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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jeffries v. State (10/26/2007) sp-6178

Jeffries v. State (10/26/2007) sp-6178, 169 P3d 913

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 11507
Petitioner, )
) Court of Appeals No. A-8167
v. ) Superior Court No. 4FA-03-1996 CI
Respondent. ) No. 6178 - October 26, 2007

          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  appeal
          from  the  Superior Court  of  the  State  of
          Alaska, Third Judicial District at Anchorage,
          Dan A. Hensley, Judge.

          Appearances:    Quinlan  Steiner,   Assistant
          Public Defender, and Barbara K. Brink, Public
          Defender, Anchorage, for Petitioner.  Kenneth
          M.  Rosenstein,  Assistant Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,   and   David  Marqu‚z,   Attorney
          General, Juneau, for Respondent.

          Before:    Bryner,  Chief Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.
          MATTHEWS,  Justice, with whom FABE,  Justice,
          joins, dissenting.
          Michael Jeffries caused a traffic accident that fatally
injured  his  passenger.  A jury convicted him  of  second-degree
murder  under  AS 11.41.110.  The court of appeals affirmed.   We
consider  here whether a reasonable jury could find that Jeffries
displayed  extreme indifference to the value of  human  life,  as
required   for  a  second-degree  murder  conviction   under   AS
11.41.110.   There  was  evidence that Jeffries,  after  drinking
alcoholic  beverages at home, drove from his  home  to  a  social
club, where he drank at least six more beers before he decided to
drive  himself  and  a  passenger home.  Jeffries  was  extremely
intoxicated,  with a blood alcohol level of about  0.27  percent,
when he drove his car directly and slowly in front of an oncoming
car  on a well-lit, icy, five-lane street.  Evidence of Jeffriess
prior  convictions  for  drunk driving, court  orders  to  attend
substance  abuse programs, and a condition of probation  that  he
abstain from drinking alcohol permitted a finding that he  had  a
heightened  awareness that driving while grossly intoxicated  was
highly  dangerous.  We hold that the evidence was  sufficient  to
support the verdict, and affirm.
          While  grossly intoxicated, Michael Jeffries  drove  an
automobile  and caused a February 7, 2000 traffic  accident  that
fatally  injured his front seat passenger, Beulah Dean.  The  two
were  eastbound on DeBarr Road in Anchorage, driving  home  at  8
P.M.  from  a  social club where alcohol had  been  served,  when
Jeffries made an abrupt left turn  but at slow speed  directly in
front  of Mark Bergerons oncoming westbound car. The posted speed
on  the  five-lane street where the collision occurred was forty-
five miles per hour and Bergeron was driving at about thirty-five
miles  per  hour.  There was a thin layer of packed snow  in  the
center lane from which Jeffries turned.  There was a sheen of ice
in  the traffic lanes and the road was icy and slippery.  It  was
dark,  but  the street was well-lit with streetlights.   Bergeron
and  the  investigating  detective believed  that  headlights  of
Bergerons  car were on at the time of the collision.   The  right
front  corner of Bergerons car struck the passenger  door  beside
Beulah  Dean,  penetrating  more  than  twelve  inches  into  the
passenger  compartment and fatally injuring Dean.  She was  taken
to a hospital but died soon after.
          Jeffriess  blood alcohol content was 0.27 percent  when
it  was  tested about seventy minutes after the accident.   There
was  evidence that Jeffries had been drinking alcoholic beverages
before  noon  on the day of his accident, that after drinking  in
the  morning,  he drove to a social club, where  he  consumed  at
least  six  more beers before he drove home and caused the  fatal
accident.   There was also evidence that Jeffries may  have  been
drinking  while he was driving home.  A police officer  found  an
empty  beer can on the floor on the drivers side of the car.   As
the  court  of  appeals  later observed, [v]iewing  the  evidence
presented  at  trial in the light most favorable  to  the  State,
Jeffries  downed approximately twenty beers over  the  course  of
several hours.1
          Jeffries  was  indicted  on a charge  of  second-degree
          murder under AS 11.41.110(a)(2) for engaging in conduct that
resulted   in  death  under  circumstances  manifesting   extreme
indifference  to  the value of human life.  He was  also  charged
with  manslaughter, negligent homicide, driving while intoxicated
(DWI), and driving with a suspended license.
          At   trial,  the  prosecution  introduced  evidence  of
Jeffriess  long history of driving while intoxicated.   The  jury
heard evidence that Jeffries had six prior DWI convictions,  that
his license had been suspended since 1989, that he had four times
failed  to participate in court-ordered substance abuse programs,
and  that  as  a  condition of probation he had been  ordered  to
abstain  from  drinking  alcohol.   Jeffries  objected   to   the
admission  of  this evidence as irrelevant, unfairly prejudicial,
and improper character evidence.
          After  the  close  of  evidence Jeffries  moved  for  a
judgment  of  acquittal on the second-degree  murder  count.   He
argued  that the state had failed to present sufficient  evidence
that   he   was  driving  in  a  manner  that  exhibited  extreme
indifference  to  the value of human life.   The  superior  court
denied  Jeffriess  motion; in doing so,  it  relied  in  part  on
Jeffriess  history of driving while intoxicated.  The jury  found
Jeffries   guilty   of   second-degree  murder,   driving   while
intoxicated, and driving with a suspended license.
          Jeffries  appealed,  arguing that  extreme-indifference
murder  should  be  reserved for cases in  which  an  intoxicated
driver  operates  his  vehicle  in a  particularly  dangerous  or
heedless   manner.   After  a  thorough  review  of  Alaska   and
nationwide  case  law,  the  court of  appeals  agreed  with  the
superior court that Jeffriess past convictions for driving  while
intoxicated, his repeated refusal to participate in court-ordered
treatment  for alcohol abuse, his decision to drive  despite  his
license  suspension or revocation for prior DWI  convictions,  as
well  as  his  extreme intoxication on the night of the  accident
were  sufficient to allow the murder charge to go  to  the  jury,
even  if  the  defendant did not engage in egregiously  dangerous
driving.2   Given this holding, the court also rejected Jeffriess
contention that the evidence of the DWI convictions and Jeffriess
failure  to  comply with court-ordered substance abuse  treatment
and   abstinence   from   alcohol  was  irrelevant   and   unduly
          We granted Jeffriess petition for hearing.
     A.   The  Evidence of Jeffriess Extreme Indifference to  the
          Value   of  Human  Life  Was  Sufficient  To  Allow   a
          Reasonable Jury To Convict Him of Second-Degree Murder.
          Jeffries challenges the superior courts denial  of  his
motion to acquit.  In reviewing the denial of a motion to acquit,
we  must determine whether there is such relevant evidence  which
is  adequate  to support a conclusion by a reasonable  mind  that
there was no reasonable doubt as to [the defendants] guilt.4   In
making  this determination, we will consider only those facts  in
the  record most favorable to the prosecution and such reasonable
inferences as a jury may have drawn from them.5
          Jeffries was convicted of second-degree murder under AS
11.41.110.   Subsection (a)(2) of this statute  provides  that  a
person  commits  murder  in  the  second  degree  if  the  person
knowingly engages in conduct that results in the death of another
person under circumstances manifesting an extreme indifference to
the  value  of human life.6  This provision is adapted  from  the
Model  Penal  Code,  which was adopted in large  measure  by  the
Alaska legislature in 1978.7  In interpreting this provision,  we
follow the approach of the court of appeals8 and look not only to
Alaska  case law, but also to authorities interpreting the  Model
Penal Code.
          When  determining what culpable mental states  must  be
proved  for  each element of an offense, the court of appeals  in
