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fister v. State (5/18/2018) ap-2600

fister v. State (5/18/2018) ap-2600

                                                                                         NOTICE
  

               The text           of   this opinion can be corrected before the opinion is published in the                                          

               Pacific Reporter                  .   Readers are encouraged to bring typographical or other formal                                           

               errors to the attention of the Clerk of the Appellate Courts:    



                                                          303 K Street, Anchorage, Alaska  99501  

                                                                             Fax:  (907) 264-0878  

                                                                E-mail:  corrections@ akcourts.us  



                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                 



BRIAN  ALBERT  PFISTER,  

                                                                                                                                                                   

                                                                                                                   Court of Appeals No. A-12019  

                                                             Appellant,                                                                                                             

                                                                                                               Trial Court No. 3AN-11-12507 CR  



                                             v.  

                                                                                                                                  O  P  I  N  I  O  N  

                                                                                                                                                                   

STATE  OF  ALASKA,  



                                                             Appellee.                                                  No. 2600 - May 18, 2018  

                                                                                                                                                                        



                              Appeal   from  the   Superior   Court,  Third  Judicial                                                               District,  

                                                                                                                                                   

                              Anchorage, Michael R. Spaan, Judge.  

                                                                                                



                              Appearances:  Dan S. Bair, Assistant Public Advocate, Appeals  

                                                                                                                                                      

                              and  Statewide  Defense  Section,  and  Richard  Allen,  Public  

                                                                                                                                                       

                              Advocate,  Anchorage,  for  the  Appellant.                                                        Michal  Stryszak,  

                                                                                                                                                  

                              Assistant   Attorney   General,   Office   of   Criminal   Appeals,  

                                                                                                                                                  

                              Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for  

                                                                                                                                                                

                              the Appellee.  

                                                             



                              Before:  Mannheimer, Chief Judge, and Allard and Wollenberg,  

                                                                                                                                            

                              Judges.  

                                                



                              Judge MANNHEIMER.  

                                             



                              In November 2011, Brian Albert Pfister and two accomplices - Joseph                                                                                    



Trantham and Maurice Johnson - decided to break into the home of a marijuana grower                                                                                                  


----------------------- Page 2-----------------------

                                                                                                                    

and rob him.   Pfister waited outside while his two accomplices entered the marijuana  



                           

grower's home.  



                                                                                                                                

                    Once Trantham and Johnson were inside the home, they pistol-whipped the  



                                                                                                                              

marijuana grower and demanded his money.  The marijuana grower led Trantham and  



                                                                                                                             

Johnson to his safe -  where, unbeknownst to the robbers, he kept a handgun.   The  



                                                                                                                       

grower removed the handgun from the safe and used it to shoot Trantham and Johnson  



                                                                                                                            

- mortally wounding both of them.  Pfister ran away, but he was later arrested.  



                                                                                                                                     

                    The State charged Pfister with first-degree burglary, first-degree robbery,  



                                                                                                                                

and conspiracy to commit robbery.  The State also charged Pfister with two counts of  



                                                                                                                            

manslaughter, for causing the deaths of his two accomplices.   Following a jury trial,  



                                                                

Pfister was convicted of all these crimes.  



                                                                                                                              

                    In  this appeal, Pfister challenges his two manslaughter convictions.                                     He  



                                                                                                                     

asserts that, under Alaska law, an accomplice to a dangerous felony cannot be convicted  



                                                                                                                        

of manslaughter when the person who is killed as a result of the  felony  is  another  



                    

accomplice.  



                                                                                                                         

                    Pfister notes that, under Alaska law, he could not be convicted of felony- 



                                                                                                                       

murder for the deaths of his accomplices.   This is because the portion of the second- 



                                                                                                                        

degree murder statute that defines felony-murder, AS 11.41.110(a)(3), expressly exempts  



                                                                                                                 

situations where the person who dies during a violent felony is "one of the participants"  



                        

in that felony.  



