Petition — Martin v. Alaska

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83-993 [PMFiteD

pec 2 1983

ALEXANDER t. STEVA.-

CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ADELE MARTIN, and

NEAL WAYNE OLSON,

Petitioners,

STATE OF ALASKA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ALASKA

—— ee ee ee

A. Lee Petersen, Esq.

A. LEE PETERSEN, INC.

720 "M" Street, No. 7

Anchorage, Alaska 99501

Phone: (907) 276-3464

QUESTION PRESENTED FOR REVIEW

Whether conviction of first degree inurder

and imposition of the minimum mandatory penalty

for that crime constitutes a denial of due

process of law to and cruel and unusual punish-

ment of persons who acted while suffering from

diminished mental capacity?

aie ets ‘

TABLE OF CONTENTS

Page _

TABLE OF CONTENTS - . 7 . . a . 7 . . i Ag

TABLE OF AUTHORITIES .......-. ii

CONSTITUTION AND STATUTES ...... iii

STATEMENT OF JURISDICTION ...... 1

| QUESTION PRESENTED FOR REVIEW... . 2

CONSTITUTIONAL PROVISIONS APPLICABLE 2

STATEMENT OF THE CASE ......-. 3 ;

A. Adele Martin oe a re 3 :

B. Neal Wayne Olson . . . . . . 10 rs

ARGUMENT STATING REASONS FOR 3

"GRANTING THE WRIT ......24e46-. 20 :

S CONCLUSION . . . . . . . . . . .* e« 30 24

APPENDIX A DOE Pe ie): Satis eae la 4

APPENDIX B > . - > >. >. * * - >. . 1b

APPENDIX Cc A ETS SA ee ee eS a le

> * * * * * >. * * > . * 1d

_ APPENDIX D

ai te

TABLE OF AUTHORITIES

CASES

Page

Crouch v. Justice of the Peace

Court of Sixth Precint,

440 P.2dq 1000 (Ariz. App. 1968) .... 26

Hensel v. State,

604 P.2d 222 (Alaska 1979) ....2e-s 24

Johnson v. State,

ps Breaeka: 1973). 1¢ 6 0:67 6 24

Mill v. State,

565 P.2d 546 (Alaska 1978) ....ee-e 24

Padie v. State,

557 P.2d 1136 (Alaska 1976) . ... «+ + 20,24

People v. Flannel,

P.2d 1 (Cal. 1980) > ia * 7 . * * 26

Solem v. Helm,

U.S. , 103 S. Ct. 3001 (1983) . 27

State v. Carson,

. re. 1982) . 7 . 7 7 . 7 25

State v. Howell,

Sek Sent. see. die bc eee 25

Tee dienes te ; a

0S Se ae ey Se ees Pee

~iii-

CONSTITUTIONS AND STATUTES

Page _

United States Constitution,

Amendment VIII and XIV ....-e«-e«e-s 2

AS 11.15.010 . * . . . . . . . . . . . 20

AS 11.15.040 Ct 6 £2. a. @¢. 6 86 e222 24-

AS 11.41.100(a)(1) oe Se oe eee aes eee

AS 11.41.120 > >. * 7 * >. . >. . . * o . 22

a Sees tanta) and {c) . . « « 6 es a Wm

AS 12.55.155(a) » jee Wee tee eee 3

AS 33.20.0110 .* * . 7 * .* * - bel e > . . 4

OTHER AUTHORITIES

ALI, Model Penal Code and 20,21

Commentaries (1980). .....s.ee-. 25

G. Fletcher, Rethinking The

Criminal Law 2 aR ga

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ses Se

a 4 eR ee ee ee

‘inf

—

STATEMENT OF JURISDICTION

The petitioners respectfully pray that a

writ of certiorari issue to review the judg-

ments and opinions of the Court of Appeals and

the denials of review by the Supreme Court of

the State of Alaska in these matters.

The Alaska Court of Appeals affirmed ‘

Martin's conviction in an Opinion dated June

40, 1983, reported at 664 P.2d 612. (Alaska App.

1983) (Appendix A). The Alaska Supreme Court

denied Martin's Petition for Hearing on October

3, 1983 (Appendix B).

The Alaska Court of Appeals affirmed

Olson's conviction in Memorandum Opinion and

Judgment No. 398 on August 3, 1983 (Appendix

C). The Alaska Supreme Court denied Olson's

Petition for Hearing on October 28, 1983

(Appendix D).

This petition is being filed within sixty

days of final disposition in each case by the

Alaska Supreme Court. This court's juris-

diction is invoked under 28 U.S.C. 1257 (3).

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QUESTION PRESENTED FOR REVIEW “

Whether conviction of first degree murder

and imposition of the minimum mandatory penalty

for that crime constitutes a denial of due

process of law to and cruel and unusual punish-

ment of persons who acted while suffering from

diminished mental capacity?

III

CONSTITUTIONAL PROVISIONS APPLICABLE

Amendment VIII to the United States

Constitution provides:

Excessive bail shall not be required,

nor excessive fines imposed, nor

cruel and unusual punishments

inflicted.

The applicable portion of Amendment XIV to

the United States Constitution provides:

Section 1 ... No state shall make or

enforce any law which shall abridge

the privileges or immunities of

citizens of the United States; nor

shall any state deprive any person of

liberty, life, or property, without

due process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

The petitioners contend that due to their

the time

of their acts, their convictions of first

degree murder and punishment for that crime

amounts to a denial of fundamental fairness,

shocking to the universal sense of justice.

STATEMENT OF THE CASE

A. Adele Martin.

Adele Martin was charged in a criminal

complaint dated March 13, 1982 with murder in

the first degree for killing Clyde Paustian on

March 12, 1982 in violation of AS 11.41.100(a)-

(1) (M-CR 1).' Martin was indicted for

that offense on March 30, 1982 (M-CR 2). The

jury returned its verdict of guilty of murder

in the first degree on September 9, 1981 (M-CR

60; M-RT 847-850). The minimum sentence

allowed under AS 12.55.155(a) (20 years in

custody) was imposed on February 3, 1982 (M-RT

811). That sentence is a definite term of

1 References to the clerk's record and the report=

er's transcript herein as to Martin are preceded by M-

and. references as to Olson are preceded by 0-.

See

years without probation, but may be reduced one

day for every three days of good conduct

served, AS 33.20.010. Martin's conviction was

appealed on Februay i9, 1982 (M-CR 221) and the

conviction has been affirmed (Appendices A and

B).

Ms. Martin is in custody in the state

correctional institution at Eagle River,

Alaska.

Although Martin and Paustian (the victim)

were never married to each other, they had been

romantically involved, most of the time living

as husband and wife, since 1971 (M-RT 277-287).

In the fall of 1981, Martin was in the state of

Washington taking care of personal and family

business and Paustian kept asking her in tele-

phone conversations when she was going to

return (M-RT 287-289). However, after she

drove up the Alcan Highway when it was icy and

dangerous in November, upon her arrival, Mr.

Paustian's first words were: "Something's

missing in our lives, I'm not happy any more"

(M-RT 290). Over the next four months, Martin

tried to deal emotionally with that problem,

but Paustian would not talk about it; he would

just sit and stare (M-RT 291). Martin became

“aq

very depressed and resentful, painfully and

totally crushed (M-RT 291). Having been

brought up as a Catholic (M-RT 260), being in

her late 40's (M-RT 257), and having failed in

three prior marriages (M-RT 259-270), Martin

was in despair, had no hopes, felt that her

life was over and a total waste (M-RT 292).

She found out Paustian had been seeing another

woman and then learned that the other woman was

a person for whom she had no respect (M-RT 294,

296). She told Paustian, “This is my home. I

worked for it. You are my husband. This is my

life. I earned it. You are taking my life

from me. You might as well kill me.” (M-RT

298). She thought of vandalizing the mobile

home they were living in so the other woman

would not have her home (M-RT 298) and she

thought of leaving, but it snowed and the roads

were closed (M-RT 299). She felt that God

hated her because she had never been happy in

all her life and that she would get even with

God by going to hell, so she called on Satan,

not wanting to do anything right; she wanted

the devil there “and he came" (M-RT 299). On

| the evening of the fatal incident, when ;

Paustian returned home, he told her what he had

told her just before he left, that he did not

want to have anything more to do with her (M-RT

304). She felt total, complete, utter re-

jection and fury. She got her gun and shot

him, a total of five times (M-RT 304, 305).

She went to the home of her friends and

employers and asked them to call the police

(M-RT 168-171). She told the officer she had

intended to kill herself with the sixth bullet

in the gun, but did not have the guts to do it

(M-RT 115). Upon being interviewed by the

officer prior to making contact with counsel,

Martin could not recall a conscious resolve or

decision to kill Paustian and did not know when

she decided to do it, but she guessed she

decided to do it when she did it (M-RT 121).

She told the officer she nad been in a “rage”

(M-RT 123), and that she had not wanted to kill

Paustian, what she wanted was for him to love

her (M-RT 132).

Prior to the incident, Martin's friends

had been concerned for her emotional state,

having observed that she was very depressed and

irrational (M-RT 175), different from her

_mormal cheerful, dependable and relatively

quiet behavior (M-RT 176). Another friend —

testified similarly (M-RT 195-196). Her

employer indicated that her problems had been

affecting her performance at work (M-RT 219).

Another friend testified that Martin had called

her on the telephone numerous times and talked

irrationally for long periods (M-RT 232-234).

She thought Martin was suicidal (M-RT 235).

She would not have believed Martin would injure

another person (M-RT 236). Still another

friend indicated Martin was acting irrationally

and in despair (M-RT 254). Another friend, at

whose house Martin stayed while released prior

to trial, described how she had told him that

"the devil was to her right side and behind

her” (M-RT 504).

A clinical psychologist testified that at

the time of the incident, Martin had the in-

ability to think rationally and clearly because

she was so seriously affected by stress (M-RT

423). She could not really appreciate the

wrongfulness of what she was doing (M-RT 424).