Neitzel  v.  State explained that both the Model Penal  Code  and
Alaskas  revised criminal code divide the elements of a  criminal
offense    into    three    categories:   conduct,    surrounding
circumstances,  and  result.9   Applying  this  framework  to  AS
11.41.110(a)(2), the court of appeals found that the  conduct  is
performing  an  act,  that  the  surrounding  circumstances  must
manifest an extreme indifference to the value of human life,  and
that  the result is the death of another person.10  The court  of
appeals  concluded that knowledge is the mens rea for  conduct,11
and  that  recklessness  is  the mens  rea  for  the  surrounding
circumstances  and  the  result.12  The  court  of  appeals  also
identified  four  factors the jury must consider  in  determining
whether  a  defendant has displayed extreme indifference  to  the
value of human life:
          (1)  the social utility of the actors conduct;
          (2)   the  magnitude of the risk his  conduct
          creates   including  both   the   nature   of
          foreseeable harm and the likelihood that  the
          conduct will result in that harm;
          (3)  the actors knowledge of the risk; and
          (4)   any  precautions  the  actor  takes  to
          minimize the risk.[13]
These factors have been in use in Alaska since 1982 and provide a
proper framework to distinguish extreme-indifference murder  from
          The  commentaries to the Model Penal Code suggest  that
extreme-indifference murder is intended to  allow  actors  to  be
convicted  of  murder if their actions, while not  purposeful  or
knowing   with   regard  to  the  resulting  death,   demonstrate
equivalent indifference to the value of human life.14   According
to  the  commentaries, there is a kind of reckless homicide  that
cannot  fairly  be distinguished in grading terms from  homicides
committed purposely or knowingly.15  Recklessness is defined as an
awareness of the creation of substantial homicidal risk,  a  risk
too  great to be deemed justifiable by any valid purpose that the
actors conduct served.16  For a reckless homicide to be classified
as  murder instead of manslaughter, the factfinder must find that
the   actors   conscious  disregard  of  the  risk,   under   the
circumstances,  manifests extreme indifference to  the  value  of
          human life.17  The commentaries advise that the factfinder must
determine whether extreme indifference to the value of human life
          Whether  recklessness is so extreme  that  it
          demonstrates  similar  indifference  [as   to
          purposeful  or  knowing homicide]  is  not  a
          question,  it  is  submitted,  that  can   be
          further  clarified.  It must be left directly
          to the trier of fact under instructions which
          make  it  clear  that recklessness  that  can
          fairly be assimilated to purpose or knowledge
          should  be  treated as murder and  that  less
          extreme  recklessness should be  punished  as
          Because   the   question  whether  an  actors   conduct
demonstrates extreme indifference to the value of human  life  is
primarily  one  for  the factfinder, only  rarely  will  evidence
favorable  to the defendant as to a single factor in the  Neitzel
analysis  prevent the case from going to a jury.   Neitzels  four
factors  provide a test in which particularly convincing evidence
as  to  one  factor  may compensate for lack of  evidence  as  to
another.   Thus,  although  attempting to  drive  normally  while
intoxicated  usually  renders  the  driver  who  causes  a  death
culpable  of only manslaughter,19 such conduct might be found  to
demonstrate  the  requisite  extreme indifference  if  the  other
Neitzel  factors all point strongly towards greater  culpability.
The  court may only intervene if the evidence, viewed as a whole,
cannot  be  reasonably interpreted as demonstrating the  type  of
heightened  recklessness  that is  equivalent  to  purposeful  or
knowing homicide.
          Jeffries contends that the only way to ensure  a  clear
distinction between manslaughter and extreme-indifference  murder
is  to  reserve murder for cases in which the objective  risk  of
death  or serious physical injury posed by the defendants actions
is  very high.  This is a correct statement of the law, but we do
not  agree  with his implicit contention that the objective  risk
posed by his conduct was not very high.
          Jeffries correctly notes that many intoxicated  drivers
whose convictions of extreme-indifference murder were affirmed on
appeal  in  Alaska  operated their vehicles in  an  exceptionally
dangerous manner over an extended period of time.  In Ratliff  v.
State, for example, the intoxicated defendant swerved across  the
road,  causing an accident and a near-miss, and then drove at  an
excessive  speed on the wrong side of a divided highway  for  two
miles  until he collided head-on with another car.20  In Stiegele
v. State, the intoxicated defendant drove on the left side of the
road at eighty-five miles per hour with passengers in the back of
his truck who were screaming for him to stop, and finally crashed
when  he could not negotiate a corner.21  And in Pears v.  State,
the  intoxicated  defendant ran stop signs  and  red  lights  and
eventually  collided with another car when he  ran  a  red  light
without even slowing.22
          Although the defendants in those cases engaged in  more
          egregious driving conduct than Jeffries, this does not mean that
his driving was not in fact egregious.            When viewed  in
the  light  most  favorable to the state, the evidence  at  trial
including  the expert testimony concerning the impairing  effects
of  a  .27  blood alcohol level and the testimony describing  the
accident itself  would have enabled a reasonable jury to find not
just  that Jeffries was extremely intoxicated, but also that  his
intoxication extremely impaired his ability to drive, so that  he
lacked  the  ability to identify and react to common  and  easily
avoidable  hazards  of everyday driving.   In  other  words,  the
evidence  tended  to show that he was literally  blind  drunk  to
oncoming  cars,  not merely distracted or somewhat  slowed  down.
Severe impairment of his kind would pose a grave danger at  every
intersection  Jeffries crossed, not just at the place  where  his
(and  Deans) luck happened to run out; and the danger of  driving
while  blind  to surrounding hazards is no less egregious  merely
because it poses a covert rather than an overt risk.
          Nor  is  prolonged driving misconduct over an  extended
period  of  time inherently necessary for an extreme-indifference
murder conviction.  Jeffries has not identified any case in which
this  court or the court of appeals has overturned a jury verdict
of  extreme-indifference murder because the evidence of objective
risk was insufficient.
          Furthermore,  Alaska defendants who have  driven  while
severely  intoxicated  and who have engaged  in  driving  conduct
comparable   to  Jeffriess  have  been  convicted   of   extreme-
indifference murder.23  In two such reported cases, Richardson v.
State24 and Puzewicz v. State,25 the defendants did not challenge
their  convictions on appeal, and indeed both pleaded no  contest
to  charges  of  extreme-indifference murder.26  Both  defendants
unintentionally  crossed  the  center  line  and  collided   with
oncoming vehicles.27   Both were convicted of extreme-indifference
murder for driving conduct that essentially involved fatal lapses
of  attention  or control by very intoxicated drivers  who,  like
Jeffries,  knew or should have known they should not be  driving.
Neither  engaged  in  inherently reckless or intentional  gravely
dangerous driving conduct, such as swerving in and out of traffic
or  driving  at  high  speed, that might have justified  extreme-
indifference  murder  charges even against sober  drivers.   Both
collisions  seem  to  have  occurred relatively  soon  after  the
defendants began or resumed driving.  Thus, neither case involved
prolonged  or  overtly  egregious driving misconduct  apart  from
erratic   driving   resulting   from   each   defendants   severe
intoxication.   Although  both  appellate  decisions  were   only
sentence  appeals, it is significant that no party  or  court  in