                                                                                                                           

                    Based  on  the  fact  that  Alaska's  felony-murder  statute  does  not  cover  



                                                                                                                          

situations where a felony results in the death  of  an accomplice to that crime, Pfister  



                                                                                                                                  

argues that the Alaska Legislature also must have intended to exempt accomplices to a  



                                                                                                                           

felony from any  criminal liability for the death of another accomplice.                                        Thus,  under  



                                                                                                                          

Pfister's view of the law, he could not be convicted of manslaughter or any other degree  



                                                              - 2 -                                                          2600
  


----------------------- Page 3-----------------------

of criminal homicide based on the deaths of                                                                                                                                              his   two accomplices to the burglary and                                                                                                                



robbery in this case.                                                                



                                                       As we explain in this opinion, Pfister's argument is inconsistent with the                                                                                                                                                                                                                    



common law defining the crime of manslaughter.                                                                                                                                                       Based on that common law, and based                                                                                                   



on the hundred-year history of Alaska's manslaughter statute, we conclude that Pfister's                                                                                                                                                                                                                                        



proposed limitation on the crime of manslaughter is inconsistent with the intent of the                                                                                                                                                                                                                                                             



Alaska Legislature.                                                            We therefore uphold Pfister's two manslaughter convictions.                                                                                                                                                                                                   



                                                       However, for the reasons explained in this opinion, we remand Pfister's                                                                                                                                                                                                 



case to the superior court for re-sentencing.                                                                                                                                       



                            The common-law definition of manslaughter, and the related doctrines of                                                                                                                                                                                                                            

                          felony-murder and misdemeanor-manslaughter                                      



                                                       At common law,                                                          the crime of manslaughter was a residual category of                                                                                                                                                                      



unlawful homicide.                                                                Manslaughter was defined as any unlawful homicide committed                                                                                                                                                                         

without malice aforethought - that is, any unlawful homicide that was not murder.                                                                                                                                                                                                                                                                      1  



                                                       Thus, whenever a person caused the death of another human being, and if  

                                                                                                                                                                                                                                                                                                                                                             



that killing was neither justified nor excused, and if the killing did not constitute some  

                                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                         2  

form of murder, then the person was guilty of manslaughter.  

                                                                                                                                                                                                                                                               



                                                       One of the forms of murder recognized at common law  was  "felony- 

                                                                                                                                                                                                                                                                                                                              



murder".  In the early days of the common law, this doctrine applied only to homicides  

                                                                                                                                                                                                                                                                                                                         



              1             Rollin M. Perkins & Ronald N. Boyce,                                                                                                                      Criminal Law                                             (3rd ed. 1982), p. 82; Wayne                                                            



R.  LaFave,  Substantive Criminal Law                                                                                                               (3rd ed. 2018),  15.1, Vol. 2, p. 668.                                                                                                              



              2  

                                                                                                                                                                                                                        

                           Perkins & Boyce , p. 83; LaFave , Vol. 2, p. 668.  



                                                                                                                                                                         - 3 -                                                                                                                                                                    2600
  


----------------------- Page 4-----------------------

that were caused during an                    attempt  to perpetrate a felony - because, in those days, any                                     



                                                                                         3  

completed felony was already punishable by death.                                            



                       Later, when the law allowed lesser penalties for felonies, the felony-murder  

                                                                                                                              



doctrine was altered to cover any unintended homicide that resulted from the perpetration  

                                                                                                                                  



or attempted perpetration of an inherently dangerous felony, or from any other felony  

                                                                                                                                           



                                                                           4  

that was perpetrated in a dangerous manner.                                   In such instances, the common law viewed  

                                                                                                                                          



the defendant's intent to commit the felony as "malice aforethought" - thus elevating  

                                                                                                                                       

the homicide to murder - even though the defendant had no intent to kill. 5  

                                                                                                                                     



                       Because the only intent required for felony-murder was the intent to commit  

                                                                                                                                          



the  felony,  the  felony-murder  rule  applied  to  deaths  that  were  attributable  to  the  

                                                                                                                                                



commission of a felony even if those deaths were unforeseen or even quite unexpected:  

                                                                                                                                  



                         

                                   If [the] intent [to commit the felony] is shown[,] the  

                                                                                                                          

                       resulting homicide is murder even if it was quite accidental.  

