Braham v. State, 2558

• Decision Date: 10 November 1977
• Docket Number: No. 2558,2558
• Citation: 571 P.2d 631
• Parties: Harold BRAHAM, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

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571 P.2d 631 Harold BRAHAM, Appellant,
v.
STATE of Alaska, Appellee. No. 2558. Supreme Court of Alaska. Nov. 10, 1977.

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David C. Backstrom, Deputy Public Defender and Mark E. Ashburn, Asst. Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant.

David Mannheimer, Asst. Dist. Atty. and Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, Chief Justice, RABINOWITZ, CONNOR and BURKE, Justices, and DIMOND, Justice Pro Tem.

OPINION

DIMOND, Justice Pro Tem.

In this criminal action, a contract is involved a contract to kill.

According to testimony at the trial, appellant, Harold Braham, hired Jeffrey Koelzer to kill David Peterson. Braham was convicted of attempted first degree murder. He appeals on a number of grounds. The first is that the evidence was insufficient to warrant an indictment for attempted murder and also insufficient to withstand a motion for a judgment of acquittal at the close of the state's case. Before we address this question, the factual background of the case must be examined in some detail.

There was evidence indicating that Braham had a motive for having Peterson killed. Braham had introduced Peterson to an organization called the "Minute Men." Peterson testified he joined this organization and undertook assignments for the group, whose purpose was to be ready with paramilitary equipment to defend the Constitution. The organization, of necessity, was secret, and Peterson was instructed never to reveal the existence of the Minute Men or his connection with them. He was told that if he did this, it would be Harold Braham's job to see that he was killed.

Disregarding this admonition, Peterson went to the FBI and told them about the Minute Men in 1972. He said that his motivation for going to the FBI was a conversation he had with his attorney, following an attempt by Braham to hire him to kill a local lawyer whom Braham believed to be the head of "the communist group" in Fairbanks.

In June 1974, Peterson gave information to the police to the effect that a D-6 Caterpillar tractor had been stolen and that Peterson was willing to testify against the man who had stolen it.

A few days after this contact with the police, Peterson's trailer exploded while Peterson was in it, apparently as a result of a bomb placed in the trailer. Peterson was not injured. Approximately one month later, on July 14, 1974, Peterson was driving down the Elliott Highway, north of Fairbanks, when several shots were fired into his vehicle, wounding him severely. He was taken to the Fairbanks Community Hospital for medical treatment. Although investigations were made, no person was charged or apprehended for bombing Peterson's trailer or for shooting him.

Jeffrey Koelzer had known Harold Braham for five or six years and, during that period of time, had several business transactions with him, some of which involved the sale of illegal weapons. In early July Koelzer had a conversation with Braham in which Braham expressed regret that the explosion in the trailer had not killed Peterson, and Braham asked Koelzer if he might

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be interested in "doing" Peterson, i. e., killing him. Braham offered Koelzer $600, which he said he would collect from a group of individuals if Koelzer would kill Peterson. Koelzer was, at this time, about to go to Valdez, but he promised Braham that he would consider the offer and that he was definitely interested.

Koelzer returned from Valdez on July 22, 1974, and a few days later was informed by Braham that Peterson had been shot and was in the hospital. Koelzer indicated that he was willing to undertake the killing of Peterson, and a contract was made that Koelzer would kill Peterson and would receive $600 from Braham.

At this meeting between Braham and Koelzer, Braham requested Koelzer to visit Peterson in the hospital and deliver a fictitious message to him concerning Peterson's wife. The content of the message, which Koelzer delivered to Peterson, was that Peterson's wife was engaged in acts of infidelity with a trapper in his cabin out on the Steese Highway.

Koelzer went to the hospital to see Peterson. At this time it was Koelzer's intention to carry out the contract and collect the money.

A short time later, Koelzer was contacted by the Alaska State Troopers and the questions which they asked worried him. The Troopers seemed to know too much about the contract which had just been agreed upon. A short time after that, Koelzer decided that he wanted nothing to do with the contract and that he had better aid the State Troopers in their investigation because if Peterson were killed in the meantime, Koelzer might be charged with the murder. In return for his aid in getting evidence against Braham and for his testimony before the grand jury, the State Troopers offered Koelzer the $600 which he was to receive from Braham for killing Peterson.