either  case  appears  to  have detected  any  obvious  legal  or
evidentiary   flaw  in  basing  an  extreme-indifference   murder
conviction  on  a  death attributable to  this  sort  of  driving
conduct.  No one seems to have thought that prolonged and overtly
egregious  driving  conduct  was  necessary  to  support   either
conviction under all the circumstances in each case.  Indeed, the
absence  of such driving conduct did not generate much mitigating
force  with  respect to sentencing in either case.   These  cases
illustrate  that  Jeffriess  proposed  restrictions  on  extreme-
          indifference murder would be a sharp break from the long-accepted
view  of the offense in Alaska.  And as a practical matter,  that
only  a  few  such  appellate cases have arisen during  the  past
decades  refutes  Jeffriess claim that his proposed  restrictions
are  needed to avoid some sort of an endless slippery slope  that
threatens to swallow all repeat DWI offenders.
          Jeffries   cites   cases  from  outside   Alaska   that
purportedly demonstrate that extreme-indifference murder  is  not
an appropriate charge for intoxicated drivers attempting to drive
normally.  Several of these cases, such as Park v. State,28 State
v. Jensen,29 and Blackwell v. State,30 were decided some years ago,
when public awareness of the dangers of driving while intoxicated
was  far  less than it is today.31  Other cases cited by Jeffries
hold  that a typical drunk driving accident should not be grounds
for  extreme-indifference murder, but appear to  leave  open  the
possibility that aggravating factors that could justify a  murder
conviction are not limited to especially egregious driving over a
long period of time.  For example, in Allen v. State, the Alabama
Court  of  Criminal  Appeals held that the  situation  that  will
support  a  conviction for reckless murder must involve something
more  than  simply  driving  after having  consumed  alcohol  and
becoming involved in a collision.32  [S]ome shocking, outrageous,
or  special  heinousness must be shown.33  But  nothing  in  that
opinion  suggests  that  operation  at  a  very  high  level   of
intoxication and driving directly in front of oncoming traffic at
such  a  slow speed that a passenger-side collision  is  sure  to
happen  could  not  prove special heinousness.  Furthermore,  the
Alabama  Supreme  Court upheld Allens murder conviction  although
his driving was no more egregious than Jeffriess.34  Allen was not
speeding  at  the  time of the crash and had a much  lower  blood
alcohol content than Jeffries.35  The accident resulted from  his
inability to keep his car in the proper lane of travel.36
          Similarly,  in  United States v.  Fleming,  the  Fourth
Circuit   held  that  a  conviction  for  reckless   murder   was
appropriate  because the facts show a deviation from  established
standards  of  regard for life and the safety of others  that  is
markedly  different in degree from that found in  most  vehicular
homicides.37   Although Fleming engaged in a series of  dangerous
maneuvers, this does not mean that Jeffriess conduct did not meet
the  legal standard set forth in Fleming.38  Like Allen,  Fleming
leaves  open  the  possibility that a deviation from  established
standards  may  be  found on the basis of factors  other  than  a
prolonged period of egregious driving.
          Jeffries   also  relies  on  scholarly   authority   as
theoretical support for his argument.  He cites a student note in
the  American  Criminal Law Review that argues the average  drunk
driver who drives poorly simply because of alcohol-induced  sense
distortion cannot be found guilty of extreme-indifference murder.39
The  note  reasons that extreme indifference can only  be  proven
from inferences drawn from the defendants conduct.40  In Neitzel,
the  court  of appeals took a different view of sense distortion,
when   it  concluded  that  recklessness  may  be  found  despite
unawareness of a risk where intoxication accounts for the failure
to  perceive  the  risk.41  We agree with the  court  of  appeals
          holding that drunk drivers are responsible for their actions when
their  intoxication prevents them from perceiving dangers that  a
sober  driver would notice.  Indeed, this holding is dictated  by
the plain language of the Alaska Criminal Code, which defines the
culpable  mental state knowingly to require a finding of  knowing
conduct  when  the  defendants failure  to  perceive  surrounding
circumstances results from voluntary intoxication: [A] person who
is unaware of conduct or a circumstance of which the person would
have  been  aware  had  that  person not  been  intoxicated  acts
knowingly with respect to the conduct or circumstance.42  In  our
view,  the  circumstances present here, including the  defendants
extreme  intoxication, his knowledge based on  prior  convictions
that  such  intoxication  was unjustifiably  dangerous,  and  his
conduct in driving directly in front of an oncoming car that  had
no  opportunity  to  stop  allow a jury  to  infer  a  defendants
disregard for the lives of others.  The student note concedes the
point that previous drunk driving convictions should be placed in
the scales in determining whether a murder charge is appropriate.43
          Jeffries  also argues that Professor LaFave has  stated
that extreme-indifference murder requires conduct creating a very
high  degree  of  risk.44  We agree.  But  Jeffries  neglects  to
mention that Professor LaFave concedes that the precise degree of
objective  risk  necessary  to  support  a  charge  of   extreme-
indifference murder varies depending on the circumstances.   [I]t
is what the defendant should realize to be the degree of risk, in
the  light of the surrounding circumstance which he knows,  which
is  important,  rather than the amount of  risk  as  an  abstract
proposition   of  the  mathematics  of  chance.45    Furthermore,
Professor  LaFave  states  that  the  social  utility   of   [the
defendants] conduct is a fact to be considered.46  Our approach is
consistent  with Professor LaFaves reasoning.  As  did  Professor
LaFave, we consider the concrete facts at play in each case,  not
merely  the abstract risk of driving while intoxicated.  We  hold
that,  in a case such as Jeffriess, in which the Neitzel  factors
weigh  heavily  against the defendant when  taken  together,  the
actual degree of risk required for murder has been met.
          A  review of the evidence in this case in light of  the
four  Neitzel factors demonstrates that the jury acted reasonably
in  finding that Jeffries acted with extreme indifference to  the
value of human life.  We consider each factor in turn.
          1.   Social utility
          The  state  argues that driving with  a  blood  alcohol
content  of  two-and-a-half times the legal limit has  no  social
utility.  Jeffries concedes that the utility of driving a vehicle
home from a bar while intoxicated is limited, but apparently does
not  agree it is nonexistent.  In the past, the court of  appeals
has  held  that  the  utility  of driving  while  intoxicated  is
marginal, at best47 and substantially reduced from the utility of
driving sober.48
          We  disagree  with  those  decisions  insofar  as  they
suggest that driving home while intoxicated necessarily has  some
social utility.  As the state points out, public awareness of the
dangers  of drunk driving has increased in recent years, as  have
penalties.  While  there is certainly utility  in  driving,  that
          utility is, except in rare circumstances, completely negated by
the  grave  danger  posed to society by an extremely  intoxicated
driver.   In  this  case,  there was no evidence  of  extenuating
circumstances, such as the need to take a critically  ill  friend
or  family  member to the hospital or the lack of any alternative
means of getting home (e.g., taxis, buses, or friends) that might
require  a  conclusion that Jeffriess driving  had  some  limited
social  utility.  In addition, there was evidence in  the  record
that  Jeffries had been drinking on the morning of  the  accident
and  that  after  drinking he drove to a  social  club  where  he
consumed at least six more beers before attempting to drive home.
Also,  Jeffries may have continued to drink while he was driving.
A  witness  to  the  accident testified that the  entire  vehicle
smelled  like alcohol, and one of the responding police  officers