                                                                                                                                

                       ... [For example,] if arson results in the death of a fireman  

                                                                                                                 

                       who was trying to put out the fire, the arsonist is recognized  

                                                                                                             

                       as having caused this death and is guilty of murder under the  

                                                                                                                          



                                                         6  

                       felony-murder rule.  

                                                              



Indeed, even the accidental killing of an accomplice during the perpetration of the felony  

                                                                                                                                           

was felony-murder for this same reason. 7  

                                                                           



      3    Perkins  &  Boyce ,  pp.  70-71.   



      4    Perkins  &  Boyce ,  pp.  62-65 &                  70-72;  LaFave ,  Vol.  2,  pp.  604-612.   



      5    Perkins  &  Boyce ,  p.  71.   



      6    Perkins  &  Boyce ,  pp.  67-68.   



      7  

                                                                                           

           Perkins & Boyce , p. 68; LaFave , Vol. 2, p. 618.  



                                                                       - 4 -                                                                  2600
  


----------------------- Page 5-----------------------

                                                 The common                                          law   also recognized a related doctrine that is commonly                                                                                                                       



referred to as the "misdemeanor-manslaughter" rule.                                                                                                                                                



                                                 Under this rule, a person was guilty of manslaughter if they engaged                                                                                                                                                                                               in  



any unlawful act that was not covered by the felony-murder rule and, as a result, another                                                                                                                                                                                                        



person died.                                   



                                                 The misdemeanor-manslaughter rule is sometimes treated as if it were a                                                                                                                                                                                                 



separate legal doctrine, distinct from (but related to) the felony-murder rule.                                                                                                                                                                                                       However,  



in   truth,   the   misdemeanor-manslaughter   rule   follows   directly   from   the   definition   of  



manslaughter.   



                                                 As we explained earlier,                                                                    the common law                                                      defined manslaughter as any                                                                  



unlawful homicide that did not constitute murder.                                                                                                                                              Thus,   if a person engaged in an                                                                                  



unlawful act, and if that act resulted in the unintended death of another human being, and                                                                                                                                                                                                                     



if that death did not constitute felony-murder, then the crime was manslaughter.                                                                                                                                                                                                                      



                        Alaska's historical definitions of manslaughter and felony-murder                                                                                                                                



                                                 During the eighty-year interval between the earliest codification of Alaska                                                                                                                                                                        

                                                                                                                                                          8  and the effective date of Alaska's current  

territorial law (the Carter Code of 1900)                                                                                                                                                                                                                                                        

                                                                                                                            9  Alaska adhered to the common-law  definition of  

criminal code (January 1,  1980),  

                                                                                                                                                                                                                                                                                                                   



manslaughter.   That is, manslaughter was the residual category of unlawful homicide:  

                                                                                                                                                                                                                                                                                                                                



it encompassed  any unlawful homicide that did not constitute either first- or second- 

                                                                                                                                                                                                                                                                                               



degree murder.  

                                                         



             8           Thomas H. Carter,                                              Laws of Alaska                                          (1900).
   



            9  

                                                                                                                                

                         See SLA 1978, ch. 166,  25.
  



