurisdictions that retain a common-
law definition of murder a definition that requires proof of
malice. Both of these groups of jurisdictions have upheld second-
degree murder convictions in cases where the governments proof of
extreme recklessness rested primarily on an intoxicated drivers
persistent recidivism and failures at rehabilitation.
We, too, now hold that extreme indifference to the
value of human life can be proved in this fashion. When a jury
deliberates whether an intoxicated driver is guilty of second-
degree murder or only manslaughter, the jury can lawfully
consider the defendants past convictions for driving while
intoxicated, the defendants refusals to honor license suspensions
or abide by the conditions of probation in those prior DWI cases,
and the defendants past refusals to engage in alcohol treatment
programs. We therefore affirm Jeffriess conviction for second-
degree murder.
Underlying facts
On February 8, 2000, Michael V. Jeffries
spent most of the day drinking. Viewing the evidence
presented at trial in the light most favorable to the
State, Jeffries downed approximately twenty beers over
the course of several hours. In the mid-afternoon,
Jeffries and his long-time girlfriend, Beulah Dean,
arrived at the Veterans of Foreign Wars club in
Mountain View. They stayed there until approximately
8:00 p.m., with Jeffries continuing to drink beer.
Jeffries and Dean then left the VFW to go home;
Jeffries was driving.
Some fifteen minutes later, at the corner of
DeBarr Road and Columbine Street, Jeffries made a left
turn directly in front of an oncoming car. The other
driver, who was traveling on DeBarr Road at a lawful
speed of approximately 45 miles per hour, had [just]
enough warning to take [his] foot off the gas before he
collided with the passenger side of Jeffriess vehicle.
When the paramedics arrived a few minutes later, Beulah
Dean was bleeding from her head and was completely
unresponsive. She was taken to the hospital, where she
died a short time later.
When the police contacted Jeffries at the
scene, he staggered when he walked, he leaned on his
car for balance, and he smelled of alcoholic beverages.
Jeffriess blood alcohol level tested at .27 percent.
Jeffries had six prior convictions for
driving while intoxicated, and his drivers license had
been revoked for the ten years preceding this incident.
(Jeffries was not eligible to obtain a drivers license
until 2018.) Jeffries was on probation, and one of his
conditions of probation was to refrain from drinking
alcoholic beverages. Four times previously, Jeffries
had refused to participate in court-ordered alcohol
treatment programs.
Jeffries was initially charged with
manslaughter for causing Deans death, but the State
later re-indicted Jeffries for second-degree murder.
Following a jury trial, Jeffries was convicted of this
charge (as well as driving while intoxicated and
driving while his license was suspended or revoked).
The distinction between recklessness and extreme
indifference to the value of human life
Under AS 11.41.120(a)(1), the crime of
manslaughter consists of causing the death of another
human being while acting at least recklessly with
respect to this result. The term recklessly is defined
in AS 11.81.900(a)(3):
[A] person acts recklessly with respect
to a result ... when the person is aware of
and consciously disregards a substantial and
unjustifiable risk that the result will occur
... ; the risk must be of such a nature and
degree that disregard of it constitutes a
gross deviation from the standard of conduct
that a reasonable person would observe in the
situation; a person who is unaware of a risk
of which the person would have been aware had
that person not been intoxicated acts
recklessly with respect to that risk[.]
In contrast, the crime of second-degree
murder defined in AS 11.41.110(a)(2) requires
proof that the defendant knowingly engage[d]
in conduct that result[ed] in the death of
another person under circumstances
manifesting an extreme indifference to the
value of human life.
Alaskas criminal code does not
contain an express definition of extreme
indifference to the value of human life.
However, this Court defined this phrase in
Neitzel v. State, 655 P.2d 325 (Alaska App.
1982). We concluded that extreme
indifference to the value of human life was
intended to codify the common-law concept of
reckless murder.1
As we explained in Neitzel, murder
was defined at common law as a homicide
committed with malice.2 Generally speaking,
malice referred to any intentional homicide
that was not justified, excused, or
mitigated.3 However,
[the] [c]ommon-law courts permitted a jury to
find malice [even] in the absence of a
specific intent to kill [when the defendants]
act was done with such heedless disregard of
a harmful result, foreseen as a likely
possibility, that it differ[ed] little in the
scale of moral blameworthiness from an actual
intent to [kill]. ... Typical examples of
this kind of murder are: shooting ... into a
home, room, train, or automobile in which
others are known to be or might be.
