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Lanni v. State2/17/1999
3993 NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
No. 3993
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge.
MANNHEIMER, Judge, Concurring
Douglas W. Lanni appeals his conviction for manslaughter, a class A felony. He contends that Superior Court Judge Niesje J. Steinkruger erred in instructing the jury on this offense. He also argues that Judge Steinkruger erred in sentencing him both for manslaughter and driving while intoxicated because his driving while intoxicated conviction was a lesser-included offense of manslaughter and that sentencing him on both offenses is violative of his double jeopardy rights. We affirm.
On November 20, 1996, at approximately 9:00 p.m., the muffler on Eric Eklund's 1970 Maverick dropped to the road and sent sparks flying as he was proceeding west on the Johansen Expressway in Fairbanks. Eklund pulled into the emergency lane on the left hand side of the expressway, crawled underneath the vehicle, and attempted to reattach the muffler. Moments later, Douglas Lanni also entered the expressway and drove westbound in what he testified to as being good driving/road conditions. Lanni soon attempted to change lanes into what he thought was the fast lane; the next thing that he could recall was smashing into the back of Eklund's vehicle. Aside from the damage to Eklund's car, this collision also fatally fractured Eklund's skull.
Trooper Daniel Decker responded to the call and when he contacted Lanni he immediately suspected that Lanni was under the influence of alcohol. Trooper Decker asked Lanni to perform a series of sobriety tests; Lanni agreed, and proceeded to fail every test. Lanni subsequently provided both a breath and blood sample which calculated his blood alcohol concentration (BAC) to be .193 and .209, respectively.
On November 29, 1996, Lanni was indicted for man-slaughter, and the state also filed an information charging him with driving while intoxicated (DWI). The two charges were consolidated and Lanni pleaded no contest to the DWI charge shortly before the jury was empaneled. The jury then convicted him on the manslaughter charge.
Lanni first contends that Judge Steinkruger erred in refusing to give the following proposed instruction:
"If you find that the defendant, Douglas Lanni, was driving while intoxicated, this, standing alone is insufficient to establish reckless-ness. In order to prove this element of the offense you must find that under the totality of the circumstances, defendant was not aware, for reasons unrelated to his intoxication, of the risks his conduct posed."
This instruction is an incorrect statement of the law and therefore Judge Steinkruger did not err in refusing to give it. Lanni asserts that his proposed instruction reflects the holding in St. John v. State. Lanni is incorrect.
The St. John court held that "evidence that a defendant drove while intoxicated and, as a result, caused the death of another person, may establish a prima facie case of the recklessness necessary for a finding that the defendant committed manslaughter." The court explained that " prima facie case gets the case to a jury; it does not decide the case for the jury." Consequently, the court held that it was error for the trial
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