discovered  a beer can on the floor on the drivers  side  of  the
vehicle.   A reasonable jury is not obliged to give an  extremely
drunk  driver  any  credit  for  the  social  utility  of  merely
attempting  to  drive home. This is especially so  after  he  has
chosen to consume alcohol in the morning at home, gets behind the
wheel  of  a  car,  and drives to a social club to  continue  his
drinking,  before  rolling  the dice by  trying  to  drive  home,
perhaps  drinking in the car while driving despite already  being
grossly intoxicated.49
          2.    Magnitude  of the risk; nature and likelihood  of
foreseeable harm
          Jeffries  argues  that  his  actual  driving  was   not
particularly  egregious and did not create a very  high  risk  of
death.    He   minimizes  the  riskiness  of  his   behavior   by
characterizing  it  as  a  poorly executed  left  turn.   We  are
unpersuaded by this characterization.  Jeffriess conduct was much
more  risky than the conduct in a typical drunk-driving  accident
for two reasons.
          First,  the evidence suggests that Jeffriess  error  in
judgment was severe.  Jeffries was attempting to make a left-hand
turn across DeBarr Road, a five-lane street with a speed limit of
forty-five  miles  per hour, against oncoming traffic.   Jeffries
was  traveling  as slowly as ten miles per hour  when  he  pulled
directly   in   front  of  Bergerons  oncoming  car.    Bergerons
headlights  were  on, and although it was dark, streetlights  lit
the  street well.  Bergeron was traveling at or below the  posted
speed  limit, probably at about thirty-five miles per hour.   The
street  was icy and slippery.  Bergeron had about enough  warning
to  take  [his]  foot off the gas before the collision,  but  not
enough  time to stop or swerve to avoid the accident.   Bergerons
car  hit Jeffriess passenger door  almost the center of the  car.
The  point  of  impact  demonstrates that Jeffries  either  badly
misjudged  the speed of the oncoming car or altogether failed  to
see  it.  His speed of ten miles per hour was too slow to  permit
him  to cross safely in front of Bergerons oncoming car and  left
Jeffriess passenger gravely and predictably vulnerable to a  side
          Second, Jeffries was highly intoxicated on the night of
the   accident.    Jeffriess  apartment  maintenance   supervisor
testified that Jeffries smelled of beer during an encounter  with
          Jeffries between 10:30 A.M. and noon on the day of the crash.  In
response  to  the  supervisors concerned inquiry about  Jeffriess
ability  to drive, Dean commented that hes been worse than  this.
At roughly 3:30 P.M. Jeffries and Dean arrived at the Veterans of
Foreign Wars (VFW) club in MountainView.  The bartender testified
that  Jeffries drank only six beers there and left with  Dean  at
8:00  P.M.  After the crash, an empty beer can was found  on  the
passenger floorboard of the car.  Police investigating the  crash
testified that Jeffries smelled strongly of alcohol and failed  a
field  sobriety test.  A blood test performed at  9:25  P.M.,  an
hour and ten minutes after the accident, measured Jeffriess blood
alcohol  content  at 0.27 percent.  The states  expert  testified
that  had Jeffries begun drinking at noon, he would have  had  to
consume  23.6  drinks to reach a blood alcohol  content  of  0.27
percent by 9:25 P.M.
          The  evidence established that Jeffriess blood  alcohol
content  made  it highly dangerous for him to drive.   An  expert
witness  for  the state testified about a study that demonstrated
that   the   probability   of  causing  an   accident   increases
exponentially as blood alcohol content increases.  While a driver
with  a  .08  percent blood alcohol content is three  times  more
likely to cause an accident than a sober driver,50 a driver with a
0.15 percent blood alcohol content is twelve times more likely to
cause  an accident than a sober person.  Jeffriess blood  alcohol
content  was  nearly  twice the highest level  discussed  by  the
expert.   Thus, there was evidence that the probability  Jeffries
would  cause  an accident was at least twelve  and probably  many
more   times  that for a sober driver.  The fact that  the  roads
were  icy  and  slick  on  the night  of  the  accident  probably
increased  the risk even more because the condition of  the  road
made it more difficult for oncoming drivers to altogether avoid a
collision by stopping or swerving or to minimize the consequences
by slowing down.
          At  least  one court, the Kentucky Supreme  Court,  has
upheld  murder convictions of intoxicated drivers based primarily
on  their  extreme  intoxication at the time of  the  accident.51
Although we do not decide here whether a murder conviction  might
be  warranted on the basis of extreme intoxication alone,  we  do
conclude  that  Jeffriess intoxication,  at  over  two-and-a-half
times  the  legal limit,52 was extreme.  The jury could  properly
find the objective risk posed by a driver with Jeffriess level of
intoxication  to be significantly higher than that of  a  typical
drunk driver.
          Likewise, the nature of the harm  the risk of death  or
serious  bodily injury  inherent in abruptly turning and  driving
slowly across the path of oncoming traffic on slippery streets is
both  great and readily foreseeable.  And it is very likely,  and
foreseeable, under such circumstances that the conduct will cause
that harm.
          3.   Awareness of the risk
          Jeffriess heightened awareness of the risks of drinking
and  driving differentiates this case from other deaths involving
drunk  drivers.   The  evidence relevant  to  his  awareness  was
strong.   The parties stipulated that Jeffries had six prior  DWI
          convictions between 1981 and 1996, four of them occurring in the
1990s.   The  parties also stipulated that Jeffriess license  had
been  continuously  revoked  since 1989,  that  it  would  remain
revoked  until 2018, and that Jeffries was aware that his license
had  been  revoked.53  They also stipulated that a DWI conviction
was  the  basis  for  the 2000 revocation.  The  state  presented
evidence that four times between 1989 and 1994 Alaska courts  had
ordered Jeffries as a condition of his probation to report  to  a
probation  program  that screens offenders and  assigns  them  to
alcohol treatment programs and that he failed to comply with each
order despite the possibility that he could be sent to prison for
noncompliance.  Finally, the state presented evidence that  as  a
condition  of his probation Jeffries was forbidden from  drinking
alcohol  at  the time of the most recent accident.  There  is  no
claim  Jeffries did not have actual knowledge of his  past  drunk
driving convictions and of the court orders requiring him to  get
treatment.   In  short,  there  was  significant  evidence   that
Jeffries had a heightened awareness of the dangerousness  of  his
conduct, the need to refrain completely from any driving  and  to
refrain  completely  from any drinking,  and  of  the  danger  of
driving intoxicated.
          As  Superior  Court Judge Dan A. Hensley  explained  in
determining that evidence of Jeffriess past problems with alcohol
was relevant to this inquiry:
          [A]  person  who  drinks, drives,  causes  an
          accident,  gets arrested, goes  to  jail,  is
          ordered to alcohol treatment, ordered not  to
          drink  and then drinks and drives again,  and
          then drinks and drives again, and then drinks
          and   drives   again,  not   only   has   the
          intellectual  understanding  of   the   risks
          associated with drinking and driving but also
          has the very real understanding.  Which in my
          view  is  relevant  to  show  the  heightened
          awareness of those risks. Experience  is  the
          best teacher.
The superior court was correct in its assessment.  An intoxicated
driver  with  a  record as long as Jeffriess cannot  possibly  be
unaware  of the significant threat that his actions pose  in  the
eyes of society.  A reasonable jury could have inferred from this
evidence that Jeffries had a heightened awareness of the risk  of
drinking and driving and could have given this factor substantial
weight in its analysis under Neitzel.54
          4.   Precautions to minimize the risk
          The  state  argues correctly that there is no  evidence