In his opinion, Martin, at the time of the

incident, was borderline mentally ill with

borderline psychotic functioning, and she fit

more under the concept of deteriorated ability —

to think than into the

class of mental illness om

ey Sa

(M-RT 425). Her description of the presence of

the devil appeared clearly delusional (M-RT-

427).

A psychiatrist testified that when he

first saw Martin shortly after the incident,

she was extremely upset and unable to be total-

ly coherent (M-RT 590). She was in a chaotic

frame of mind which had built up over a 10-day

period prior to the incident (M-RT 591). He

expressed the opinion that at the time of the

incident, Martin's state of mind was suffi-

ciently disordered that it would have severely

inhibited her from looking at any alteratives

other than having to get out of the situation

(M-RT 592). She was simply unable to process”

long term alternatives (M-RT 592). He con-

cluded that Martin did not have sufficient

capacity to form the intent to kill a human

being at the time the incident took place (M-RT

6’). She intended to shoot Paustian, but she

did not intend for him to be dead (M-RT 613).

For a period of several weeks she could not

think logically and was overwhelmed by emotion-

alism, unable to think through either logical

or illogical alternatives (M-RT 645).

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A psychiatrist presented as a witness by

the State expressed the opinion that Martin

intended to kill Paustian, because other

actions were unacceptable to her (M-RT 657).

She was going through an acute depressive

epsoide which precipitated the incident (M-RT

658, 659). According to the State's psychia-

trist, it was an irrational murder (M-RT 663),

and he explained that to him an irrational

murder was the killing where the intent is to

kill and killing is seen as the best solution

to a person with a problem of some sort (M-RT

664). He acknowledged that Martin's judgment

was impaired in the sense of ability to choose

reasonable alternatives (M-RT 676). He diag-

nosed Martin as having\ been in “an acute dep-

ressive epsoide” at the time of the incident

(M-RT 685). He acknowledg that the killing

of Paustian was not a rational act and that

Martin definitely had some real problems (M-RT

702).

The writer of the pre-sentence report

stated, “Although her capacity for appreciating

the wrongfulness of her behavior appears to z

have been diminished at the time of the

: i é . ie

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offense, she was unable to convince a jury"

(M-CR 71). Paustian's daughter testifiea in.

Martin's behalf at sentencing, expressing the

Opinion that Martin should be released in less

than 20 years (M-RT 792). She stated that she

would hate to see two lives lost. Punishing

Martin will not bring her father back and he

would not want it (M-RT 792). The foreman of

the jury which convicted Martin testified that

she had not known there was a minimum mandatory

penalty and that she personally felt a 20 year

sentence is “must too stiff in this particular

case" (M-RT 801). Some of the jurors had

expressed alarm when they became aware of the

minimum penalty (M-RT 802). The trial judge

expressed the view that the 20-year sentence

would be excessive. He would have had no

problem with a period of 10 years, 15 years, or

conceivably 20 years, if it were under a system

in which parole played a real part (M-RT 809).

He then imposed the mandatory 20 year sentence

as required by AS 12.55.125(a) (M-RT 811).

B. Neal Wayne Olson.

Mr. Olson was charged tirst in a criminal

information on November 10, 1°81 and then in a

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Grand Jury indictment on November 25, 1981 with

murder in the first degree for killing Marvin

Curry .on November 10, 1981 in violation of AS

11.41.100(a)(1) (O-CR 1-3). After trial py

jury, the jury returned a verdict of first

degree murder on June 7, 1982 (O-CR 98). Olson

“was sentenced on August 12, 1982 to the minimum

20 years in custody provided by AS 12.55.125-

(a), plus a five year probationary term after

release, Olson having a historical involvement

with alcohol (O-CR 106, 107, 168, 169). The

conviction was appealed on September 13, 1982

(O-CR 175-180) and the conviction was affirmed

(Appendices C and D).

Olson is in custody in the federal insti-

tution at El Reno, Oklahoma.

At the time of the incident, Olson was 38

years of age and employed as a warehouseman and

delivery man (O-RT 432). The day preceding the

incident had been a frustrating and long day at

work for Olson, because he and his working

partner had made numerous deliveries of re-

frigerators and other heavy items that day, and

then his partner had got the truck stuck in the

snow (O-RT 438, 439). Olson's partner was

upset and saying they were either going to get

=12=

chewed out or fired the next morning because

they still had a delivery on the truck wher

they got off work at 7:30 p.m. (O-RT 440). The

tension of the incident led Olson to stop on

his way home to visit a friend and fellow

worker, who got out a bottle of scotch and,

during the visit, Olson had four drinks (O-RT

440, 441). He did not leave the friend's house

until about 10:30 p.m. and, feeling the effects

of the scotch, he decided to sneak downtown to

4th Avenue and have more to drink (O-RT 441).

He did not count the drinks, but guessed he

must have had about 10 (O-RT 442). When the

bars closed at 2:30 a.m., he left and walked

around the streets awhile, concerned and dis-

gusted with himself, knowing he was plastered

and that he had to go to work in the morning

(O-RT 443). He was depressed, because he had

been aware for a long time that he had a drink-

ing problem, and had considered himself a

alcoholic (O-RT 444, 445).

When he went to the parking lot where he

had left his car, he saw someone hunched down

by the driver's door, apparently trying to un-

lock it (O-RT 448, 449). He thought the man

must be a wino trying to break into his car

Deas

got a better grip on the gun with’ both hands

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(O-RT 450). Olson walked up to the man and

gave him a push with his fingertips, asking

what he was doing with his car (O-RT 450). The

man acted startled and starting shuffling off

(O-RT 451)... Olson thought the man was leaving,

so he unlocked the car door and as he did so

the man struck him from the left side, and

Olson testified that he thought he was uncon-

scious, perhaps for seconds and when he came to

he was on his back in the parking lot with his

head pointed toward the car and the man on top

of him, holding him by the throat and jacket

and bouncing his head up and down on the pave-

ment of the parking lot (O-RT 451). Olson

thought he went out again and then next recall-

ed the man's thumbs in his eye sockets and it

felt like his eyeballs were breaking (O-RT

452). After considerable time of being kicked

and hit and pushed around (O-RT 452- 457),

Olson found the door handle and pulled on it

(O-RT 458). He reached into the car to where

he knew he had a gun, which was under the fold

down thing in the middle of the bench seat

(O-RT 458). He got his hand on the gun and

turned to his left and fired (O-RT 459). He

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and fired again, by that time he thought he was

Standing (O-RT 459). He looked for the guy,~

but could not see anybody, his vision being

very poor (O-RT 459). He got into the car,

Slammed the door, and locked it, threw the gun

on the passenger seat and when his eyes had

cleared a bit, he backed out and drove off

(O-RT 459, 460).

Olson testified that he thought the man

was going to kill him (O-RT 463). He did not

shoot at any distinct target and did not

remember firing four shots (O-RT 463). Olson

denied starting a fight and testified that he

thought of himself as the "victim" (O-RT 537,

563). He was not trying to kill anyone, he was

just trying to get away, but he acknowledged

the gun did not go off by accident and that he

shot in the direction he thought a person was

Standing (O-RT 583, 585). He testified that

the shooting was an instinctive reaction be-

cause he thought Curry was trying to kill him

and he only wanted to get him off, and did not

intend to kill Curry (O-RT 602). At the time,

he thought it was "him or me," but later he has

a lot of regrets (O-RT 603). He was “pretty

drunk” at the time (O-RT 600). Approximately

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an hour and a half after the shooting, Olson's

blood alcohol level was .18 (O-RT 293). The

psychiatrist who testified for the defense

indicated that the blood alcohol level would

have been .21~.23 at the time of the shooting

(O-RT 724). A pathologist indicated it would

have been .20 or higher (O-RT 821, 824).

Curry's blood alcohol reading was .31 (O-RT

162).

All witnesses agreed that the incident

occurred on a cold, dark miserable night with

rain pouring steadily and heavily (O-RT 76,

191, 247, 285, 300, 504, 945).

The only other witness who saw much of the

altercation was delivering newspapers to coin

boxes across the street from the parking lot

(O-RT 56-59). To some extent he minimized the

fight in his trial testimony (O-RT 65), but in

a prior deposition, which the witness acknow-

ledged at trial, he had described the alter-

cation indicating that Olson was being kicked

and beaten severely (O-RT 105). He did not

witness the whole incident because he was look-

ing down and writing part of the time (O-RT 68,

69); He heard a first shot, then looked up and

he ;

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Saw Olson re-aim and then he heard three more

shots (O-RT 108). “

Olson's account of the fight was cor-

roborated by photoyraphs of the car which were

submitted into evidence (O-Ex. 37-40), showing

scrapes in the mud along the side of the car

where the combatants had brushed against it,

and photographs of Olson (O-Ex. 29, 30, 35, F),

depicting Olson on the morning of the incident

as being soaked and bloody, a gory mess, with

-his eyes being red and numerous scrapes on his

nose, forehead, and face. There was red around

both eyelids, both eyes were partly closed and

the left eye almost totally closed.

According to the pathologist, one bullet

entered Curry's left arm and travelled through

his chest and exited the body and hit the right

arm (O-RT 137-140), causing a rapidly fatal

injury because it went through the aorta and

caused massive hemorrhaging (O-RT 140, 141).

The other three bullets entered Curry's back

and exited the front (O-RT 134, 135). None of

these three would have been rapidly fatal (O-RT

145).

A clinical psychologist testified that he

had spent about four hours with Mr. Olson and

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had administered numerous tests (O-RT 622-625).

Tne tests indicated possible damage to the

right side of the brain (O-RT 634), which would

result in difficulty adapting behavior’ to

changing circumstances (O-RT 635), including

difficulties in areas of judgment, domination

by fantasies, hearing things that are not

there, and overreacting (O-RT 636). This would

put Mr. Olson at a subtantial disadvantage in

handling alcohol (O-RT 638). The problems with

Olson's brain amounted to organic. brain

Syndrome, or chronic’ brain. syndrome,’ the

characteristics of which are difficulty in

understanding intensity of circumstances;

difficulty in determining how to_ respond

realistically and difficulty in changing mind

or adjusting response, all of which difficul-

ties would be increased with consumption of

alcohol (O-RT 641). It would be characteristic

for such a person to overreact to minimum

provocation (O-RT 643). A person with such

maladies would have a hard time malingering in

a way that could not be detected (O-RT 650).

