Petition — Mill v. Alaska

[re

Supreme Court, U.

FILED

APR_ 16 1979

In the Supreme Count of th

e

° MICHA! NA 2 Cc

United States Re

OCTOBER TERM, 1978

No.

28-1584

ROBERT DEWAIN MILL,

Petitioner,

V,

STATE OF ALASKA,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF ALASKA

Fdgar Paul Boyko, Esq

Robert K. Schraner, Esq

MILLER, BOYKO AND BELI

1200 Third Avenue, Suite 1424

San Diego, Califorma 92101

(714) 232 6254

Attorneys for Petitioner

Westside Law Publishers Santa Monica, California 213/451-1714

TOPICAL INDEX

Page

Opinion Below |

Jurisdiction 2

Questions Presented 2

Constitutional Provisions, Statutes and Rules In-

volved 2

Statement of the Case 3

Manner in Which The Federal Questions Were

Presented 7

Reasons for Granting the Writ 8

A. The Alaska Supreme Court's Decision

Conflicts In Principle With Decisions Of

This Court And Is In Conflict With Prior

Decisions Of The Alaska Supreme Court

8

B. The Federal Questions Involve The Sub

stantial Derogation Of Petitioner's Rights

To Procedural Due Process 11

Conclusion 13

Appendix A — Opinion of the Court Below 14

Appendix B — Petition for Rehearing 3]

Appendix C — Mandate of the Court Below 35

Appendix D — Constitutional Provisions, Statutes

and Rules Involved 36

Appendix E — Excerpts from Transcript of Proceed-

ings 39

TABLE OF AUTHORITIES

Cases Page

Apodaca v. Oregon, 406 U.S. 404 (1972) 1]

Briscoe v. Commonwealth Bank of Kentucky, 33

U.S 118 (1834) 12

Chambers v. Mississippi, 410 U.S. 284 (1973) )

Cole v. Arkansas, 333 U.S. 196 (1947) i ae

Drahosh v. State, 442 P.2d 44 (Alaska 1968) 9, 10

Griffin v. Illinois, 351 U.S. 12 (1956) i e

In Re Oliver, 333 U.S. 257 (1947) )

Johnson v. Louisiana, 406 U.S. 356 (1972) 1]

Larson v. State, 569 P.2d 783 (Alaska 1977) 11

McKane v. Durston, 153 U.S. 684 (1894) 12

Mill v. State, 585 P.2d 546 (Alaska 1978) |

Ross v. Moffitt, 417 U.S. 600 (1974) 12

Whitton v. State, 479 P.2d 302, 309 (Alaska 1970)

9, 10

Constitutional Provisions

United States Constitution

Sixth Amendment ee eG

Fourteenth Amendment 2 3%, 32

Alaska Constitution

Article IV, Section 2 12

Statutes

28 U.S.C. § 1257(3) 2

Alaska Statutes, § 11.15.150 4

Alaska Statutes, § 11.15.220 4

Alaska Statutes, § 22.05.010 12

Rules

Alaska Criminal Rule 8(a)

Alaska Criminal Rule 31(a)

In the Supreme Court of the

United States

OCTOBER TERM, 1978

No.

ROBERT DEWAIN MILL,

Petitioner,

VA

STATE OF ALASKA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALASKA

Petitioner, Robert Dewain Mill, respectfully prays that

a writ of certiorari issue to review the judgment of the

Alaska Supreme Court entered in the above-entitled case

on October 20, 1978.

OPINION BELOW

The opinion of the Alaska Supreme Court, affirming the

petitioner's conviction, is reported in Mii/ v. Stave, 585

P.2d 546 (Alaska 1978), and is printed in Appena.s A.

JURISDICTION

The judgment of the Alaska Supreme Court was entered

on October 20, 1978. A timely petition for rehearing,

printed in Appendix B, was filed with the court on October

30, 1978, and was denied without opinion on November

28, 1978. The mandate of the Alaska Supreme Court,

which was issued on December 5, 1978 and affirmed

petitioner's conviction, is printed in Appendix C. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

1257(3).

QUESTIONS PRESENTED

|. Whether the prosecutor's argument to the jurors,

that they may find petitioner guilty of a lesser included

offense based on incidents not charged in the indictment,

violated petitioner's fundamental rights protected by the

sixth amendment and secured to him through the due

process clause of the fourteenth amendment.

2. Whether the affirmance of petitioner's conviction

by a minority of the appellate court derogated his right to

appeal and therefore constituted an abridgement of his

right to due process of law guaranteed under the fourteenth

amendment.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED |

The constitutional provisions, statutes and rules in-

volved are set forth in Appendix D.

w

STATEMENT OF THE CASE

In early 1973, a dispute arose between petitioner and

James Vincent. Petitioner had started a small independent

logging business in Palmer, Alaska, in 1970. Petitioner

and Vincent, a trucker, had entered into a contract

whereby Vincent was to deliver lumber from Canada to

petitioner's business |R.T. 922].' The dispute which arose

involved the conversion by Vincent of a load of lumber for

which petitioner had already paid Vincent. Petitioner was

in desperate need of the load in order to fill his contracts.

On July 6, 1973, petitioner realized that Vincent had no

intention of delivering the lumer and had converted the

same to his own use [R.T. 1021}.

Petitioner then sought out Vincent for the delivery of the

lumber or the return of his money. He found Vincent and

the man he believed to be Vincent's bodyguard, along with

several other men, drinking in a cabin [R.T. 1029]. At

petitioner's request, Vincent stepped out onto the porch of

the cabin to discuss the matter. Their discussion quickly

turned into a confrontation when Vincent refused to honor

petitioner's request for the delivery of the lumber, or, in the

alternative, return petitioner's money [R.T. 1270]. Vincent

thereafter returned to the cabin [R.T, 666, 695, 1033}.

Knowing that it was likely that the men inside were

armed, petitioner procured a rifle from his truck and

walked back to the cabin, He approached a window of the

cabin, laid his rifle across the sill, pointing it at Vincent

[R.T. 246, 667, 695, 1035]. He commanded Vincent to

step outside again. Vincent exited the cabin and began to

approach petitioner. As Vincent reached toward his

pocket, petitioner twice teid him to stop[R.T. 1037, 1152

'Reporter’s Transcript of the proceedings.

53]. Vincent continued towards petitioner and petitioner

shot him in the leg in order to halt his approach| R.T. 1040,

1150-51, 1266].

After the shooting, Vincent acknowledged that he owed

petitioner the money and petitioner assisted him in

retrieving his checkbook. Petitioner covered Vincent with

his rifle while Vincent wrote out a check for the converted

lumber and then engaged the aid of another man in

obtaining medical assitance for Vincent [R.T. 1048].

|

Petitioner was charged, on the basis of the actual

shooting, In a one-count indictment with a violation of

A.S. 11.15.150 as follows:

The Grand Jury charges: that on or about the

6th day of July, 1973, at or near Palmer, in the

Third Judicial District, State of Alaska, Robert

Dewain Mill did unlawfully, feloniously, and

maliciously shoot James Douglas Vincent with

the intent to kill, wound or maim him.

Trial commenced on July 7, 1975. During closing argu

ment, the prosecutor was permitted to argue to the jury that

the uncharged prior and subsequent pointings of the rifle

by petitioner also constituted assaults with a dangerous

weapon, in violation of A.S. 11.15.220, which the jurors

could find petitioner guilty of as a lesser included offense:

Now, he was guilty of assault with a deadly

weapon, or a dangerous weapon at the moment

he came up there to that window and pointed that

gun at Vincent. He didn’t shoot the man with

intent to kill. See that — a higher crime requires

the actual shooting which he did a few seconds

Jater, but at that point he was guilty of an ADW.