Neitzel, 655 P.2d at 327.4
The Model Penal Code contains a
provision 210.2(1)(b) that declares a
homicide to be murder if it is committed
recklessly under circumstances manifesting
extreme indifference to the value of human
life.5 The drafters of the Model Penal Code
intended this provision to apply to [the]
kind of reckless homicide that cannot fairly
be distinguished [in terms of
blameworthiness] from homicides committed
purposely or knowingly.6 As explained in the
Commentary to this provision of the Model
Penal Code,
[R]isk [is always] a matter of degree[,] and
the motives for risk creation may be infinite
in variation[.] ... [If] the actors
conscious disregard of the risk, given the
circumstances of the case, so far departs
from acceptable behavior that it constitutes
a gross deviation from the standard of
conduct that a law-abiding person would
observe in the actors situation ... , [this
culpable mental state is] sufficient for a
conviction of manslaughter ... . In a
prosecution for murder, however, the [Model
Penal] Code calls for the further judgment
[of] whether the actors conscious disregard
of the risk, under the circumstances,
manifests extreme indifference to the value
of human life. ... Whether [the actors]
recklessness is so extreme that it
demonstrates [extreme] indifference [to the
value of human life] is not a question ...
that can be further clarified. It must be
left directly to the trier of fact under
instructions which make it clear that [a]
recklessness that can fairly be [likened] to
purpose or knowledge should be treated as
murder and that less extreme recklessness
should be punished as manslaughter.
American Law Institute, Model Penal Code and
Commentaries (1980), Part II, 210.2, pp. 21-
22.7
This provision of the Model Penal
is the source of our extreme indifference
provision, AS 11.41.110(a)(2).8 After
reviewing the statutory history of this
language, we concluded in Neitzel that the
Alaska Legislature intended AS
11.41.110(a)(2) to apply to cases where the
defendant knowingly engage[s] in conduct ...
which[,] in light of the circumstances[,] is
reckless to the point that it manifests an
extreme indifference to the value of human
life.9
The word reckless in that last
sentence is used in its technical sense
i.e., the sense defined in AS
11.81.900(a)(3). When Neitzel was litigated,
the State argued that the phrase extreme
indifference to the value of human life
referred to an objective standard of
dangerousness, and that this concept was
therefore similar to negligence rather than
... recklessness in the sense that the State
did not have to prove the defendants
subjective awareness of the risk.10
This Court rejected the States
interpretation of the statute; we held that
extreme indifference to the value of human
life is an extreme form of recklessness, not
an extreme form of negligence.11
Neitzel lists four factors that a
jury should weigh when deciding whether a
defendants conduct manifested recklessness or
extreme indifference to the value of human
life: the social utility of the actors
conduct, the magnitude of the risk [that the
defendants] conduct create[d], including both
the nature of the foreseeable harm and the
likelihood that the conduct [would] result in
that harm; the [extent of the] actors
knowledge of the risk; and any precautions
[that] the actor [took] to minimize the
risk.12
Neitzel actually lists the third
factor as the actors knowledge of the risk.
But this passage from Neitzel is addressed to
the broader issue of how a jury should
differentiate three levels of culpability:
criminal negligence, recklessness, and
extreme indifference to the value of human
life.13 As the Neitzel opinion points out,
the actors knowledge of the risk is the
factor that generally distinguishes criminal
negligence from recklessness.14
When the jury is debating
recklessness versus extreme indifference to
the value of human life, both of these levels
of culpability presuppose that the defendant
was aware of the risk (or that the defendant
would have been aware of the risk but for
intoxication). Therefore, in distinguishing
between recklessness and extreme indifference
to the value of human life, the pertinent
question is not whether the actor was aware
of the risk [of death] for, leaving aside
instances of intoxication, the actor must
have been subjectively aware of this risk to
support a finding of either recklessness or
extreme indifference. Rather, the pertinent
question is whether the defendants level of
awareness of the risk exceeded the level of
awareness necessary to establish the
defendants recklessness as defined in
AS 11.81.900(a)(3).
Jeffriess argument that the States evidence is
insufficient, as a matter of law, to support a
conviction for second-degree murder
Jeffries contends that a drunk-driving
homicide should typically lead to a manslaughter
conviction, and that a conviction for second-degree
murder is justified only in extreme cases. We agree
with this contention.