The psychologist found no evidence that Olson

was-manipulating the situation or malingering

~ (O-RT 661). Many persons, perhaps millions,

have organic brain syndrome, but it is never-

theless significant and meaningful, and such a~

person, upon being intoxicated, reaches a point

of diminished capacity to make judgments (O-RT

668, 686).

A psychiatrist testified on the basis of

six interviews with Olson and reviewing police

reports and Grand Jury testimony (O-RT 704-

708). According to her, there was indication

of abnormality in the right temple area in-

dicated by an electroencephalogram, indicating

Gamage which was compatible with head injuries

‘and alcoholism and confirmed by the psycho-

logist's tests (O-RT 711, 714, 715). Such

abnormality would result in exaggerated re-

“activeness (O-RT 716). According to the

psychiatrist, at the time of the shooting,

Olson did not. have the substantial capacity to

appreciate the wrongfulness of his conduct or

adjust his behavior to the requirements of the

law (O-RT 720). She had no reason to think

‘Olson was not truthful (O-RT 733). The fact

that there were four shots when only one was

meeded illustrated that Olson was frightened

for his life and would tend to overreact (O-RT

736). Olson had been physically harmed and

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reacted to defend himself (O-RT 737). His

judgment in this respect was affected because

his frontal lobe functions were impaired (O-RT

737). In his relatively incapacitated con-

dition, his objective was not to kill, but to

protect himself (O-RT 738). The psychiatrist's

conclusions were based on numerous factors,

including the effects of the alcohol, childhood

sexual abuse by his father, dreams, visual

impairment, small man complex, organic grounds

mentioned in the psychologist's report, and the

EEG (O-RT 739).

A pathologist presented as a rebuttal

witness by the State testified that a person

loses the ability to form the intent to kill as

‘a result of alcohol consumption only when he

becomes unconscious, which is at about .35

(O-RT 1062, 1063). The psychiatrist presented

as a State witness testified similarly (O-RT

876-878, 882). He considered evidence of

damage to Olson's brain minimal (O-RT 891) and

concluded that Olson had the capacity to form

intent (O-RT 896).

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ARGUMENT STATING REASONS FOR -

GRANTING THE WRIT :

Initially, the common law did not dis-

tinguish between murder and manslaughter. How-

ever, the concept of "malice aforethought"

evolved for the crime defined as murder and the

residual category of all other» criminal

homicides became defined as manslaughter. See,

ALI, Model Penal Code and Commentaries

(Official Draft and Revised Comments 1980),

§210.3 at 44. Inder the former statute of

Alaska, AS 11.15.010, first degree murder

involved a killing by a “person ... of sound

memory and discretion, purposely, and ... of

deliberate and premeditated malice," Padie v.

State,557 P.2d 1138, 1141 (Alaska 1976).

Although the test of “premeditation and

deliberation" has been a standard feature of

legislative gradings of homicides for over 100

years, its influence is declining, and it has

been rejected in ALI Model Penal Code, supra,

§210.2. See discussion in G. Fletcher, Re-

thinking The Criminal Law, §4.2 at 255. The ,

concept has been rejected in England and in the

mewly drafted criminal codes in the United

_ States, Id. Two reasons are given for abandon-

ment of that test: first, in a century of

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litigation the courts have been unable to

settle upon a consistent interpretation; and,

second, penal goals appear to be better served

by listing the aggravating circumstances and

the mitigating considerations, Id. at 256.

On its face, Alaska's 1978 #£4Revised

Criminal Code appears to follow the concepts of

the Model Penal Code. AS 11.41.100, in defin-

ing murder in the first degree, omits such

terminology as premeditation, deliberation, and

malice aforethought. It merely proscribes as

first degree murder the causing of the death of

any person if it is done “with intent to cause

the death of another person."

In providing for the crime of manslaught-

er, ALI Model Penal Code, supra, §210.3, at 43,

states:

(1) Criminal homicide constitutes

manslaughter when:

(a) It is committed recklessly;

Or,

(b) A homicide which would

Otherwise be murder is committed

under the influence of extreme mental

Or emotional disturbance for which

_there is reasonable explanation or

. excuse. The reasonableness of such

explanation or excuse shall be deter-

mined from the viewpoint of a person

in the actor's situation under the

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circumstances as he believes them to

be. a;

In Alaska's Revised Criminal Code, the

provision for manslaughter, AS 11.41.120, is as

follows:

A person commits tne crime of man-

Slaughter if he

(1) intentionally, knowingly,

or recklessly causes the death of

another person under circumstances

not amounting to murder in the first

Or second degree; or,

(2) intentionally aids another

person to commit suicide.

Thus, intentional killing may be either

murder in the first degree or manslaughter,

under both the Model Penal Code provision and

the Alaska provision. The Model Penal Code

provision, however, makes it clear that extreme

mental or emotional disturbance is a mitigating

factor which may reduce the crime to man-

Slaughter. The Alaska provision is not so

_ clear, and the Alaska appellate courts in these

eases have ruled that the diminished mental

capacity was not "a circumstance not amounting

to murder in the first degree." In the Martin

_ case, the trial court used only the word "reck-

lessly" in defining the elements of manslaught-

er, striking the word “knowingly” from the x

3 tu

instruction just before it was given to the

jury, over defense objection and upon urging of

the prosecutor (M-RT 713-717; M-CR 46). In the

Olson case, the court used the statutory terms

in instructing the jury on the elements of

manslaughter (O-CR 71), but’ inconsistently

referred to “intentional” killing only as first

degree murder in the instruction on diminished

capacity and indicated that diminished capacity

was a defense only if it eliminated the

capacity to form the intent to kill (O-CR 87).

In both cases, the prosecutor argued to the

jury stridently and repeatedly that if the

killing was intended, it could only be murder

in the first degree, and that diminished

capacity is a defense or mitigation only if

there is no capacity to form the intent to kill

(M-RT 753, 754, 757, 819, 821, 823, 832, 833;

O-RT 1120, 1122, 1181, 1182, 1192, 1200).

Thus, the juries in both of these cases

were given no effective option to find the

defendants guilty only of manslaughter if they

had any capacity whatsoever to form an intent

to kill, even if such intent was minimal and

the product of an extremely disturbed or dis-

eased mind. This is a departure from the

former law in Alaska which required deliberate

and premeditated malice to constitute murder in

-24-

the first degree, Padie v. State, supra, and

under which diminished mental capacity had been _

recognized to negate that specific kind of-

intent, Hensel v. State, 604 P.2d 222, 232

(Alaska 1979); Mill v. State, 585 P.2d 546, 550

(Alaska 1978); and, Johnson v. State, 511 P.2d

118, 124 (Alaska 1973). By rejecting diminish-

ed capacity as a mitigating factor to homicide

in these cases, Alaska has exposed Martin and

Olson to much more severe penalties than would

have been possible under the prior law. Under

prior law, they could only have been prosecuted

for manslaughter for which the penalty was not

less than 1 year nor more than 20 years, AS

11.15.040. But Martin and Olson have been

sentenced under AS 12.55.125(a), which requires

a definite term of imprisonment of at least 20

years but not more than 99 years. Had the

offenses been mitigated due to diminished

mental capacity, they would have been sentenced

under AS _ 12.55.125(c), which requires a

definite term of imprisonment of not more than

20 years, but a presumptive term for a first

felony conviction, such as in these cases, of 5

years. Thus, the rejection of the diminished

capacity defense has resulted in sentences of

20 years, rather than 5 years, in these cases.

-25-

It appears to be recognized in most other

jurisdictions in the United States, outside

Alaska, that an impaired psychological con-

dition of the acused, though short of insanity,

provides a ground for classifying an intention-

al killing as manslaughter rather than murder,

G. Fletcher, Rethinking the Criminal _ Law,

Supra, at §4.2.2 at 250. The commentary to ALI

Model Penal Code, supra, § 210.3 at 68,

states:

Using the concept of diminished

responsibility to reduce intentional

homicide to manslaughter may be ex-

pressed as a refinement of “malice of

forethought" to include intent to

kill only if that intent is the

product of a healthy mind. Alter-

nately, diminished responsibility may

be described as a partial defense to

murder based on mental abnormality or

defect.

Although space is not allowed to cite all

the jurisdictions which hold that diminished

mental capacity may mitigate a homicide to man-

Slaughter, a few examples include State v.

Howell, 649 P.2d 91 (Utah 1982) (interpreting

Utah Code Ann., 1953, §76-5-205(1) defining

manslaughter, including “under the influence of

extreme mental or emotional disturbance");

State _v. Carson, 640 P.2d 586 (Ore. 1982)

construing ORS 163.115(1) which recognizes

Way pies £2? ~ ’ ~

SEE ke OE Oo Te OPE ER ae

oAa tie, «|

-26-

extreme emotional disturbance as a mitigating

factor to homicide); People v. Flannel, 603"

P.2d 1 (Cal. 1980) (which recognizes an honest

but unreasonable belief in a need to defend as

negating the element of malice in homicide,

pointing out that California's rule "is almost

universally supported by those legal comment-

aries who have given it consideration"). Other

examples are cited in the foregoing cases. It

is believed that if this court accepts this

petition and allows full briefing, it will be

become apparent that Alaska is either alone or

virtually alone in rejecting diminished mental

capacity as a mitigating factor in homicide

cases.

In attempting to define “due process of

law" the court in Crouch v, Justice of the

Peace Court of Sixth Precinct, 440 P.2d 1000,

1006 (Ariz. App. 1968), stated:

Generally speaking, the denial of due

process of law is a denial of “fun-

‘damental fairness, shocking to the

universal sense of justice". Kin-

sella v. United States ex. rel.

Singleton, 361 U.S. 234, 80 S. Ct.

