Abruska v. State, 7672

• Decision Date: 30 August 1985
• Docket Number: No. 7672,7672
• Citation: 705 P.2d 1261
• Parties: Mattfi ABRUSKA, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1261

705 P.2d 1261

Mattfi ABRUSKA, Appellant, v. STATE of Alaska, Appellee.

No. 7672.

Court of Appeals of Alaska.

Aug. 30, 1985.

Galen S. Paine, Asst. Public Defender, Bethel, and Dana Fabe, Public Defender, Anchorage, for appellant.

Charles M. Merriner, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

Mattfi Abruska was convicted of second-degree murder. AS 11.41.110(a)(1). He received a ninety-nine year sentence. He appeals his conviction and sentence. We affirm.

Abruska shot and killed Joseph Nook. Abruska, Nook, Zaukar Littlefish, and two other men were drinking at Abruska's house the day Nook was killed. Abruska and Nook got into an argument, but Littlefish restrained Nook before either man struck a blow. Nook and Littlefish sat back down and began discussing their trapping plans. Within a minute afterwards Littlefish heard two shots and saw Nook double over. Littlefish looked up and saw Abruska about seven feet from Nook pointing a .22 caliber rifle at Nook. Littlefish got up, took the rifle away from Abruska, and went into the bedroom to hide the rifle. When he came out, Nook was outside.

One of the other two men present was asleep and heard no shots. The other man heard a shot while he was looking out the window. He turned and saw Littlefish holding Abruska but not the rifle. The man then left the house immediately. The village safety officer passed by shortly thereafter and saw Nook on the ground outside. Littlefish signaled for the officer to come over. Nook was transported to the hospital where he spoke with troopers and medical personnel before he died.

Two bullets from the rifle had entered Nook's abdomen, one probably passing through Nook's wrist first. Abruska's rifle holds fourteen bullets. Twelve live rounds remained in the rifle. Abruska told Littlefish while Littlefish was still in the house that he had shot Nook in the gut. When troopers came to arrest Abruska, he stated, "Fuck you, I'll shoot you too." Abruska later told troopers that he asked Nook twice to leave and when Nook did not do so, Abruska got his rifle and began shooting.

Abruska raises three points on appeal. First, he contends the trial court erred in excluding evidence of Abruska's intoxication offered to show diminished capacity. Second, he contends that the indictment should have been dismissed because: (1) the grand jury was erroneously instructed; (2) the prosecution failed to present exculpatory evidence; and (3) the prosecution utilized inadmissible evidence. Finally, Abruska contends his sentence is excessive. We will discuss each of Abruska's contentions in turn.

I.

Abruska was convicted of violating AS 11.41.110(a)(1), which provides:

(a) A person commits the crime of murder in the second degree if

(1) with intent to cause serious physical injury to another person or knowing that the conduct is substantially certain to cause death or serious physical injury to another person, the person causes the death of any person.

A.

Abruska was tried on the theory that he engaged in conduct knowing that it was substantially certain to cause death or serious physical injury to another person. He argues that he was unconstitutionally deprived of an "intoxication defense." Two other statutes are relevant to an understanding of Abruska's arguments. AS 11.81.900(a)(2) defines the term "knowingly" as follows:

(2) a person acts "knowingly" with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist; a person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance.

AS 11.81.630 provides:

Voluntary intoxication is not a defense to a prosecution for an offense, but evidence that the defendant was intoxicated may be offered whenever it is relevant to negate an element of the offense that requires the defendant intentionally cause a result.

We had occasion to consider these statutes in Neitzel v. State, 655 P.2d 325 (Alaska App.1982). In Neitzel we concluded that the legislature had foreclosed evidence of intoxication to show diminished capacity as to all offenses except those which required intent to cause a result as the mens rea. Abruska notes the existence of Neitzel but seems uncertain as to its holding. He therefore makes two lines of attack.

First, he contends that as a matter of statutory construction the legislature intended to permit evidence of a person's past experience when intoxicated to the extent that it would be relevant to show his appreciation of the risks he presented to others when he was intoxicated. See, e.g. Shane v. Rhines, 672 P.2d 895, 899 n. 3 (Alaska 1983). ¹ We generally agree with Abruska that the statutory limitations on the use of evidence of intoxication to show diminished capacity are aimed at precluding a showing that on a particular occasion a person was so impaired by alcohol that he could not appreciate the risks that his conduct presented to others. The statutory limitations would not prevent evidence by either the prosecution or the defense that the person's past experiences while drunk would or would not have alerted him to the risks that he presented to others when intoxicated. Our review of the record establishes, however, that Abruska did not make this argument in the trial court. His argument to the trial court was limited to offering evidence as to his intoxication on the night he shot Nook to show that he was unaware of the risk that his conduct posed to Nook at that time. This is the precise use of the evidence foreclosed by the statutes. The trial court did not err in rejecting Abruska's offer of proof.

Abruska's second line of attack challenges the constitutionality of both the limitation on the defense of intoxication in AS 11.81.900(a)(2) and, by extension, the absolute prohibition of that defense in AS 11.81.630. Abruska contends that the statutes in effect establish a conclusive presumption of sobriety which operates as a directed verdict of guilty on a necessary element of the offense of second-degree murder, namely, the necessary mens rea to constitute the offense. Abruska contends that this conclusive presumption violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). He also relies on the due process and equal protection clauses of the state and federal constitutions. He reasons that there is no rational basis for preventing him from showing as a matter of fact that he was unable to appreciate the risk his conduct posed to Nook. We reject Abruska's arguments.

First, there is no presumption conclusive or otherwise contained in the statutes under consideration. The legislature requires that the jury find beyond reasonable doubt that the defendant knew that his conduct was substantially certain to cause serious physical injury or death to a person and in fact caused a person's death. Thus, a jury could very well find that a specific person, without regard to that person's state of intoxication at a particular time, did not appreciate a given risk that his conduct would cause death or serious injury to another and a fortiori could find that he did not know that the conduct would cause death. In reaching this conclusion the jury could consider such things as the actor's intelligence, physical abilities, and experience. A jury might well find that a mentally retarded person whether or not he was intoxicated would not have appreciated the risk or risks that led to the victim's death even if the jury was convinced that a person of greater intelligence would have appreciated the risk. By the same token a person of poor eye sight or poor hearing might have been unaware of risks that a more fortunate person would have perceived. Finally, a person of limited experience regarding firearms or the operation of motor vehicles might not have appreciated the risks in the circumstances in which the person found himself at the time his conduct resulted in another's death, even though a reasonably prudent person possessing more typical experience would have appreciated those risks. In summary, whether the actor was sober or intoxicated at the time his conduct caused another's death, the jury, in order to convict him, must find that he would have appreciated the risks flowing from his conduct had he been sober. Thus, Abruska is simply wrong when he contends that the jury was instructed that it could find him guilty regardless of his subjective knowledge if it found that he was too intoxicated to know one way or the other.

We also reject Abruska's due process, equal protection, and by extension cruel and unusual punishment arguments, all of which turn on the contention that no legislature could rationally conclude as a matter of policy that intoxication should not be considered on the issue of knowledge. The Alaska Supreme Court has considered and rejected similar arguments on a number of occasions. The leading case is Vick v. State, 453 P.2d 342, 344-45 (Alaska 1969), where the court rejected constitutional challenges and affirmed a sentence imposed on a chronic alcoholic for being drunk in public despite evidence that he could not control his need to drink. See also Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). In Evans v. State, 645 P.2d 155, 160 (Alaska 1982), the court adopted a rule rendering an accused's intoxicated state irrelevant to the issue of his sanity. The court said:

In our view, the rule which...