that  Jeffries took any precautions to minimize the risk  of  his
conduct.   In fact, Jeffriess past failures to follow  orders  to
participate  in  substance abuse programs  and  to  refrain  from
either driving or drinking demonstrate a willful refusal to  take
precautions to minimize the risk.  A reasonable jury  could  have
properly  taken  Jeffriess  refusal into  account  in  evaluating
whether  he exhibited extreme indifference to the value of  human
          5.   A  reasonable  jury weighing these  factors  could
               convict Jeffries of murder.
          We  agree with the admonition in Pears that a charge of
second-degree murder should only rarely be appropriate in a motor
vehicle  homicide.55   But Jeffries is distinguishable  from  the
typical  intoxicated driver by his heightened  awareness  of  the
risk  resulting  from his past history of drunk driving  offenses
and  the  revocation  of  his  license,  his  extreme  level   of
intoxication, and his inherently dangerous conduct in driving his
car  directly in front of an oncoming car that had no opportunity
to  react.56  The evidence allowed a reasonable jury to  conclude
that   Jeffriess  conduct  was  not  only  reckless,   but   also
demonstrated extreme indifference to the value of human life.
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Admitting  Evidence  of Jeffriess Failure  To  Complete
          Alcohol  Treatment and His Probation Condition that  He
          Not Consume Alcohol.
          Jeffries  argues  that  evidence  of  his  failures  to
complete   court-ordered  alcohol  treatment  and  his  probation
condition which prohibited him from drinking alcohol on the night
in question was irrelevant and prejudicial.  The court of appeals
reasoned  that  this  evidence demonstrated Jeffriess  heightened
awareness  of the risks of his conduct.57 We review the  superior
courts  admission  of  evidence  under  an  abuse  of  discretion
standard.58  Erroneously admitted evidence is deemed harmless  if
it did not appreciably affect the jurys verdict.59
          With  regard to the evidence of his failure  to  obtain
substance abuse treatment, Jeffries argues that while a  rational
inference  of  knowledge [of the risk of drinking] may  be  based
upon  completed treatment, a similar inference [cannot] be  based
upon a failure to complete treatment.
          Jeffriess argument is unpersuasive.  A jury could infer
that  Jeffriess  awareness of his dangerousness  to  society  was
heightened  by  the court orders to participate in the  substance
abuse programs as a condition of probation.
          Jeffries   argues  that  the  evidence  that   he   was
prohibited  from  drinking on the night of the  accident  by  the
terms of his probation is irrelevant because it does not tend  to
establish   a   knowledge  of  the  dangers  of   driving   while
intoxicated.  We reject this argument as well.  As  a  result  of
his  persistent  drunk  driving  a  probation  condition  ordered
Jeffries  not to drink.  The jury could infer that this probation
condition  reinforced Jeffriess awareness that his  drinking  and
driving was a serious matter that posed such a great risk to  the
community  that  it  was deemed necessary to  prohibit  him  from
drinking altogether.
          Finally,  Jeffries argues that the probative  value  of
both  the  probation  condition  and  his  repeated  failure   to
participate in the treatment program was outweighed by the danger
of  unfair  prejudice.60   As  noted  above,  this  evidence  was
probative  of Jeffriess heightened awareness of the risk  of  his
actions.   We  acknowledge that evidence that  Jeffries  violated
          court orders could tempt the jury to form negative opinions about
Jeffriess  character.  But we hold that the  probative  value  of
this  evidence outweighs any unfair prejudice Jeffries might have
suffered.   Because  it is usually impossible to  present  direct
evidence  of  a  defendants mental state, indirect evidence  that
establishes  that the defendant was informed of the dangerousness
of  his  actions  is often essential to establish the  defendants
awareness of the risk.  In this case, the challenged evidence  is
highly probative.
          We  hold  that an intoxicated driver may be  guilty  of
extreme-indifference  murder if all four Neitzel  factors,  taken
together,  permit a reasonable jury to find extreme  indifference
to  the  value  of human life.  Evidence of extreme intoxication,
inherently   dangerous  conduct  while  driving,  and  heightened
awareness  of the dangers of driving while intoxicated is  highly
relevant to this determination.  Because a reasonable jury  could
find  Jeffries  guilty  of  extreme-indifference  murder  on  the
evidence  presented,  we  AFFIRM the decision  of  the  court  of
appeals that affirmed his judgment and commitment.
MATTHEWS, Justice, with whom FABE, Justice, joins, dissenting.
          Todays opinion holds that a drunken driver who causes a
fatal accident can be guilty of reckless murder if he has a  high
blood  alcohol  content  and  a prior  record  of  driving  while
intoxicated.  I do not join in this conclusion.
          The  legislative history of our reckless murder statute
makes it clear that the statute was meant to be confined to cases
in  which  reckless conduct closely resembles an  intentional  or
knowing  murder.   Conduct was contemplated that  is  similar  in
degree  of  risk to that which is encompassed in the phrase  that
governs    knowing    or   intentional   second-degree    murder:
substantially certain to cause death or serious physical injury.1
The  examples  of  such conduct offered by the  senate  committee
which recommended the adoption of the statute were shooting  into
a tent or persuading a person to play Russian roulette.2
          In  my view, drinking too much  even way too much   and
then  attempting to drive safely is not substantially certain  to
cause  death, nor is it comparable in terms of risk, or in  terms
of  utility or anti-social mind-set, with these examples.  As the
court of appeals observed in Neitzel v. State:
          For both murder and manslaughter, the harm to
          be  foreseen  is  a  death.   Therefore,  the
          significant distinction is in the  likelihood
          that  a death will result from the defendants
          act.   Where  the defendants act has  limited
          social   utility,   a  very   slight   though
          significant and avoidable risk of  death  may
          make  him guilty of manslaughter if  his  act
          causes death.  Driving an automobile has some
          social utility although substantially reduced
          when  the  driver is intoxicated.   The  odds
          that  a  legally  intoxicated person  driving
          home  after the bars close will hit and  kill
          or  seriously injure someone may be as low as
          one  chance  in a thousand and still  qualify
          for  manslaughter.  Where murder is  charged,
          however,  an  act must create a much  greater
          risk  that  death or serious physical  injury
          will result.[3]
          I  agree  with those cases and authorities that suggest
that  if  a  fatality caused by a drunken driver is to be  murder
rather  than  manslaughter,  the  driver  must  have  engaged  in
egregiously unsafe maneuvers such as extreme speeding,  wrong-way
driving,  or  running  stop  lights.4   Merely  being  drunk  and
attempting without success to drive normally can be manslaughter,
but not murder.5
          Todays  opinion may generate an unintended  result.   A
prosecutor  now will be able to charge murder whenever  a  repeat
offender  with  a  high  blood alcohol  reading  causes  a  fatal
accident.   The murder charge will go to the jury  and  the  jury
will be instructed that it may consider the defendants prior  DWI
record.  But the defendants record might not be admissible if the
charge  were merely manslaughter rather than murder.6  Given  the
          likely impact on the jurys deliberations of a prior history of
DWI  convictions, it may turn out to be easier in such  cases  to
obtain a conviction of murder than a conviction of manslaughter.
          For  the  reasons  stated,  I would  reverse  Jeffriess
second-degree murder conviction.
     1    Jeffries v. State, 90 P.3d 185, 187 (Alaska App. 2004).

