Accomplice Liabilty Essay Research Paper Questions Presented1

Accomplice Liabilty Essay, Research Paper

Questions Presented

1. Whether a individual in Alaska can be charged as an confederate to an unwilled offense, when Alaskan tribunals required that one must hold the specific purpose to advance or ease the discourtesy?

2. Whether the female parent was the legal cause of her kids & # 8217 ; s decease, when she permitted the male parent to take the kids in his auto when he was drunk?

Statement of the Case

The plaintiff in error, Elaine Benis, was indicted in the County of Norchester, on one count of manslaughter, pursuant to A.S. ? 11.41.120. ( R. at 1. ) She was besides indicted for one count of accoutrement to manslaughter, pursuant to A.S. ? 11.41.120 and A.S. ? 11.16.110. ( R. at 1 ) . After the presentation of the prosecution & # 8217 ; s instance, the defence moved to disregard on the evidences that the prosecution did non turn out beyond a sensible uncertainty that Mrs. Benis was foolhardy. ( R. at 9 ) . This gesture was denied. At the decision of its instance, the defence moved for a directed finding of fact, saying that the prosecution failed to demo that Mrs. Benis recklessly caused the decease of her kids. ( R. at 12 ) . This gesture was denied and the justice informed the counsellors that he would bear down the jury in conformity with the province & # 8217 ; s proposed charge. ( R. at 13 ) . The defence strongly objected and renewed its gesture for a directed finding of fact, subjecting that there was deficient grounds to turn out that Mrs. Benis was the cause of her kids & # 8217 ; s decease, since Mr. Peterman & # 8217 ; s actions clearly were the lone cause of their decease and that it is logically impossible for any jury to happen person guilty as an confederate to an unintended offense. ( R. at 13 ) . The test justice denied the gesture. ( R. at 13 ) .

Mrs. Benis was convicted and appealed to the Court of Appeals of the State of Alaska. ( R. at 15 ) . At issue in the entreaty was whether the test tribunal erred, as a affair of jurisprudence, ( 1 ) in teaching the jury on the charge of accoutrement to manslaughter and ( 2 ) in denying Mrs. Benis & # 8217 ; s post test gesture for a directed finding of fact because there was deficient grounds to back up a strong belief as a principal. ( R. at 16 ) .

The Court of Appeals held that the test tribunal did non mistake in teaching the jury that one can be an confederate to reckless manslaughter even though it is a non a specific purpose offense. ( R. at 17 ) . The tribunal based its determination on retentions from other legal powers and rejected the Alaskan philosophy that one can non be an confederate to a offense when he acts recklessly. ( R. at 17 ) . Furthermore, the tribunal held that there was sufficient grounds to back up a strong belief of Mrs. Benis as chief because her act was the legal cause of decease. ( R. at 17 ) .

Mrs. Benis now entreaties to the Supreme Court of Alaska. This entreaty is limited to the issue of whether being an accoutrement to manslaughter is a offense under Alaska jurisprudence and whether there was sufficient grounds that Mrs. Benis & # 8217 ; s act caused the decease of her two girls. ( R. at 19 ) . The defence entreaties on the evidences that the jurisprudence of Alaska does non allow an direction that one can be an confederate to an unwilled offense when they did non hold the specific purpose to advance or ease the discourtesy and that Mrs. Benis & # 8217 ; s act was non the proximate cause of her two kids & # 8217 ; s decease.

On Sunday, October 10, 1999, Jay Peterman came to his married woman & # 8217 ; s house, Mrs. Benis, because he is allowed to see his kids, pursuant to a impermanent separation understanding. ( R. at 16 ) . Mrs. Benis testified that her hubby & # 8217 ; s eyes were ruddy and that he appeared tipsy, & # 8220 ; & # 8230 ; but he drove up to the house, so I thought he was O.K. & # 8221 ; ( R. at 11 ) . However, when the prosecution asked Mrs. Benis if she knew that Mr. Peterman was drunk at the clip he picked up the misss, she decidedly replied & # 8220 ; No & # 8221 ; . ( R. at 12 ) . Furthermore, adept testimony from the Medical Examiner reveals that even though person has a blood intoxicant degree of 0.14, it is non perfectly certain that the individual appears intoxicated to the outside universe. ( R. at 7 ) .