** *

When he stood over the man and made him write

out a check, there’s another ADW right there.

Assault with a deadly weapon, or a dangerous

weapon. There's another one. There are 2

others. Of course when he shot the fellow, if you

find that he didn’t have the intent to kill, wound,

or maim, there’s another ADW rightthere. . . .

[R.T. 1723-24].

The prosecutor was allowed to pursue this line of

argument over petitioner's strenuous objections. Before

the closing arguments, petitioner had requested that the

trial judge issue:

| A] protective order directing Mr. Merriner that

he cannot argue that the poking of the gun into

the window was a separate, [sic] or could be

found by the jury to constitute an assault with a

dangerous weapon. . . . [R.T. 1669].

Moreover, petitioner had also requested that the trial judge

issue a curative instruction? that the jurors could not find

petitioner guilty of the iesser offense based on uncharged

offenses:

{ think the jury should be instructed that while

they may find a lesser included offense of assault

with a dangerous weapon, if they do not find the

specific intent to shoot, kill, or wound — to kill,

wound or maim, that that lesser included offense

is — must be encompassed within the specific

transaction, that is, the shooting. And that they

cannot look for other possible acts of assault

which were not charged in the indictment. There

The pertinent portions of the reporter's transcript of the proceed

ings are set forth in Appendix E.

are 3 possible assaults with a deadly weapon in

this case, if the jury were to believe that this is

what happened. One when Mr. Mill stuck a gun

through the window, one when he aimed at and

shot the defendant in the leg, and (3), which is

disputed, of course, when allegedly he stood over

him with the gun and forced him to write a check.

But the state has seen fit to give notice and to

charge only one of these transactions, the actual

shooting. And if the jury could find, as a lesser

included offense, any conduct of the defendant

other than the one in the middle, then theoretical-

ly they could find him guilty of 3 separate

assaults with a dangerous weapon, and that

would certainly exceed the scope of the indict-

ment and the issues in this case, and therefore

I’m going to ask the court at this time to give an

instruction that the lesser included offense of

assault with a dangerous weapon must be, if they

find it, must be based upon the same acts or

transactions which constituted the shooting.

That they cannot consider other incidents that

might have amounted to an assault with a

dangerous weapon if so charged. |R.T. 1668-

69].

The jury found petitioner not guilty of the offense charged

in the indictment, but guilty of the lesser included offense

of assault with a dangerous weapon.

Petitioner appealed his conviction to the Alaska Su-

preme Court. Although the issue of whether the prosecu-

tion’s closing argument constituted error was clearly of

constitutional character, the appeal was heard by only

three of the five justices of that court. Of those three

justices, two affirmed his conviction. Justice Burke,

dissenting, determined that there was federal constitution-

al error. He concluded that allowing the prosecutor to

argue separate, uncharged incidents as lesser included

offenses, which the jurors could find petitioner guilty of,

mandated a reversal and remand of the case.

MANNER IN WHICH THE FEDERAL

QUESTIONS WERE PRESENTED

On appeal to the Alaska Supreme Court, petitioner

contended that the trial judge had prejudicially erred in

permitting the prosecutor to argue, over objection, that the

jury could find petitioner guilty of the lesser included

offense of assault with a dangerous weapon based on

separate, uncharged incidents. Petitioner further submit-

ted that the error was compounded by the trial judge's

refusal to issue a curative instruction. Moreover, petition-

er maintained that the error had been of a federal

constitutional aimension. Specifically, petitioner con-

tended that the prosecutor's statements violated petition-

er’s right to be informed of the nature and cause of the

accusations against him, a fundamental aspect of due

process of law. It was further argued that petitioner's right

to a unanimous verdict had been abrogated.

The Alaska Supreme Court’s opinion indicates that it

recognized the issue to be of federal dimension. The

majority implied this determination when it acknowledged

that the trial court had committed harmless error in

allowing the prosecutor to argue that there had been three

separate assaults to justify convicting petitioner. Clearly,

the “state grounds” on which the Alaska Supreme Court

purports to rely, in holding the error to be harmless, are

inadequate. Moreover, adequate and tenable state grounds

are inconsistent with an acknowledgment that the trial court

had erred. Justice Burke’s dissent on this issue verifies the

timely and specific presentation of a federal question.

Anticipating the possibility that the timely presentation

of the federal question may not be clear from the record,

petitioner is currently engaged in the process of securing a

certificate from the justices of the Supreme Court of

Alaska who heard petitioner's appeal. This certificate will

clarify the timely presentation and necessary determina

tion of a substantial federal question,

The second federal question arose out of the circum

stances of the Alaska Supreme Court's affirmance of

petitioner's conviction. The injection of this federal ques

tion into the case could not have been anticipated.

Accordingly, petitioner's assertion, that the affirmance of

his conviction by less than a majority of the court is

unconstitutional, was timely made when raised for the first

time in his petition for rehearing,

REASONS FOR GRANTING THE WRIT

A. The Alaska Supreme Court's Decision Con-

flicts In Principle With Decisions Of This

Court And Is In Conflict With Prior Deci-

sions Of The Alaska Supreme Court.

This Court has recognized that the sixth amendment

right of an accused to be informed of the nature and cause

of the accusation against him is an essential principle of

procedural due process:

No principle of procedural due process is

more clearly established than that notice of the

specific charge, and a chance to be heard in a

trial of the issues raised by that charge, if desired,

are among the constitutional rights of every

accused in a criminal proceeding in all courts,

state or federal. [Citations omitted]. Coley.

Arkansas, 333 U.S. 196, 201 (1947). See also

7]

In re Oliver, 333. U.S, 257, 273 (1947), Cham

bers vo Mississippt, 410 US. 284, 294 295

(1973).

Petitioner contends that the prosecutor's argument to the

jury, that uncharged prior and subsequent pomtings of the

rifle could be adequate grounds for a finding of guilt of a

lesser included offense, violated his rights as an accused.

Petitioner submits that such a violation ts indirect conflict

with the principles expressed by this Court in cases such as

Chambers v. Mississippi, and Cole vo Arkansas.

The Alaska Supreme Courts determination of petition

ers appeal is also erroneous on the basis of its own prior

holdings on this issue. In Drahosh v. State, 442 P.2d 44

(Alaska 1968), the defendant had been convicted of

neghgent driving and an offense denominated as failure to

remain at the scene of the accident, On appeal, the Alaska

Supreme Court found the complaint, consisting of two

counts, to have been duplicitous because it charged two

separate violations in the second count. The purpose of the

Alaska pleading rule proscribing duplicity, Alaska Crim

inal Rule &(a), was recognized as flowing from. an

accused's sixth amendment right to be informed of the

nature and cause of the accusation against him. The court

held that the defect of the duplicity had been compounded

by the failure of the trial judge to define the nature of the

offense charged. The court further held that, under the

circumstances, it was impossible to ascertain how the jury

had reached its verdict. Accordingly, since there was a

possibility that there had been no unanimity in the jury

verdict as to either offense, the court reversed the defen

dant’s conviction.

