Panther v. Hames
| Decision Date | 09 April 1993 |
| Docket Number | No. 92-35526,92-35526 |
| Citation | 991 F.2d 576 |
| Parties | Leonard B. PANTHER, Petitioner-Appellant, v. Lloyd F. HAMES, Commissioner, Alaska Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Merle Cowan, Cowan & Gerry, Kenai, AK, Walter Share, Seattle, WA, for petitioner-appellant.
Nancy R. Simel, Asst. Atty. Gen., Anchorage, AK, for respondent-appellee.
Appeal from the United States District Court for the District of Alaska.
Before: WRIGHT, THOMPSON and KLEINFELD, Circuit Judges.
Leonard B. Panther appeals the district court's denial of his petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253 (1988).
Panther seeks relief from his Alaska conviction for criminally negligent homicide in violation of Alaska Statute 11.41.130(a) (1989). He contends that (1) Alaska's criminally negligent homicide statute is unconstitutionally vague; (2) the jury instruction defining the term "criminal negligence" violated due process because it relieved the jury of its duty to find the statutory elements of "criminal negligence" as defined in AS 11.81.900(a)(4); (3) the evidence of his criminal negligence was insufficient to support his conviction; and (4) prosecutorial misconduct through introduction of inadmissible evidence at the grand jury violated due process.
In Panther v. State, 780 P.2d 386, 391 (Alaska Ct.App.1989), the court held that the statutory definitions of recklessness and criminal negligence are not unconstitutionally vague. Panther renews his objection to the criminal negligence statute here. We agree with the Alaska Court of Appeals and the district court that Alaska's criminally negligent homicide scheme is not unconstitutionally vague.
Under AS 11.41.130(a), "[a] person commits the crime of criminally negligent homicide if, with criminal negligence, the person causes the death of another person." The term "criminal negligence" is defined as follows:
Definitions. (a) For purposes of this title, unless the context requires otherwise, ...
(4) a person acts with "criminal negligence" with respect to a result or to a circumstance described by a provision of law defining an offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
AS 11.81.900 (emphasis added).
Whether a statute is unconstitutionally vague involves a two-step analysis: (1) the statute must describe the crime sufficiently to allow ordinary people to understand what conduct is prohibited, and (2) it must provide law enforcement with adequate guidelines. United States v. Brice, 926 F.2d 925, 930 (9th Cir.1991). The statute will meet the requirement of "certainty required by the Constitution if its language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Turf Center, Inc. v. United States, 325 F.2d 793, 795 (9th Cir.1963); see Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972).
When a term has a well-settled common law meaning, it will not violate due process "notwithstanding an element of degree in the definition as to which estimates might differ." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 128, 70 L.Ed. 322 (1926) (citations omitted). The fact that a penal statute "require[s] a jury upon occasion to determine a question of reasonableness is not sufficient to make it too vague to afford a practical guide to permissible conduct." United States v Ragen, 314 U.S. 513, 523, 62 S.Ct. 374, 378, 86 L.Ed. 383 (1942).
Panther argues that the terms "substantial risk," and "gross deviation" in AS 11.81.900 are vague, fail to give objective criteria or guidance, and are thus unconstitutional. We examine each of these terms in order.
Alaska courts have not focused on the term "substantial risk." In State v. Randol, 226 Kan. 347, 597 P.2d 672, 679 (1979), the Kansas Supreme Court held that the term "material deviation" in a vehicular homicide statute was not vague. It noted that the term "material" was equivalent to "substantial," and that the term "substantial" had been found reasonably definite as used in the phrase "real or substantial value" and in other contexts. Id. at 678. The court stated that the term implies "more than the everyday minimal departures from the ordinary standard of care ... yet something less than ... reckless disregard." Id. The court concluded that when the terms of a statute and the words defining them are of "general usage, commonly known and understood by the public," they are sufficiently certain to meet constitutional requirements. Id.