                                                                                                                                                       - 5 -                                                                                                                                                  2600
  


----------------------- Page 6-----------------------

                                          The earliest codification of this principle is found in Part I, Section 6 of the                                                                                                                                        



Carter Code:                              



                                           

                                                               [W]hoever unlawfully kills another, except as provided                                                                                   

                                          in [the sections defining first-                                                          and second-degree murder], is                                                             

                                          guilty of manslaughter ... .                                                     



The next four sections of the Carter Code (Part I, Sections 7 through 10) described four                                                                                                                                                                      



specific types of killing,                                                   including "negligent homicide".                                                                      But each of                                these sections   



ended    with    language    declaring    that    this    type    of    unlawful   killing    was    "deemed  



manslaughter" and was to be "punished accordingly".                                                                         



                                          This statutory format - one statute defining                                                                                           manslaughter as any unlawful                                    



killing that did not constitute murder,                                                                                 followed by four accompanying statutes,                                                                                             each  



declaring that a specific type of killing was manslaughter - was carried forward, with                                                                                                                                                                       



essentially no change, in                                                     every   codification of Alaska law until 1980, the year when                                                                                                                



                                                                                                                                                    10  

Alaska's current criminal code went into effect.                                                                                                           



                                         But even though Alaska  law followed the common-law approach to the  

                                                                                                                                                                                                                                                                 



crime  of  manslaughter  as  the  residual  category  of  homicide,  Alaska  law  departed  

                                                                                                                                                                                                                                               



significantly in its approach to the felony-murder rule.  

                                                                                                                                                                       



                                         Up until January 1980 (when our current criminal code took effect), there  

                                                                                                                                                                                                                                                            



was no provision of Alaska law that raised an unintended killing to murder, even if the  

                                                                                                                                                                                                                                                                  



killing occurred during the perpetration of a felony.   Rather, Alaska's  version  of the  

                                                                                                                                                                                                                                                                 



felony-murder rule applied only to intentional killings that were committed during the  

                                                                                                                                                                                                                                                                 



perpetration of certain listed felonies (rape, arson, robbery, or burglary).  

                                                                                                                                                                                                



           10        See  the   1949 Compiled Laws of Alaska,  65-4-4 through 65-4-8, and (following                                                                                                                                      



statehood) former AS 11.15.040 through AS 11.15.080.                                                                                                                  



                                                                                                                               - 6 -                                                                                                                           2600
  


----------------------- Page 7-----------------------

                         Any unlawful (and unprovoked) intentional homicide was already second-                                                    



                                                              11  

degree murder under Alaska law.                                                                                                        

                                                                   The effect of Alaska's idiosyncratic felony-murder  



                                                                                                                                                              

statute was to raise this homicide from second-degree murder to first-degree murder if  



                                                                                                                     12  

                                                                                                                              

the intentional killing occurred during one of the listed felonies.  



                         (Alaska's   distinctive  pre-1980  version  of  the  felony-murder  rule  is  

                                                                                                                                                             



described and explained in Gray v. State, 463 P.2d 897, 902-04 (Alaska 1970).)  

                                                                                                                                                      



                         Because the Alaska definition of felony-murder was so  restricted (i.e.,  

                                                                                                                                                       



because  the  felony-murder  rule  applied  only  to  intentional  killings),  Alaska  had  a  

                                                                                                                                                              



correspondingly broad "misdemeanor-manslaughter" rule.  

                                                                                                              



                         As we have explained, manslaughter was the residual category of criminal  

                                                                                                                                                  



homicide under pre-1980 Alaska law:  it encompassed any unlawful homicide that did  

                                                                                                                                                           



not constitute murder.  Because Alaska's narrow felony-murder rule simply did not apply  

                                                                                                                                                       



to unintended killings (even when the killings resulted from the perpetration of a felony),  

                                                                                                                                                  



those unintended killings fell into the residual category of manslaughter.  

                                                                                                                                       



                         In Keith v. State, 612 P.2d 977, 988-89 (Alaska 1980), our supreme court  

                                                                                                                                                        



recognized  this  principle.                        The  court  characterized  Alaska's  "distinctive"  statutory  

                                                                                                                                                



scheme as embodying not only the traditional misdemeanor-manslaughter rule but also  

                                                                                                                                                         



a "felony-manslaughter rule".  Id.  at 988.  

