Accomplice Liabilty

.. er to determine the legislative intent behind this statute. There is no concrete history for the present code but the court relied on commentary from the tentative draft of the Alaska Criminal Code revision. The commentary states, “Subsection (2) codifies the current case law that one is liable as a traditional ‘accomplice’ if he acts ‘with intent to promote or facilitate the commission of the offense’.” Alaska Criminal Code Revision Part II, at 31 (Tent. Draft 1977) (citations omitted) quoted in 818 P.2d 691, 692. This comment is persuasive because prior to the revision every time the Supreme Court of Alaska defined the mens rea requirement for an accomplice it stated that one has to have the specific intent to promote or facilitate the offense.

See, Mahle v. State, 371 P.2d 21, 25 (Alaska 1962), Daniels v. State, 383 P.2d 323, 324 (Alaska 1963), Taylor v. State, 391 P.2d 950 (Alaska 1964), Fajerak v. State, 439 P.2d 783, 788 (Alaska 1968), Flores v. State, 443 P.2d 73, 78 (Alaska 1968), Beavers v. State, 492 P.2d 88, 97 (Alaska 1971). The legislature never intended to adopt MODEL PENAL CODE 2.06(4) (1962) (MPC).

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The legislature when it revised the criminal code of Alaska in 1978 did adopt certain MPC provisions. Section 2.06(4) allows for one to be an accomplice ” .. if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.”. Under this provision one can be an accomplice if he just acts recklessly. Since A.S.

11.16.110 does not contain this provision this court cannot hold this to be the law of the State. If the legislature saw fit to adopt this clause they would have as they did for A.S. 11.16.110(3). What the legislature did do was codify the law that this court had interpreted and consistently held for 17 years. When the legislature codified the law they made sure that there was a mens rea requirement included in the statute, which was missing prior to the revision. This court does not have the power to make law it only has the power to interpret the statute according to the sliding scale approach.

t In accordance with the sliding scale approach there is no other interpretation for A.S. 11.16.110: one has to have the specific intent to promote or facilitate the offense. Furthermore, a statute will not be modified or extended by court where a statute’s language is clear and legislative history reveals no ambiguity. See Lewis v. State, 892 P.2d 175 (Alaska 1995).

From a plain reading, legislative history and case law it is obvious that under A.S. 11.16.110, there is no such thing as reckless accomplice behavior. C. If one is held to be an accomplice to an unintentional crime when they did not have the specific intent to promote or facilitate the offense it will lead to bad public policy. If the Appeals Court’s decision is upheld it will set bad public policy.

In the Appeals Court’s decision the court stated, “it is our hope, however, that this case will make the people realize the seriousness of driving while intoxicated.” (R. at 17). In what way, does this deter people from driving while intoxicated? This decision has no affect on the person who is driving the car. This decision extends Alaskan law to every man and woman of this state no matter if they drink or not. This court should note the interest of society in deterring criminals must be balanced against the interest of the individual being free unless found legally responsible.

A basic premise in criminal law is that one should be liable only for one’s personal guilt. It makes no sense to uphold a rule that could convict an accomplice for intentionally aiding in a crime that a principal was unaware that he was committing. What this may do is ” .. burden peoples’ actions with doubts and worries about what someone might culpably do as a consequence of their own lawful actions.” Sanford H. Kadish, Reckless Complicity, 87 J.

Crim. L. & Criminology 369 (1997). The accomplice liability statute is not only aimed at people who drive while intoxicated, it is a statute that applies to all crimes in Alaska. This court must adopt a rule that is most persuasive in light of precedent, reason, and policy.

See American Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 (Alaska 2000). Otherwise, the law would criminalize everyday behavior. II.

THE MOTHER WAS NOT THE LEGAL CAUSE OF HER CHILDREN’S DEATH, WHEN SHE PERMITTED THE FATHER TO TAKE THE CHILDREN IN HIS CAR WHEN HE WAS DRUNK. The Court of Appeals erred when it held that there was sufficient evidence of causation to support the conviction of Mrs. Benis as a principal to manslaughter, pursuant to A.S. 11.41.120. This court reviews a trial court’s evidentiary rulings for abuse of discretion.

See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999). In American Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 (Alaska 2000), this court stated, “to reverse, the court must have a definite and firm conviction that a mistake has been made.” Id.

at 2. The general rule in Alaska is that in every criminal case the prosecution must establish and the jury must find that the defendant’s conduct was the actual cause and the proximate cause of the crime charged in the indictment. The defense does not contest that Mrs. Benis’s failure to act was the actual cause of her children’s death. The defense does contest whether there was sufficient evidence to find that Mrs. Benis was the proximate cause of her children’s death. In Wren v.