     2    Id. at 193.

     3    Id. at 194.

     4     Dorman  v.  State,  622 P.2d 448,  453  (Alaska  1981)
(alteration in original).

     5    Id. (quoting Martin v. City of Fairbanks, 456 P.2d 462,
646 (Alaska 1969)).

     6    AS 11.41.110(a)(2).

     7     Pears  v.  State,  698 P.2d 1198, 1202  (Alaska  1985)
(citing Neitzel v. State, 655 P.2d 325, 327 (Alaska App. 1982)).

     8    See Neitzel, 655 P.2d at 332.

     9     Neitzel  v.  State, 655 P.2d 325, 328-29 (Alaska  App.
1982)  ([T]he  Model  Penal Code, the Tentative  Draft,  and  the
Revised  Code segregate material elements of offenses into  three
categories:  (1) the nature of the conduct; (2) the circumstances
surrounding the conduct; and (3) the results of the conduct.).

     10    Id. at 333.

     11    Id.  When Neitzels offense occurred, AS 11.41.110(a)(2)
stated   that  second-  degree  murder  occurs  when   a   person
intentionally  performs  an act that  results  in  the  death  of
another  person.  (Emphasis added.)  Because AS 11.81.900  states
that  a  person acts intentionally with respect to a result,  and
the  word intentionally in AS 11.41.110(a)(2) modified the actors
conduct, not the result, the court of appeals correctly concluded
that the legislature did not mean that a person had to intend  to
kill  the  victim in order to commit second-degree  murder.   See
Neitzel,  655  P.2d  at  326.   Instead,  the  court  of  appeals
concluded  that  the legislature meant that the  actor  must  act
knowingly  with  regard  to conduct.  Id.   The  legislature  has
codified  this  portion of Neitzel by amending AS 11.41.110(a)(2)
by  substituting the term knowingly for intentionally.   Ch.  66,
1, SLA 1988.

     12    Neitzel, 655 P.2d at 33334.

     13     Id.  at  336-37  (citing George Fletcher,  Rethinking
Criminal Law  4.3, at 259-62 (1978); Wayne LaFave & Austin Scott,
Handbook on Criminal Law  70, at 541-45 (1972)).

     14      Model  Penal  Code   210.2  cmt  4  (1980)  (revised
commentary on the Model Penal Code as adopted in 1962).

     15    Id.

     16     Neitzel,  655 P.2d at 335 (quoting Model  Penal  Code
210.2, at 21-23 (1980)).

     17    Id.

     18    Id. at 336.

     19    See St. John v. State, 715 P.2d 1205, 1209 (Alaska App.
1986)  (holding that evidence that defendants intoxicated driving
caused  death of another person is sufficient to establish  prima
facie case of recklessness necessary for manslaughter).

