Kimoktoak v. State

• Decision Date: 01 September 1978
• Docket Number: No. 3177,3177
• Citation: 584 P.2d 25
• Parties: Edward Burns KIMOKTOAK, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 25

584 P.2d 25

Edward Burns KIMOKTOAK, Appellant, v. STATE of Alaska, Appellee.

No. 3177.

Supreme Court of Alaska.

Sept. 1, 1978.

Chris J. Rigos, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant.

Monica Jenicek, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

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

OPINION

BURKE, Justice.

Edward Burns Kimoktoak was found guilty by a jury of joyriding under AS 28.35.010 and of failure to render aid and assistance to a person he had run over with a motor vehicle under AS 28.35.060. In this appeal, Kimoktoak challenges his conviction for failure to render aid under AS 28.35.060 on the grounds that the statute is unconstitutional, that two of the instructions given the jury were improper, and that the trial court improperly allowed a sealed verdict over defense objection in violation of Criminal Rule 31(f). He challenges the joyriding conviction solely on the basis that the trial court erred in allowing the sealed verdict.

There is little dispute as to the facts in this case. At about 10-10:30 p. m. on May 22, 1976, while driving an automobile he was using without permission from the owner, appellant twice ran over one Oscar Johnson while pulling out of a parking space in a parking lot behind an Anchorage bar. Kimoktoak then drove to another part of the parking lot where he remained for several minutes. The police arrived on the scene during that time and a witness pointed out the defendant's car. The officers ran toward the car, one of them shouting to the driver to stop, but the vehicle quickly sped away. One of the policemen recognized Kimoktoak as the driver and attempted unsuccessfully to stop the car by firing a shot through the back window. The officer then put out a radio "locate" with a description of the incident, the vehicle, its license plate number and the driver. Shortly thereafter, two other officers picked up Kimoktoak at the Alaska Native Services Hospital parking lot. One of the officers knocked the defendant unconscious (there was conflicting testimony as to the reason for this), and it was necessary to take him into the hospital. He was then taken to jail at about 2:00 a. m. on May 23, 1976.

Although Kimoktoak was able to recall certain of the above events, ¹ he testified at trial that he had no memory of running into or over anything or anyone on the night in question and that he suffered from memory loss at many points throughout the night. He related a story of near continuous drug and alcohol use throughout May 22 and indicated that he had suffered memory loss three or four times in the past due to drinking. Two other defense witnesses also testified as to Kimoktoak's intoxication on the day and night of the incident. A friend whom he had visited early in the afternoon of the 22nd stated that he was "very drunk." The booking officer at the jail testified that he was unable to process the defendant (I. e., get his name, address, etc. and fingerprint and photograph him) when he was brought to the jail after the incident because he was too inebriated and instead sent Kimoktoak to the detoxification unit. Among the symptoms of intoxication observed by the officer were Kimoktoak's slurred and confused speech, his inability to remain awake or to walk without assistance and an odor of alcohol about his person. The prosecution did not attempt to rebut the evidence that Kimoktoak was intoxicated throughout this period, although it did elicit testimony from the booking officer than he was not aware that the defendant had been knocked out nor did he know whether or not the defendant had been given any medication at the hospital prior to his arrival at the jail.

The victim, Mr. Johnson, was intoxicated at the time of the incident and did not remember being run over. Witnesses testified that he moaned faintly when the car went over him and that after it happened he was yelling. As a result of being run over, he suffered from knee injuries and was in the hospital for almost a month.

I

Appellant's first contention on appeal is that AS 28.35.060 fails to require criminal intent for conviction and that this violates his right to due process of law under the Fourteenth Amendment of the United States Constitution and art. I, sec. 7 of the Alaska Constitution. Appellant further contends that the requisite intent cannot be judicially read into the statute and that therefore the statute must be struck down.