Mr. Peterman had a breath-analyzing device installed in his auto because of past rummy drive incidents. ( R. at 16 ) . This device is designed to maintain a bibulous driver from get downing a auto. The system requires a driver to take a breath into a device and register a clean breath before the ignition unlocks. The driver is besides capable to turn overing retests during the trip to do certain the driver is alcohol free. If intoxicant is registered, the vehicle & # 8217 ; s horn honks nonstop until the vehicle is stopped. ( R. at 16 ) . Testimony from Maggie O & # 8217 ; Connell indicates that Mr. Peterman had his girl Sarah blow into the tubing for him before the auto drove away. ( R. at 2 ) . Mrs. Benis testified that she did non see the auto thrust off. ( R. at 11 ) . That was the last clip she saw her kids alive. At about 2:00 p.m. on that Sunday, Peterman drove his auto into oncoming traffic, killing himself and both of Mrs. Benis & # 8217 ; s girls. ( R. at 16 ) .

Analysis

I. ALASKA LAW REGARDING ACCOMPLICE LIABILITY IS CLEAR AND ONLY ALLOWS FOR ONE INTERPRETATION: ONE MUST SPECIFICALLY INTEND TO PROMOTE OR FACILITATE THE COMMISSION OF THE OFFENSE.

When this tribunal is reexamining a affair of jurisprudence it adopts a regulation that is most persuasive in visible radiation of case in point, ground, and policy. See American Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 ( Alaska 2000 ) . This tribunal & # 8217 ; s reading of confederate liability has been able to stand the trial of clip because its determinations have been based on common jurisprudence, instance case in point and statutory reading. The early definition of confederate liability required one to hold cognition and specific purpose to assistance, abet or take part in a condemnable act. This tribunal was able to set up a mens rea demand for an confederate because the condemnable jurisprudence was codified frm common jurisprudence. For 17 old ages this tribunal held that one has to hold cognition and specific purpose in order to be an confederate to a offense.

After the legislative assembly revised the condemnable codification in Alaska the strong given from statutory reading, legislative history and instance jurisprudence is that they wanted to codify anterior instance jurisprudence and common jurisprudence. Besides, the legislative assembly had no purpose of following the Model Penal Code & # 8217 ; s attack to accomplice liability. It is the legislative assembly & # 8217 ; s power non the bench & # 8217 ; s to alter jurisprudence.

The society in Alaska would be the one most devastated if the Appeals Court & # 8217 ; s determination is upheld. Every adult male and adult female would hold to walk a alleged consecutive line. In the long-term mundane behaviour would be criminalized.

A. This tribunal has systematically held that one has to hold the cognition and the specific purpose to be convicted as an confederate to a offense.

This tribunal & # 8217 ; s reading of confederate liability has been able to stand the trial of clip because its determinations have been based on common jurisprudence, instance case in point and statutory reading. In Mahle v. State, 371 P.2d 21 ( Alaska 1962 ) , this tribunal had its first opportunity to specify who was an confederate, its general definition was that an confederate is & # 8220 ; & # 8230 ; one who in some mode, wittingly and with condemnable purpose AIDSs, abets, aids or participates in a condemnable act. & # 8221 ; Id. at 25. See Daniels v. State, 383 P.2d 323, 324 ( Alaska 1963 ) , Taylor v. State, 391 P.2d 950 ( Alaska 1964 ) , Fajerak v. State, 439 P.2d 783, 788 ( Alaska 1968 ) , Flores v. State, 443 P.2d 73, 78 ( Alaska 1968 ) , Beavers v. State, 492 P.2d 88, 97 ( Alaska 1971 ) . This tribunal in Daniels explained, & # 8220 ; Neither the cognition that a offense is being committed nor the privacy of that cognition makes a individual an confederate, unless he aided or participated in the discourtesy or conspired to perpetrate it. & # 8221 ; Id. at 383 P.2d 323, 325 agreement Mahle, 371 P.2d 21, 25, Fajerak, 439 P.2d 783, 788. Furthermore, in Mahle this tribunal stated, an confederate has to voluntarily take part in the completion of the offense. Id. at 371 P.2d 21, 25. As exemplified in Daniels, three work forces had used a adult female & # 8217 ; s auto to perpetrate a burglary ; the adult female ne’er consented to this usage or even had knowledge thereof. Id at 383 P.2d 323, 325. The three work forces after perpetrating the offense went to her house and dumped the money on the bed, she assisted them in numbering the money and kept some for herself. Id. at 325. This tribunal stated even if she knew that the three work forces were traveling to perpetrate the offense she did non take part in the offense. Id. at 325. The adult female had to make more than merely cognize that a offense was being committed, there had to be a voluntary engagement on her portion otherwise she could non be held apt as an confederate.