297, 4 L. Ed. 2d 268 (1960). Speak-

ing of due process of law, our United

States Supreme Court has said that a

state is free to “regulate the pro-

cedure of its courts in accordance

with its own conception of policy and

@27@

fairness unless in doing so it of-

fends some principle of justice so

rooted in the traditions and con-

science of our people as to be ranked

as fundamental.” *** Its procedure

does not run afoul of the Fourteenth

Amendment because another method may

seem to our thinking to be fairer or

wiser or to give a surer promise of

protection to the prisoner at bar."

Snyder Vv. Commonwealth of

Massachusetts, 291 U.S. 97, 54 S. Ct.

330, 78 L. Ed. 674 (1934).

It is the contention of Martin and Olson that

the concept that persons suffering under the

influence of extreme emotional or mental dis-

turbance at the time of committing a homicide

should be treated differently than a person who

connives and plans a brutal murder is a

"principle of justice so rooted in the tradi-

tions and consciences of our people as to be

ranked as fundamental." Such a principle is

offended in these two cases.

Recently, this court, in Solem v, Helm, _

U.S. _, 103 S. Ct. 3001 (1983), has applied

the principles of cruel and unusual punishments

as proscribed by the Eighth Amendment. This

court stated:

- In sum, we hold as a matter of prin-

ciple, that a criminal sentence must

be proportionate to the crime for

which the defendant has been con-

victed.

‘ 4

vo | Oe Pe Freee ee | ee, ee Pe he

-28-

Id. at 103 S. Ct. 3009. Martin and Olson have

been convicted, technically, of first degree.

murder, but the crimes for which they have been

convicted are “rooted in the traditions and

conscience of our people” as manslaughter.

This court explained that:

«++ A court's proportionality analy-

. Sis under the Eighth Amendment should

be guided by objective criteria, in-

cluding (i) the gravity of the

offense and the harshness of the

penalty; (ii) the sentences imposed

on other criminals in the’ same

jurisdiction; and, (iii) the sen-

tence imposed for commission of the

same crime in other jurisdictions.

Id. at 103 S. Ct. 3011. Again, space in this

petition does not permit extensive comments or

citations. From the point of view of the

victims in these cases, the offense obviously

was grave, but from the point of view of

society, neither Martin nor Olson is a typical

criminal, and both are extremely rehabilitatib-

le. Taking into consideration, however, their

ages, the sentences are extremely harsh, even

possibly amounting to life sentences. AS

previously indicated, the sentence prescribed

in Alaska for manslaughter is a maximum of 20

years, with a 5 year presumptive sentence for

the first offense. Thus, other persons con-

ra *

-29-

victed of a first manslaughter offense are

sentenced to serve 5 years. Similarly, under

the former law in Alaska, the maximum sentence

for manslaughter was 20 years with possible

parole, and, had that law still been in effect,

neither Martin nor Olson could have been pro-

secuted for murder in the first degree. The

sentences prescribed for manslaughter in other

jurisdictions are similar, a maximum of 20

years being typical, but courts may be allowed

greater discretion in sentencing than under the

present code in Alaska, and parole is a

factor.

The sentences imposed on Martin and Olson

are four times tne sentences which could have

been imposed under Alaska law if diminished

mental capacity had been recognized as a miti-

gating factor to reduce the convictions from .

first degree murder to manslaughter. The sen- '

tences thus are grossly disproportionate penal-

ties and excessive punishment for the acts

which were committed under those circumstances,

and, therefore, cruel and unusual punishment in

contravention of the Eighth Amendment and the

Fourteenth Amendment to the United States

Constitution. These penalties also offend a

_ principle of justice so rooted in the tradi-

? tions and conscience of our people as to be

ely!

ae =*

% it

“y . +. aah

a J bins aah aoe

A . + *

id ’ P 4 . a mS

Pinel ov Ute AS. WNP Te

-30-

ranked as fundamental because it has long been

recognized that the mental element is a prime

factor in assessing the gravity of a homicide.

Although the Alaska statute prescribing

manslaughter is excessively vague and in-

definite, it is not urged that this court must

necessarily hold the statutory scheme to be

unconstitutional; rather, it is the unnecessary

application of that statutory scheme in a harsh

and unenlightened manner which has resulted in

a denial of due proces: of law and in cruel and

unusual punishment to these petitioners.

CONCLUSION

A writ of certiorari should be issued to

review the judgments and opinions of the Alaska

Court of Appeals and Alaska Supreme Court.

Respectfully submitted the [ day of

December, 1983.

A. Lee Petersen, Inc.

720 “M" Street, Suite 7

Anchorage, Alaska 99501

Phone: (907) 276-3464

Attorney for Petitioners,

Adele Martin and

Neal Wayne Olson

«<

IN THE COURT OF APPEALS

FOR THE STATE OF ALASKA

ADELE MARTIN,

Appellant, Pile No. 6665

Vv. OPINION

STATE OF ALASKA, No. 261

Appellee. June 10, 1983

Appeal from the Superior Court of the State of

Alaska, Third Judicial District, Anchorage, J.

Justin Ripley, Judge.

Appearances: A. Lee Petersen, Anchorage, for

Appellant. W. H. Hawley, Assistant Attorney

General, Office of Special Prosecutions and

Appeals, Anchorage, and Norman C. Gorsuch,

Attorney General, Juneau for Appellee.

Before: Bryner, Chief Judge, Coats and

Singleton, Judges.

SINGLETON, Judge.

the minimum twenty-year sentence. She appeals

arguing that the court improperly instructed

the jury, erred in denying her motion for judg-

ment of acquittal, and erred in denying a

motion for mistrial. Martin also contends that

the minimum twenty-year sentence for first-

degree murder is unconstitutional. We affirm.

Adele Martin shot and killed Clyde

Paustian, a man with whom she had lived for

approximately ten years at the time of the

shooting. , During November, 1980, Paustian

indicated that he was dissatisfied with their

relationship. Nevertheless, for the next four

months they continued to reside together, often

bickering about their relationship. During

that time Martin contemplated suicide. Ul-

timately it occurred to Martin that Paustian

was seeing another woman, and approximately one

week before the shooting, Martin discovered who

she was. In conversations with friends she

discussed destroying Paustian's possessions,

and shooting him or the other woman. Martin

confronted Paustian with her concerns and was

Gissatisfied with his response. In her brief

she described what happened thereafter as

follows:

[Martin] went and got her gun and

shot him. He had just bent over the wa

sink to wash his hands and he looked

Sir

at her in terror and cried out and

she was horrified with herself. He

turned toward her and she pulled the

trigger again. He fell sideways and

grabbed the door. She was terrified

and backed away, wanting to run. She

thought she should run away from him,

because he would kill her and the

door flew open and she heard noise.

He was staggering and motioned toward

the gun and she pulled the trigger

again. His face went blank and he

lay down. He just lay down in front

of her with a big sigh and stretched

out and his elbows came up once. She

was terrified, thinking he would get

up and kill her, but he didn't. A

gurgling noise came in his throat and

she was sorry she had done it. She

didn't even know why she had done it.

She thought he was strangling to

death and she said his name and cried

a little and then put the gun to his

head twice and shot him in_ the

head.

Martin stated that she was "in a rage” when she

shot Paustian.

Martin's trial strategy centered on prov-

ing diminished capacity. ! Dr. Ronald

1 Former AS 12.45.085 read as follows:

Evidence of mental disease or defect.

Evidence that the defendant suffered from a mental

disease or defect is admissible whenever it is

relevant to prove that the defendant did or did

not have a state of mind which is an element of

the offense. However, evidence of mental disease

Ohlson, a clinical psychologist, administered

the Minnesota Multiphasic Personality Inventory

to Martin. He testified that the test showed

her to have a marked deqree of psychological

disturbance. The test profile also showed that

Martin was very shy, guiet, withdrawn and

anxious. Dr. Ohlson stated that the test gave

indications that Martin was chronically

depressed.

Dr. Ohlsox interviewed Martin for Five

hours. He testified that Martin felt her whole

world stopped after Paustian told her that he

did not want anything to do with her. He

Stated that before getting the gun, Martin felt

utterly helpless, alone, hopeless, and extreme-

ly confused. He related:

At that point she had no idea where

she was going or what she was going

to what she was going to do. And it

seemed like to her that her whole

world had come to an end. Had

stopped at that moment. At that

point she went in the other room,

feeling nothing, picked up the gun,

went back and--and shot him.

1 Continued from previous page --

or defect excluding responsibility is not ad-

missible unless the defendant, at the time of

entering his plea of not guilty or within 10 days

thereafter or at such later time as the court may

for good cause permit, files a written notice of

his intent to rely on that defense.

Dr. Ohlson also said Martin did not seem to be

thinking clearly after the shooting. Dr.

Ohlson believed that at the time she _ shot

Paustian, Martin was suffering from a form of

depression known as dysthymic reaction, was

irrational, and could not really appreciate the

wrongfulness of what she was doing. Based on

the difficulty he had reading transcripts of

Martin's interviews with the police because of

her incoherent sentences and based on his

difficulty in following her thinking, Dr.

Ohlson concluded that Martin was "borderline

mentally ill." He stated that the psychologi-

cal term mental illness coincides to a great

extent with the legal term "insanity." He con-

Cluded by stating that Martin "fits more under

the concept of the depressive neurosis with the

deteriorated ability to think,” rather than in

the class of mental illness. Dr. Ohlson con-

ceded that Martin's actions after the killing

were to a certain extent logical and that she

was motivated to shoot Paustian to end his

relationship with his paramour.

Dr. Aron S. Wolf, a psychiatrist, also

testified on behalf of Martin. He described

Martin as extremely depressed at the time of

the murder. He stated that Martin suffered

from a kind of depression that caused agitation

and an inability to think clearly. Dr. Wolf's

opinion was that Martin's state of mind at the

time of the killing "would have been disordered

sufficiently as to inhibit her from making

certain moves that would require specific

intent." Martin told Dr. Wolf that she felt

that the devil came to her and manifested him-

self in three days before the killing. Dr.