AS 28.35.060 requires, in pertinent part:

The operator of a vehicle involved in an accident resulting in injury to or death of a person or damage to a vehicle which is driven or attended by a person shall give his name, address, and vehicle license number to the person struck or injured, or the operator or occupant, or the person attending, and the vehicle collided with and shall render to any person injured reasonable assistance, including making of arrangements for attendance upon the person by a physician and transportation, in a manner which will not cause further injury, to a hospital for medical treatment if it is apparent that treatment is desirable.

Subsection (c) of the statute provides that "(a) person who fails to comply with a requirement . . . regarding assisting an injured person" is punishable, upon conviction, by imprisonment for not more than 10 years or by a fine of not more than $10,000 or by both. Subsection (b) provides that "a person who fails to comply with" any of the other requirements of the statute is punishable by imprisonment for not more than one year or by a fine of not more than $500 or by both.

On its face AS 28.35.060 does not require that a person have knowledge of the accident or of the fact that injuries have resulted to be guilty of a serious crime. Thus, the statute appears to hold a person strictly liable for failure to render assistance even if he is unaware of any wrongdoing, I. e., unaware of the circumstances giving rise to the duty and thus unaware that he is in fact failing to do the required act. The state concedes that this is so.

It is well-settled that an act or omission can result in serious criminal liability only when a person has the requisite criminal intent. Thus, in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the United States Supreme Court reversed a conviction for stealing government property because the accused had not been given the opportunity to show that he had believed the property to be abandoned, and thus did not have the wrongful intent to take property belonging to another. The Court stated:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.

342 U.S. at 250, 72 S.Ct. 243, 96 L.Ed. at 293.

Referring to Morissette, this court has on several occasions reiterated the requirement of criminal intent. In Speidel v. State, 460 P.2d 77 (Alaska 1969), we invalidated part of AS 28.35.026 which made the inadvertent or negligent failure to return a rented motor vehicle a crime punishable by imprisonment up to five years and/or a fine of up to $1,000. We rejected the notion that mere inadvertent or unwitting failure to perform a legal duty could constitute a felony:

Although an act may have been objectively wrongful, the mind and will of the doer of the act may have been innocent. In such a case the person cannot be punished for a crime, unless it is one such as the 'public welfare' type of offense, which we have discussed, where the penalties are relatively small and conviction does no great damage to an offender's reputation. . . . To make (an inadvertent, unwitting) act, without consciousness of wrongdoing or intention to inflict injury, a serious crime, and criminals of those who fall within its interdiction, is inconsistent with the general law. To convict a person of a felony for such an act, without proving criminal intent, is to deprive such person of due process of law.

460 P.2d at 80. ² As we further explained in Alex v. State, 484 P.2d 677 (Alaska 1971):

When one considers Speidel and Morissette, it is apparent that those cases deal with the necessity of basing serious crimes upon a general criminal intent as opposed to strict criminal liability which applies regardless of intention. The goal of these cases is to avoid criminal liability for innocent or inadvertent conduct. The use of the phrase 'awareness of wrongdoing' is but one means of assuring this result. The phrase does not mean a person must be aware that the conduct he is committing is specifically defined as a wrongful act. Nor does it mean that a person must know an act is proscribed by law. Rather, the requirement is that a person's intent be commensurate with the conduct proscribed.

484 P.2d at 681 (footnotes omitted).

On its face, AS 28.35.060 appears constitutionally defective for its failure to require criminal intent, or more particularly, for its failure to require that a person knowingly fail to render assistance. The issue, then, is whether we may read into the statute by implication the requisite intent. We conclude that we may.

In State v. Campbell, 536 P.2d 105 (Alaska 1975), we held AS 11.25.260, a statute criminalizing the appropriation of lost property to the finder's use without advertising or reporting the finding to a peace officer, invalid for failure to require criminal intent. In that instance, we found that we were unable to redraft the statute in several particulars so as to validate it. In so doing, we enunciated the principle that "intent can be found by implication only in statutes which represent codifications of a common law crime." 536 P.2d at 110. This rule was derived...