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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jeffries v. State (10/26/2007) sp-6178
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MICHAEL V. JEFFRIES, | ) |
| ) Supreme Court No. S- 11507 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-8167 | |
| v. | ) Superior Court No. 4FA-03-1996 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6178 - October 26, 2007 |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on appeal
from the Superior Court of the State of
Alaska, Third Judicial District at Anchorage,
Dan A. Hensley, Judge.
Appearances: Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Petitioner. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and David Marqu‚z, Attorney
General, Juneau, for Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
MATTHEWS, Justice, with whom FABE, Justice,
joins, dissenting.
I. INTRODUCTION
Michael Jeffries caused a traffic accident that fatally
injured his passenger. A jury convicted him of second-degree
murder under AS 11.41.110. The court of appeals affirmed. We
consider here whether a reasonable jury could find that Jeffries
displayed extreme indifference to the value of human life, as
required for a second-degree murder conviction under AS
11.41.110. There was evidence that Jeffries, after drinking
alcoholic beverages at home, drove from his home to a social
club, where he drank at least six more beers before he decided to
drive himself and a passenger home. Jeffries was extremely
intoxicated, with a blood alcohol level of about 0.27 percent,
when he drove his car directly and slowly in front of an oncoming
car on a well-lit, icy, five-lane street. Evidence of Jeffriess
prior convictions for drunk driving, court orders to attend
substance abuse programs, and a condition of probation that he
abstain from drinking alcohol permitted a finding that he had a
heightened awareness that driving while grossly intoxicated was
highly dangerous. We hold that the evidence was sufficient to
support the verdict, and affirm.
II. FACTS AND PROCEEDINGS
While grossly intoxicated, Michael Jeffries drove an
automobile and caused a February 7, 2000 traffic accident that
fatally injured his front seat passenger, Beulah Dean. The two
were eastbound on DeBarr Road in Anchorage, driving home at 8
P.M. from a social club where alcohol had been served, when
Jeffries made an abrupt left turn but at slow speed directly in
front of Mark Bergerons oncoming westbound car. The posted speed
on the five-lane street where the collision occurred was forty-
five miles per hour and Bergeron was driving at about thirty-five
miles per hour. There was a thin layer of packed snow in the
center lane from which Jeffries turned. There was a sheen of ice
in the traffic lanes and the road was icy and slippery. It was
dark, but the street was well-lit with streetlights. Bergeron
and the investigating detective believed that headlights of
Bergerons car were on at the time of the collision. The right
front corner of Bergerons car struck the passenger door beside
Beulah Dean, penetrating more than twelve inches into the
passenger compartment and fatally injuring Dean. She was taken
to a hospital but died soon after.
Jeffriess blood alcohol content was 0.27 percent when
it was tested about seventy minutes after the accident. There
was evidence that Jeffries had been drinking alcoholic beverages
before noon on the day of his accident, that after drinking in
the morning, he drove to a social club, where he consumed at
least six more beers before he drove home and caused the fatal
accident. There was also evidence that Jeffries may have been
drinking while he was driving home. A police officer found an
empty beer can on the floor on the drivers side of the car. As
the court of appeals later observed, [v]iewing the evidence
presented at trial in the light most favorable to the State,
Jeffries downed approximately twenty beers over the course of
several hours.1
Jeffries was indicted on a charge of second-degree
murder under AS 11.41.110(a)(2) for engaging in conduct that
resulted in death under circumstances manifesting extreme
indifference to the value of human life. He was also charged
with manslaughter, negligent homicide, driving while intoxicated
(DWI), and driving with a suspended license.
At trial, the prosecution introduced evidence of
Jeffriess long history of driving while intoxicated. The jury
heard evidence that Jeffries had six prior DWI convictions, that
his license had been suspended since 1989, that he had four times
failed to participate in court-ordered substance abuse programs,
and that as a condition of probation he had been ordered to
abstain from drinking alcohol. Jeffries objected to the
admission of this evidence as irrelevant, unfairly prejudicial,
and improper character evidence.
After the close of evidence Jeffries moved for a
judgment of acquittal on the second-degree murder count. He
argued that the state had failed to present sufficient evidence
that he was driving in a manner that exhibited extreme
indifference to the value of human life. The superior court
denied Jeffriess motion; in doing so, it relied in part on
Jeffriess history of driving while intoxicated. The jury found
Jeffries guilty of second-degree murder, driving while
intoxicated, and driving with a suspended license.
Jeffries appealed, arguing that extreme-indifference
murder should be reserved for cases in which an intoxicated
driver operates his vehicle in a particularly dangerous or
heedless manner. After a thorough review of Alaska and
nationwide case law, the court of appeals agreed with the
superior court that Jeffriess past convictions for driving while
intoxicated, his repeated refusal to participate in court-ordered
treatment for alcohol abuse, his decision to drive despite his
license suspension or revocation for prior DWI convictions, as
well as his extreme intoxication on the night of the accident
were sufficient to allow the murder charge to go to the jury,
even if the defendant did not engage in egregiously dangerous
driving.2 Given this holding, the court also rejected Jeffriess
contention that the evidence of the DWI convictions and Jeffriess
failure to comply with court-ordered substance abuse treatment
and abstinence from alcohol was irrelevant and unduly
prejudicial.3
We granted Jeffriess petition for hearing.
III. DISCUSSION
A. The Evidence of Jeffriess Extreme Indifference to the
Value of Human Life Was Sufficient To Allow a
Reasonable Jury To Convict Him of Second-Degree Murder.