Wolf felt that this was

further evidence that this depression

at that particular point in time had

reached psychotic proportions. That

not only was there a panic, not only

was there a feeling of having to do

something, but that somehow in ad-

dition a feeling of suvernaturalness

had come into it, and that she clear-

ly then was in less control of her-

self than--than she normally is.

Dr. Wolf conceded that Martin intentionally

killed Paustian, but concluded that her act of

killing was irrational because she had not

thought out the consequences of the act of

killing and because part of her motive in

killing was to know where Paustian was and to

deprive the other woman of his company.

The state called Dr. Irvin A. Rothrock, a

Pairbanks psychiatrist, in “ rebuttal. Dr.

Rothrock believed Martin, at the time of the

killing, was undergoing an acute depressive

episode precipitated by the threatened breakup

of her relationship with Paustian. Dr. Roth-

rock concluded that Martin's insight was rea-

sonably good, but that her judgment was quite

poor. He stated that he believed that Martin

intended to kill Paustian when she shot him.

JURY INSTRUCTIONS

Extreme Emotional Disturbance

Martin contends that the trial court erred

in refusing to give Alaska Pattern Jury

Instruction (Criminal) 41.120(a)(1) (1980)

defining manslaughter. It provides that if

without legal justification, a person acts with

either an intentional, knowing, or reckless

state of mind and causes the death of another

person under circumstances not amounting to

murder in the first or second degree, that

person is guilty of manslaughter. This

instruction is based on AS 11.41.120(a)(1)

which is derived from former AS 11.15.040 which

was a catchall provision governing all unlawful

killings which were not’ murder. Alaska

Criminal Code Revision Part 1 at 97 (Tent.

Draft 1977) [hereinafter cited as Tentative

Draft). In the context of this case Martin

contends manslaughter was a lesser-included

offense. Martin's proposed instruction

differed somewhat from the pattern instruction.

It told the jury that Martin could be found

guilty of manslaughter if she knowingly caused

the death of another under circumstances not

amounting to murder in the first or second

degree. At the request of the prosecution and

over Martin's objection the term "knowingly"

was stricken and in its place "recklessly" was

substituted. Martin contends that this sub-

Stitution amounted to prejudicial error. The

prosecutor successfully persuaded the trial

court that on the facts of Martin's case any

intentional or knowing homicide would be first

Or second-degree murder, not manslaughter,

Since only "heat of passion" could reduce a

knowing or intentional homicide to manslaughter

under current law. The prosecutor also suc-

cessfully argued that Martin was not entitled

to an instruction on heat of passion. Martin

objects to this conclusion as well which will-

be discussed hereafter.

Assuming arguendo that the court was

correct in excluding an instruction on heat of

passion, Martin nevertheless contends that she

could have been guilty of an intentional or

knowing homicide which would be manslaughter,

not murder. She reasons that the trial court

should have permitted her to argue the Model

Penal Code concept of "extreme emotional dis-

turbance" as a defense to murder. See Model

Penal Code Part II §210.3 commentary at 49

(1980). She notes that Model Penal Code §210.3

provides in relevant part:

Manslaughter. (1) Criminal homicide

constitutes manslaughter when:

x * & *

(b) a homicide which would otherwise

be murder is committed under’ the

influence of extreme mental or

emotional disturbance for which there

is reasonable explanation or excuse.

The reasonableness of such explana-

tion or excuse shall be determined

from the viewpoint of a person in the

actor's situation under the circum-

Stances as he believes them to be.

Id. at 43. She points out that there is a sub-

Stantial difference between "extreme emotional

disturbance" and common law heat of passion,

and concludes that she was entitled to have the

jury instructed that either theory, if estab-

lished to the jury's satisfaction, would

warrant conviction of manslaughter rather than

murder.

We are satisfied that the legislature did

not intend to make “extreme emotional disturb-

ance" a defense to murder. We reach this

conclusion based upon our evaluation of the

Revised Code and particuiarly the part the

Tentative Draft played in its enactment. See

Neitzel v. State, 655 P.2d 325 (Alaska 1982)

(relationship between the Tentative Draft and

10a

the Revised Code discussed). AS 11.41.100

(murder in the first degree) is based in part

on Tentative Draft §11.41.110, except that the

Revised Code differentiates murder into first

and second-degree murder while the Tentative

Draft had only one classification of murder.

Compare AS 11.41.100 and AS 11.41.1110 with

Tentative Draft §11.41.110(a). The Tentative

Draft provisions governing murder are based in

part upon Oregon Revised Statutes §§ 163.005-

115 and in part upon similar provisions from

Illinois Criminal Code, Chapter 38 §§ 9-1(a)-

(1), (2) and 9-2(a). Tentative Draft, supra at

97. Oregon adopted "extreme emotional disturb-

ance" as a defense to murder in reliance on the

Model Penal Code. See, State v. Carson, 640

P.2d 586 (Or. 1982) (discussing and applying

former ORS 163.125(1)(b)). The Alaska legis-

lature did not enact a similar statute thus

making clear its awareness of this defense and

its intention to refuse to enact it. Under

these circumstances it would be inappropriate

for us to read “extreme emotional disturbance"

into the new code as a defense.

lla

Heat of Passion

Martin contends that the trial court erred

in denying an instruction on “neat of passion."

AS 11.41.115 enumerates defenses to murder. It

provides in relevant part:

(a) In a prosecution under §100(a)-

(1) or 110(a)(1) of this chapter, it

is a defense that the defendant acted

in a heat of passion, before there

had been a reasonable opportunity for

the passion to cool, when the heat of

passion resulted from a serious

provocation by the intended victim.

2 2) 2

(f) In this section,

(1) “intended victim" means a person

whom the defendant was attempting to

kill or to whom the defendant was

attempting to cause serious physical

injury when he caused the death of

the person he is charged with

killing;

(2) "serious provocation" means .

conduct which is sufficient to excite

an intense passion in a _ reasonable

person in the defendant's situation,

other than a person who is intoxicat-

ed, under the circumstances as he

reasonably believed them to be; in-

sulting words, insulting gestures, or

hearsay reports of conduct engaged in

by the intended victim do not alone

12a

or in combination with each other,

constitute serious provocation.

This section is derived from Tentative Draft

§11.41.110 which provided in relevant

part:

(b) In a prosecution [for murder],

it is a defense that the defendant

acted in a heat of passion, before

there had heen a reasonable oppor-

tunity for the passion to cool, when

the heat of passion resulted from a

serious provocation by the intended

victim. Nothing in this subsection

precludes a prosecution for or con-

viction of manslaughter or any other

Crime. The defendant shall have the

burden of injecting the issue of a

defense under this section.

x* ke & &

(f£) In this section

(1) “intended victim" means a person

who the defendant was attemtping to

kill or to whom the defendant was

attempting to cause serious physical

injury when he caused the death of

the person he is charged with

killing;

(2) “serious provocation” means con-

duct which is sufficient to excite an

intense passion in a reasonable per-

son in the actor's situation under ;

the circumstances as he _ reasonably

believed them to be; the term does

pal

13a

not include mere insulting words,

mere insulting gestures, or hearsay

reports of conduct by the intended

victim.

Tentative Draft, supra at 18-20. This pro-

vision in the Tentative Draft was based on

Illinois Criminal Code, Chapter 38 §9-2(a).

id. at $7. This Illinois code section as

amended in 1972 provided in relevant part:

Voluntary Manslaughter. (a) A per-

son who kills an individual without

lawful justification commits volun-

tary manslaughter if at the time of

the killing he is acting under a

sudden and intense passion resulting

from serious provocation by:

(1) The individual killed, or

(2) Another whom the offender en-

deavors to kill, but he negligently

or accidently causes the death of the

individual killed.

Serious provocation is conduct suf-

ficient to excite an intense passion

in a reasonable person.

Since the Alaska statute is based upon an

Illinois statute, cases and commentary inter-

preting the Illinois statute published prior to

_the adoption of AS 11,41.115 are persuasive as.

to its meaning. See Gray v. State, 463 P.2d

897, 902 (Alaska 1970); Carman v. State, 658

l4a

P.2d 131, 136 n. 2 (Alaska App. 1983). The

committee comments to the Illinois’ statute

indicate that the heat of passion defense as

codified parallels the common law.

The definition and various recognized

categories of “serious provocation”

appear to have remained in much the

same form as under the common law.

The test is that of the reasonable

man, and only a few categories of

provocation have been recognized--

substantial physical injury or

assault, mutual quarrel or combat,

illegal arrest, and adultery with the

offender's spouse; but not mere words

Or gestures or trespass to property.

Y :2.9

Section 9-2 is intended to be a con-

cise statement of the common-law

offense, compatible with the reported

cases in this State. "Sudden and

intense passion" is submitted as a

brief but adequate descriptive phrase

which means the same as the former

"sudden violent impulse of passion

supposed to be irresistible," follow-

ed by a description of the "cooling-

off" period which negatives’ such

passion.

Illinois Criminal Code, Chapter 38 §9-2, Com-

mittee Comments at 393-94 (1972) (citations

omitted).

15a

There are two lines of Illinois authority

dealing with factual situations similar to this

case. The first line of cases is consistent

with the general Illinois view that only sub-

Stantial injury or assault, sudden auarrels

leading to mutual combat, illegal arrests, and

adultery with the offender's spouse can

mitigate murder to manslaughter. These deci-

sions have sustained trial court refusals to

Give lesser-included offense instructions on

voluntary mansalughter where a person kills his

lover or spouse after learning during a verbal

quarrel that his victim intends to terminate

their relationship. See, @.9., People v.

Arnold, 309 N.E. 2d 89 (Ill. App. 1974).

Another line of cases involving similar facts

appear to reach an inconsistent result. In

these cases a lesser-included offense instruct-

ion on voluntary manslaughter was given by the

trial court at defendant's request and he was

convicted of manslaughter. The defendant then

appealed citing the first line of cases and

arguing that on the facts the crime was either

murder or nothing. Understandably, the

appellate courts affirmed the manslaughter con-

-viction finding sufficient evidence of “heat of

passion." The two lines of cases are discussed

16a

in United States ex. rel. Peery v. Sielaff, 615

P.2d 402 (7th Cir., 1979). There the court

stated:

Some cases do suggest that the break-

up of a marriage can give rise to a

sudden and intense passion ... All of

these cases are challenges to man-

Slaughter convictions. They illus-

trate at most the deference of the

reviewing courts to the fact finders

determinations.

