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Kwon v. State3/3/2004
riminal negligence" (as defined in AS 11.81.900(a)(4)) is that negligence consists of failing to perceive a substantial and unjustifiable risk that harm will occur, while recklessness requires proof that the defendant was subjectively aware of the risk and consciously disregarded it - or, alternatively, that the defendant would have been aware of this risk but for their intoxication.
Shortly after Alaska's present criminal code went into effect in 1980, the question arose whether the "extreme indifference" clause of the second-degree murder statute requires proof of an extreme degree of negligence or, instead, an extreme degree of recklessness. If "extreme indifference" were only an extreme form of negligence, then the State would not need to prove that the defendant was subjectively aware that their conduct posed a danger to human life (or that the defendant would have been aware of this danger but for their intoxication).
This question was resolved in Neitzel v. State, 655 P.2d 325 (Alaska App. 1982). In Neitzel, the State argued that the phrase "extreme indifference to the value of human life" referred to "an objective standard", and that this concept was therefore "similar to negligence rather than ... recklessness". This Court rejected the State's interpretation of the statute, holding instead that the statute required proof that the defendant was "reckless to the point manifest extreme indifference to the value of human life". Id. at 332-33 (emphasis added). In other words, "extreme indifference" is an extreme form of recklessness, not an extreme form of negligence.
(On this issue, see also the Neitzel court's discussion of the distinction between reckless homicides constituting manslaughter and "extreme indifference" homicides constituting second-degree murder. Id. at 335-38.)
But Alaska's pattern jury instruction on "extreme indifference" second-degree murder does not explicitly clarify that the State must, at a minimum, prove that the defendant acted recklessly with respect to the possibility of human death before the jury can move on to the issue of whether the defendant's degree of recklessness amounted to an extreme indifference to the value of human life.
Often, as in Kwon's case, manslaughter is presented to the jury as a potential lesser included offense, and the attorneys clarify the relationship between these two offenses (extreme indifference murder and reckless manslaughter) during their summations. Thus, by the time the jurors have considered the instructions as a whole in light of the attorneys' arguments, the jurors will come to understand that "extreme indifference" murder requires a foundational proof of recklessness. Nevertheless, I believe that the pattern jury instruction should be reworked to clarify this point, thereby forestalling future errors.
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