Jeffries challenges the superior courts denial of his
motion to acquit. In reviewing the denial of a motion to acquit,
we must determine whether there is such relevant evidence which
is adequate to support a conclusion by a reasonable mind that
there was no reasonable doubt as to [the defendants] guilt.4 In
making this determination, we will consider only those facts in
the record most favorable to the prosecution and such reasonable
inferences as a jury may have drawn from them.5
Jeffries was convicted of second-degree murder under AS
11.41.110. Subsection (a)(2) of this statute provides that a
person commits murder in the second degree if the person
knowingly engages in conduct that results in the death of another
person under circumstances manifesting an extreme indifference to
the value of human life.6 This provision is adapted from the
Model Penal Code, which was adopted in large measure by the
Alaska legislature in 1978.7 In interpreting this provision, we
follow the approach of the court of appeals8 and look not only to
Alaska case law, but also to authorities interpreting the Model
Penal Code.
When determining what culpable mental states must be
proved for each element of an offense, the court of appeals in
Neitzel v. State explained that both the Model Penal Code and
Alaskas revised criminal code divide the elements of a criminal
offense into three categories: conduct, surrounding
circumstances, and result.9 Applying this framework to AS
11.41.110(a)(2), the court of appeals found that the conduct is
performing an act, that the surrounding circumstances must
manifest an extreme indifference to the value of human life, and
that the result is the death of another person.10 The court of
appeals concluded that knowledge is the mens rea for conduct,11
and that recklessness is the mens rea for the surrounding
circumstances and the result.12 The court of appeals also
identified four factors the jury must consider in determining
whether a defendant has displayed extreme indifference to the
value of human life:
(1) the social utility of the actors conduct;
(2) the magnitude of the risk his conduct
creates including both the nature of
foreseeable harm and the likelihood that the
conduct will result in that harm;
(3) the actors knowledge of the risk; and
(4) any precautions the actor takes to
minimize the risk.[13]
These factors have been in use in Alaska since 1982 and provide a
proper framework to distinguish extreme-indifference murder from
manslaughter.
The commentaries to the Model Penal Code suggest that
extreme-indifference murder is intended to allow actors to be
convicted of murder if their actions, while not purposeful or
knowing with regard to the resulting death, demonstrate
equivalent indifference to the value of human life.14 According
to the commentaries, there is a kind of reckless homicide that
cannot fairly be distinguished in grading terms from homicides
committed purposely or knowingly.15 Recklessness is defined as an
awareness of the creation of substantial homicidal risk, a risk
too great to be deemed justifiable by any valid purpose that the
actors conduct served.16 For a reckless homicide to be classified
as murder instead of manslaughter, the factfinder must find that
the actors conscious disregard of the risk, under the
circumstances, manifests extreme indifference to the value of
human life.17 The commentaries advise that the factfinder must
determine whether extreme indifference to the value of human life
exists:
Whether recklessness is so extreme that it
demonstrates similar indifference [as to
purposeful or knowing homicide] is not a
question, it is submitted, that can be
further clarified. It must be left directly
to the trier of fact under instructions which
make it clear that recklessness that can
fairly be assimilated to purpose or knowledge
should be treated as murder and that less
extreme recklessness should be punished as
manslaughter.[18]
Because the question whether an actors conduct
demonstrates extreme indifference to the value of human life is
primarily one for the factfinder, only rarely will evidence
favorable to the defendant as to a single factor in the Neitzel
analysis prevent the case from going to a jury. Neitzels four
factors provide a test in which particularly convincing evidence
as to one factor may compensate for lack of evidence as to
another. Thus, although attempting to drive normally while
intoxicated usually renders the driver who causes a death
culpable of only manslaughter,19 such conduct might be found to
demonstrate the requisite extreme indifference if the other
Neitzel factors all point strongly towards greater culpability.
The court may only intervene if the evidence, viewed as a whole,
cannot be reasonably interpreted as demonstrating the type of
heightened recklessness that is equivalent to purposeful or
knowing homicide.
Jeffries contends that the only way to ensure a clear
distinction between manslaughter and extreme-indifference murder
is to reserve murder for cases in which the objective risk of
death or serious physical injury posed by the defendants actions
is very high. This is a correct statement of the law, but we do
not agree with his implicit contention that the objective risk
posed by his conduct was not very high.
Jeffries correctly notes that many intoxicated drivers
whose convictions of extreme-indifference murder were affirmed on
appeal in Alaska operated their vehicles in an exceptionally
dangerous manner over an extended period of time. In Ratliff v.
State, for example, the intoxicated defendant swerved across the
road, causing an accident and a near-miss, and then drove at an
excessive speed on the wrong side of a divided highway for two
miles until he collided head-on with another car.20 In Stiegele
v. State, the intoxicated defendant drove on the left side of the
road at eighty-five miles per hour with passengers in the back of
his truck who were screaming for him to stop, and finally crashed
when he could not negotiate a corner.21 And in Pears v. State,
the intoxicated defendant ran stop signs and red lights and
eventually collided with another car when he ran a red light
without even slowing.22
Although the defendants in those cases engaged in more
egregious driving conduct than Jeffries, this does not mean that
his driving was not in fact egregious. When viewed in
the light most favorable to the state, the evidence at trial
including the expert testimony concerning the impairing effects
of a .27 blood alcohol level and the testimony describing the
accident itself would have enabled a reasonable jury to find not
just that Jeffries was extremely intoxicated, but also that his
intoxication extremely impaired his ability to drive, so that he
lacked the ability to identify and react to common and easily
avoidable hazards of everyday driving. In other words, the
evidence tended to show that he was literally blind drunk to
oncoming cars, not merely distracted or somewhat slowed down.
Severe impairment of his kind would pose a grave danger at every
intersection Jeffries crossed, not just at the place where his
(and Deans) luck happened to run out; and the danger of driving
while blind to surrounding hazards is no less egregious merely
because it poses a covert rather than an overt risk.
Nor is prolonged driving misconduct over an extended
period of time inherently necessary for an extreme-indifference
murder conviction. Jeffries has not identified any case in which
this court or the court of appeals has overturned a jury verdict
of extreme-indifference murder because the evidence of objective
risk was insufficient.