Id. at 406 (citations omitted).

It is not necessary for us to determine in

this case whether we will follow Illinois in

limiting the “heat of passion" defense to

situations of substantial violence or discover-

ed adultery. We are satisfied that even a sub-

Stantially broader reading of our statute would

not entitle Martin to an instruction on “heat

of passion" viewing the facts of this case most

favorably to her. we reach our conclusion

based upon the totality of the circumstances,

taking into account the following: (1) Martin

learned that Paustian was dissatisfied with

their relationship over four months prior to

the killing on March 12, 1981; (2) in mid-

Pebruary, 1981, approximately thirty days

before the killing, Martin learned Paustian was

seeing another woman; (3) two weeks before the

17a

killing, Martin learned who Paustian was see-

ing; (4) during the three days preceding the

Killing Martin spoke on a number of occasions

to friends, comparing her situation with that

of Jean Harris, whose murder of her lover, Dr.

Tranower, under similar circumstances, had

received substantial publicity, and telling

them that she could kill Paustian and his new

woman friend; (5) at the time of the killing,

Paustian had not raised his voice, threatened

Martin, or tried to strike her; finally (6)

Martin testified that immediately prior to the

shooting she had asked Paustian how he expected

them to get along when he wouldn't have any-

thing to do with her. He had responded, "“I

don't want anything to do with you now."

Martin stated that this rejection precipitated

her actions. She went to her art room in a

fury to get her loaded gun. She then returned

and shot Paustian in the side while he was

washing his hands. When Paustian turned in

horror, she shot him again and continued to

shoot him after brief lapses of time until her

gun was nearly empty. Under all these circum-_

Stances, we believe the trial court properly

found that there was insufficient evidence of

"heat of passion" to warrant an instruction on

18a

that defense. See LaLonde v. State, 614 P.2d

808, 809 (Alaska 1979).

Jury Consideration of Punishment

The trial court instructed the jury:

In arriving at a verdict in this

case, the subject of penalty or

punishment is not to be discussed or

considered by you as that matter is

one that lies solely with the court

and must not in any way affect your

decision as to the innocence or guilt

of the defendant.

(Emphasis added. ) Martin did not object to

this instruction at trial and therefore must

establish "plain error" to prevail on appeal.

Alaska R. Crim. P. 30(a); Alaska R. Crim. P.

47(b). A plain error in an instruction is one

that is both obvious and Substantially pre-

judicial. Carman v. State, 658 P.2d 131, 137

(Alaska App. 1983); Marrone v. State, 653 P.2d

672, 676 (Alaska App. 1982). Martin makes two

arguments. First, she contends that’ the

instruction was factually inaccurate since it

told the jury that punishment lies “solely”

with the court when in fact the legislature has

established a minimum twenty-year penalty for

first-degree murder. Second, she argues the

instruction invaded the jury's province because

19a

it prevented the jury from tempering justice

with mercy. Martin arques that the jury should

have been permitted to evaluate her conduct in

light of a minimum twenty-year sentence and

determine whether, in the jury's collective

view, her conduct warranted such ae severe

sentence. If the jury concluded that it did

not Martin contends the jury could properly

return a verdict of not guilty of first-degree

murder regardless of its factual findings on

the elements of that offense.

We find no plain error. The instruction

accurately told the jury that it should not

consider punishment in determining whether

Martin was guilty of an offense. See United

States v. Caldwell, 543 F.2d 1333, 1364-65

(D.C. Cir., 1975), cert. denied, 423 U.S. 1087,

47 L. Ed. 2d 97 (1976); United States v. Del

Toro, 426 f.24 161, 164 (Sth Ciz.}, Gene

denied, 400 U.S. 829, 27 L. Ed. 2d 60 (1970);

Commonwealth v. Ferreira, 364 N.E. 2d 1264,

1270 (Mass. 1977). We are satisfied that the

instruction in context did not mislead the

jury.

Martin's reliance on United States v.

Glick, 463 F.2d 491, 494-94 (2d Cir. 1972), is

misplaced. There the trial court, in the

20a

absence of the defendant, responded with a

single word, "yes," to a jury question whether

the court would consider a recommendation for

leniency. The appellate court was concerned

that the response might have swayed jurors

entertaining reasonable doubts to vote for

conviction because they believed it was in

their power to soothe their consciences by

causing little or no punishment to be imposed.

In the instant case the instruction was given

as part of the general instructions. There is

no indication that the Martin jury was ever

"hung."

Our decision that jurors should not be

permitted to consider punishment in arriving at

their verdict is consistent with the Supreme

Court's decision in Schade v. State, 512 P.2d

907, 917-18 (Alaska 1973). In Schade, the

court followed a decision of the District of

Columbia Circuit Court of Appeals, Lyles v.

United States, 254 F.2d 725, 728 (D.C. Cir.

1957), cert. denied, 356 U.S. 961, 2 L. Ed 2d

1067 (1958), which held that a defendant, on

request, was entitled to an instruction telling

the jury that a verdict of not guilty by reason

of insanity would not necessarily result in the

freedom of the defendant but could result in a

21a

hospitalization order if the trial court was

convinced that the defendant was dangerous.™

See United States v. Brawner, 471 F.2d 969, 9977

(D.C. Cir. 1972) (modifying Lyles instruction

to reflect 1970 statute). In United States v.

Caldwell, the court distinguished Lyles in the

Following way:

In Lyles v. United States, supra note

61, we concluded that not all laymen

can be presumed to know the true

meaning and impact of a verdict of

not guilty by reason of insanity.

Therefore, we held, jurcrs must be

informed of the relevant consequences

of such a finding, to supplement

their common knowledge of the simpler

verdicts of guilty and not guilty ...

That, of course, is a situation very

different from the one present here

{whether to instruct jurors on the

penalties that would result’ from

various verdicts.]

543 F.2d at 1365 n. 164.

We are satisfied that the distinction

drawn by the District of Columbia Court of

Appeals is sound and that the trial court

properly declined to inform the jury of the

minimum penalties prescribed by law for those

found guilty for first-degree murder. Since.

the jury was properly instructed not to con-

sider punishment at all in reaching its con-

22a

clusions, it necessarily follows that any mis-

conceptions individual jurors may have _ had

regarding sentencing discretion would be ir-

relevant to their function and could not con-

stitute prejudicial error.

SENTENCE

For the first time on appeal Martin

challenges the constitutionality of the twenty-

year minimum sentence for first-degree murder.

She argues that it constitutes cruel and un-

usual punishment in violation of Article 1, §12

of the Alaska Constitution, and the Eighth

Amendment of the United States Constitution.

She also claims that it deprives her of sub-

Stantive due process and the equal protection

of the laws in violation of the Fourteenth

Amendment to the United States Constitution and

of comparable provisions in the Alaska Con-

stitution. The State points out that Martin

did not raise these issues in the court below

and suggests that we may not consider them

unless we are satisfied that the minimum

sentence constitutes “plain error." Alaska R.

Crim. P. 47(b). Without foreclosing further

consideration of these issues in the future in

light of a more adequate record, we have elect-

23a

ed to address Martin's constitutional arguments

at this time.

Martin contends that the statute estab-

lishing a twenty-year minimum sentence for

first-degree murder is unconstitutional on its

Face and not only as applied to her. Thus she

contends that it is void and that the trial

court had no jurisdiction to impose the penalty

upon her. The State's argument misconceives

the distinction between jurisdictional errors

which deprives the court of power to act and

alleged plain errors which, while affecting

fundamental rights and being’ substantially

prejudicial, do not affect the trial court's

jurisdiction. While an appellate court has a

great deal of discretion in determining whether

to identify a given alleged error as "plain" it

must reach challenges to the jurisdiction of

the trial court to act. Where the record is

inadequate for this purpose a remand is the

normal recourse. we are satisfied that a

remand is not necessary in this case.

We find little merit in Martin's argument

predicated on Article 1, §12 of the Alaska

Constitution or her due process, cruel and

unusual punishment and equal protection

challenges. Legislatures have traditionally —

24a

reserved the highest penalties for intentional

homicide. Our legislature could reasonably

label it an unclassified offense and conclude

that a minimum twenty-year sentence ' was

necessary for affirmation of community norms

and deterrence of others. The special signi-

ficance attached historically to murder answers

Martin's constitutional claims.

We note that AS 12.55.155 sets out miti-

gating and aggravating factors to be considered

by the trial judge in imposing sentences on

those convicted of classified crimes, and

12.55.005 sets out factors to be considered by

trial judges in imposing sentences on first

offenders convicted of classified crimes. We

are satisfied, however, that the legislature

has in effect established mitigating factors

for homicides by differentiating between the

treatment of murder and other felonies is that

the aggravating and mitigating factors for

classified offenses are determined by the trial

judge, while those factors deemed in aggrava-

tion or mitication of homicide are to be deter-

mined by the jury. This distinction did not

deny Martin the equal protection of the laws.

Ebi

25a

The judgment of “the Superior Court

AFFIRMED. 2

_— —- = - -

2 Martin raises three other issues which we

briefly address:

(1) Martin argues that the trial court erred in

instructing the jury that “insanity is not an

issue." There was clearly evidence in the record

from which a jury could have found Martin not guilty

by reason of insanity (NGI) under the standard

established in Christie v. State, 680 P.2d 310

(Alaska 1978). We are satisfied, however, that

Martin knowingly, intelligently and voluntarily

waived the right to present this issue to the jury.

Her counsel assured the trial court that he did not

want instructions based on former AS 12.45.083

(mental disease or defect excluding responsibility).