In St. John v. State, this Court held that
evidence that a defendant drove while intoxicated and,
as a result, caused the death of another person is
sufficient to establish a prima facie case of the
recklessness necessary for a finding that the defendant
committed manslaughter.15 And in Neitzel, we suggested
that an intoxicated driver should not be convicted of
extreme indifference murder unless the drivers actions
create[d] a much greater risk [of] death than the risk
that is created by simply driving home from a bar in an
intoxicated condition.16
Thus, our case law supports Jeffriess
contention that a typical drunk driving homicide should
be prosecuted as manslaughter. But Jeffriess appeal
requires us to examine and clarify what is meant by a
typical drunk driving homicide.
Jeffries argues that defendants who commit
drunk driving homicides can not properly be convicted
of extreme indifference second-degree murder unless
their handling of the motor vehicle on the occasion in
question manifested an extreme degree of overt
dangerousness or heedlessness a degree of overt
dangerousness or heedlessness far exceeding the type of
careless driving that one might expect from an
intoxicated person who was apparently trying to drive
safely. Jeffries asserts that extreme indifference to
human life can not be established in the way that the
State sought to prove this element at his trial to
wit, by showing that Jeffries had a history of past
convictions for driving while intoxicated, that
Jeffries had repeatedly refused to engage in
rehabilitative treatment, and that Jeffries had for
years continued to drive and to drink even though he
knew that he was prohibited by law from doing either
(because his license was revoked and his conditions of
probation prohibited him from drinking).
In several of our past cases dealing with
vehicular homicide charged as second-degree murder, the
defendants conduct has fit the definition suggested by
Jeffries. That is, the defendants engaged in
egregiously dangerous driving much more dangerous than
simply taking control of a vehicle while intoxicated
and then driving carelessly.
For instance, in Foxglove v. State, 929 P.2d
669 (Alaska App. 1997), the defendant intentionally
drove his snow machine at a speed of 70 miles per hour
through a crowd of people gathered around a bonfire.17
In Ratliff v. State, 798 P.2d 1288(Alaska App. 1990),
the defendant weaved across the road, forcing one
oncoming car completely off the road and into a
snowbank, and forcing another car to veer almost off
the road in order to avoid a head-on collision.
Ratliff then entered the wrong side of a divided
highway, passing two pairs of large signs that warned
him he was going the wrong way. Driving in excess of
the speed limit, and disregarding the efforts of
motorists who flashed their lights to get his
attention, Ratliff drove for two miles before colliding
head-on with another car.18 In Stiegele v. State, 714
P.2d 356 (Alaska App. 1986), the defendant spun his
truck around 360 degrees, then headed up a road on the
left side. Shortly afterwards, the police observed the
defendants truck traveling down the wrong side of the
road at approximately 85 miles per hour, then leave the
road and crash into the woods. Witnesses testified
that, before the crash, the passengers in the truck
were screaming for Stiegele to stop.19 And in Pears v.
State, 672 P.2d 903 (Alaska App. 1983), the defendant
repeatedly exceeded the speed limit and ran through
stop signs and red lights, disregarding the warnings of
his passenger. He then dropped off his passenger and
continued driving. Just before the fatal collision,
Pears saw that the cars in front of him were stopping
for a red light, so he drove around those cars in the
right-turn lane, then entered the intersection without
slowing down. Pears collided with one of the cars
entering the intersection on the green light; he
knocked this other car 146 feet.20
On the other hand, some of our prior cases
involving intoxicated drivers convicted of second-
degree murder have arisen from episodes in which the
physical actions of the intoxicated drivers were fairly
typical of what one might expect from an intoxicated
person. In both Richardson v. State, 47 P.3d 660, 661
(Alaska App. 2002), and Pusewicz v. State, 856 P.2d
1178, 1179 (Alaska App. 1993), the defendants crossed
the center line and collided with an oncoming car.