In Whitton v. State, 479 P.2d 302, 309 (Alaska 1970),

the court held that an accused may not receive multiple

punishments for the same criminal act. However, the

10

rationale of the Whitton decision has been used as both a

shield and a sword against petitioner. Although it held that

the principles of Whitton would probably have precluded

charging petitioner with multiple counts and obtaming

multiple punishments against him, because only one

unitary criminal act was presumably involved, the court

nevertheless ignored the rationale behind Whitton and

upheld the prosecutor's argument to the jurors that they

could find petitioner guilty of three separate acts to

constitute the lesser offense. Thus, even though petitioner

could not have been charged with multiple counts, pre

sumably because of the Whitton prohibition, the prosecu

tor obtained the same result by simply arguing to the

jurors that petitioner had committed separate offenses.

Petitioner either committed several criminal acts, only one

of which was charged and should have been referred to by

the prosecutor, or he committed only one criminal act and

the prosecutor should not have been allowed to argue

separate offenses to the jurors. Petitioner was therefore

deprived of a fundamental right guaranteed to him under

the United States Constitution the right to be fully

advised of the charge against him.

Petitioner maintains that, pursuant to the authority of

Drahosh and Whitton, the reversal of his conviction was

required. The effect of the prosecutor's closing argument,

compounded by the trial judge's refusal to issue a curative

instruction, was the same as a duplicitous count in an

indictment or complaint. As in Draaosh, itis impossible to

ascertain whether the jury's verdict was unanimous. Some

jurors may have found petitioner guilty of an assault with a

dangerous weapon as a lesser included offense of the

assault charged in the indictment. However, other jurors

may have found petitioner guilty of an assault with a

dangerous weapon based on the uncharged pointings of

the rifle as requested by the prosecutor, These conflicts

justify the grant of certiorari to review the judgment below.

B. The Federal Questions Involve The Substan-

tial Derogation Of Petitioner's Rights To

Procedural Due Process.

Although the right to a unanimous verdict in a criminal

trial is statutorily protected in Alaska by Alaska Criminal

Rule 31(a), petitioner submits that it is aright which is also

protected by the fourteenth amendment. Hence, the

prosecutor's argument violated a constitutional right to a

unanimous verdict, Petitioner acknowledges that a plural

ty of this Court has held that unanimity of jury verdict ts

not a requisite of due process that is binding on the state

courts, Johnson v. Loutsiana, 406 U.S. 356 (1972),

Apodaca v. Oregon, 406 U.S. 404 (1972). Petitioner

respectfully submits, however, that it is now appropriate

for this Court to reconsider the question of whether

unanimity 1s so fundamental to the sixth amendment right

to trial by jury that it is binding on the state through the

fourteenth amendment.

With all due respect to the Alaska Supreme Court,

petitioner contends that a determination by this Court, that

a unanimous jury verdict in a criminal trial is a federal

constitutional right, is necessary in order to prevent further

derogation of an accused's rights in the courts of the State

of Alaska. If the right was constitutionally, as well as

statutorily, guaranteed, it would not be so easily disre

garded.

Petitioner's case is not the first in which an accused's

rights have been violated by permitting a prosecutor to

argue separate, uncharged incidents as constituting ade

quate grounds for conviction, In Larson v. State, 569 P.2d

783, 786-87 (Alaska 1977), the prosecutor also argued to

the jury that the defendant could be found guilty of an

assault with a dangerous weapon based on an uncharged

pointing of a gun. The Alaska Supreme Court affirmed the

defendant's conviction on the grounds that no plain error

had been committed, with a strong dissent by one of the

justices who did not hear petitioner's appeal.

With respect to the second federal question, petitioner

submits that affirmance of his conviction by less than a

majority of the Alaska Supreme Court infringed upon his

right to appeal and therefore violated notions of procedural

due process. Petitioner acknowledges those holdings of

this Court which are to the effect that an appeal from a

judgment of conviction is not a matter of absolute right,

independent of constitutional or statutory provisions al

lowing such appeal. Rosy v. Moffitt, 417 U.S, 600(1974);

McKane v. Durston, 153 U.S. 684 (1894). However, as

was noted by this Court in Griffin v. [inois, 351 ULS. 12

(1956), where appellate review has become an integral

part of a state’s system, the due process and equal

protection clauses of the fourteenth amendment apply.

Article IV, Section 2 of the Alaska Constitution and A.S.

22.05.010 provide the Alaska Supreme Court shall have

final appellate jurisdiction in criminal cases. Accordingly,

petitioner was entitled to due process of law in the

appellate determination of his case.

In Briscoe v. Commonwealth Bank of Kentucky, 33

U.S. 118 (1834), this Court adopted its practice of

requiring, if practicable, that constitutional questions be

heard by a full court in order that the decision of the case

would be that of the majority of the full court. On appeal,

petitioner presented an issue of federal constitutional

dimension. Since December |, 1968, the Alaska Supreme

Court has consisted of five justices. However, petitioner's

appeal was heard by only three justices. Although Justice

13

Burke strongly dissented on the constitutional issue,

petitioner's conviction was nevertheless affirmed by the

two other justices, a minority of the full court. Petitioner

submits that this affirmance was so fundamentally unfair

as to amount to a denial of procedural due process,

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Supreme Court of

Alaska.

Respectfully submitted,

MILLER, BOYKO AND BELL

EDGAR PAUL BOYKO

ROBERT K. SCHRANER

Attorneys for Petitioner

14

Robert Dewain MILL, Appellant

v.

STATE of Alaska, Appellee.

No. 2692.

Supreme Court of Alaska

Oct. 20, 1978.

In prosecution on indictment for shooting with intent to

kill, wound or maim, defendant was convicted before the

Superior Court, Third Judicial District, Anchorage, C.J.

Occhipinti, J., of lesser included offense of assault with a

dangerous weapon, and he appealed. The Supreme Court,

Connor, J., held that: (1) crime of assault with a danger

ous weapon does not require a specific intent to do bodily

injury to the victim; (2) defendant could not invoke

diminished capacity to negate general intent as element of

offense of assault with a dangerous weapon, (3) it was

error for court to permit State to argue that there had been

three separate assaults with dangerous weapon but, in

context of case, error was harmless, and (4) sentence to

five years imprisonment, with four suspended, and with

recommendation that defendant be considered for parole

after one third of his one-year service, was neither

excessive nor too lenient.

Affirmed.

Burke, J., dissented in part with an opinion.

1. Assault and Battery 56

Crime of assault with a dangerous weapon does not

require a specific intent to do bodily injury to the victim.

AS 11.15.220.

APPENDIX A

i)

2. Assault and Battery 49

Defendant could not invoke diminished capacity to

negate general intent as element of offense of assault with a

dangerous weapon. AS 11.15.220.

3. Criminal Law 1171.1(3)

In prosecution on indictment for shooting with intent to

kill, wound or maim, wherein defendant was convicted of

lesser included offense of assault with a dangerous weap

on, it was error for court to permit State to argue that there

had been three separate assaults with a dangerous weapon

but, in context of case in which events were required to be

viewed as a series of acts, in a short and continuous

sequence which amounted to a unitary criminal episode,

and in which there was no dispute as to the actual facts and

no conceivable way that jury could have been confused,

error was harmless.

4. Assault and Battery 100

Sentence to five years’ imprisonment, with four sus

pended, and with recommendation that defendant be

considered for parole after one third of his one-year

service, was neither excessive nor too lenient for convic

tion for offense of assault with a dangerous weapon.

Edgar Paul Boyko, Edgar Paul Boyko & Associates,

Anchorage, for appellant.