Furthermore, Alaska defendants who have driven while
severely intoxicated and who have engaged in driving conduct
comparable to Jeffriess have been convicted of extreme-
indifference murder.23 In two such reported cases, Richardson v.
State24 and Puzewicz v. State,25 the defendants did not challenge
their convictions on appeal, and indeed both pleaded no contest
to charges of extreme-indifference murder.26 Both defendants
unintentionally crossed the center line and collided with
oncoming vehicles.27 Both were convicted of extreme-indifference
murder for driving conduct that essentially involved fatal lapses
of attention or control by very intoxicated drivers who, like
Jeffries, knew or should have known they should not be driving.
Neither engaged in inherently reckless or intentional gravely
dangerous driving conduct, such as swerving in and out of traffic
or driving at high speed, that might have justified extreme-
indifference murder charges even against sober drivers. Both
collisions seem to have occurred relatively soon after the
defendants began or resumed driving. Thus, neither case involved
prolonged or overtly egregious driving misconduct apart from
erratic driving resulting from each defendants severe
intoxication. Although both appellate decisions were only
sentence appeals, it is significant that no party or court in
either case appears to have detected any obvious legal or
evidentiary flaw in basing an extreme-indifference murder
conviction on a death attributable to this sort of driving
conduct. No one seems to have thought that prolonged and overtly
egregious driving conduct was necessary to support either
conviction under all the circumstances in each case. Indeed, the
absence of such driving conduct did not generate much mitigating
force with respect to sentencing in either case. These cases
illustrate that Jeffriess proposed restrictions on extreme-
indifference murder would be a sharp break from the long-accepted
view of the offense in Alaska. And as a practical matter, that
only a few such appellate cases have arisen during the past
decades refutes Jeffriess claim that his proposed restrictions
are needed to avoid some sort of an endless slippery slope that
threatens to swallow all repeat DWI offenders.
Jeffries cites cases from outside Alaska that
purportedly demonstrate that extreme-indifference murder is not
an appropriate charge for intoxicated drivers attempting to drive
normally. Several of these cases, such as Park v. State,28 State
v. Jensen,29 and Blackwell v. State,30 were decided some years ago,
when public awareness of the dangers of driving while intoxicated
was far less than it is today.31 Other cases cited by Jeffries
hold that a typical drunk driving accident should not be grounds
for extreme-indifference murder, but appear to leave open the
possibility that aggravating factors that could justify a murder
conviction are not limited to especially egregious driving over a
long period of time. For example, in Allen v. State, the Alabama
Court of Criminal Appeals held that the 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.32 [S]ome shocking, outrageous,
or special heinousness must be shown.33 But nothing in that
opinion suggests that operation at a very high level of
intoxication and driving directly in front of oncoming traffic at
such a slow speed that a passenger-side collision is sure to
happen could not prove special heinousness. Furthermore, the
Alabama Supreme Court upheld Allens murder conviction although
his driving was no more egregious than Jeffriess.34 Allen was not
speeding at the time of the crash and had a much lower blood
alcohol content than Jeffries.35 The accident resulted from his
inability to keep his car in the proper lane of travel.36
Similarly, in United States v. Fleming, the Fourth
Circuit held that a conviction for reckless murder was
appropriate because the facts show a deviation from established
standards of regard for life and the safety of others that is
markedly different in degree from that found in most vehicular
homicides.37 Although Fleming engaged in a series of dangerous
maneuvers, this does not mean that Jeffriess conduct did not meet
the legal standard set forth in Fleming.38 Like Allen, Fleming
leaves open the possibility that a deviation from established
standards may be found on the basis of factors other than a
prolonged period of egregious driving.
Jeffries also relies on scholarly authority as
theoretical support for his argument. He cites a student note in
the American Criminal Law Review that argues the average drunk
driver who drives poorly simply because of alcohol-induced sense
distortion cannot be found guilty of extreme-indifference murder.39
The note reasons that extreme indifference can only be proven
from inferences drawn from the defendants conduct.40 In Neitzel,
the court of appeals took a different view of sense distortion,
when it concluded that recklessness may be found despite
unawareness of a risk where intoxication accounts for the failure
to perceive the risk.41 We agree with the court of appeals
holding that drunk drivers are responsible for their actions when
their intoxication prevents them from perceiving dangers that a
sober driver would notice. Indeed, this holding is dictated by
the plain language of the Alaska Criminal Code, which defines the
culpable mental state knowingly to require a finding of knowing
conduct when the defendants failure to perceive surrounding
circumstances results from voluntary intoxication: [A] person who
is unaware of conduct or a circumstance of which the person would
have been aware had that person not been intoxicated acts
knowingly with respect to the conduct or circumstance.42 In our
view, the circumstances present here, including the defendants
extreme intoxication, his knowledge based on prior convictions
that such intoxication was unjustifiably dangerous, and his
conduct in driving directly in front of an oncoming car that had
no opportunity to stop allow a jury to infer a defendants
disregard for the lives of others. The student note concedes the
point that previous drunk driving convictions should be placed in
the scales in determining whether a murder charge is appropriate.43
Jeffries also argues that Professor LaFave has stated
that extreme-indifference murder requires conduct creating a very
high degree of risk.44 We agree. But Jeffries neglects to
mention that Professor LaFave concedes that the precise degree of
objective risk necessary to support a charge of extreme-
indifference murder varies depending on the circumstances. [I]t
is what the defendant should realize to be the degree of risk, in
the light of the surrounding circumstance which he knows, which
is important, rather than the amount of risk as an abstract
proposition of the mathematics of chance.45 Furthermore,
Professor LaFave states that the social utility of [the
defendants] conduct is a fact to be considered.46 Our approach is
consistent with Professor LaFaves reasoning. As did Professor
LaFave, we consider the concrete facts at play in each case, not
merely the abstract risk of driving while intoxicated. We hold
that, in a case such as Jeffriess, in which the Neitzel factors
weigh heavily against the defendant when taken together, the
actual degree of risk required for murder has been met.