In particular, the facts of Pusewicz are
similar in most respects to the facts of Jeffriess
case. Pusewicz spent most of the day drinking beer,
and then he went driving in the evening and killed two
people.21 Although Pusewicz claimed to have drunk only
four or five beers in the hours preceding the
collision, his blood alcohol level was .219 percent.22
Pusewicz had three prior convictions for
driving while intoxicated, and he was on probation from
his third DWI conviction when he committed the
murders.23 Pusewicz was not supposed to be driving at
all because, as a result of his third DWI conviction,
Pusewiczs drivers license had been revoked for ten
years.24 Moreover, Pusewicz had failed to undertake
the residential treatment program that was required as
part of his sentence for that prior conviction, and the
district court had issued an unserved warrant for his
arrest.25
However, the Pusewicz decision has little
precedential value on the issue raised by Jeffries in
this case. Pusewicz only pursued a sentence appeal, so
this Court did not reach the question of whether the
above-described evidence was legally sufficient to
support Pusewiczs murder convictions.
Nevertheless, decisions from other states
that have murder statutes based on the Model Penal Code
suggest that the facts of Pusewicz are sufficient to
support a conviction for extreme indifference murder.
Kentucky has an extreme indifference murder
statute similar to Alaskas.26
In Estep v. Commonwealth, 957 S.W.2d 191
(Ky. 1997), the Supreme Court of Kentucky held that an
intoxicated motorist who crossed the center line and
collided with an oncoming vehicle could be convicted of
murder under this statute based primarily on evidence
of her extreme intoxication:
[Kentucky Statute] 507.020(1)(b) permits
a conviction for wanton murder for the
operation of a motor vehicle under
circumstances manifesting extreme
indifference to human life. ... [C]onduct
such as Esteps has been held to constitute
wanton murder under such a statutory
standard. Walden v. Commonwealth, Ky., 805
S.W.2d 102 (1991), held that a wanton murder
conviction was proper because the conduct of
the defendant amounted to more than a typical
automobile accident by virtue of the extreme
rate of speed and level of intoxication. ...
[T]his Court concluded that ... the extreme
nature of the intoxication was sufficient
evidence from which a jury could infer
wantonness so extreme as to manifest extreme
indifference to human life. Id.
The evidence in this case demonstrated
that Estep was driving her truck at a high
rate of speed in an improper manner under the
influence of drugs. Blood tests revealed the
existence of five different types of drugs in
Esteps body: Xanax, Elavil, Soma, Valium and
Hydrocodone.
. . .
Eyewitnesses testified that Estep was
seen passing at a rate of speed greater than
50 miles per hour in a no-passing zone near a
curve in the road. The testimony indicated
that after she completed passing one
automobile, she failed to return to the
proper lane and collided with a car on the
wrong side of the road. One of the
passengers in the other vehicle testified
that ... Estep was slumped over in her seat
and that she raised her head only seconds
before the fatal crash. There was evidence
that[,] when Estep was taken to the hospital
for observation following the accident[,] she
kept passing out and appeared pretty zonked.
[This] was sufficient evidence that Estep was
operating a motor vehicle under circumstances
manifesting extreme indifference to human
life and she wantonly engaged in conduct
which created a grave risk of death and
caused the death of another person.
Estep, 957 S.W.2d at 192-93.
The Alabama Court of Criminal Appeals reached a similar
conclusion in Allen v. State, 611 So.2d 1188 (Ala. Crim. App.
1992). Quoting the Kentucky courts decision in Walden with
approval, the Alabama court agreed that [d]epending on the
situation, drunk driving may be ... a circumstance that a jury
could find to manifest[ ] extreme indifference to human life.27
The Alabama court then upheld a murder conviction for an
intoxicated driver whose careless driving was manifested
primarily by an inability to keep his vehicle within the proper
lane of travel:
[T]he situation that will support a
conviction for reckless murder must involve
something more than simply driving after
having consumed alcohol and becoming involved
in a collision. As noted above, [Alabamas
reckless murder statute] contemplates conduct
that is the culpable equivalent of
intentional murder.
. . .
In the present case, ... the testimony
of the States witnesses [showed] that the
appellant was driving his vehicle in a
reckless manner by weaving in his own lane;
by swerving into the oncoming lane; by
running off the surface of the road onto a
low shoulder and attempting to return in an
unsafe manner; or by engaging in a
combination of any of the three. The
prosecution also presented evidence ... that
the appellant was legally intoxicated while
driving his car in a reckless manner.
Although it is a close question, we find that
there was sufficient evidence from which the
jury could have concluded that the appellants
overall conduct was so grossly wanton that it
manifested an extreme indifference to human
life.
Allen, 611 So.2d at 1192-93.
The decision in Allen conforms to two earlier Alabama
decisions, Patterson v. State, 518 So.2d 809 (Ala. Crim. App.