Glen C. Anderson, Asst. Dist. Atty., Joseph D. Balfe.

Dist. Atty., Anchorage and Avrum M. Gross, Atty, Gen.,

Juneau, for appellee.

Before BOOCHEVER. C.J... and CONNOR and BURKE, JJ

16

OPINION

CONNOR, Justice.

Appellant secks to have his conviction for assault with a

dangerous weapon reversed. He contends (1) that the

crime of assault with a dangerous weapon should be

redefined as a crime requiring specific intent; (2) that a

defense of diminished capacity should be applicable to

crimes requiring only general criminal intent, (3) that the

prosecutor made an improper final argument which the

trial court refused to mitigate by a curative instruction; and

(4) that his sentence should be reduced.

Appellant Mill started a small logging business in

Palmer in 1970, In 1973 he hired Douglas Vincent, an

independent trucker, to haul lumber from Canada to the

mill in Palmer. In May, 1973, appellant arranged with

Vincent to have four truck loads of lumber transported

from Cananda, at $600 per load, and he paid Vincent

$2400 cash in advance. Vincent delivered two and one

half truckloads as agreed, but a supplier's shortage

delayed his delivery of the rest.

At this time, Mill began to suspect that Vincent was

trying to ruin his business. Mill testified at trial that after

Vincent had threatened him with the information that the

banks were going to withhold capital and also orally

threatened to put him out of business, he became suspt

cious that Vincent had begun to deal directly with Mill's

Canadian supplier. Mill further testified that he felt

tremendous pressure was being applied to him because he

was battling against a state timber sale which excluded

small, independent loggers. He stated that he had been

offered bribes to cease his opposition to the sale and

testified that his instigation of a grand jury investigation of

the matter had resulted in the burning of two of his mills by

arsonists and the harassment of his wife and family by

17

threatening telephone calls. He also emphasized the

financial importance of the fourth truckload of lumber to

his business.

On July 6, 1973, Vincent returned with Mill's last

truckload of Canadian lumber. He drove past appellant's

Palmer mill with the load, honked his horn, and made an

insulting gesture out the window, Mill went out in search of

Vincent and the load of lumber and found them at another

man’s mill,

Mill approached a cabin where he saw Vincent, Vin

cent’s bodyguard, and two other loggers inside. Vincent

emerged from the cabin at Mills beckoning and, when

questioned about the lumber, refused to turn it over or to

return Mill's money. Vincent then rejoined the others

inside the cabin.

At that point, Mill took his rifle out of his truck and

positioned it on the window of the cabin. He told Vincent

that he wanted to talk and racked the gun when Vincent

hesitated. When Vincent stepped over the threshold of the

cabin, Mill ordered him to stop his approach, Vincent kept

walking toward Mill and, after giving a second unheeded

order to stop, Mill shot Vincent in the leg. Mill then stood

over the wounded man with his gun and ordered him to

write a check for the amount he owed on the lumber. Once

he had the check in hand, Mill called the police and an

ambulance.

Mill was brought to trial on charges of assault with

intent to kill, wound and maim, The jury found Mill guilty

of the lesser included offense of assault with a dangerous

weapon. The trial court sentenced appellant to one year in

prison,

Appellant first contends that we should overrule our

18

decision in Thompson v. State, 444 P.2d 171 (Alaska

1968), and hold that the crime of assault with a dangerous

weapon requires a specific intent to do bodily injury to the

victim. AS 11.15.220, which defines the offense of assault

with a dangerous weapon, as it read at the time of the

offense, is itself silent on the issue of intent:

‘A person armed with a dangerous weapon, who

assaults another with the weapon, is punishable

by imprisonment in the penitentiary for not more

than 10 years nor less than six months, or by

imprisonment in jail for not more than one year

nor less than one month, or by a fine of not more

than $1000 nor less than $100.""

Since AS 11.15.220 was modeled on Oregon’s statute, the

Ninth Circuit Court of Appeals, acting as Alaska’s

territorial appellate court, adopted the Oregon Supreme

Court's construction that the statute requires no specific

intent. Burke v. United States, 282 F.2d 763, 768 (9th

Cir. 1960). In following State v. Godfrey, 17 Or.300, 20

P.625 (1889), the Burke court stated: |

‘We interpret these words of Godfrey to mean

that ageneral intent to do a harm is required and

is necessarily included within the definition of

the term ‘assault,’ but not a specific intent to do

any particular kind or degree of injury to the

victim.”* (original emphasis)

282 F.2d at 768. We adopted that interpretation in

'AS 11.15.220 was subsequently amended to read:

‘A person armed with a dangerous weapon, who assaults

another with the weapon, is punishable by imprisonment

for not more than 10 years nor less than six months, or by a

fine of not more than $1000 nor iess than $100, or both.”’

am § ch. 139 SLA 1976.

19

Thompson vy. State, supra. The trial court in the instant

case, relying on our decision in Thompson, instructed the

jury that it need not find that Mill “specifically intended to

actually inflict serious bodily injury” in order to convict

him of assault with a dangerous weapon. Appellant claims

that this was reversible error.

{1j In urging that we overrule Thompson, appellant

contends ‘that in analyzing what constitutes a dangerous

weapon, we have relied principally upon the aggressor’s

specific intent to do bodily harm, citing 7homas v. State,

524, P.2d 664 (Alaska 1974). He argues that because we

have characterized an otherwise innocuous object as a

dangerous weapon, when the aggressor used it with the

intent to injure his victim, a specific intent to do bodily

injury is an integral part of the crime of assault with a

dangerous weapon. However, appellant has misconstrued

our earlier opinions on this subject. In holding that a

telephone could qualify as a dangerous weapon in

Thomas, we relied on our earlier decision in Berfield vy.

State, 458 P.2d 1008 (Alaska 1969), in which a pair of

boots was held to be a dangerous weapon under AS

11.15.220. In Berfield it was not the intent of the person

wielding the boots to inflict bodily injury on his victim

which persuaded us that the boots were dangerous weap-

ons; instead it was the manner in which the boots were

used:

‘The boots were dangerous because they were

used as something to fight with — as instruments

of offensive combat. They were dangerous in

these circumstances because their use was ac-

companied by the exposure of liability to serious

injury to Baker’s head and brain. The fact that

such serious injury did not result is not control-

ling. /t is enough that the manner that appellant

20

used his boots to assault Baker was capable of

producing serious injury.”’ (emphasis added)

(footnote omitted)

458 P.2d at 1009. Thus, we have not previously looked to

the aggressor’s specific intent in examining what qualifies

as a dangerous weapon. Appellant’s argument on this

point does not persuade us.

Appellant next makes a policy argument that 7homp-

son should be overruled. His argument is based on the

Model Penal Code and the trend in other states to classify

aggravated assault as a specific intent crime.

Section 211.1(2) of the Model Penal code provides in

part: .

(2) Aggravated Assault. A person is guilty of

aggravated assault if he:

(a) attempts to cause serious bodily injury to

another, or causes such injury purposely, knowingly

or recklessly under circumstances manifesting ex-

treme indifference to the value of human life; or

(b) attempts to cause or purposely or knowingly

causes bodily injury to another with a deadly

weapon.” (emphasis added)

ALI Model Penal Code § 211.1(2) (Proposed Official

Draft 1962). The state, focusing on the language *‘pur-

posely or knowingly causes bodily injury,” argues that

subsection (b) of this provision does not always require a

specific intent to injure the victim. The state urges that

although the term “‘purposely” implies the necessity for a

specific intent to cause injury, the term “knowingly”

requires only scienter or general intent. The Model Penal

Code defines “‘knowingly” as follows:

Knowingly

21

A person acts knowingly with respect to a material

element of an offense when:

* * * * * *

(ii) if the element involves a result of his conduct, he is

aware that it is practically certain that his conduct will

cause such a result.”

