# Petition — Mill v. Alaska

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 827

## Text

[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

43

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0119%3A1. Public record. Not legal advice.