                                                                              



            Alaska's current definitions of manslaughter and felony-murder  

                                                                                                          



                         As we have just explained, under Alaska's pre-1980 criminal law, the crime  

                                                                                                                                                       



of murder did not include unintended killings, even when those killings resulted from the  

                                                                                                                                                           



       11   See  Carter Code, Part I, Section 5; CLA 1949,  65-4-3; and AS 11.15.030.
                                                           



       12  

                                                                                                                                                  

            See Carter Code, Part I, Section 3; CLA 1949,  65-4-1; and AS 11.15.010.
  



                                                                            - 7 -                                                                        2600
  


----------------------- Page 8-----------------------

                                                                                                                     

perpetration of a felony.  Instead, the crime of manslaughter encompassed all unintended  



                                                                     

killings that resulted from any unlawful act.  



                                                                                                                                   

                     The drafters of Alaska's current criminal code made significant changes to  



                                                                                                                                

this area of the law.  They created Alaska's first true felony-murder rule, and they also  



                                                                                                    

made two substantive changes to the definition of manslaughter.  



                                                                                                                                

                     Alaska now has a felony-murder provision - AS 11.41.110(a)(3) - that  



                                                                                                                           

mirrors the common-law doctrine of felony-murder in most respects.  Under this statute,  



                                                                                                                           

an unintended homicide is now murder (second-degree murder) if the homicide occurs  



                                                                                                                         

during the commission or attempted commission of a specified serious felony:  



                       

                                                                                                            

                               (a)  A  person  commits  the  crime  of  murder  in  the  

                                                    

                     second degree if ...  



                                                                                                              

                               (3) under circumstances not amounting to murder in  

                                                                                                        

                          the first degree under AS 11.41.100(a)(3),  while acting  

                                                                                                      

                          either  alone  or  with  one  or  more  persons,  the  person  

                                                                                                   

                          commits  or  attempts  to  commit  [one  of  the  following  

                                                                                                           

                          felonies]  and, in the course of or in furtherance of that  

                                                                                                       

                          crime or in immediate flight from that crime, any person  

                                                                                                            

                          causes  the  death  of  a  person  other  than  one  of  the  

                                                 

                          participants[.]  



                                                                                                               

                     For purposes of the present appeal, the key aspect of this felony-murder  



                                                                                                                                  

provision is that it departs from the common-law rule with respect to the death of an  



                                                                                                                            

accomplice.  At common law, if an accomplice died during the perpetration of a felony,  



                                                                                                                        

the  surviving accomplices could be convicted of felony-murder.   But under Alaska's  



                                                                                                                              

felony-murder statute, a person cannot be convicted of felony-murder based on the death  



                                                                      

of one of the other participants in the felony.  



                                                               - 8 -                                                          2600
  


----------------------- Page 9-----------------------

                         The drafters of AS 11.41.110(a)(3) did not explain why they placed this                                                         



                                                                                                     13  

limitation on the scope of the felony-murder doctrine.                                                                                            

                                                                                                          However,  Professor LaFave  



                                                                                                                                                   

notes that several other modern criminal codes contain this same limitation on the felony- 



                        14  

                                                                                                                                            

murder rule.                And some modern appellate court decisions have reached this conclusion  



                                                                                                                                                         

as  a  matter  of  statutory  interpretation  -  although  this  approach  is  certainly  not  

unanimous. 15  



                         Turning to the crime of manslaughter, the drafters of our current criminal  

                                                                                                                                                 



code modified the definition of this crime in two substantive ways.  

                                                                                                                            



                         First,  negligent  homicide  became  a  crime  in  its  own  right  -  defined  

                                                                                                                                                 



separately from manslaughter, and punishable by a lesser penalty.  See AS 11.41.130.  