ALI Model Penal Code, supra, at § 2.02(2)(b). In his

treatise on criminal law, Perkins notes that both “pur-

pose”’ and ‘““knowledge”’ as used in the provision of the

Model Penal Code can constitute intent:

“Intent includes those consequences which (a) repre-

sent the very purpose for which an act is done

(regardless of likelihood or occurrence), or (b) are

known to be substantially certain to result (regard-

less of desire).”’

R. Perkins, Criminal Law at p. 747 (1969). Thus it

appears clear that the Model Penal Code provision dealing

with assault with a deadly weapon does require the

specific intent to do bodily injury.

It is true that many states define assault with a

dangerous weapon as a specific intent crime. See /ntent to

do physical harm as essential element of crime of assault

with a deadly or dangerous weapon, Annot.,92 A.L.R.2d

635 (1963). But the requirement of an intent to do physical

harm normally derives from a specific statutory provision,

rather than from judicial construction.

Although appellant argues that several other courts

have imposed a specific intent requirement upon a statute

which was otherwise silent on the issue of intent, the cases

which he cites are not squarely in point.? The state argues

~

2In State v. Fitzpatrick, 149 Mont. 400, 427 P.2d 300, 301-02

(1967), the Montana Supreme Court held that specific intent to cause

22

that the Alaska statute’s silence on the issue of intent

should not lead us to impose a specific intent requirement,

since the legislature has denoted specific mental states

when it has found them to be appropriate. One of the

statutes cited by the state in support of this argument is AS

11.15.140, which defines the crime of mayhem:

Mayhem. A person who, with malicious intent to

maim or disfigure: . . .

* * * * * *

(3) assaults another person with a dangerous instru.

ment,. . . .’ (emphasis added)

Also cited by the state as provisions in which the

legislature has specified the mental state required are the

statutes prohibiting shooting, stabbing or cutting with

intent to kill, wound, or maim, (AS 11.15.150); assault

with intent to kill or commit rape or robbery (AS

11.15.160); and assault while armed (AS 11.15.190,

requiring “‘intent to prevent the other person from resisting

or defending himself.”’)

In summary, appellant urges that we act where the

legislature has not and require an element of specific intent

in the crime of assault with a dangerous weapon. We are

unpersuadea No court has implied such a requirement

from a statute as silent as ours, and we have no reason to

physical harm was nos an element essential to the crime of assault with

a deadly weapon, citing the Alaska case of Burke v. United States,

supra. In People v. Katz, 290 N.Y. 361, 49 N.E.2d 482, 484 (1943),

the court held that the use of the term “willfully and wrongfully” in the

statute should be construed to require specific intent. In Green v.

Turner, 409 F.2d 215 (10th Cir. 1969), the Utah statute being

interpreted provided that the offense must be committed “with intent

to do bodily harm and without just cause or excuse, or when no

considerable provocation appears, or when the circumstances show

an abandoned and malignant heart.”

23

overrule our earlier decision in Thompson vy. State, supra.

On this point there was no error.

Appellant contends that the jury should have been

permitted to consider evidence of his diminished mental

capacity as a defense to the general intent crime of assault

with a dangerous weapon.

We have previously drawn a distinction between the

defense of mental disease or defect, which absolves a

defendant from criminal responsibility for any type of

crime, and the doctrine of diminished capacity, which acts

only to negate a specific mental element or intent neces-

sary to the charged offense.

“The diminished capacity doctrine is based on the

theory that while an accused may not have been

suffering from a mental disease or defect at the time of

his offense, sufficient to absolve him totally of

criminal responsibility, the accused’s mental capact-

ty may have been diminished by intoxication, trauma,

or mental disease to such an extent that he did not

possess a specific mental state or intent essential to

the particular offense.”’ (footnote ommitted)

Johnson v. State, 511 P.2d 118, 124 (Alaska 1973). The

doctrine of diminished capacity, then, has a limited

function.

Our statute on the “insanity” defense, AS 12.45.083,

provides that a person cannot be held responsible for his

criminal conduct if at the time of the conduct, as a result of

snental disease or defect, ‘he lacks substantial capacity

either to appreciate the wrongfulness of his conduct or to

conform his conduct to the requirements of the law.” If the

doctrine of diminished mental capacity were available to

show the defendant's lack of ability to form a general intent

24

to perform a prohibited act, it would be functionally

indistinguishable from the defense of mental disease or

defect and would serve only to lessen the degree of mental

incapacity necessary to constitute a complete “insanity”

defense. The defendant would no longer have to prove that

he was substantially incapable of making choices or

conforming his actions to law. He would need only prove

that his mental capacity had been in some lesser way

diminished.

Appellant argues that

“| A] person may be suffering from a mental defect to

such an extent that he is incapable of forming even the

general intent to do a prohibited act. | This] analysis is

applicable to diminished capacity where the illness

has such a grasp of the mind that the accused has no

possible means of controlling his behavior at the time

the action was taken.”

Where, as appellant hypothesizes, the accused is substan-

tially unable to control his behavior and conform it to the

requirements of the law, he fits within the framework of the

defense of mental disease or defect and need not rely on

diminished capacity.

Since the discussion of diminished responsibility in

Johnson is based on California’s formulation of the

doctrine in People v. Conley, 64 Cal.2d 310, 49 Cal. Rptr.

815, 411 P.2d 911, 914 (1966), cited in Johnson, 511

P.2d at 124, a discussion of California’s approach to this

matter may be helpful. California has held assault with a

deadly weapon to be an offense requiring only general

criminal intent, People v. Rocha, 3 Cal.3d 893, 92 Cal.

Rptr. 172, 479 P.2d 372, 376(1971). It has also held that

the defense of diminished capacity in the form of irresist-

able impulse “is received not as a ‘complete defense’

negating capacity to commit any crime but as a ‘partial

25

defense’ negating specific mental state essential to a

particular crime.” People v. Noah, 5 Cal.3d 469, 478, 96

Cal. Rptr. 441, 447, 487 P.2d 1009, 1015 (1971).

Recently, the Supreme Court of California noted with

approval these two previous decisions in stating that

“assault with a deadly weapon is a general intent crime

and diminished capacity is not a defense to general intent

crimes.”’ People v. Gauze, 15 Cal.3d 709, 718, 125 Cal.

Rptr. 773, 778, 542 P.2d 1365, 1370-71 (1975) (citations

ommitted) (dictum).

|2] A defendant whose mental capacities have been

diminished may not possess a certain specific mental state

or intent essential to the crime. If the doctrine of dimin-

ished capacity due to a mental illness or defect were

available to show lack of general intent to do an act, it

would have the same function as the defense of mental

disease or defect. We are not aware of any jurisdiction in

which diminished capacity can be invoked to negate

general criminal intent by a defendant who does not plead

mental disease or defect as a defense. We hold that the trial

court did not err in giving its jury instructions on this

subject.

Although appellant was indicted for shooting with intent

to kill, wound or maim, the jury was instructed that it could

convict him of the lesser included offense of assault with a

dangerous weapon. In its closing argument, the state

argued that Mill committed three separate assaults with a

dangerous weapon: (1) when he pointed the gun through

the window at the men inside the cabin; (2) when he

actually shot Vincent in the leg; and (3) when he stood

over Vincent with the gun until Vincent wrote him a check.