Martin no doubt expected to be acquitted or found

guilty of manslaughter and feared that an in-

struction on the statutory defense might result in a

NGI verdict followed by a substantial period of

institutionalization. See Clark v. State, 645 P.2d

1236 (Alaska App. 1982) (a woman was charged with

attempted murder and found NGI; she was then com-

mitted for a period not to exceed twenty years). At

oral argument Martin reiterated her position that

insanity was not an issue and that she did not want

the jury instructed on former AS 12.45.083. Under

these circumstances the trial court did not err in

giving the instruction it did. In reaching this

conclusion we have considered the possible adverse

affect of the instruction on Martin's defense of

diminished capacity and note that she did not object

to the instruction on this ground. Also, consider-

ing the context in which the instruction was given,

we are satisfied that the jury was not misled into

26a

2 (Continued from previous page)--

believing that it referred to the defense of diminished

capacity.

(2) Martin argues she was entitled to a judgment

of acquittal on the ground that diminished capacity was

establisehd as a matter of law. We are satisfied that

reasonable jurors could differ as to whether the State

proved that Martin intentionally shot Paustian despite

her mental problems. See former AS 12.45.085. The

trial court did not err in denying her motion for

judgment of acquittal n the charge of first-degree

murder.

(3) Martin argues that the trial court erred in

denying her motion for mistrial when the prosecutor

asked Dr. Wolf, “Isn't it true a trial judge accused

you of having a defense bias?” The trial court sua

sponte disallowed the question and instructed the jury

to disregard it. While the question was clearly im-

proper and warranted sanction, we do not believe that

it amounted to incurable error under the circumstances

of this case. We note Dr. Ohlson, who also testified

on behalf of Martin, and Dr. Rothrock, who testified on

behalf of the State, were in general agreement with Dr.

Wolf regarding Martin's diagnosis as it might’ pertain

to the defense of diminished capacity. Under these

circumstances, the trial court did not err in denying

the motion for mistrial. See Sheakley v. State, 644

P.2d 864 (Alaska App. 1982); Roth ve~State, 626 P.2d

583 (Alaska App. 1981). mage

Sere,

APPENDIX B >

tate tl

IN THE SUPREME COURT

OF THE STATE OF ALASKA

ADELE MARTIN,

Appellant, Supreme Court

No. 6665

Vv.

ORDER

STATE OF ALASKA,

Superior Court

eee eee ee

Appellee. No. 3AN 81-1440 Cr.

Before: Burke, Chief Justice, Rabinowitz,

Matthews and Compton, Justices. (Moore,

Justice, not participating).

On consideration of the petition for

hearing filed June 27, 1983 and the response to

the petition filed August 5, 1983,

IT IS ORDERED,

The petition for hearing is denied.

Entered by direction of the court at

Anchorage, Alaska on October 3, 1983.

CLERK OF THE

SUPREME COURT

/S/ Robert D. Bacon

ROBERT D. BACON

ccs: Justices, Counsel,

Court of Appeals Judges,

The Honorable J. Justin Ripley

Appeals Deputy, Anchorage Trial Courts

APPENDIX C

THE COURT OF APPEALS

FOR THE STATE OF ALASKA

NEAL WAYNE OLSON,

Appellant, Pile No. 7161

Vv. MEMORANDUM OPINION

STATE OF ALASKA, AND JUDGMENT*

(No. 398)

(August 3, 1983)

Appellee.

Appeal from the Superior Court of the State of

Alaska, Third Judicial District, Anchorage,

Warren W. Matthews, Jr., Justice of tne Supreme

Court, sitting by designation, Judge.

. Appearances: A. Lee Petersen, Anchorage, for

“Appellant. Richard W. Maki, Assistant Attorney

General, Office of Special Prosecutions and

Appeals, Anchorage, and Norman C. Gorsuch,

Attorney General, Juneau, for Appellee.

Before: Bryner, Chief Judge, Coats and

Singleton, Judges.

SINGLETON, Judge.

* Entered pursuant to Appellate Rule 214

and Guidelines for Publication of Court Appeals

Decision (Court of Appeals Order No. 3).

bi : = =

BS raed Be

Neal Wayne Olson was convicted of murder

in the first degree, AS 11.41.100(a)(1). He

was sentenced to twenty-five years imorisonment

with five years suspended. He appeals raising

three issues. First, he contends that his

motion for judgment of acquittal on the charges

of first and second-degree murder should have

been sustained since the evidence regarding his

defense of heat of passion established reason-

able doubt as a matter of law. Second, he

contends that the conduct of the prosecutor

denied him a fair trial. Third, he contends

that the introduction into evidence of photo-

graphs of the victim was erroneous and pre-

judicial.’ we affirm.

STATEMENT OF FACTS

At approximately 4:00 a.m. on November 10,

1981, Neal Wayne Olson shot and killed Marvin

Curry in a parking lot located at the corner of

Fifth Avenue and C Street in Anchorage. The

relevant testimony given at trial by several

witnesses may be summarized as follows:

l Olson raises three other issues which he conceded

on oral argument were foreclosed by our decision in

Martin v. State, P.2d __, Op. No. 261 (Alaska App.,

June 10, 1983). We je adhere “to ovr decision in Martin.

Bt:

ay ae

— ae

Lawrence Waqner, a newspaper distributor,

was delivering newspapers to a rack across the

Street from the parking lot when Curry was

shot. Wagner recalled seeing Olson and Curry

together in the parking lot. He heard one man

yell but only heard the words "my car." Wagner

Saw the two men fighting, and he testified that

the "wrestling-type fight" appeared to be a

"drunken brawl." Wagner did not see who start-

ed the fight but observed that Curry was the

dominant force. When Curry walked away from

Olson, Wagner turned his attention back to his

work only to be interrupted by the sound of a

gunshot. Wagner looked up and observed Olson,

Standing next to his car, fire three more

shots, and then drive away in his car. Wagner

testified that Curry was thirty to thirty-five

feet from Olson when Olson shot him.

_ Patricia Lee and Thomas Loew, emergency

medical technicians working with the Salvation

Army's Community Service Patrol, were on duty,

driving in the vicinity of Fifth Avenue and C

Street in the early morning hours of November

10, 1981. They saw two men “reeling,” “clutch-

ing” and appearing quite intoxicated. Lee and

Loew did not observe Fighting. When they

determined that the men did not need any aid,

Lee and Loew drove away from the scene. As

they did they heard noises they believed to be

backfires. Lee and Loew decided to drive back

to see if the two men would attempt to drive.

Approaching the parking lot, they saw a white

Chrysler Cordova, without lights, fishtail out

of the parking lot. They followed the white

car, observing it run several red lights and

exceed the speed limit. Believing they were

following a drunk driver, they radioed that

information to the police.

Making the connection between the shooting

and the drunk driver who had been observed

fleeing the scene, Anchorage Police Officer

Thomas Imperiale located the white car and

followed it for several minutes until Olson

pulled over. Officer Imperiale observed a

considerable amount of blood on Olson's face

although his injuries appeared superficial.

Officer Imperiale noticed that Olson had been

drinking, but did not appear to be intoxicated.

A breathalyzer test administered by Investigat-

Or Robert Nichol, ninety minutes after the

shooting, revealed that Olson had a .18% breath

alcohol content.

Dr. George Lindholm, the pathologist who

performed the autopsy on Curry's body, testi-

5¢

fied that one bullet entered Curry's left arm,

traveled through his chest, and then exited his

body hitting his’ right arm. The bullet

punctured Curry's lungs and aorta. This shot

was instantly fatal. The other bullets had

entered Curry's back and exited his chest and

upper abdomen. Photographs of the fatal wounds

were admitted into evidence over defense

objection.

Dr. Lindholm also testified about Olson's

and Curry's intoxication. Curry had .31% blood

alcohol and .38% urine alcohol content, in-

dicating substantial intoxication. Regarding

Olson's breath alcohol of .18%, Dr. Lindholm

testified that Olson's blood alcohol could have

been .20% or higher at the time of the

incident. Dr. Lindholm believed that despite

some coordination loss, an average person with

a blood alcohol content similar to Olson's

would be relatively uninfluenced mentally by

the alcohol and could form an intent to kill.

Psychiatrist Dr. Patricia Patrick testified on

behalf of Olson that she did not believe Olson

intended to kill Curry, but only shot at Curry

to protect himself.

Olson testified in his own defense. He

was returning to his car after a night of

irinking scotch and beer in bars and later

irinking coffee in a cafe. He was upset with

1imself for drinking so much because _ he

realized that going to work later that morning

vould be difficult. As he approached his car,

ne saw Curry by the door. Olson walked up to

curry, who apparently did not notice him until

Jlson pushed him and asked, "Hey, what are you

joing with my car?" Curry struck him, knocking

him to the ground. A struggle ensued with

Surry on top of Olson, beating Olson's head

into the ground. Olson said Curry poked his

syes and Olson felt almost totally blinded.

Surry repeatedly kicked and hit Olson, and

said, “You honky son-of-a-bitch, I'm going to

kill you."

Although the beating by Curry angered and

Frightened him, Olson testified that hé only

yanted to get away. When he got to his feet,

ne reached into his car, grabbed his gun,

turned, fired, got a better grip on the gun

vith both hands, and fired again. Olson said

that he did not intend to kill Curry and did

not aim the gun. He did not remember firing

four shots. Olson considered himself to be

guite intoxicated at the time of the shooting.

7O%

After all the testimony, the trial court

instructed the jury on first and second-degree

murder, manslaughter, criminally negligent

homicide, and the defenses of diminished

capacity, self-defense and heat of passion.

The jury found Olson guilty of first-degree

murder.

I. DID THE TRIAL ERR IN FAILING

TO GRANT THE MOTION FOR

JUDGMENT OF ACQUITTAL?

In Elson v. State, 633 P.2d 292, 298

(Alaska App. 1981), aff'd on other grounds, 659

P.2d 1195 (Alaska 1983), we said:

In reviewing the denial of a

motion for judgment of acquittal,

this court must consider the evidence

and the reasonable inferences arising

therefrom in the light most favorable

to the state and determine if fair-

minded jurors in the exercise of rea-

sonable judgment could differ on the

question whether quilt has been es-

tablished beyond a reasonable doubt.

If jurors could so differ, then the

case was properly submitted to the

jury.