The job with the preceding instances is that at the clip they were decided the legislative act that pertained to accomplice liability was soundless as to a work forces rea demand. A.S. 12.15.010 ( repealed by Ch. 166, s 21, SLA 1978, effectual January 1, 1980 ) . & # 8220 ; All individuals concerned in the committee of the offense, whether they straight commit the act representing the offense or, though non present, assistance and abet in its committee, shall be prosecuted, tried and punished as principals. & # 8221 ; Id. This tribunal failed to explicate why they were able to read a work forces rea demand into A.S. ? 12.15.010, when the legislative act did non specifically province one.

The Alaskan condemnable codification due to its codification of common-law, allowed this tribunal to construe that an confederate has to hold the specific purpose to assistance, abet or take part in a condemnable act. In Tarnef v. Alaska, 512 P.2d 923 ( Alaska 1973 ) , this tribunal had to make up one’s mind whether the incendiarism legislative act which contained the words AIDSs, procures or advocates, was unconstitutional because there was no work forces rea demand. This tribunal concluded that these words meant assistance and abet, as in A.S. ? 12.15.010, which was defined as & # 8220 ; & # 8230 ; aid, help, or ease the committee of a offense, promote the achievement thereof, aid in progressing or convey it approximately, or promote, advocate, or incite as to its committee. Thomas v. State, 391 P.2d 18, 25 ( Alaska 1964 ) quoted in 512 P.2d 923,928. Since that part of the incendiarism legislative act pertains to accomplice behaviour, lacks a work forces rea demand and the penalty is the same for the principal and the confederate, as a felony it is a basic premiss that if the legislative act lacks a work forces rea requirement the legislative act is unconstitutional. Id. at 512 P.2d 923, 929. Given at the clip Alaska followed common jurisprudence:

it is true that one will sometimes happen felony legislative acts that are soundless on

the topic of condemnable purpose. But these are cases where the provinces

hold codified the common jurisprudence of offenses, and their tribunals have assumed

that the skip of the demand of condemnable purpose did non mean

disapproval of the rule but simply recognized that purpose was so built-in

in the thought of the discourtesy that it needed no statutory avowal. Therefore, as to

felony type discourtesies codified from common jurisprudence, the tribunals have found an deduction of purpose.

Spiedel v. State, 460 P.2d 77, 79 ( Alaska 1969 ) quoted in 512 P.2d 923, 929. Because of this deduction this tribunal held, & # 8220 ; it is good established under common jurisprudence and in Alaska that a individual can non be convicted of helping and abetting a offense unless he had the specific condemnable purpose to convey about the illegal end. & # 8221 ; Id. at 928. This determination changed the linguistic communication that Mahle used to specify accomplice liability but still held that one has to hold the specific condemnable purpose to convey about the illegal terminal. However, this determination did non clear up what precisely the nature of purpose was but it does exemplify why this tribunal had the power to construe a work forces rea demand for an confederate.

In Hensel V State, 604 P.2d 222, ( Alaska 1979 ) , the last clip this issue was brought to this tribunal, it exactly stated what was the nature of the work forces rea demand of an confederate. The tribunal held that & # 8220 ; & # 8230 ; liability for the offense of another will attach merely upon a screening that an single had cognition of the condemnable endeavor and specifically intended, by his behavior to assistance, abet, aid or take part in the condemnable enterprise. & # 8221 ; Id at 234. The two-prong trial is that liability will non attach upon cognition entirely, the person must besides hold had & # 8220 ; the specific condemnable purpose to convey about the illegal terminal. Id. at 234. The purpose therefore is & # 8220 ; & # 8230 ; conduct voluntarily undertaken for the intent of take parting or helping in the completion of the crime. & # 8221 ; Evans v. State, 550 P.2d 830, 841 ( Alaska 1976 ) .

