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Jeffries v. State5/14/2004
he] actor's knowledge of the risk"; and "any precautions [that] the actor [took] to minimize the risk." [FN12]
FN12. Id. at 336-37.
Neitzel actually lists the third factor as "the actor's 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. [FN13] As the Neitzel opinion points out, the actor's knowledge of the risk is the factor that generally distinguishes "criminal negligence" from "recklessness". [FN14]
FN13. Id. at 336.
FN14. Id. at 337.
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 defendant's level of awareness of the risk exceeded the level of awareness necessary to establish the defendant's recklessness as defined in AS 11.81.900(a)(3).
Jeffries's argument that the State's 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". [FN15] And in Neitzel, we suggested that an intoxicated driver should *190 not be convicted of "extreme indifference" murder unless the driver's 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. [FN16]
FN15. 715 P.2d 1205, 1209 (Alaska App.1986).
FN16. Neitzel, 655 P.2d at 337.
Thus, our case law supports Jeffries's contention that a typical drunk driving homicide should be prosecuted as manslaughter. But Jeffries's 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 pa
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