State, 577 P.2d 235 (Alaska 1978), this court affirmed an instruction on proximate cause which stated, “[t]he proximate cause is that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the result which the result would not have occurred.” Id. at 240. The defense believes that it has presented enough evidence to show that there was an intervening cause that broke the natural and continuous sequence. If this court finds that this is true than Mrs. Benis’s failure to act, as a matter of law, was not the proximate cause and her conviction should be reversed.

The death of Mrs. Benis’s children was not foreseeable when she let her children get into the car with her husband. The test in Alaska is not that a person has to be the sole factor in producing the death, but the defendant’s conduct has to be a substantial factor in bringing about death. See Brown v. State, Nos. A-6439, 3815, 1998 WL 224920, at 1, 2 (Alaska Ct. App. 1998). However, a defendant’s criminal responsibility is not limitless.

In State v. Malone, 819 P.2d 34 (Alaska Ct. App. 1991), the court stated, The law does not hold a defendant responsible if the injury or death, while perhaps linked to the defendant’s conduct, is primarily caused by abnormal, unforeseeable conduct on the part of the victim or of a third person, so that it no longer seems fair to say that the injury was ’caused’ by the defendant’s conduct. Id. at 37. The law acknowledges that in some circumstances there are “situations in which the second act of negligence looms so large in comparison with the first that the first is not to be regarded as a substantial factor in the final result.” R. Perkins & R.

Boyce, Criminal Law (3rd ed. 1982), 9, p. 787, quoted in 819 P.2d. 34, 37. In Malone, the defendant led police on a high-speed chase through public streets.

While the police were in pursuit of the defendant, the police car collided with a vehicle driven by another motorist; both the officer and the motorist were injured. Id. at 35. On appeal, the defendant claimed that the collision could have been due to the police officers or the other motorist’s negligent conduct. Id.

at 35. The defendant did not point to any evidence of the police officer’s or other motorist’s negligence. Id. at 35. The court stated that even though all drivers are required to exercise care for the safety of other motorists, a situation such as a high-speed chase alleviates the strictness of that care.

It is natural and foreseeable that, under the stress of the situation, police officers may engage in driving that fails to satisfy the standard of care and uninvolved motorists may either fail to react or may react with less than normal prudence. Id. at 38. The court held that even if it is believed that the police officer’s or the other motorist’s conduct was negligent, this negligence was a foreseeable result of the defendant’s conduct. Id. at 38.

Furthermore, there was no evidence in the record to illustrate that the police officer or the other motorist caused the collision by engaging in extraordinary, unforeseeable conduct. Id. at 38. In contrast to Malone, there is evidence in this case purporting to extraordinary, unforeseeable conduct by a third party. On October 10, 1999, Mr. Peterman came to Mrs.

Benis’s house to pick up the children. Mrs. Benis testified that she did not know that her husband was intoxicated when he picked up the children. (R. at 12). Evidence in support of this statement is that due to prior drunk driving incidents Mr.

Peterman had a breath-analyzing device installed in his car. (R. at 16). This device is designed to keep a drunken driver from starting a car. (R. at 16). The system requires a driver to breathe into a device and register a clean breath before the ignition unlocks.

(R. at 16). The driver is also subject to rolling retests during the trip to make sure the driver is alcohol free. (R. at 16).

If alcohol is registered, the vehicle’s horn honks nonstop until the vehicle is stopped. (R. at 16). Mrs. Benis would be able to assume that since Mr. Peterman was able to drive his car to her house, he must have passed the breath-analyzing test in his car. The defense is not contesting whether Mrs.

Benis knew if her husband was drunk. In any event, Mrs. Benis knows that a natural and foreseeable consequence of letting her children drive with someone who is intoxicated can be death. However, in this situation testimony from Maggie O’Connell indicates that Mr. Peterman had his daughter Sarah blow into the tube for him before the car drove off.

(R. at 2). The difference between Malone and this case are results or reactions that are natural and foreseeable from the defendant’s conduct and results or reactions that are not. In Malone, the court held that the police officer and other motorist’s conduct was a normal reaction to the high-speed chase that the defendant’s conduct initiated. The defendant also did not offer evidence to show that the third party’s negligence was extraordinary, unforeseeable conduct. Similarly to Malone, Mrs.