1987),28 and Slaughter v. State, 424 So.2d 1365 (Ala. Crim. App.
1982).
The defendant in Patterson had previously undergone
alcohol abuse treatment, and he had been arrested for driving
while intoxicated within the previous year.29
During the twelve hours preceding the homicide,
Patterson drank three bottles of wine; his blood alcohol level
was .30 percent.30 Pattersons car jumped the median of a divided
road, crossed into the oncoming lanes, and struck two vehicles.31
Under these facts, the court affirmed Pattersons conviction for
extreme indifference murder.32
The defendant in Slaughter, who had been arrested at
least four times previously for driving while intoxicated, spent
the day drinking and then he went driving.33
During the drive, Slaughter either passed out from
intoxication or fell asleep; his car crossed the roadway, jumped
the curb, and killed a woman who was working in her front yard.34
On appeal, the Alabama court held that these facts were
sufficient to establish extreme indifference murder.35
Likewise, in State v. Schultz, 677 A.2d 675, 678 (N.H.
1996), the New Hampshire Supreme Court held that extreme
indifference [murder] does not require proof of particularly
vicious conduct. Rather, the critical factor is the degree to
which the defendant disregards the risk of death to another.
We now turn to jurisdictions that retain the common-law
definition of murder (i.e., those jurisdictions that define
murder as a homicide committed with malice). As explained above,
the common law recognized extreme recklessness as a category of
malice. And courts applying the common-law definition of murder
have affirmed murder convictions for homicides committed by
intoxicated drivers.
Many of these court decisions involved defendants who
engaged in egregiously dangerous driving.36 However, some of
these reckless murder cases involved driving that one might
typically expect of an intoxicated driver: impatiently
attempting to pass a slower vehicle, inability to keep their
vehicle traveling in a straight line, failing to see traffic
signs and road markings, miscalculating distances, or misjudging
the motion of other vehicles.
For instance, in Geter v. State, 132 S.E.2d 30 (Ga.
1963), the court upheld the murder conviction of a defendant who,
driving while intoxicated, attempted to pass the cars ahead of
him on an uphill grade, at a place where the roadway was marked
with a no passing double yellow line. As the defendant crested
the hill on the wrong side of the road, he struck an oncoming
vehicle and killed three of its occupants.37 Similarly, in
Shiflet v. State, 392 S.W.2d 676 (Tenn. 1965), the court upheld
the murder conviction of an intoxicated driver who veered into
the oncoming lane of traffic and struck another vehicle.38 In
State v. Goodman, 560 S.E.2d 196 (N.C. App. 2002)39, the court
upheld the murder conviction of an intoxicated driver who struck
another vehicle when he ran a red light (apparently after passing
out, with his head and arm hanging out of the drivers side
window).40 A major factor in the courts decision was the fact
that the defendant had numerous prior convictions for driving
while intoxicated and other traffic offenses.41
And in Commonwealth v. Taylor, 337A.2d 545 (Pa.
1975), the court upheld the murder conviction of an intoxicated
driver who passed another car at a high rate of speed and struck
two boys who were bicycling along the other side of the road.42
The court stated:
The intoxicated condition of the driver, the
excessive rate of speed [at] which he was
traveling, the distance the bodies and
bicycles were propelled upon impact, his
awareness that this was an area where
children were likely to traverse, the absence
of any physical or climatic condition which
could explain or contribute to the happening
of the accident and the appellants failure to
stop immediately after impact, all exhibit
the wickedness of disposition, the hardness
of heart, cruelty and recklessness associated
with murder in the second degree.
Taylor, 337 A.2d at 548.
Based on these authorities, we hold
that in cases of homicide caused by an
intoxicated driver, the element of extreme
indifference to the value of human life
required for conviction of second-degree
murder under AS 11.41.110(a)(2) can be
established not only through evidence that
the defendant engaged in egregiously
dangerous driving, but also through evidence
of the defendants extreme intoxication, the
defendants decision to ignore warnings not to
drive, the defendants past convictions for
driving while intoxicated, the defendants
refusal to participate in court-ordered
treatment for alcohol abuse imposed as part
of the defendants sentence or conditions of
probation from previous DWI convictions, and
the defendants decision to drive despite a
license suspension or revocation stemming
from previous DWI convictions.