The state argued that any of those incidents could support

a conviction of assault with a dangerous weapon.

26

The thrust of appellant’s argument is that since he was

indicted only for shooting with intent to kill, wound or

maim, he could only be convicted of the assault with a

dangerous weapon which was a lesser included offense of

the shooting. It is argued that pointing the gun at Vincent

through the window or after Vincent had been shot were

separate actions which had never formed the basis of any

criminal charge against Mill. He contends, therefore, that

they could not amount to lesser offenses included within

the shooting charge.*

|3] We note that the indictment set forth the time,

place, victim, and offense charged. That offense necessari-

ly included assault with a dangerous weapon. Appellant

cannot claim that he was unfairly surprised by the

prosecution’s argument to the jury, for appellant himself

testified to the events which preceded and followed the

shooting. We view these events as a series of acts, in a

short and continuous sequence, which amount to a unitary

criminal episode.4 We believe that it was error for the

court to permit the state to argue that there were three

separate assaults with dangerous weapon. In the context of

‘Prior to the commencement of closing arguments, appellant's

aitorney objected to the state arguing three separate incidents of

assault with a dangerous weapon, and after the argument, requested

that the court give a curative instruction.

4As the state points out, to accept appellant's argument would mean

that every movement of a rifle barrel would require a distinct criminal

charge. If this case were presented to us in a converse form, /. ¢.,

whether appellant's conduct could sustain three separate convictions,

we would indeed have difficulty in upholding such a result. Apart from

double jeopardy considerations, see Whitton v. State, 479 P.2d 302

(Alaska 1970), the rule of lenity would come into play. In marginal

cases doubts should be resolved against turning a single transaction

into multiple offenses. See Bell v. United States, 349 U.S. 81,84, 75

S.Ct. 620, 99 L.Ed. 905 (1955), Ladner v. United States, 358 U.S.

169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1957).

27

this case, however, in which there was no dispute as to the

actual facts and no conceivable way that the jury could

have been confused, we conclude that the error was

harmless.°

IV.

|4| Mill was sentenced to five years imprisonment, with

four suspended, and with the recommendation that Mill be

considered for parole afte: one-third of his one year

service. Appellant claims that this sentence is excessive,

given his lack of any prior record and the unique circum-

stances of the shooting. Our review of the record reveals

that the court properly weighed the criteria of State y.

Chaney, 477 P.2d 441 (Alaska 1970). In our opinion the

sentence was not clearly mistaken. Similarly, we are not

convinced by the state’s argument that the sentence was

too lenient.

AFFIRMED.

RABINOWITZ and MATTHEWS, JJ. not participating.

BURKE, Justice, dissenting in part.

SLove v. State, 457 P.2d 622 (Alaska 1969).

28

I dissent from the holding set forth in part III of the

majority opinion.

I begin with a premise that is a fundamental rule of

law: One may be prosecuted and convicted for only those

crimes that have been charged against him. The impor-

tance of this rule cannot be denied; at the very least it

provides a means of ensuring that in every criminal action

the defendant will know precisely what conduct he or she

must seek to explain, refute, or justify.'! Thus the rule gives

substance to that constitutional ideal of due process which

affords every member of society the right to be given notice

and an opportunity to be heard before being punished for a

crime. Chambers v. Mississippi, 410 U.S. 284, 294, 93

S.Ct. 1038, 35 L.Ed.2d 297, 308 (1973); Cole »v.

Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed.2d

644, 647 (1948); Alto v. State, 565 P.2d 492, 495

(Alaska 1977). Article I, section 11 of the Constitution of

Alaska specifically provides that **|t|he accused is entitled

to be informed of the nature and cause of the accusation.”

This is not to say that when one is charged with an

offense he or she must always be either convicted of that

specific crime or fully exonerated for his or her acts. On

the contrary, where the elements of the charged offense

necessarily subsume the elements of one or more lesser

offenses it is logically implied that those lesser offenses

have been charged as well. Thus, while the state may fail to

prove that the conduct? of the defendant satisfied all the

' Alaska Crim. R. 7(c) states in part:

The indictment or the information shall be a plain, concise

and definite written statement of essential facts constituting the

offense charged.

2Conduct here refers to both the mental and physical components

of that behavior specified as criminal in the indictment.

29

elements of the explicitly charged offense, it may be

successful in proving that that conduct did amount to what

is termed a lesser included offense. As we observed in

Jennings v. State:

| Alaska] Criminal Rule 31(c) provides that ‘“The

defendant may be found guilty of an offense neces-

sarily included in the offense charged... .”’ An

offense is necessarily included in the offense charged

where the former is of less magnitude than the latter

but the gravamen of the two offenses is the same, or

where one could not have committed the offense

charged without having also committed the offense of

lesser magnitude. | Footnotes omitted. |

In this case Mill was charged with only one criminal act

as a result of his conduct. That offense — shooting with

intent to kill, wound or maim — cannot be committed

without the offender also committing offense of assault

with a dangerous weapon.’ Therefore it was possible for

the jury to find that Mill lacked the specific intent to kill,

wound or maim but that his act of shooting the rifle did

constitute the lesser assault offense. Consequently, it was

entirely permissible for the prosecutor to argue to the jury

that the shooting would support a conviction for either

offense.

There would be no question that Mill was convicted of

an offense for which he was charged if the assistant district

attorney had so confined his argument. Regrettably he did

not do so. Instead, he went on to argue, over timely

objection by defense counsel that Mill committed two

other assaults with a dangerous weapon during the series

3404 P.2d 652, 655 (Alaska 1965).

4See footnotes | and 2, supra.

30

of events surrounding the actual shooting, stating:

Now, he was guilty of assault with a deadly

weapon, or a dangerous weapon at the moment he

came up there to that window and pointed that gun at

Vincent. At that point he was guilty of an ADW.

. . . When he stood over the man and made him

write out a check, there’s another ADW right there.

. . . Of course, when he shot the fellow, if you find

that he didn’t have the intent to kill, wound, or maim,

there’s another ADW right there... .

In so doing the state’s attorney, in my opinion, committed

an obvious and fundamental error; that is, he urged Mill’s

conviction for offenses that were never charged. Although

this error might have been cured by instructing the jury to

disregard the improper portions of the argument, a request

by defense counsel for such an instruction was denied. As

a result, itis now impossible to ascertain whether the jury's

verdict was based on a determination that Mill committed

a lesser included offense of the act with which he was

charged, or a determination that he had committed a

separate assault that was never charged. Therefore, |

believe that we are required’ to reverse his conviction and

remand the case for a new trial.

Otherwise, I concur.

‘Alaska Crim. R. 31(a) requires the verdict of the jury in criminal

cases to be unanimous.

31

THE SUPREME COURT FOR THE STATE OF

ALASKA

ROBERT DEWAIN MILL,

Appellant,

v.

STATE OF ALASKA,

Appellee.

File No. 2692

PETITION FOR REHEARING

COMES NOW the appellant herein and respectfully

petitions this Honorable court for a rehearing on the

grounds that the Court has failed to consider a material

proposition of law, as more fully set forth below. Counsel

by his signature below certifies that in his judgment this

petition is well founded and that it is not interposed for

delay.