A review of the evidence in this case in light of the
four Neitzel factors demonstrates that the jury acted reasonably
in finding that Jeffries acted with extreme indifference to the
value of human life. We consider each factor in turn.
1. Social utility
The state argues that driving with a blood alcohol
content of two-and-a-half times the legal limit has no social
utility. Jeffries concedes that the utility of driving a vehicle
home from a bar while intoxicated is limited, but apparently does
not agree it is nonexistent. In the past, the court of appeals
has held that the utility of driving while intoxicated is
marginal, at best47 and substantially reduced from the utility of
driving sober.48
We disagree with those decisions insofar as they
suggest that driving home while intoxicated necessarily has some
social utility. As the state points out, public awareness of the
dangers of drunk driving has increased in recent years, as have
penalties. While there is certainly utility in driving, that
utility is, except in rare circumstances, completely negated by
the grave danger posed to society by an extremely intoxicated
driver. In this case, there was no evidence of extenuating
circumstances, such as the need to take a critically ill friend
or family member to the hospital or the lack of any alternative
means of getting home (e.g., taxis, buses, or friends) that might
require a conclusion that Jeffriess driving had some limited
social utility. In addition, there was evidence in the record
that Jeffries had been drinking on the morning of the accident
and that after drinking he drove to a social club where he
consumed at least six more beers before attempting to drive home.
Also, Jeffries may have continued to drink while he was driving.
A witness to the accident testified that the entire vehicle
smelled like alcohol, and one of the responding police officers
discovered a beer can on the floor on the drivers side of the
vehicle. A reasonable jury is not obliged to give an extremely
drunk driver any credit for the social utility of merely
attempting to drive home. This is especially so after he has
chosen to consume alcohol in the morning at home, gets behind the
wheel of a car, and drives to a social club to continue his
drinking, before rolling the dice by trying to drive home,
perhaps drinking in the car while driving despite already being
grossly intoxicated.49
2. Magnitude of the risk; nature and likelihood of
foreseeable harm
Jeffries argues that his actual driving was not
particularly egregious and did not create a very high risk of
death. He minimizes the riskiness of his behavior by
characterizing it as a poorly executed left turn. We are
unpersuaded by this characterization. Jeffriess conduct was much
more risky than the conduct in a typical drunk-driving accident
for two reasons.
First, the evidence suggests that Jeffriess error in
judgment was severe. Jeffries was attempting to make a left-hand
turn across DeBarr Road, a five-lane street with a speed limit of
forty-five miles per hour, against oncoming traffic. Jeffries
was traveling as slowly as ten miles per hour when he pulled
directly in front of Bergerons oncoming car. Bergerons
headlights were on, and although it was dark, streetlights lit
the street well. Bergeron was traveling at or below the posted
speed limit, probably at about thirty-five miles per hour. The
street was icy and slippery. Bergeron had about enough warning
to take [his] foot off the gas before the collision, but not
enough time to stop or swerve to avoid the accident. Bergerons
car hit Jeffriess passenger door almost the center of the car.
The point of impact demonstrates that Jeffries either badly
misjudged the speed of the oncoming car or altogether failed to
see it. His speed of ten miles per hour was too slow to permit
him to cross safely in front of Bergerons oncoming car and left
Jeffriess passenger gravely and predictably vulnerable to a side
impact.
Second, Jeffries was highly intoxicated on the night of
the accident. Jeffriess apartment maintenance supervisor
testified that Jeffries smelled of beer during an encounter with
Jeffries between 10:30 A.M. and noon on the day of the crash. In
response to the supervisors concerned inquiry about Jeffriess
ability to drive, Dean commented that hes been worse than this.
At roughly 3:30 P.M. Jeffries and Dean arrived at the Veterans of
Foreign Wars (VFW) club in MountainView. The bartender testified
that Jeffries drank only six beers there and left with Dean at
8:00 P.M. After the crash, an empty beer can was found on the
passenger floorboard of the car. Police investigating the crash
testified that Jeffries smelled strongly of alcohol and failed a
field sobriety test. A blood test performed at 9:25 P.M., an
hour and ten minutes after the accident, measured Jeffriess blood
alcohol content at 0.27 percent. The states expert testified
that had Jeffries begun drinking at noon, he would have had to
consume 23.6 drinks to reach a blood alcohol content of 0.27
percent by 9:25 P.M.
The evidence established that Jeffriess blood alcohol
content made it highly dangerous for him to drive. An expert
witness for the state testified about a study that demonstrated
that the probability of causing an accident increases
exponentially as blood alcohol content increases. While a driver
with a .08 percent blood alcohol content is three times more
likely to cause an accident than a sober driver,50 a driver with a
0.15 percent blood alcohol content is twelve times more likely to
cause an accident than a sober person. Jeffriess blood alcohol
content was nearly twice the highest level discussed by the
expert. Thus, there was evidence that the probability Jeffries
would cause an accident was at least twelve and probably many
more times that for a sober driver. The fact that the roads
were icy and slick on the night of the accident probably
increased the risk even more because the condition of the road
made it more difficult for oncoming drivers to altogether avoid a
collision by stopping or swerving or to minimize the consequences
by slowing down.
At least one court, the Kentucky Supreme Court, has
upheld murder convictions of intoxicated drivers based primarily
on their extreme intoxication at the time of the accident.51
Although we do not decide here whether a murder conviction might
be warranted on the basis of extreme intoxication alone, we do
conclude that Jeffriess intoxication, at over two-and-a-half
times the legal limit,52 was extreme. The jury could properly
find the objective risk posed by a driver with Jeffriess level of
intoxication to be significantly higher than that of a typical
drunk driver.