After this arrangement had been made between Koelzer and the police, Koelzer went to visit Braham at the request of the police. He discussed the killing of Peterson with Braham, asking Braham if he could supply a gun since Koelzer only had a .22 magnum. Braham told him that a .22 magnum would be enough if the shots were at point-blank range and that, further, it would be impossible for Braham to get a weapon from his "stash" since the police were watching him too closely. Koelzer then told Braham how the murder was to be accomplished, i. e., by taking Peterson out to 12 Mile Chena Hot Springs Road, shooting him and then burying his body in some marshy ground.

At the instance of the police, Koelzer called on Braham on August 13, 1974. At this meeting, Braham was told that he should get his alibi ready for the next day and to be sure to have the money together. Braham responded that he had been experiencing some difficulty in collecting the $600 from other interested parties, but that he could guarantee at least $300 by the next day, as he had $100 from another man and he himself was willing to ante up $200 for killing the "son-of-a-bitch."

The proposed killing was arranged for August 14 at 9:30 a. m. Braham and Koelzer discussed what proof Braham would require as evidence of the performance of the agreement. Braham suggested that Koelzer bring Peterson's gun, which Peterson had kept by his side 24 hours a day since the attempts were made on his life. Koelzer thought that Peterson had a .44 magnum. This provided Braham with the opportunity to test whether Koelzer killed Peterson: if Koelzer brought back a .44 magnum, Braham would know that Koelzer was lying, for Braham knew that the gun which Peterson had was a .41 magnum.

The next morning Koelzer called Braham from state police headquarters, telling Braham that Peterson was going to be late to their rendezvous and that Braham should have his alibi ready for a later hour. At this time Braham suggested to Koelzer in a roundabout manner that Koelzer should bring with him one of Peterson's toes as proof of the killing.

The state police drove Koelzer out to 12 Mile Chena Hot Springs Road. He moved

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Peterson's truck and collected Peterson's keys and gun. In the meantime, Peterson had been flown to Minto Flats, a remote area, by the troopers to hide out so as not to be seen by any interested party. That evening Koelzer telephoned Braham and told him that the job was done.

The next day Koelzer met with Braham. Koelzer gave Braham Peterson's gun (a .41 magnum) and keys in a pink paper bag. Braham was pleased to find the keys and the .41 magnum inside the bag. Braham accepted Koelzer's excuse of nervousness and waived the requirement of Peterson's toe. Braham wiped off the gun and hid it in his truck and then he paid Koelzer $300, stating that he still hadn't been able to contact the other potential donors.

ATTEMPTED MURDER

In order for one to be guilty of attempted murder, there must have occurred during the attempt an "act toward the commission" of the murder. ¹ The maximum penalty for attempted first degree murder is ten years. ²

On the other hand, it is also a crime for one to willfully and knowingly solicit, incite or induce another to commit a felony, and the maximum penalty for this crime is three years imprisonment. ³ The question we are faced with in this case is whether the evidence established an attempted murder on Braham's part, or whether it showed that he only solicited, induced or incited Koelzer to commit the murder of Peterson.

We stated in Whitton v. State, 479 P.2d 302, 304 (Alaska 1970):

It is within the traditional scope of legislative power to deter anti-social behavior by enacting laws proscribing, under the pain of punishment, certain courses of human conduct considered to be detrimental to an ordered society.

Certainly, first degree murder is seriously detrimental to an ordered society, as is reflected by the legislature's act in providing severe punishment for that crime. And in order to give recognition to society's continuing legitimate interest in the protection of a person, it is also considered detrimental to an ordered society for one to attempt to commit murder, even though he does not succeed in the attempt. Where there is an attempt to commit murder, there is always present a threat of fear, force and violence and even death to a person so that proscribing such an act, under pain of punishment, is essential in order that life in society may exist, and in existing, may be tolerable.

But there is also a countervailing policy: society (at least in a democracy such as ours) does not punish one for his thoughts alone, regardless of how malevolent they may be. If the law were otherwise, there would be an intolerable invasion of one's privacy; man would be reduced to abject slavery, or something worse. Thus, there is some point between the formation of a criminal plan in one's mind and one's action in trying or making an effort...