Appellant’s conviction was affirmed on October 20,

1978. The opinion written by Justice Connor was joined in

by Chief Justice Boochever. Justice Burke dissented with

respect to the issue which Appellant petitions the Court to

rehear. Justices Rabinowitz and Mathews did not partici-

pate. Thus, the Superior Court was affirmed by only two

justices which is less than constitutes a majority of the full

court.

APPENDIX B

32

In this petition, the Appellant does not seek a ruling as to

whether three justices are empowered to rule unanimously,

without participation by the other two. The narrow

question presented is whether two justices can constitute a

majority of the Court with the power to affirm or reverse a

lower court ruling.

Appellant respectfully submits that the allowance of a

majority of the full court to affirm his conviction amounts

to a denial of due process under the Alaskan and Federal

Constitutions. Ak. Const., Art. 1, § 7. U.S. Const., 14th

Amendment.

Article IV, § 2 of the Alaska Constitution provides that

the “Supreme Court” shall have final appellate jurisdic-

tion. Since December |, 1968, the Supreme Court has

consisted of five justices. There is no provision in the

constitution, in the statutes, or in the Court rules for a

quorum less than the entire court. (Ct. 28, U.S.C., § 1-%

of the United States Supreme Court shall constitute a

quorum.) Indeed, the United States Supreme Court will

not deliver judgment in cases where constitutional ques-

tions are involved unless a majority of the whole court

concurs in the opinion. Bristoe v. Commonwealth's Bank

of Ky., 33 U.S. 118, 8 L.Ed 887, (1834); Legal Tender

Cases, 79, U.S., 457, 2d L.Ed 287 (1871).

In the instant case, the affirmance of the lower court's -

opinion by less than a majority of the court amounts to a

denial of the Appellant’s right to appeal to the Supreme

Court. Since the right to appeal is a fundamental aspect of

the criminal process, the violation of the right violates the

Due Process provisions in the Alaskan and Federal

Constitutions. In this particular case, the denial is special-

ly egregious because (1) no reason was given for the non-

participation of the two abstaining justices and (2) the

33

opinion rendered by the remaining justices overlooked or

failed to consider a controlling proposition of law.

The controlling proposition of law is the Due Process

clause of the 14th Amendment to the United States

Constitution, and the parallel provisions of the Alaskan

Constitution. These are violated whenever one is convict-

ed of a crime other than the one with which he is charged;

unless the conviction is for a lesser included offense. In the

instant case it is impossible to know whether this occurred,

since the prosecutor was allowed to argue, over defense

counsel’s objection, that the defendant was guilty of three

separate assaults with a dangerous weapon. Obviously,

only one of these could have been a lesser included offense

within the crime charged: shooting with intent to kill.

The argument that these events were a Series of acts, ina

short and continuous sequence, which amount to a unitary

criminal episode overlooks principles of law which are

controlling.

It is unfortuante but true that the word ‘“‘assault”’ has two

“meanings, to wit (1) an attempted battery and (2) an

unjustified causing of apprehension. It is only the former

which is necessarily included within “‘shooting with

intent’. The prosecutor’s argument suggested that the

unjustified causing of apprehension which may have

occurred when the defendant pointed the gun at Vincent

through the window may have been the basis for the

conviction.

It is also important to note that although the opinion

rests on the concept of “‘a unitary criminal episode’, the

offending remarks by the prosecuter were quite the

opposite. He urged that there were separate offenses

committed without the benefit of a curative instruction,

due process is further violated because there is no

guarantee of a unanimous verdict.

34

CONCLUSION

For the foregoing reasons, Appellant respectfully re-

quests a rehearing before the Court en banc.

DATED at Anchorage, Alaska this 30th day of Octo-

ber, 1978.

EDGAR PAUL BOYKO & ASSOCIATES, P.C.

Attorneys for Appellant

35

THE SUPREME COURT OF THE STATE OF

ALASKA

ROBERT DEWAIN MILL,

Appellant,

v,

STATE OF ALASKA,

Appellee.

File No. 2692

MANDATE

TO: Superior Court the State of Alaska,

Third Judicial distirct at Anchorage.

Robert Dewain Mill filed an appeal from a judgment of

the Superior Court, Third Judicial District at Anchorage

in Criminal Action No. 73-376 entitled, “STATE OF

ALASKA, Plaintiff, vs. ROBERT DEWAIN MILL,

Defendant.” The case was heard by this court on May 12,

1977. On October 20, 1978 the court filed its written

opinion. The Appellant’s petition for rehearing was denied

on November 28, 1978.

IT IS ORDERED:

The judgement of the Superior Court, entered Septem-

ber 27, 1975, is affirmed.

WITNESS the Honorable Jay A. Rabinowitz, Chief

Justice of the Supreme Court, State of Alaska, this day of

December, 1978.

Robert D. Bacon

Clerk

APPENDIX C

36

Section | of the fourteenth amendment to the United

CONSTITUTIONAL PROVISIONS

States Constitution provides:

Citizens of the United States.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

STATUTES

Alaska Statutes, § 11.15.150 provides:

Shooting, stabbing or cutting with intent to

kill, wound or maim. A person who maliciously

shoots, stabs, cuts, or shoots at another person

with intent to kill, wound or maim him is

punishable by imprisonment in the penitentiary

for not more than 20 years nor less then one year.

Alaska Statutes, § 11.15.220 provides:

Assault with dangerous weapon. A person

armed with a dangerous weapon, is punishable

by imprisonment in the penitentiary for not more

than 10 years nor less than six months, or by

imprisonment in jail for not more than one year

nor less than one month, or by a fine of not more

The sixth amendment to the United States Constitution

provides:

than $1,000 nor less than $100.

Alaska Statutes § 22.05.010(a) provides:

Rights of the accused.

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which

district shall have been previously ascertained

by law, and to be informed of the nature and

cause of the accusation; to be confronted with

the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defense.

APPENDIX D

Jurisdiction. (a) The supreme court has final

appellate jurisdiction in all actions and proceed-

ings. The supreme court may issue injunctions,

writs of review, mandamus, certiorari, prohibit-

ing habeas corpus, and all other writs necessary

or proper to the complete exercise of its jurisdic-

tion. Each justice may issue a writ of habeas

corpus, upon petition by or on behalf of any

person held in actual custody, and may make the

writ returnable before the justice himself or

before the supreme court, or before any judge of

the superior court of the state. An appeal to the

supreme court is a matter of right, except that the

state shall have no right of appeal in criminal

38

cases, except to test the sufficienty of the

indictment or information and under (b) of this

section. 7

RULES

Alaska Criminal Rule 8(a) provides:

Joinder of Offenses. Two or more offenses

may be charged in the same indictment on

information in a separate court for each offense if

the offense charged, whether felonies or mis-

demeanors or both, are of the same or similar

character or are based on the same act or

transaction or on two or more acts or transac-

tions connected together or constituting parts of

a common plan or scheme.

Alaska Criminal Rule 31(a) provides:

Return. The verdict shall be unanimous. It

shall be returned by the jury to the judge in open

court.

39

EXCERPTS FROM TRANSCRIPT OF

PROCEEDINGS

THE COURT: The right of self-defense is not immedi-

ately available to a person who is originally an assailant. I

don’t think there was any objection to that instruction.

MR. BOYKO: No, I have some problems with it

because — but that’s tied into another area. It certainly

can be argued that when Mr. Mill came to the window with

the gun and demanded the appearance of Mr. Vincent

outside and reinforced it by clicking the bolt that he was

then an assailant, I’m sure that the jury could so find, but

since Mr. Vincent was not shot in the course of that

purported assault, but came out and Mr. Mill had put

down his gun and they were talking, and it wasn’t until Mr.