                                                                                                                                          



                         Second,   the  drafters   of   our   criminal  code  decided  to  abolish  the  

                                                                                                                                                         



"misdemeanor-manslaughter" rule - the rule that a person was guilty of manslaughter  

                                                                                                                                        



if they unintentionally caused the death of another human being while perpetrating any  

                                                                                                                                                         



unlawful act (unless the unlawful act was the kind that would support a conviction for  

                                                                                                                                                          

felony-murder). 16  

                                   



                         The  drafters  abolished  the  misdemeanor-manslaughter  rule  by  defining  

                                                                                                                                                 



manslaughter in a new way.  Under the drafters' manslaughter statute, AS 11.41.120(a),  

                                                                                                                                       



      13    See  Alaska Criminal Code Revision, Tentative Draft, Part I (1977), pp. 27-29.                                                           



      14    Wayne R. LaFave, Substantive Criminal Law (3rd ed. 2018),  14.5(d), Vol. 2, p. 622  

                                                                                                                                                          

& n. 72.  

                



      15     See Commonwealth v. Tejeda, 41 N.E.3d 721 (Mass. 2015), and State v. Bonner, 411  

                                                                                                                                                          

S.E.2d  598  (N.C.  1992),  where  the  courts  endorsed  an  exclusion  for  the  deaths  of  

                                                                                                                                                           

accomplices.  But see State v. Pellegrino, 480 A.2d 537 (Conn. 1984); State v. Baker, 607  

                                                                                                                                                         

S.W.2d 153, 155-56 (Mo. 1980); and State v. Oimen, 516 N.W.2d 399 (Wis. 1994) - all  

                                                                                                                                                           

endorsing the common-law rule that an accomplice to a felony is guilty of felony-murder if  

                                                                                                                                                             

another accomplice is killed during the commission of the crime.  

                                                                                                                    



      16  

                                                                                                                                             

            See Alaska Criminal Code Revision, Tentative Draft, Part I (1977), p. 34.  



                                                                            - 9 -                                                                       2600
  


----------------------- Page 10-----------------------

it was no longer sufficient for the government to prove that the defendant acted with the                                                                                                                                                                                                    



intent to commit an unlawful act, and that a death ensued.                                                                                                                                                   Instead, the                                   government  



would   have   to   prove   that   the   defendant   acted   either   intentionally,   knowingly,   or  



recklessly with regard to the possibility that                                                                                                             their   conduct might cause the death of                                                                                            



another human being:                                                         



                                                

                                                                      (a)  A person commits the crime of manslaughter if the                                                                                                                 

                                              person ... intentionally, knowingly, or recklessly causes the                                                                                                                                    

                                              death of another person under circumstances not amounting                                                                                                               

                                              to murder in the first or second degree.  

                                                                                                                                                          



Former AS 11.41.120(a) (pre-2006 version).                                                                                                                 17  



                                              By  requiring  proof  of  one  of  these  three  culpable  mental  states,  the  

                                                                                                                                                                                                                                                                                           



manslaughter statute effectively abolishes the misdemeanor-manslaughter rule - a rule  

                                                                                                                                                                                                                                                                                        



that did not require proof of any culpable mental state apart from the intent to perpetrate  

                                                                                                                                                                                                                                                                     



an unlawful act.  

                                                          



                                              (The manslaughter statute omits "negligence" from the list of culpable  

                                                                                                                                                                                                                                                                           



mental states because,  as  we  explained earlier,  criminally negligent homicide is now  

                                                                                                                                                                                                                                                                                        

independently defined as a lesser crime. 18)  

                                                                                                                                                   



            17         In 2006, the legislature amended the manslaughter statute by adding subsection (a)(3).                                                                                                                                                                                              



This subsection imposes strict liability for manslaughter when a death ensues as a result of                                                                                                                                                                                                    

the defendant's furnishing another person with one of the listed controlled substances.                                                                                                                                                                                                   See   

SLA 2006, ch. 53,  3.                                                     



            18  

                                                                                                                                                                                                                                                                                   

                       See Alaska Criminal Code Revision, Tentative Draft, Part I (1977), pp. 34-35.  