The presence of some or all of
these factors does not necessarily prove that
the defendant acted with extreme indifference
to the value of human life. However, the
jury is entitled to consider these factors
when deciding whether the government has
proved that the defendant acted with the
extreme degree of recklessness that will
support a murder conviction under
AS 11.41.110(a)(2).
Jeffriess argument that the trial judge allowed the
State to present irrelevant or unfairly
prejudicial evidence
Jeffries also argues that the trial judge
committed error by allowing the State to introduce
evidence of Jeffriess prior DWI convictions,
evidence of Jeffriess failures to participate in
court-ordered alcohol treatment programs, and
evidence of the fact that Jeffriess conditions of
probation from his prior DWI convictions
prohibited him from consuming alcoholic beverages.
Jeffries argues that this evidence was either
irrelevant or was so unfairly prejudicial that it
should have been excluded under Evidence Rule 403.
For the reasons explained in the preceding
section of this opinion, we reject Jeffriess arguments.
The jury had to decide Jeffriess degree of
recklessness. In this context, the evidence of
Jeffriess prior convictions was offered, not to prove
his characteristic behavior, but rather to establish
his level of awareness of the risks created by his
driving while intoxicated.43
Likewise, Jeffriess repeated refusal to
participate in court-ordered alcohol treatment
programs, and his refusal to abide by the condition of
probation that barred him from drinking, were both
relevant to show the degree of Jeffriess disregard for
the safety of others. This evidence tended to prove
that Jeffries had been put on notice that his drinking
behavior was dangerous to others and had to change, and
it also tended to prove that Jeffries consciously
refused to act on these warnings.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Neitzel, 658 P.2d at 327.
2 Id.
3 Id.
4 Quoting Rollin M. Perkins, Criminal Law (2nd edition
1969), 1, pp. 36 & 768.
5 Quoted in Neitzel, 655 P.2d at 332.
6 American Law Institute, Model Penal Code and Commentaries
(1980), Part II, 210.2, p. 21, quoted in Neitzel, 655
P.2d at 335.
7 Quoted in Neitzel, 655 P.2d at 335-36.
8 Id. at 335.
9 Id. at 332-33.
10Id. at 332. Compare AS 11.81.900(a)(3) (the definition
of recklessly) with AS 11.81.900(a)(4) (the definition
of criminal negligence).
11Neitzel, 655 P.2d at 334.
12Id. at 336-37.
13Id. at 336.
14Id. at 337.
15 715 P.2d 1205, 1209 (Alaska App. 1986).
16 Neitzel, 655 P.2d at 337.
17 Foxglove, 929 P.2d at 670.
18 Ratliff, 798 P.2d at 1289-90.
19 Stiegele, 714 P.2d at 358-59.
20 Pears, 672 P.2d at 909.
21 Pusewicz, 856 P.2d at 1179.
22 Id.
23 Id. at 1180.
24 Id.
25 Id.
26 See Kentucky Stats. 507.020(1)(b) (Baldwin 2003).
27 Allen, 611 So.2d at 1192.
28 Overruled on other grounds in Fore v. State, 858 So.2d
982, 990 (Ala. Crim. App. 2003).
29 518 So.2d at 816.
30 Id. at 811-12.
31 Id. at 810-11.
32 Id. at 816.
33 424 So.2d at 1367.
34 Id. at 1366.
35 Id. at 1367.
36 See, e.g., United States v. Fleming, 739 F.2d 945 (4th
Cir. 1984); State v. Boone, 661 P.2d 917, 920-22 (Or. 1983).
37 Geter, 132 S.E.2d at 31, 35.
38 Shiflet, 392 S.W.2d at 678.
39 Reversed on other grounds, State v. Goodman, 577 S.E.2d
619 (N.C. 2003).
40 Goodman, 560 S.E.2d at 198.
41 Id. at 199-200.
42 Taylor, 337 A.2d at 546.
43 Accord, Fleming, 739 F.2d at 949; Patterson, 518 So.2d
at 814. See also State v. Goodman, 577 S.E.2d 619 (N.C.
2003) (approving the analysis of the dissenting opinion in
the intermediate court of appeals, 560 S.E.2d at 206:
although a defendants prior driving convictions are
admissible to prove the malice aforethought required for
second-degree murder, the admissibility of those prior
convictions is constrained by the requirements that the
convictions be (1) recent and (2) based on similar driving
misconduct).