Vincent approached him, and according to his testimony

— he was ordered to stop according to Mill’s — Vincent's

testimony until he approached within a certain distance he

was shot. I would think that there is no reason to give an

assailant instruction, and this is tied intimately with the

second point which I think should be both the subject of an

instruction or failing that, of a protective order. I think the

jury should be instructed that while they may find a lesser

included offense of assault with a dangerous weapon, if

they do not find the specific intent to shoot, kill, or wound

— to kill, wound or maim, that that lesser included offense

is — must be encompassed within the specific transaction.

that is, the shooting. And that they cannot look for other

possible acts of assault which were not charged in the

indictment. There are 3 possible assaults with a deadly

weapon in this case, if the jury were to believe that this is

what happened. One when Mr. Mill stuck a gun through

APPENDIX E

40

the window, one when he aimed at and shot the defendant

in the leg, and (3), which is disputed, of course, when

allegedly he stood over him with the gun and forced him to

write a check. But the state has seen fit to give notice and to

charge only one of these transactions, the actual shooting.

And if the jury could find, as a lesser included offense, any

conduct of the defendant other than the one in the middle,

then theoretically they could find him guilty of 3 separate

assaults with a dangerous weapon, and that would certainly

exceed the scope of the indictment and the issues in this

case, and therefore I’m going to ask the court at this time to

give an instruction that the lesser included offense of

assault with a dangerous weapon must be, if they find it,

must be based upon the same acts or transactions which

constituted the shooting. That they cannot consider other

incidents that might have amounted to an assault with a

dangerous weapon if so charged. And I will also ask that

the court make a protective order directing Mr. Merriner

that he cannot argue that the poking of the gun into the

window was a separate, or could be found by the jury to

constitute an assault with a dangerous weapon even

though they find the defendant not guilty of any criminal

intent in connection with the shooting.

THE COURT: Let me ask Mr. Merriner. You... .

MR. BOYKO: And I base this on the Whitton case

which we have given a copy to Your Honor, although the

Whitton case doesn’t address itself to this, but I think it’s

necessarily implied in what it said there.

THE COURT: No. Mr. Merriner.

MR. MERRINER: Well, I thought we'd argued and had

this decided in chambers. I think the position Your Honor

has accepted is mine, and that is that there has been

sufficient notice to the defense here that we are going to

prove an assault, that is, namely the greater offense of

4]

shooting with the intent to kill, wound or maim against

Douglas Vincent on this day, and the lesser included

offense is an ADW, and he’s certainly on notice that we’re

going to prove this one transaction, namely the whole

sequence here of going up to the cabin with the gun, and

going clear through to the writing out of the check. And

we’ve charged it against Mr. Mill. I’m certainly not going

to argue that there was an assault against Mr. Brittain in

the truck or that there was an assault against Mr. Orsini, or

Mr. Hitchcock, or Mr. Brittain in the cabin when he first

came to the window. But there’s been sufficient notice

here, and I think it would be ridiculous to instruct the jury

to limit my argument to the extent that they are told in

some way that you must consider only those split seconds

surrounding the shooting. That’s just carrying a refinement

of the law a little too far, and as far as the Whitton case

goes, I think it even supports our position in this sense. We

can’t get multiple sentences in a case like this. I’m quite

sure that Whitton and Thesson would now allow us to

sentence this man on 3 separate assaults. Namely, at the

window, at the time of the shooting, and at the writing out

of the check. We haven’t got the same transaction test

here, but the Whitton identity test, I think would show that

this is all one act in the sense that there can’t be multiple

sentences, and then there is some question in this state as

to whether you can even charge multiple counts if the

Whitton identity test would forbid multiple sentences. The

first — no, one of the Robinson cases I remember said that

in that case we find that the multiple counts going to the

jury didn’t prejudice the defendant, but it’s still an open

question and so I think we would have been amiss here if

we had charged the multiple counts. As it is we’ve just

charged the greater offense, and the lesser included

offenses will then be handled by instructions, and I think

we acted proper, and there’s been certainly sufficient

42

notice to the defense that this is the way we're going to

proceed.

THE COURT: Very well.

MR. BOYKO: I think it’s just the opposite, Your

Honor, because the whole purpose of the Whitton rule, is

that you don’t split a single transaction into separate

criminal offenses in order to get, as it were, 2 or 3 bites at

the same cherry. And what the district attorney is

attempting to do here, is get that result without actually

doing it on paper. In other words, he makes it one crime in

the indictment. Makes him defend against one crime, but

he then tells the jury however, there were really 3 crimes

committed here, side by side, and you can find him guilty

of any one of those, although you can’t find him guilty of all

3. And I don’t think that’s the law. And if that jury comes

back under that type of an instruction, and with that type of

an argument, with the guilty verdict of assault with a

dangerous weapon, which assault will they have found him

guilty of? Or maybe of 2 or 3. And that, to me, makes it

impossible for us then to appeal on the sufficiency of the

evidence, because what if there was sufficient evidence to

sustain one, but insufficient evidence to sustain the other.

What’s the supreme court going to say? Well, which —

what — we don’t know what the jury had in mind. We don’t

know whether they were talking about an ADW through

the window, an ADW when he was shooting or an ADW

when he was standing over him with the rifle. And since we

can’t tell, and since we feel that one of those is right, and

the other ones would be wrong, we’re just going to send it

right back. That’s the only thing that I could do ifI were out

there under those circumstances. The only thing that I

THE COURT: Well, as I viewed the evidence; Mr.

Boyko, I viewed it as one transaction with the defendant

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coming forth with a gun, and which led to the shooting.

And if the jury believes that he could not form the specific

intent for the — intent to shoot — the assault with the

intent to kill, wound or maim, they could still find the

assault with a dangerous weapon, general intent, or if they

buy the defense arguments, they’II find him not guiity. And

this is the. ....

MR. ’BOYKO: No, but that — all that’s fine if we’re

talking about the act of shooting, but Mr. Merriner wants

to be able to argue to that jury, well, even if you find him

not guilty of anything, at the ti— at the moment of when he

shot him, you can still find him guilty of ADW because he

stuck’ the — because a couple minutes before he stuck the

rifle through the window, and I said that’s a violation of

Whitton, because that gives him 2 separate bites at the

same cherry, which he is not supposed to have. He either

— you even have separate offenses, then they must be

charged. Or you don’t have separate offenses, then you

can’t use them to bootstrap your one single verdict. What

if instead of sticking the gun into the window, he had shot at

the defendant — at the victim, and had hit Mr. Brittain,

would it still be part of the same transaction? I think not.

MR. BOYKO: Well, but it also — as I understand the

law, it don’t make any difference who you’re aiming at, if

you hit somebody else it’s still an assault. And it would be

a separate act, wouldn’t it, from the shooting of Mr.

Vincent later on?

THE COURT: Well, if you shoot 3 times and you hit

the same person 3 times, you don’t get charged with 3

counts of murder.

Mk. BOYKO: No, but you may very well get charged

with an assault with a dan — assault with intent to kill,

wound or maim, and then the second with mayhem, it —

but a second time you put his eye out.

44

THE COURT: Well, I don’t think the court would

entertain that type of indictment. I ‘viewed it as one

complete transaction. I’ll let counsel argue that, and let the

supreme court decide it.

MR. BOYKO: All right.