                                                                                                                                           -  10 -                                                                                                                                        2600
  


----------------------- Page 11-----------------------

                                                                                                                

           Why we conclude that, even though Pfister cannot be convicted of felony- 

                                                                                                                      

          murder  for  the  deaths  of  his  accomplices,  he  can  be  convicted  of  

                                               

          manslaughter for these deaths  



                                                                                                                                  

                    As we explained at the beginning of this opinion, Pfister was convicted of  



                                                                                                                                      

two counts of manslaughter based on the deaths of his two accomplices in the robbery.  



                                                                                                                            

Pfister argues that the Alaska Legislature did not intend the manslaughter statute to apply  



                                  

to situations like his.  



                                                                                                                                

                    Pfister  notes  that  AS  11.41.110(a)(3)  expressly  exempts  people  in  his  



                                                                                                                                      

situation  from  conviction  for  second-degree  murder  under  a  felony-murder  theory.  



                                                                                                                                 

Based on this, Pfister argues that the legislature must also have intended for there to be  



                                                                                                                                 

no lesser criminal liability for people in his situation - and that, therefore, he cannot be  



                                                                                         

convicted of manslaughter based on the deaths of his two accomplices.  



                                                                                                                          

                    We conclude that when an accomplice to a felony is killed by the victim,  



                                                                                                                      

or  by  police  officers   responding  to  the  crime,  Alaska  law  allows  the  surviving  



                                                                                                                      

accomplices to be prosecuted for manslaughter (or for the lesser offense of criminally  



                                 

negligent homicide).  



                                                                                                                             

                    We reach this conclusion because the crime of manslaughter requires proof  



                                                                                                              

of an element beyond the elements of felony-murder. Unlike the crime of felony-murder,  



                                                                                                                           

manslaughter requires proof that the defendant acted with a culpable mental state (either  



                                                                                                                           

intentionally, knowingly, or recklessly) regarding the possibility that their conduct would  



                                                                                                                            

cause the death of another human being.  The crime of felony-murder, on the other hand,  



                                                                                                                                

only requires proof that the defendant acted with the intent of perpetrating one of the  



                                                           

felonies listed in AS 11.41.110(a)(3).  



                                                                                                                             

                    It will often be true that a defendant's intent to commit one of these listed  



                                                                                                                                

felonies will be strong evidence that the defendant acted at least recklessly regarding the  



                                                                                                                               

possibility that someone  would die.                       But this is not invariably so.                 That is why the  



                                                              -  11 -                                                         2600
  


----------------------- Page 12-----------------------

drafters   of   our   criminal code                                                                                                                         rejected   the   misdemeanor-manslaughter   doctrine   and,  



instead, insisted on proof that the defendant acted at least recklessly with regard to the                                                                                                                                                                                                                                                                                                                                               



possibility that someone would die as a result of their actions.                                                                                                                                                                                                                                                           



                                                                     Moreover, in these situations, we see no inconsistency between a legislative                                                                                                                                                                                                                                                   



policy to spare defendants the severe penalties of second-degree murder while, at the                                                                                                                                                                                                                                                                                                                                                    



 same   time,   subjecting   these   defendants   to   the   lesser   penalties   of   manslaughter   or  



criminally negligent homicide.                                                                                                                              



                                                                     We acknowledge that our manslaughter statute does not expressly call for                                                                                                                                                                                                                                                                                              



this result.                                           But as we have explained, the crime of manslaughter is - and traditionally                                                                                                                                                                                                                                                             



has been - a residual category of unlawful homicide, encompassing the various types                                                                                                                                                                                                                                                                                                                                           



of unlawful killings that do not constitute some form of murder.                                                                                                                                                                                                                                                                        



                                                                     Thus,   for example,                                                                                   no provision of Alaska law expressly states that an                                                                                                                                                                                                             



intentional   homicide   committed   in   the   heat   of   passion   is   manslaughter.     Instead,  