From 1962 to 1979, this tribunal had ample chance to construe what the blameworthy mental province for an confederate should be in Alaska. Although the linguistic communication changed throughout the old ages this tribunal has steadfastly held that one has to hold cognition and specific purpose in order to be apt as an confederate. Nowhere in any of the sentiments from 1962 to 1979 even imply that one can be an confederate if their blameworthy mental province is any less than cognition and specific purpose.

B. Plain reading, legislative history and instance jurisprudence of the confederate liability legislative act in Alaska illustrate that 1 has to hold the required specific purpose to advance or ease the committee of the discourtesy.

In 1978 the legislative assembly revised the condemnable codification and from present entreaties tribunal determinations and statutory reading it is apparent that the legislative assembly wanted to codify anterior instance jurisprudence and the common jurisprudence definition for who can be an confederate. When construing a legislative act the Supreme Court of Alaska & # 8220 ; does non adhere to the field significance regulation of statutory reading, but instead, relies on a skiding graduated table attack even if a legislative act is obviously worded ; since words are needfully inexact and ambiguity is a comparative construct, Supreme Court turns to legislative history, mindful that the plainer the linguistic communication, the more convincing contrary legislative history must be. & # 8221 ; Romann v. State, 991 P.2d 186 ( Alaska 1999 ) .

The field reading of A.S. ? 11.16.110 ( 2 ) ( B ) on its face does non look to be equivocal one can non be an confederate to a offense if their blameworthy mental province is foolhardy. The legislative act in inquiry provinces, & # 8220 ; a individual is lawfully accountable for the behavior of another representing an discourtesy if, with purpose to advance or ease the committee of the discourtesy, the individual, AIDSs or abets the other in be aftering or perpetrating the offense. & # 8221 ; ( accent added ) A.S. ? 11.16.110 ( 2 ) ( B ) . Under Alaskan jurisprudence a individual acts with purpose & # 8220 ; with regard to the consequence described by a proviso of jurisprudence specifying an discourtesy when the individual & # 8217 ; s witting aim is to do the result. & # 8221 ; A.S. 11.81.900 ( a ) ( 1 ) . A apparent reading of the legislative act would be that one has to hold the witting aim to advance or ease the discourtesy. Furthermore, harmonizing to the Oxford Dictionary and Thesaurus 298 ( American Edition 1996 ) , witting is defined as cognizant and cognizant is defined as holding cognition. The definition of aim is something sought or aimed at. Id. at 1026. A reading of A.S. ? 11.16.110 with these definitions would be that one holding cognition has sought or aimed to advance or ease the discourtesy. This field reading of the legislative act is consistent with the readings of the Supreme Court of Alaska.

In Echols v. State, 818 P.2D 691 ( Alaska Ct. App. 1991 ) , the tribunal interpreted A.S. ? 11.16.110 ( 2 ( B ) in visible radiation of a field reading and legislative purpose. The suspect appealed the test tribunal & # 8217 ; s direction to the jury that it could convict her if she acted recklessly sing the consequences of the principal & # 8217 ; s behavior under A.S. ? 11.16.110. Id. at 695. The tribunal held that the test tribunal did err because it was clear from the field linguistic communication of A.S. ? 11.16.110 and the legislative history of that legislative act, that in order to convict her as an confederate, the province must turn out that she intended to advance or ease the committee of the discourtesy. Id. at 695. The tribunal foremost stated that the apparent linguistic communication of the legislative act & # 8220 ; & # 8230 ; seems to bespeak that the confederate must mean the committee of the peculiar offense charged. & # 8221 ; Id. at 692, See Ashenfelter v. State, 988 P.2d 120, 125 ( Alaska Ct. App. 1999, Erickson v. State, 824 P.2d. 725, 730 ( Alaska Ct. App. 1991 ) . A suspect & # 8217 ; s complicity is non established unless the province proves that the suspect acted with purpose to convey about the specified consequence. There is no such thing as foolhardy confederate behaviour.