Likewise, the nature of the harm the risk of death or
serious bodily injury inherent in abruptly turning and driving
slowly across the path of oncoming traffic on slippery streets is
both great and readily foreseeable. And it is very likely, and
foreseeable, under such circumstances that the conduct will cause
that harm.
3. Awareness of the risk
Jeffriess heightened awareness of the risks of drinking
and driving differentiates this case from other deaths involving
drunk drivers. The evidence relevant to his awareness was
strong. The parties stipulated that Jeffries had six prior DWI
convictions between 1981 and 1996, four of them occurring in the
1990s. The parties also stipulated that Jeffriess license had
been continuously revoked since 1989, that it would remain
revoked until 2018, and that Jeffries was aware that his license
had been revoked.53 They also stipulated that a DWI conviction
was the basis for the 2000 revocation. The state presented
evidence that four times between 1989 and 1994 Alaska courts had
ordered Jeffries as a condition of his probation to report to a
probation program that screens offenders and assigns them to
alcohol treatment programs and that he failed to comply with each
order despite the possibility that he could be sent to prison for
noncompliance. Finally, the state presented evidence that as a
condition of his probation Jeffries was forbidden from drinking
alcohol at the time of the most recent accident. There is no
claim Jeffries did not have actual knowledge of his past drunk
driving convictions and of the court orders requiring him to get
treatment. In short, there was significant evidence that
Jeffries had a heightened awareness of the dangerousness of his
conduct, the need to refrain completely from any driving and to
refrain completely from any drinking, and of the danger of
driving intoxicated.
As Superior Court Judge Dan A. Hensley explained in
determining that evidence of Jeffriess past problems with alcohol
was relevant to this inquiry:
[A] person who drinks, drives, causes an
accident, gets arrested, goes to jail, is
ordered to alcohol treatment, ordered not to
drink and then drinks and drives again, and
then drinks and drives again, and then drinks
and drives again, not only has the
intellectual understanding of the risks
associated with drinking and driving but also
has the very real understanding. Which in my
view is relevant to show the heightened
awareness of those risks. Experience is the
best teacher.
The superior court was correct in its assessment. An intoxicated
driver with a record as long as Jeffriess cannot possibly be
unaware of the significant threat that his actions pose in the
eyes of society. A reasonable jury could have inferred from this
evidence that Jeffries had a heightened awareness of the risk of
drinking and driving and could have given this factor substantial
weight in its analysis under Neitzel.54
4. Precautions to minimize the risk
The state argues correctly that there is no evidence
that Jeffries took any precautions to minimize the risk of his
conduct. In fact, Jeffriess past failures to follow orders to
participate in substance abuse programs and to refrain from
either driving or drinking demonstrate a willful refusal to take
precautions to minimize the risk. A reasonable jury could have
properly taken Jeffriess refusal into account in evaluating
whether he exhibited extreme indifference to the value of human
life.
5. A reasonable jury weighing these factors could
convict Jeffries of murder.
We agree with the admonition in Pears that a charge of
second-degree murder should only rarely be appropriate in a motor
vehicle homicide.55 But Jeffries is distinguishable from the
typical intoxicated driver by his heightened awareness of the
risk resulting from his past history of drunk driving offenses
and the revocation of his license, his extreme level of
intoxication, and his inherently dangerous conduct in driving his
car directly in front of an oncoming car that had no opportunity
to react.56 The evidence allowed a reasonable jury to conclude
that Jeffriess conduct was not only reckless, but also
demonstrated extreme indifference to the value of human life.
B. The Superior Court Did Not Abuse Its Discretion by
Admitting Evidence of Jeffriess Failure To Complete
Alcohol Treatment and His Probation Condition that He
Not Consume Alcohol.
Jeffries argues that evidence of his failures to
complete court-ordered alcohol treatment and his probation
condition which prohibited him from drinking alcohol on the night
in question was irrelevant and prejudicial. The court of appeals
reasoned that this evidence demonstrated Jeffriess heightened
awareness of the risks of his conduct.57 We review the superior
courts admission of evidence under an abuse of discretion
standard.58 Erroneously admitted evidence is deemed harmless if
it did not appreciably affect the jurys verdict.59
With regard to the evidence of his failure to obtain
substance abuse treatment, Jeffries argues that while a rational
inference of knowledge [of the risk of drinking] may be based
upon completed treatment, a similar inference [cannot] be based
upon a failure to complete treatment.
Jeffriess argument is unpersuasive. A jury could infer
that Jeffriess awareness of his dangerousness to society was
heightened by the court orders to participate in the substance
abuse programs as a condition of probation.
Jeffries argues that the evidence that he was
prohibited from drinking on the night of the accident by the
terms of his probation is irrelevant because it does not tend to
establish a knowledge of the dangers of driving while
intoxicated. We reject this argument as well. As a result of
his persistent drunk driving a probation condition ordered
Jeffries not to drink. The jury could infer that this probation
condition reinforced Jeffriess awareness that his drinking and
driving was a serious matter that posed such a great risk to the
community that it was deemed necessary to prohibit him from
drinking altogether.
Finally, Jeffries argues that the probative value of
both the probation condition and his repeated failure to
participate in the treatment program was outweighed by the danger
of unfair prejudice.60 As noted above, this evidence was
probative of Jeffriess heightened awareness of the risk of his
actions. We acknowledge that evidence that Jeffries violated
court orders could tempt the jury to form negative opinions about
Jeffriess character. But we hold that the probative value of
this evidence outweighs any unfair prejudice Jeffries might have
suffered. Because it is usually impossible to present direct
evidence of a defendants mental state, indirect evidence that
establishes that the defendant was informed of the dangerousness
of his actions is often essential to establish the defendants
awareness of the risk. In this case, the challenged evidence is
highly probative.