This analysis applies with equal force to the term "substantial risk" as used in Alaska Stat. § 11.81.900. The term is sufficiently certain to meet constitutional requirements.
Alaska's criminal negligence standard is derived from the language contained in Model Penal Code § 2.02 (1985). Panther, 780 P.2d at 390. 1 The Washington Supreme Court has upheld this definition against a vagueness challenge. State v. Foster, 91 Wash.2d 466, 589 P.2d 789, 795 (Wash.1979).
The term "gross deviation" also appears in Alaska's criminal recklessness statute. 2 Criminal recklessness in Alaska has been held not to be vague. See Edgmon v. State, 702 P.2d 643, 645 n. 1 (Alaska Ct.App.1985); Andrew v. State, 653 P.2d 1063, 1065 (Alaska Ct.App.1982) ().
In Andrew, the court held that adding the statutory definition of recklessness to the definition of "theft by receiving" under AS 11.46.190 required the state to meet a "two-fold burden." 653 P.2d at 1065. First, the state must prove that the accused took so great a risk that the property in question was stolen as to constitute a "gross deviation" from the standard a reasonable person would observe in the situation and, second, that the accused was actually aware of that risk. Id. This "two-fold standard of recklessness is sufficiently precise to be understood and applied by persons of ordinary intelligence ... and therefore [the statute] is not impermissibly vague." Id.
In Williams v. State, 648 P.2d 603, 608 (Alaska Ct.App.1982), the Alaska Court of Appeals held that the "meaning of the term 'recklessly' is well within the comprehension of the average juror, and that the [Alaska] code definition appears to be a common sense definition of the term. " This definition is a "common-sense definition which the average juror could understand and apply without an instruction." Walker v. Endell, 850 F.2d 470, 475 (9th Cir.1987), cert. denied, 488 U.S. 926, 109 S.Ct. 309, 102 L.Ed.2d 328 (1988).
Similarly, Alaska's criminally negligent homicide statute, read together with the definition of criminal negligence under AS 11.81.900(a)(4) creates the same "two-fold standard" held not to be impermissibly vague in Andrew. Accord State v. Serrano, 145 Ariz. 498, 501, 702 P.2d 1343, 1346 (1985) ().
Other jurisdictions which have criminal negligence statutes substantially identical to Alaska's, and which use the term "gross deviation," have rejected vagueness challenges. See State v. Owens, 638 P.2d 1182, 1184 (Utah 1981) (); State v. Carisio, 552 A.2d 23, 25 (Me.1988) (); Ketchum v. Ward, 422 F.Supp. 934, 940 (W.D.N.Y.1976) (), aff'd, 556 F.2d 557 (2d Cir.1977).
We conclude that Alaska's statutory definition of criminal negligence is not unconstitutionally vague. 3
Panther argues that the court's jury instruction, which it read immediately following the statutory definition of criminal negligence, contradicts the statute and unconstitutionally permitted the jury to convict him for ordinary civil negligence. Panther contends this instruction diluted the state's due process burden to prove each statutory element of the crime charged. See Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). We disagree. The jury instruction provided:
A person acts with culpable criminal negligence with respect to a result described by the law when the person fails to perceive a substantial risk that the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Criminal negligence is something more than the slight negligence necessary to support a civil action for damages and is negligence of a degree so gross as to be deserving of punishment.
Panther first challenged the instruction on appeal, after failing to object at trial. In Panther, the court upheld the instruction, as it was approved by the Alaska Supreme Court in O'Leary v. State, 604 P.2d 1099, 1104 (Alaska 1979), overruled on other grounds, Evans v. State, 645 P.2d 155, 160 n. 11 (Alaska 1982). 780 P.2d at 391 n. 4.
Ordinarily failure to comply with a state's contemporaneous objection rule bars federal habeas review unless the petitioner can show cause and prejudice flowing from the error. Walker, 850 F.2d at 473 (citing Wainwright v. Sykes, 433 U.S. 72...
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