Furthermore, T

he tribunal relied on the legislative history of A.S. ? 11.16.110 in order to find the legislative purpose behind this legislative act. There is no concrete history for the present codification but the tribunal relied on commentary from the probationary bill of exchange of the Alaska Criminal Code alteration. The commentary provinces, “Subsection ( 2 ) codifies the current instance jurisprudence that one is apt as a traditional ‘accomplice’ if he acts ‘with purpose to advance or ease the committee of the offense’.” Alaska Criminal Code Revision Part II, at 31 ( Tent. Draft 1977 ) ( commendations omitted ) quoted in 818 P.2d 691, 692. This remark is persuasive because anterior to the alteration every clip the Supreme Court of Alaska defined the work forces rea demand for an confederate it stated that one has to hold the specific purpose to advance or ease the discourtesy. See, Mahle v. State, 371 P.2d 21, 25 ( Alaska 1962 ) , Daniels v. State, 383 P.2d 323, 324 ( Alaska 1963 ) , Taylor v. State, 391 P.2d 950 ( Alaska 1964 ) , Fajerak v. State, 439 P.2d 783, 788 ( Alaska 1968 ) , Flores v. State, 443 P.2d 73, 78 ( Alaska 1968 ) , Beavers v. State, 492 P.2d 88, 97 ( Alaska 1971 ) .

The legislative assembly ne’er intended to follow MODEL PENAL CODE? 2.06 ( 4 ) ( 1962 ) ( MPC ) . The legislative assembly when it revised the condemnable codification of Alaska in 1978 did follow certain MPC commissariats. Section 2.06 ( 4 ) allows for one to be an confederate & # 8220 ; & # 8230 ; if he acts with the sort of blameworthiness, if any, with regard to that consequence that is sufficient for the committee of the offense. & # 8221 ; . Under this proviso one can be an confederate if he merely acts recklessly. Since A.S. ? 11.16.110 does non incorporate this proviso this tribunal can non keep this to be the jurisprudence of the State. If the legislative assembly saw fit to follow this clause they would hold as they did for A.S. ? 11.16.110 ( 3 ) . What the legislative assembly did make was codify the jurisprudence that this tribunal had interpreted and systematically held for 17 old ages. When the legislative assembly codified the jurisprudence they made sure that there was a mens rea demand included in the legislative act, which was losing prior to the alteration. This tribunal does non hold the power to do jurisprudence it merely has the power to construe the legislative act harmonizing to the skiding scale attack. T

In conformity with the skiding scale attack there is no other reading for A.S. ? 11.16.110: 1 has to hold the specific purpose to advance or ease the discourtesy. Furthermore, a legislative act will non be modified or extended by tribunal where a legislative act & # 8217 ; s linguistic communication is clear and legislative history reveals no ambiguity. See Lewis v. State, 892 P.2d 175 ( Alaska 1995 ) . From a field reading, legislative history and instance jurisprudence it is obvious that under A.S. ? 11.16.110, there is no such thing as foolhardy confederate behaviour.

C. If one is held to be an confederate to an unwilled offense when they did non hold the specific purpose to advance or ease the discourtesy it will take to bad public policy.

If the Appeals Court & # 8217 ; s determination is upheld it will put bad public policy. In the Appeals Court & # 8217 ; s determination the tribunal stated, & # 8220 ; it is our hope, nevertheless, that this instance will do the people realize the earnestness of driving while intoxicated. & # 8221 ; ( R. at 17 ) . In what manner, does this deter people from driving while intoxicated? This determination has no affect on the individual who is driving the auto. This determination extends Alaskan jurisprudence to every adult male and adult female of this province no affair if they drink or non. This tribunal should observe the involvement of society in discouraging felons must be balanced against the involvement of the single being free unless found lawfully responsible. A basic premiss in condemnable jurisprudence is that one should be apt merely for one & # 8217 ; s personal guilt. It makes no sense to continue a regulation that could convict an confederate for deliberately helping in a offense that a principal was incognizant that he was perpetrating. What this may make is & # 8220 ; & # 8230 ; load peoples & # 8217 ; actions with uncertainties and concerns about what person might reprehensibly make as a effect of their ain lawful actions. & # 8221 ; Sanford H. Kadish, Reckless Complicity, 87 J. Crim. L. & A ; Criminology 369 ( 1997 ) . The confederate liability legislative act is non merely aimed at people who drive while intoxicated, it is a legislative act that applies to all offenses in Alaska. This tribunal must follow a regulation that is most persuasive in visible radiation of case in point, ground, and policy. See American Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 ( Alaska 2000 ) . Otherwise, the jurisprudence would criminalize mundane behaviour.