IV. CONCLUSION
We hold that an intoxicated driver may be guilty of
extreme-indifference murder if all four Neitzel factors, taken
together, permit a reasonable jury to find extreme indifference
to the value of human life. Evidence of extreme intoxication,
inherently dangerous conduct while driving, and heightened
awareness of the dangers of driving while intoxicated is highly
relevant to this determination. Because a reasonable jury could
find Jeffries guilty of extreme-indifference murder on the
evidence presented, we AFFIRM the decision of the court of
appeals that affirmed his judgment and commitment.
MATTHEWS, Justice, with whom FABE, Justice, joins, dissenting.
Todays opinion holds that a drunken driver who causes a
fatal accident can be guilty of reckless murder if he has a high
blood alcohol content and a prior record of driving while
intoxicated. I do not join in this conclusion.
The legislative history of our reckless murder statute
makes it clear that the statute was meant to be confined to cases
in which reckless conduct closely resembles an intentional or
knowing murder. Conduct was contemplated that is similar in
degree of risk to that which is encompassed in the phrase that
governs knowing or intentional second-degree murder:
substantially certain to cause death or serious physical injury.1
The examples of such conduct offered by the senate committee
which recommended the adoption of the statute were shooting into
a tent or persuading a person to play Russian roulette.2
In my view, drinking too much even way too much and
then attempting to drive safely is not substantially certain to
cause death, nor is it comparable in terms of risk, or in terms
of utility or anti-social mind-set, with these examples. As the
court of appeals observed in Neitzel v. State:
For both murder and manslaughter, the harm to
be foreseen is a death. Therefore, the
significant distinction is in the likelihood
that a death will result from the defendants
act. Where the defendants act has limited
social utility, a very slight though
significant and avoidable risk of death may
make him guilty of manslaughter if his act
causes death. Driving an automobile has some
social utility although substantially reduced
when the driver is intoxicated. The odds
that a legally intoxicated person driving
home after the bars close will hit and kill
or seriously injure someone may be as low as
one chance in a thousand and still qualify
for manslaughter. Where murder is charged,
however, an act must create a much greater
risk that death or serious physical injury
will result.[3]
I agree with those cases and authorities that suggest
that if a fatality caused by a drunken driver is to be murder
rather than manslaughter, the driver must have engaged in
egregiously unsafe maneuvers such as extreme speeding, wrong-way
driving, or running stop lights.4 Merely being drunk and
attempting without success to drive normally can be manslaughter,
but not murder.5
Todays opinion may generate an unintended result. A
prosecutor now will be able to charge murder whenever a repeat
offender with a high blood alcohol reading causes a fatal
accident. The murder charge will go to the jury and the jury
will be instructed that it may consider the defendants prior DWI
record. But the defendants record might not be admissible if the
charge were merely manslaughter rather than murder.6 Given the
likely impact on the jurys deliberations of a prior history of
DWI convictions, it may turn out to be easier in such cases to
obtain a conviction of murder than a conviction of manslaughter.
For the reasons stated, I would reverse Jeffriess
second-degree murder conviction.
_______________________________
1 Jeffries v. State, 90 P.3d 185, 187 (Alaska App. 2004).
2 Id. at 193.
3 Id. at 194.
4 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)
(alteration in original).
5 Id. (quoting Martin v. City of Fairbanks, 456 P.2d 462,
646 (Alaska 1969)).
6 AS 11.41.110(a)(2).
7 Pears v. State, 698 P.2d 1198, 1202 (Alaska 1985)
(citing Neitzel v. State, 655 P.2d 325, 327 (Alaska App. 1982)).
8 See Neitzel, 655 P.2d at 332.
9 Neitzel v. State, 655 P.2d 325, 328-29 (Alaska App.
1982) ([T]he Model Penal Code, the Tentative Draft, and the
Revised Code segregate material elements of offenses into three
categories: (1) the nature of the conduct; (2) the circumstances
surrounding the conduct; and (3) the results of the conduct.).
10 Id. at 333.
11 Id. When Neitzels offense occurred, AS 11.41.110(a)(2)
stated that second- degree murder occurs when a person
intentionally performs an act that results in the death of
another person. (Emphasis added.) Because AS 11.81.900 states
that a person acts intentionally with respect to a result, and
the word intentionally in AS 11.41.110(a)(2) modified the actors
conduct, not the result, the court of appeals correctly concluded
that the legislature did not mean that a person had to intend to
kill the victim in order to commit second-degree murder. See
Neitzel, 655 P.2d at 326. Instead, the court of appeals
concluded that the legislature meant that the actor must act
knowingly with regard to conduct. Id. The legislature has
codified this portion of Neitzel by amending AS 11.41.110(a)(2)
by substituting the term knowingly for intentionally. Ch. 66,
1, SLA 1988.
12 Neitzel, 655 P.2d at 33334.
13 Id. at 336-37 (citing George Fletcher, Rethinking
Criminal Law 4.3, at 259-62 (1978); Wayne LaFave & Austin Scott,
Handbook on Criminal Law 70, at 541-45 (1972)).
14 Model Penal Code 210.2 cmt 4 (1980) (revised
commentary on the Model Penal Code as adopted in 1962).
15 Id.
16 Neitzel, 655 P.2d at 335 (quoting Model Penal Code
210.2, at 21-23 (1980)).
17 Id.
18 Id. at 336.
19 See St. John v. State, 715 P.2d 1205, 1209 (Alaska App.
1986) (holding that evidence that defendants intoxicated driving
caused death of another person is sufficient to establish prima
facie case of recklessness necessary for manslaughter).
20 Ratliff v. State, 798 P.2d 1288, 1289-90 (Alaska App.
1990).
21 Stiegele v. State, 714 P.2d 356, 358-59 (Alaska App.
1986).
22 Pears v. State, 672 P.2d 903, 909 (Alaska App. 1983).
23 We use driving conduct here to refer to the conduct in
manipulating the controls such as steering wheel, accelerator,
and brake pedal that affect transient operation of a vehicle,
and thus its speed and direction, as distinguished from the
conduct of choosing to drive while gravely impaired.