Benis could foresee her husband getting into an accident if he drove while intoxicated and it is a foreseeable result that her children could die if she let them go in the car with him while he was drunk. However, in this case it is extraordinary and unforeseeable that a father would have his ten-year old daughter, Sarah, break the law, by blowing into the breath-analyzing device so that he could illegally drive his car intoxicated. Unlike in Malone, where the third party’s conduct was a normal reaction and foreseeable result from the high-speed chase, a father having his kid break the law is neither normal or foreseeable from a mother failing to stop her children from getting in the car with their father. The distinction is that the defendant in Malone would still be convicted if no one had gotten injured and nothing could have been done to Mrs. Benis.

Therefore, in accordance with Malone this court must hold that the defense presented enough evidence to show that when Mr. Peterman had his daughter commit a criminal act by blowing into the tube, it was not a natural and foreseeable reaction to Mrs. Benis’s failure to act. The defense has presented sufficient evidence to illustrate that the extraordinary, unforeseeable conduct of Mr. Peterman having his daughter commit a criminal act is, as a matter of law, a superseding or intervening cause that excuses Mrs. Benis from liability.

In Kusmider v. State, 688 P.2d 957 (Alaska Ct. App. 1984), the defendant went to the house of his girlfriend’s acquaintance, an altercation arose and the defendant shot the acquaintance. Id. at 958.

After the paramedics had inserted a tube into the acquaintance’s throat on the ambulance, the acquaintance started to flail his arms and pulled the tube from his throat. He died at the hospital. Id. at 958. The defendant claimed that the jury should have been allowed to consider whether the paramedics failure to restrain the acquaintance’s arms constituted an intervening or superseding cause of death. Id.

at 958. The only evidence the defendant offered was that the paramedics who treated the acquaintance might have been negligent in failing to restrain the acquaintance’s arms. Id. at 959. The defendant did not argue that he could have presented evidence that the paramedic’s behavior inflicted any new injuries on the acquaintenance; he relied on their failure to act. Id. at 960.

Since the defendant never offered proof that the paramedics failure to act was grossly negligent or that the results were unforeseeable because they inflicted new injuries, the evidence was insufficient to illustrate that their conduct was an intervening cause. Id. at 959-60. It was evident that the gunshot fired by the defendant remained a substantial factor in causing the acquaintenance’s death. Id.

at 960. On the contrary, in this case the defense has presented evidence to illustrate that after the husband had the daughter blow in to the tube, Mrs. Benis did not remain a substantial factor in causing her children’s death. Comparing Kusmider and Mrs. Benis we see similarities and differences. Mrs.

Benis failing to stop her kids from getting in the car with her husband while he was drunk is similar to the defendant in Kusmider firing a shot at the acquaintance. In both cases, Mrs. Benis knew that death could result from her action and so did the defendant in Kusmider. The difference is in the conduct of the third party. In Kusmider the paramedics failed to restrain the acquaintenance’s arms but there was no evidence to illustrate that this failure aggravated the injuries caused by the gunshot. In this case after Mrs.

Benis acted, testimony indicates that the father affirmatively had the daughter blow into the tube so that he could operate the automobile. (R. at 2). The legal significance is even if the paramedics restrained the acquaintenance’s arms the defendant’s gunshot would still have been a substantial factor in causing the death. However, in this case if the father were the one who blew into the tube he wouldn’t have been able to drive the car. In this case the evidence illustrates that once Mr.

Peterman had his daughter blow into the tube Mrs. Benis was no longer the substantial factor. If the husband had blown into the tube the car wouldn’t have started and there would have been no accident. Therefore, under Kusmider the court would find that the evidence was sufficient to show grossly negligent and unforeseeable conduct that constitutes an intervening cause and interrupts the chain of proximate causation. In conclusion, this court must reverse the lower court’s decision because the defense presented sufficient evidence to illustrate that Mrs.

Benis was not the proximate cause of her children’s death. Once Mr. Peterman had his daughter blow into the tube, it was extraordinary, unforeseeable conduct that did not occur as a normal reaction nor was it foreseeable from Mrs. Benis’s conduct. The courts in Malone and Kusmider, as a matter of law, would hold that the conduct of Mr. Peterman constituted a superseding or intervening cause that interrupted the chain of proximate cause. Conclusion Case precedent, legislative history, statutory interpretation and public policy all support a finding that the Supreme Court of Alaska should uphold the law of the land: one has to have the specific intent to promote or facilitate the offense.

Furthermore, the defense has presented sufficient evidence to illustrate that Mrs. Benis was not the legal cause of her children’s death. Respectfully Submitted Attorney for the Appellant April 3, 2000 Legal Issues.