     20     Ratliff v. State, 798 P.2d 1288, 1289-90 (Alaska App.

     21     Stiegele v. State, 714 P.2d 356, 358-59 (Alaska  App.

     22    Pears v. State, 672 P.2d 903, 909 (Alaska App. 1983).

     23    We use driving conduct here to refer to the conduct in
manipulating  the controls  such as steering wheel,  accelerator,
and  brake  pedal  that affect transient operation of a  vehicle,
and  thus  its  speed  and direction, as distinguished  from  the
conduct of choosing to drive while gravely impaired.

     24     Richardson  v. State, 47 P.3d 660, 661  (Alaska  App.

     25     Puzewicz  v. State, 856 P.2d 1178, 1179 (Alaska  App.

     26      Richardson   only  appealed  the  lengthy   judicial
revocation of his drivers license, but not his conviction or  his
thirteen-year-to-serve sentence.  Richardson,  47  P.3d  at  661.
Puzewicz only appealed his sentence.  Puzewicz, 856 P.2d at 1179.

     27    Richardson, 47 P.3d at 661; Puzewicz, 856 P.2d at 1179.

     28    Park v. State, 51 S.E.2d 832, 83435 (Ga. 1949) (holding
that  vehicular homicide by intoxicated driver can only be murder
if  concomitant circumstances showed that act naturally tended to
destroy human life).

     29    State v. Jensen, 417 P.2d 273, 288 (Kan. 1966) (holding
that  more  must be shown than that defendant was  driving  while
intoxicated to prove reckless murder).

     30    Blackwell v. State, 369 A.2d 153, at 156, 158 (Md. App.
1977)  (holding that, in vehicular homicide case where  defendant
was intoxicated but driving within speed limit,  an inference  of
viciousness  or extreme indifference to the value of  human  life
may  [not] be drawn from the past, although persistent,  drinking
habits of an accused).

     31     See Pears v. State, 698 P.2d 1198, 1206 (Alaska 1985)
(Compton,  J., dissenting) (noting that public awareness  of  and
attitude  toward  the  problems created  by  the  alcohol-abusing
automobile driver have altered significantly since 1976);   Allen
v.   State,  611  So.  2d  1188,  1193  (Ala.  Crim.  App.  1992)
(distinguishing  case  that held reckless  murder  conviction  of
intoxicated  driver to be improper because case  was  decided  in
1977,   long  before  the  extensive  public  awareness  programs
targeting the dangers of driving while intoxicated).

     32    Allen v. State, 611 So. 2d 1188, 1192 (Ala. Crim. App.

     33    Id. at 1190 (emphasis omitted) (quoting King v. State,
505 So. 2d 403, 407 (Ala. Crim. App. 1987)).

     34    Id. at 1193.

     35     Id.   Allens blood alcohol content was 0.163 percent.
Id. at 1189.

     36    Id. at 1192.  The court noted that the jury could have
concluded that Allen was either weaving in his own lane;  .  .  .
swerving into the oncoming lane; [or] running off the surface  of
the  road  onto  a low shoulder and attempting to  return  in  an
unsafe manner . . . .  Id.

     37     United States v. Fleming, 739 F.2d 945, 948 (4th Cir.
1987).   Fleming  was decided under the federal  reckless  murder
provision.   Id.   This provision requires a finding  of  conduct
that  is  reckless  and  wanton and  a  gross  deviation  from  a
reasonable  standard of care, of such a nature  that  a  jury  is
warranted in inferring that defendant was aware of a serious risk
of  death or serious bodily harm.  Id. at 947-48 (quoting  United
States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978)).

     38     Id.  at  948.  The defendant swerved in  and  out  of
oncoming  traffic  at seventy to 100 miles per hour  for  several
miles,  ultimately  losing control on a curve and  crashing  into
another car at seventy to eighty miles per hour in a thirty-mile-
per-hour zone.  Id. at 947.

     39     Lynne  Isensee, United States v. Fleming: When  Drunk
Drivers  Are  Guilty of Murder, 23 Am. Crim.  L.  Rev.  135,  149

     40    Id. at 138.

     41    Neitzel, 655 P.2d at 331.

     42    See AS 11.81.900(a)(2).

     43    Isensee, supra note 39, at 148.

     44     2 Wayne R. LaFave, Substantive Criminal Law  14.4(a),
at 437 (2d ed. 2003).

     45    Id. at 439.

     46    Id.

     47     Ratliff  v. State, 798 P.2d 1288, 1290  (Alaska  App.

     48    Neitzel, 655 P.2d at 337.

     49    Our holding should not be understood as suggesting that
there  could  be no drunk driving conduct that demonstrates  less
social  utility than driving home from a bar.  Just as driving  a
critically  ill  family member to the hospital  might  require  a
conclusion  that  a defendants drunk driving had  at  least  some
social  utility, one might also imagine circumstances in which  a
defendants  drunk  driving  requires a finding  of  extraordinary
disutility.  For example, racing while intoxicated is  even  more
indicative of a disregard for human life than attempting to drive
home from a bar while extremely intoxicated.

     50      It  appears  from  the  testimony  that  the  expert
considered a sober driver to be a driver with no alcohol  in  his
or her bloodstream.

     51     Estep  v.  Commonwealth, 957 S.W.2d 191  (Ky.  1997);
Walden  v. Commonwealth, 805 S.W.2d 102 (Ky. 1991), overruled  on
other grounds by Commonwealth v. Burge, 947 S.W.2d 805, 811  (Ky.
1996);  see  also Allen v. State, 611 So. 2d 1188, 1192-93  (Ala.
Crim.  App.  1992)  (relying in part on Walden  in  holding  that
intoxicated  driver doing no more than weaving  and  swerving  in
lane may be convicted of murder).

     52     At the time of the accident, the legal limit was less
than  0.10.   Former AS 28.35.030(a)(2) (2000).  That  limit  has
since been lowered to 0.08.  AS 28.35.030.

     53     The stipulation does not establish that Jeffries knew
that his license was revoked until 2018.

     54    We emphasize that it would not have been proper for the
jury  to  have  inferred from Jeffriess past  DWIs  that  he  was
driving  while  intoxicated on February 8, 2000.  See  Alaska  R.
Evid.  404(b) (providing that evidence of prior bad acts may  not
be  admitted to show that defendant acted in conformity with  his
character).   But it is undisputed that Jeffries was  intoxicated
at  the  time of the accident.  The dispute is whether  Jeffriess
mental  state demonstrated extreme indifference to the  value  of
human  life.  Jeffriess knowledge of the danger of driving  while
extremely intoxicated is relevant to this inquiry.