24 Richardson v. State, 47 P.3d 660, 661 (Alaska App.
2002).
25 Puzewicz v. State, 856 P.2d 1178, 1179 (Alaska App.
1993).
26 Richardson only appealed the lengthy judicial
revocation of his drivers license, but not his conviction or his
thirteen-year-to-serve sentence. Richardson, 47 P.3d at 661.
Puzewicz only appealed his sentence. Puzewicz, 856 P.2d at 1179.
27 Richardson, 47 P.3d at 661; Puzewicz, 856 P.2d at 1179.
28 Park v. State, 51 S.E.2d 832, 83435 (Ga. 1949) (holding
that vehicular homicide by intoxicated driver can only be murder
if concomitant circumstances showed that act naturally tended to
destroy human life).
29 State v. Jensen, 417 P.2d 273, 288 (Kan. 1966) (holding
that more must be shown than that defendant was driving while
intoxicated to prove reckless murder).
30 Blackwell v. State, 369 A.2d 153, at 156, 158 (Md. App.
1977) (holding that, in vehicular homicide case where defendant
was intoxicated but driving within speed limit, an inference of
viciousness or extreme indifference to the value of human life
may [not] be drawn from the past, although persistent, drinking
habits of an accused).
31 See Pears v. State, 698 P.2d 1198, 1206 (Alaska 1985)
(Compton, J., dissenting) (noting that public awareness of and
attitude toward the problems created by the alcohol-abusing
automobile driver have altered significantly since 1976); Allen
v. State, 611 So. 2d 1188, 1193 (Ala. Crim. App. 1992)
(distinguishing case that held reckless murder conviction of
intoxicated driver to be improper because case was decided in
1977, long before the extensive public awareness programs
targeting the dangers of driving while intoxicated).
32 Allen v. State, 611 So. 2d 1188, 1192 (Ala. Crim. App.
1992).
33 Id. at 1190 (emphasis omitted) (quoting King v. State,
505 So. 2d 403, 407 (Ala. Crim. App. 1987)).
34 Id. at 1193.
35 Id. Allens blood alcohol content was 0.163 percent.
Id. at 1189.
36 Id. at 1192. The court noted that the jury could have
concluded that Allen was either weaving in his own lane; . . .
swerving into the oncoming lane; [or] running off the surface of
the road onto a low shoulder and attempting to return in an
unsafe manner . . . . Id.
37 United States v. Fleming, 739 F.2d 945, 948 (4th Cir.
1987). Fleming was decided under the federal reckless murder
provision. Id. This provision requires a finding of conduct
that is reckless and wanton and a gross deviation from a
reasonable standard of care, of such a nature that a jury is
warranted in inferring that defendant was aware of a serious risk
of death or serious bodily harm. Id. at 947-48 (quoting United
States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978)).
38 Id. at 948. The defendant swerved in and out of
oncoming traffic at seventy to 100 miles per hour for several
miles, ultimately losing control on a curve and crashing into
another car at seventy to eighty miles per hour in a thirty-mile-
per-hour zone. Id. at 947.
39 Lynne Isensee, United States v. Fleming: When Drunk
Drivers Are Guilty of Murder, 23 Am. Crim. L. Rev. 135, 149
(1985).
40 Id. at 138.
41 Neitzel, 655 P.2d at 331.
42 See AS 11.81.900(a)(2).
43 Isensee, supra note 39, at 148.
44 2 Wayne R. LaFave, Substantive Criminal Law 14.4(a),
at 437 (2d ed. 2003).
45 Id. at 439.
46 Id.
47 Ratliff v. State, 798 P.2d 1288, 1290 (Alaska App.
1990).
48 Neitzel, 655 P.2d at 337.
49 Our holding should not be understood as suggesting that
there could be no drunk driving conduct that demonstrates less
social utility than driving home from a bar. Just as driving a
critically ill family member to the hospital might require a
conclusion that a defendants drunk driving had at least some
social utility, one might also imagine circumstances in which a
defendants drunk driving requires a finding of extraordinary
disutility. For example, racing while intoxicated is even more
indicative of a disregard for human life than attempting to drive
home from a bar while extremely intoxicated.
50 It appears from the testimony that the expert
considered a sober driver to be a driver with no alcohol in his
or her bloodstream.
51 Estep v. Commonwealth, 957 S.W.2d 191 (Ky. 1997);
Walden v. Commonwealth, 805 S.W.2d 102 (Ky. 1991), overruled on
other grounds by Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky.
1996); see also Allen v. State, 611 So. 2d 1188, 1192-93 (Ala.
Crim. App. 1992) (relying in part on Walden in holding that
intoxicated driver doing no more than weaving and swerving in
lane may be convicted of murder).
52 At the time of the accident, the legal limit was less
than 0.10. Former AS 28.35.030(a)(2) (2000). That limit has
since been lowered to 0.08. AS 28.35.030.
53 The stipulation does not establish that Jeffries knew
that his license was revoked until 2018.
54 We emphasize that it would not have been proper for the
jury to have inferred from Jeffriess past DWIs that he was
driving while intoxicated on February 8, 2000. See Alaska R.
Evid. 404(b) (providing that evidence of prior bad acts may not
be admitted to show that defendant acted in conformity with his
character). But it is undisputed that Jeffries was intoxicated
at the time of the accident. The dispute is whether Jeffriess
mental state demonstrated extreme indifference to the value of
human life. Jeffriess knowledge of the danger of driving while
extremely intoxicated is relevant to this inquiry.
55 Pears v. State, 672 P.2d 903, 906 n.1 (Alaska App.
1983).