Olson argues that the evidence, as a matter of

law, supported his defenses of diminished

capacity and heat of passion, and raised rea-

sonable doubts as to the elements o€f first and

second-degree murder.

Diminished Capacity

We are satisfied that Dr. Lindholm's

testimony, if believed, would have permitted

the jury to find that despite Olson's in-

toxication he could have formulated an intent

to kill. The trial court did not err’in fail-

ing to grant a judgment of acquittal on the

issue of diminished capacity as it relates to

first and second-degree murder.

Heat of Passion

Alaska Statute 11.41.115 provides’ in

relevant part:

(a) In a prosecution under

§100(a)(1) or 110(a) (1) {first

second-degree murder respectively] of

this chapter, it is a defense that

the defendant acted in heat of

passion, before there had been a rea-

sonable opportunity for the passion

to cool, when the heat of passion

resulted from a serious provocation

by the intended victim.

x**«eek

(£) In this section,

(1) "intended victim" means a

* person whom the defendant was at-

tempting to kill or to whom the

defendant was attempting to cause

serious physical injury when he

caused the death of the person he is

charged with killing;

(2) “serious provocation" means

conduct which is sufficient to excite

an intense passion in a _ reasonable

person in the defendant's situation,

other than a person who is intoxicat-

ed, under the circumstances as he

reasonably believed them to be; in-

sulting words, insulting gestures, or

hearsay reports of conduct engaged in

by the intended victim do not, alone

Or in combination with each other;

constitute serious provocation.

Olson's testimony regarding his quarrel

with Curry, the injuries he received, and the

circumstances of the shooting clearly warranted

an instruction on the defense of heat of

passion. See Martin v. State, __ P.2d __, Op.

No. 261 (Alaska App., June 10, 1983). Con-

Sstruing the evidence most favorably to the

State, however, we believe reasonable jurors

could have rejected the heat of passion

defense. The jury was obligated to disregard

evidence of Olson's intoxication when evaluat-

ing the reasonableness of his conduct in light

of the surrounding circumstances as he believed

them to exist. AS 11.41.115(£)(2).

10c

Wagner testified that the fight did not

appear serious, and both Officers Imperiale and

another officer, Eric Feichtinger, who observed

Olson after the - shooting, testified that

Olson's facial injuries appeared superficial.

Wagner's testimony, if believed, supports an

inference that the Fight had ended when Curry

walked thirty to thirty-five feet away from

Olson, but Olson drew his pistol and shot. The

jury could well have found that the struggle as

described hy the state's witnesses would not

have seriously provoked a reasonable person.

Alternatively, the jury could have concluded

under all the facts and circumstances that a

reasonable person's passion if aroused would

have cooled by the time Olson shot Curry. AS

11.41.115(a).

We are satisfied that the trial court did

not err in sending this case to the jury on the

issues of first and second-degree murder.

II. DID THE CONDUCT OF THE

PROSECUTOR DENY OLSON

A FAIR TRIAL?

Olson claims the conduct of the prosecutor

denied him a fair trial.?2 Olson concedes

2 Olson has combined his attack on the prosecutor

under a single heading in his brief, making it diffi-

cult for us to separately identify and analyze the

conduct to which he objects. :

lle

that he did not object at trial to most of the

matters he questions now. In order for this

court to consider the objections for the first

time on appeal we must find plain errors

affecting Olson's substantia! rights. Alaska

R. Crim. P. 47(b).

Olson complains that the prosecutor com-

mented on his exercise of his right to remain

Silent. However, Olson does not dispute that

he made full statements to the police which

entitled the prosecutor to point to inconsist-

encies in his trial testimony. See Weston v.

State, 656 P.2d 1186, 1191 (Alaska App. 1982).

We have reviewed the record and find no error

in this regard.

Olson complains that the prosecutor im-

properly cross-examined Dr. Patrick. On direct

exam, Dr. Patrick was asked whether she be-

lieved Olson had the intent to kill when he

shot Curry. She replied: "I believe that at

the time of the shooting Mr. Olson felt he was

defending himself from further harm and that it

12¢c

was not his objective to kill the other person,

but simply to povrotect himself." In support of

her conclusion she listed a number of factors

which she considered to specifically indicate

that Olson was essentially a non-aggressive

person. On cross-examination, Dr. Patrick was

asked: "Are you aware of Mr. Olson's criminal

background?" Olson did not object and the

prosecutor proceeded to ask Dr. Patrick whether

Or not Olson's perceptions were consistent with

objective reality. She answered, "No." She

conceded that while Olson had drawn his gun

with the belief that he needed to defend him-

self, his perceptions were not in accord with

objective reality as he described it to Dr.

Patrick. We believe these questions and the

answers given were reasonable cross-examination

relating to Dr. Patrick's testimony that Olson

was a non-agressive person who in shooting

Curry acted reasonably under the circumstances

and did not intend to kill Curry.

Also, we do not find that the prosecutor's

questioning of Dr. Patrick regarding Olson's

drug use was improper under the circumstances.

In support of Olson's diminished capacity

defense Dr. Patrick testified that Olson had

brain damage and listed as possible causes

13¢

alcohol or drug abuse. The prosecutor asked

Dr. Patrick to identify the drugs which she

knew Olson had used. She mentioned marijuana,

LSD and amphetamines. This led to further

questions to which she conceded that marijuana

would not cause brain damage and that LSD and

amphetamines would not cause the brain damage

Olson suffered. Olson did not object to these

questions. We find no plain error. See

Randall v. State, 583 P.2d 196, 200 (Alaska

1978).

Olson next arques tnat the prosecutor im-

properly asked him on cross-examination whether

he was aware that carrying a concealed weapon

in a car was a crime. Olson responded: "I

don't know how the law reads on that. I

thought it was legal now since they passed that

law a year and a half, two years ago.” After

objection and voir dire out of the presence of

the jury, the trial court permitted the pro-

secutor to question Olson about a previous

conviction for carrying a concealed weapon in a

vehicle. The state argues that the prior con-

viction serves to impeach Olson's credibility

by showing Olson's knowledge that carrying the

weapon was illegal and thus established a con-

flict with his testimony at trial. The im-

14¢

peachment arguably addressed a _ collateral

matter. See Babinec v. State, 586 P.2d 966,

968 n. 14 (Alaska 1978). Generally, whether to

permit cross-examination on collateral matters

is within the discretion of the trial court.

C. McCormick, Law of Evidence §36, at 70-71 (26

ed. 1972). When we consider the totality of

the circumstances, we are satisfied that if any

error occurred, it was harmless. Alaska R..

Crim. P. 47(a).

Olson complains that the prosecutor

characterized him as a liar in final argument

to the jury. After reviewing the record, we

find the prosecutor's statements to be “fair

comment” in light of the evidence. Olson's

credibility was questionable. His testimony

was arguably contradicted by Wagner, Lee and

Loew, and by the physical evidence.

Finally, Olson contends that the prosecut-

or misstated the law regarding intent and

first-degree murder to the jury. Olson's argu-

ments were rejected in Martin v. State, _ P.2d

1 Op. No. 261 (Alaska App., June 10, 1983).

We hold that Martin is controlling and thus we

find no error.

fe.

——_

15¢

III. DID THE TRIAL COURT COMMIT

PREJUDICIAL ERROR IN ADMITTING

INTO EVIDENCE PHOTOGRAPHS

OF CURRY'S BODY?

Prior to trial, Olson had filed a motion

for a protective order prohibiting admission of

the photographs at trial. However, at trial,

the photographs of Curry's fatal wounds were

admitted over defense objection. In Stevens v.

State, 443 P.2d 600, 603 (Alaska 1968), cert.

denied, 393 U.S. 1039, 21 L. Ed. 2d 586 (1969),

the court stated:

This court has heid that a

photograph is admissible in evidence

in the discretion of the trial judge,

as an aid to the court or jury, after

it has been shown to be a faithful

representation of whatever it pur-

ports to depict, provided it is

relevant, and provided its evid-

entiary value is not outweighed by

any prejudice it might create.

(Footnotes omitted.) See, also, Sheakley v.

State, 644 P.2d 864, 870 (Alaska App. 1982).

Olson does not argue that the photographs do

not accurately depict Curry after he was shot.

Nor does the record support a finding that the

photographs were particularly gruesome.

Olson's claim is that they had no evidentiary

value. We disagree. Olson strongly argued

that his intoxication and the severe beating

l6c

allegedly administered by Curry rendered him

rirtually blind so his shots were fired without

aiming, essentially as a reflex. The photo-

yraphs demonstrate that all four shots struck

curry and that the final three shots were in

tlose proximity to each other. Curry and Olson

were separated by as much as thirty-five feet

when Olson shot Curry. The photographs cor-

roborate the state's theory that Olson's act

vas intentional and that his intoxicaton, anger

and injured eyes did not render his action a

mere reflex. We find no abuse of discretion in

admitting the photographs.

The judgment of the Superior Court is

APPIRMED.

4% hans

i ot aie ~ » tals ar oe) ow, Te Pe” A,

APPENDIX D

IN THE SUPREME COURT

FOR THE STATE OF ALASKA

NEAL WAYNE OLSON,

SUPREME COURT

Petitioner, NO. S-113

V. ORDER

SUPERIOR COURT NO.

3AN 81-6945 Cr.

STATE OF ALASKA,

Respondent.

COURT OF APPEALS

NO. 7161

eee eee eee ee

Before: Burke, Chief Justice, Rabinowitz, and

Compton, Justices. (Matthews and Moore,

Justices, not participating).

On consideration of the petition for

hearing filed October 4, 1983 and the response

to the petition filed October 12, 1983,

IT IS ORDERED:

The petition for hearing is denied.

Entered by direction of the court at

Anchorage, Alaska on October 28, 1983.

CLERK OF THE

SUPREME COURT

S/ Robert D. Bacon

ROBERT D. BACON

ccs: Justices, Counsel,

Court of Appeals Judges, The Honorable

Warren W. Matthews, Pro Tem Judge,

Appeals Deputy, Anchorage Trial Courts

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.