     55     Pears  v.  State, 672 P.2d 903, 906 n.1 (Alaska  App.

     56    The dissenting opinion asserts that [a] prosecutor now
will  be able to charge murder whenever a repeat offender with  a
high  blood alcohol reading causes a fatal accident.  Dissent  at
29.   This  overstates the holding we reach  today,  and  readers
should  not  assume  that  the dissent accurately  describes  the
effect  of  our holding. Our conclusion that there was sufficient
evidence to sustain the verdict turns not just on Jeffriess prior
record  and his extremely high level of intoxication but also  on
case- specific evidence  including both crime-scene evidence  and
expert testimony  that Jeffries was extremely incapacitated  when
he  drove  and  actually  did  engage  in  egregiously  dangerous

     57    Jeffries v. State, 90 P.3d 185, 194 (Alaska App. 2004).

     58     City  of  Bethel v. Peters, 97 P.3d 822, 825  (Alaska
     59    Love v. State, 457 P.2d 622, 634 (Alaska 1969).

     60    Alaska R. Evid. 403.

1    AS 11.41.110(a)(1).

     2    The senate report states concerning AS 11.41.110(a)(2):

               Subsection (a)(2) describes conduct that
          is  very similar to the substantially certain
          clause  in  subsection  (a)(1).  .  .  .   An
          example  of conduct covered by this provision
          would   be  shooting  through  a  tent  under
          circumstances  where the  defendant  did  not
          know  a  person  was inside or  persuading  a
          person to play russian [sic] roulette.
Commentary  on  the Alaska Revised Criminal Code, Senate  Journal
Supp. No. 47 at 10, 1978 Senate Journal 1399.

     3    655 P.2d 325, 337 (Alaska App. 1982).

     4     E.g., United States v. Fleming, 739 F.2d 945, 948 (4th
Cir. 1984).  In Fleming the defendant traveled for some six miles
at speeds of from seventy to one hundred miles per hour, swerving
at  times  into  oncoming traffic lanes before ultimately  losing
control and crashing into another car at seventy to eighty  miles
per  hour in a thirty-mile-per-hour zone.  The Fourth Circuit was
concerned with distinguishing Flemings conduct from manslaughter.
In doing so the court stated:

          In  the vast majority of vehicular homicides,
          the accused has not exhibited such wanton and
          reckless  disregard  for  human  life  as  to
          indicate the presence of malice on his  part.
          In  the present case, however, the facts show
          a  deviation  from established  standards  of
          regard for life and the safety of others that
          is  markedly  different in degree  from  that
          found  in  most vehicular homicides.  In  the
          average drunk driving homicide, there  is  no
          proof   that  the  driver  has  acted   while
          intoxicated with the purpose of wantonly  and
          intentionally putting the lives of others  in
          danger.   Rather, his driving abilities  were
          so  impaired that he recklessly put others in
          danger  simply  by  being  on  the  road  and
          attempting  to do the things that any  driver
          would  do.   In  the present  case,  however,
          danger  did  not  arise  only  by  defendants
          determining to drive while drunk.  Rather, in
          addition  to being intoxicated while driving,
          defendant  drove in a manner  that  could  be
          taken to indicate depraved disregard of human
          life, particularly in light of the fact  that
          because  he  was drunk his reckless  behavior
          was all the more dangerous.
Id.  at 948.  See also Pears v. State, 672 P.2d 903, 909, 906 n.1
(Alaska  App.  1983)  (intoxicated  defendant  drove  recklessly,
speeding, running through stop signs and stop lights and  failing
to  slow  for  yield signs; court emphasize[d] that a  charge  of
second-degree murder should only rarely be appropriate in a motor
vehicle homicide.  The murder charge in this case is supported by
the[se]  extreme  facts); Stiegele v. State, 714  P.2d  356,  360
(Alaska App. 1986) (murder conviction affirmed when drunk drivers
vehicle  left  road in the process of attempting to  negotiate  a
turn  at  eighty-five miles an hour:  Stiegeles prior substantial
knowledge of the curve and the impossibility of negotiating it at
high-speed  served  to justify a finding that Stiegele  attempted
the turn knowing that in so doing he was substantially certain to
cause his passengers deaths).

     5     E.g., Blackwell v. State, 369 A.2d 153 (Md. Spec. App.
1977)  (alternative holding).  In Blackwell the court reversed  a
second-degree  murder  conviction of an  intoxicated  driver  who
struck  a cyclist.  The defendant had a prior history of  driving
while  intoxicated  and there was evidence  that  the  defendants
vehicle  was  weaving before and after the accident  but  it  was
traveling  within  the  speed limit.   Id.  at  156.   The  court
explained its conclusion that there was insufficient evidence  of
malice to present a jury question in part as follows:

          [A] motorist who attempts to pass another car
          on  a  blind  curve may be acting  with  such
          criminal  negligence that if  he  causes  the
          death  of  another  in  a  resulting  traffic
          accident  he  will be guilty of manslaughter.
          And such a motorist may be creating fully  as
          great a human hazard as one who shoots into a
          house  or train just for kicks, who is guilty
          of  murder  if  loss  of life  results.   The
          difference is that in the act of the  shooter
          there  is  an  element  of  viciousness    an
          extreme  indifference to the value  of  human
          life   that  is not found in the act  of  the
          motorist.   And it is this viciousness  which
          makes  the  act  wanton as  well  as  wilful.
          [quoting Perkins, Criminal Law  1 at  37  (2d
               We  do not believe that an inference  of
          viciousness  or extreme indifference  to  the
          value  of  human life may be drawn  from  the
          past, although persistent, drinking habits of
          an accused.
Id.  at 158.  See also Park v. State, 51 S.E.2d 832, 834-35  (Ga.
1949)  (intoxicated driver who rear ended a truck stopped in  the
road could not be convicted of murder because no other sufficient
concomitant circumstances disclosed by the evidence . .  .  would
show  it  was  such an act as naturally tended to  destroy  human
life);  State v. Jensen, 417 P.2d 273, 288 (Kan. 1966) (the  fact
the   defendant  was  driving  while  under  the   influence   of
intoxicating  liquor without more being shown, is not  sufficient
of  itself  to support an implication of malice as  a  matter  of
law);  People v. Thacker, 570 N.Y.S.2d 516, 520 (N.Y. App.  1991)
(legally  intoxicated  driver who attempted  without  success  to
control  truck  before  fatal  accident  should  not  have   been
convicted of murder); Commonwealth v. McLaughlin, 142 A. 213, 215-
16  (Pa. 1928) (mere fact that defendant was intoxicated  at  the
time  of accident could not sustain a conviction for murder based
on malice inferred from wanton and reckless conduct).

     6     E.g.   The  superior court in this case exercised  its
discretion under Evidence Rule 403 by ruling the defendants prior
record  would not be admitted on the manslaughter charge  because
the  defendants  prior  record would  be  more  prejudicial  than

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