AS 11.41.115(a) simply declares that heat of passion is a defense to murder.                                                                                                                                                                                                                                                                                                             But because   



 an unlawful intentional killing in the heat of passion is not murder, it is manslaughter                                                                                                                                                                                                                                                                                            



under AS 11.41.120.                                                                                           



                                                                     The same principle applies to Pfister's case.                                                                                                                                                                                               Under our second-degree                                        



murder   statute,   a   homicide   that   results   from   the   commission   of   a   felony   does   not  



constitute felony-murder if the person killed was                                                                                                                                                                                                                 an   accomplice to the felony.                                                                                                                                  But  



because the killing is not murder, it falls within the residual category of manslaughter if                                                                                                                                                                                                                                                                                                                                                        



the State can prove (1) that the defendant's conduct was a substantial factor in causing                                                                                                                                                                                                                                                                                                                            

the death,                                            19  and (2) that the defendant  acted at least recklessly with respect to the  

                                                                                                                                                                                                                                                                                                                                                                                                                                         



possibility that someone would die as a result of their actions.  

                                                                                                                                                                                                                                                                                                                            



                  19              See Johnson v.State                                                                                 ,224 P.3d 105, 109-111 (Alaska 2010);                                                                                                                                                        Rogersv.State                                                             ,232 P.3d                



 1226, 1233 (Alaska App. 2010);                                                                                                                              State v. Malone                                                                  , 819 P.2d 34, 36 (Alaska App. 1991).                                                                                                                                                   



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----------------------- Page 13-----------------------

                             For these reasons,                       we hold that Pfister could lawfully be convicted                                                            of  



manslaughter for the deaths of his two accomplices.                                                            



               Why we remand Pfister's case to the superior court for re-sentencing                                                   



                             As   we   explained   near   the   beginning   of   this   opinion,   Pfister   was   also  



 convicted of first-degree burglary and conspiracy to commit first-degree robbery.                                                                                            

                                                                                                                    20  and Pfister  (who  was a first  

                             First-degree burglary is a class B felony,                                                                                                       



 felony offender) faced a presumptive sentencing range of 1 to 3 years' imprisonment for  

                                                                                                                                                                                 

                        21    But even though the sentencing judge found no aggravating factors, the  

this crime.  

                                                                                                                                                                                



judge imposed a sentence above the presumptive range:  4 years' imprisonment with 2  

                                                                                                                                                                                     



years suspended.   The State concedes that, in the absence of aggravating factors, this  

                                                                                                                                                                                



 sentence was unlawful.  

                                                   



                             Likewise, conspiracy to commit first-degree robbery is  a  class B felony  

                                                                                                                                                                          

                                                                                                                     22       So  again,  Pfister  faced  a  

 (because  first-degree  robbery  is  a  class  A  felony).  

                                                                                                                                                                                    

presumptive range of 1 to 3 years' imprisonment for this crime 23  - and again, although  

                                                                                                                                                                     



no  aggravating  factors  were  proved,  the  judge  imposed  a   sentence  above  the  

                                                                                                                                                                                         



presumptive range: 4 years' imprisonment with 2 years suspended.  The State concedes  

                                                                                                                                                                    



that this sentence was unlawful as well.  

                                                                                     



                             We accordingly direct the superior court to re-sentence Pfister.  

                                                                                                                                                  



        20     AS 11.46.300(b).                    



        21     Former AS 12.55.125(d)(1) (2010 version).  

                                                                                                         



        22     AS 11.41.500(b); AS 11.31.120(i)(3).  

                                                                                             



        23  

                                                                                                         

               Former AS 12.55.125(d)(1) (2010 version).  



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----------------------- Page 14-----------------------

                         Conclusion  



                                                 Pfister's two convictions for manslaughter are AFFIRMED, but he must be                                                                                                                                                                                                 



re-sentenced because his sentences for first-degree burglary and conspiracy to commit                                                                                                                                                                                                                



first-degree robbery are illegal.                                                                                   



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