56 The dissenting opinion asserts that [a] prosecutor now
will be able to charge murder whenever a repeat offender with a
high blood alcohol reading causes a fatal accident. Dissent at
29. This overstates the holding we reach today, and readers
should not assume that the dissent accurately describes the
effect of our holding. Our conclusion that there was sufficient
evidence to sustain the verdict turns not just on Jeffriess prior
record and his extremely high level of intoxication but also on
case- specific evidence including both crime-scene evidence and
expert testimony that Jeffries was extremely incapacitated when
he drove and actually did engage in egregiously dangerous
driving.
57 Jeffries v. State, 90 P.3d 185, 194 (Alaska App. 2004).
58 City of Bethel v. Peters, 97 P.3d 822, 825 (Alaska
2004).
59 Love v. State, 457 P.2d 622, 634 (Alaska 1969).
60 Alaska R. Evid. 403.
1 AS 11.41.110(a)(1).
2 The senate report states concerning AS 11.41.110(a)(2):
Subsection (a)(2) describes conduct that
is very similar to the substantially certain
clause in subsection (a)(1). . . . An
example of conduct covered by this provision
would be shooting through a tent under
circumstances where the defendant did not
know a person was inside or persuading a
person to play russian [sic] roulette.
Commentary on the Alaska Revised Criminal Code, Senate Journal
Supp. No. 47 at 10, 1978 Senate Journal 1399.
3 655 P.2d 325, 337 (Alaska App. 1982).
4 E.g., United States v. Fleming, 739 F.2d 945, 948 (4th
Cir. 1984). In Fleming the defendant traveled for some six miles
at speeds of from seventy to one hundred miles per hour, swerving
at times into oncoming traffic lanes before ultimately losing
control and crashing into another car at seventy to eighty miles
per hour in a thirty-mile-per-hour zone. The Fourth Circuit was
concerned with distinguishing Flemings conduct from manslaughter.
In doing so the court stated:
In the vast majority of vehicular homicides,
the accused has not exhibited such wanton and
reckless disregard for human life as to
indicate the presence of malice on his part.
In the present case, however, the facts show
a deviation from established standards of
regard for life and the safety of others that
is markedly different in degree from that
found in most vehicular homicides. In the
average drunk driving homicide, there is no
proof that the driver has acted while
intoxicated with the purpose of wantonly and
intentionally putting the lives of others in
danger. Rather, his driving abilities were
so impaired that he recklessly put others in
danger simply by being on the road and
attempting to do the things that any driver
would do. In the present case, however,
danger did not arise only by defendants
determining to drive while drunk. Rather, in
addition to being intoxicated while driving,
defendant drove in a manner that could be
taken to indicate depraved disregard of human
life, particularly in light of the fact that
because he was drunk his reckless behavior
was all the more dangerous.
Id. at 948. See also Pears v. State, 672 P.2d 903, 909, 906 n.1
(Alaska App. 1983) (intoxicated defendant drove recklessly,
speeding, running through stop signs and stop lights and failing
to slow for yield signs; court emphasize[d] that a charge of
second-degree murder should only rarely be appropriate in a motor
vehicle homicide. The murder charge in this case is supported by
the[se] extreme facts); Stiegele v. State, 714 P.2d 356, 360
(Alaska App. 1986) (murder conviction affirmed when drunk drivers
vehicle left road in the process of attempting to negotiate a
turn at eighty-five miles an hour: Stiegeles prior substantial
knowledge of the curve and the impossibility of negotiating it at
high-speed served to justify a finding that Stiegele attempted
the turn knowing that in so doing he was substantially certain to
cause his passengers deaths).
5 E.g., Blackwell v. State, 369 A.2d 153 (Md. Spec. App.
1977) (alternative holding). In Blackwell the court reversed a
second-degree murder conviction of an intoxicated driver who
struck a cyclist. The defendant had a prior history of driving
while intoxicated and there was evidence that the defendants
vehicle was weaving before and after the accident but it was
traveling within the speed limit. Id. at 156. The court
explained its conclusion that there was insufficient evidence of
malice to present a jury question in part as follows:
[A] motorist who attempts to pass another car
on a blind curve may be acting with such
criminal negligence that if he causes the
death of another in a resulting traffic
accident he will be guilty of manslaughter.
And such a motorist may be creating fully as
great a human hazard as one who shoots into a
house or train just for kicks, who is guilty
of murder if loss of life results. The
difference is that in the act of the shooter
there is an element of viciousness an
extreme indifference to the value of human
life that is not found in the act of the
motorist. And it is this viciousness which
makes the act wanton as well as wilful.
[quoting Perkins, Criminal Law 1 at 37 (2d
Ed.)]
We do not believe that an inference of
viciousness or extreme indifference to the
value of human life may be drawn from the
past, although persistent, drinking habits of
an accused.
Id. at 158. See also Park v. State, 51 S.E.2d 832, 834-35 (Ga.
1949) (intoxicated driver who rear ended a truck stopped in the
road could not be convicted of murder because no other sufficient
concomitant circumstances disclosed by the evidence . . . would
show it was such an act as naturally tended to destroy human
life); State v. Jensen, 417 P.2d 273, 288 (Kan. 1966) (the fact
the defendant was driving while under the influence of
intoxicating liquor without more being shown, is not sufficient
of itself to support an implication of malice as a matter of
law); People v. Thacker, 570 N.Y.S.2d 516, 520 (N.Y. App. 1991)
(legally intoxicated driver who attempted without success to
control truck before fatal accident should not have been
convicted of murder); Commonwealth v. McLaughlin, 142 A. 213, 215-
16 (Pa. 1928) (mere fact that defendant was intoxicated at the
time of accident could not sustain a conviction for murder based
on malice inferred from wanton and reckless conduct).
6 E.g. The superior court in this case exercised its
discretion under Evidence Rule 403 by ruling the defendants prior
record would not be admitted on the manslaughter charge because
the defendants prior record would be more prejudicial than
probative.
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