II. THE MOTHER WAS NOT THE LEGAL CAUSE OF HER CHILDREN & # 8217 ; S DEATH, WHEN SHE PERMITTED THE FATHER TO Take THE CHILDREN IN HIS Car WHEN HE WAS DRUNK.

The Court of Appeals erred when it held that there was sufficient grounds of causing to back up the strong belief of Mrs. Benis as a principal to manslaughter, pursuant to A.S. ? 11.41.120. This tribunal reviews a test tribunal & # 8217 ; s evidentiary opinions for maltreatment of discretion. See Smithart v. State, 988 P.2d 583, 586 ( Alaska 1999 ) . In American Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 ( Alaska 2000 ) , this tribunal stated, & # 8220 ; to change by reversal, the tribunal must hold a definite and house strong belief that a error has been made. & # 8221 ; Id. at 2.

The general regulation in Alaska is that in every condemnable instance the prosecution must set up and the jury must happen that the suspect & # 8217 ; s behavior was the existent cause and the proximate cause of the offense charged in the indictment. The defence does non contend that Mrs. Benis & # 8217 ; s failure to act was the existent cause of her kids & # 8217 ; s decease. The defence does contend whether there was sufficient grounds to happen that Mrs. Benis was the proximate cause of her kids & # 8217 ; s decease. In Wren v. State, 577 P.2d 235 ( Alaska 1978 ) , this tribunal affirmed an direction on proximate cause which stated, & # 8220 ; [ t ] he proximate cause is that cause which, in natural and uninterrupted sequence, unbroken by an efficient intervening cause, produces the consequence which the consequence would non hold occurred. & # 8221 ; Id. at 240. The defence believes that it has presented adequate grounds to demo that there was an intervening cause that broke the natural and uninterrupted sequence. If this tribunal finds that this is true than Mrs. Benis & # 8217 ; s failure to move, as a affair of jurisprudence, was non the proximate cause and her strong belief should be reversed.

The decease of Mrs. Benis & # 8217 ; s kids was non foreseeable when she let her kids get into the auto with her hubby. The trial in Alaska is non that a individual has to be the exclusive factor in bring forthing the decease, but the suspect & # 8217 ; s behavior has to be a significant factor in conveying about decease. See Brown v. State, Nos. A-6439, 3815, 1998 WL 224920, at 1, 2 ( Alaska Ct. App. 1998 ) . However, a suspect & # 8217 ; s condemnable duty is non illimitable. In State v. Malone, 819 P.2d 34 ( Alaska Ct. App. 1991 ) , the tribunal stated,

The jurisprudence does non keep a suspect responsible if the hurt or decease,

while possibly linked to the suspect & # 8217 ; s behavior, is chiefly caused

by unnatural, unforeseeable behavior on the portion of the victim or of a

3rd individual, so that it no longer seems just to state that the hurt was

& # 8216 ; caused & # 8217 ; by the suspect & # 8217 ; s behavior.

Id. at 37. The jurisprudence acknowledges that in some fortunes there are & # 8220 ; state of affairss in which the 2nd act of carelessness looms so big in comparing with the first that the first is non to be regarded as a significant factor in the concluding result. & # 8221 ; R. Perkins & A ; R. Boyce, Criminal Law ( 3rd erectile dysfunction. 1982 ) , ? 9, p. 787, quoted in 819 P.2d. 34, 37.

In Malone, the suspect led constabularies on a high-velocity pursuit through public streets. While the constabulary were in chase of the suspect, the constabulary auto collided with a vehicle driven by another automobilist ; both the officer and the automobilist were injured. Id. at 35. On entreaty, the suspect claimed that the hit could hold been due to the constabulary officers or the other automobilist & # 8217 ; s negligent behavior. Id. at 35. The suspect did non indicate to any grounds of the constabulary officer & # 8217 ; s or other automobilist & # 8217 ; s carelessness. Id. at 35. The tribunal stated that even though all drivers are required to exert attention for the safety of other automobilists, a state of affairs such as a high-velocity pursuit alleviates the stringency of that attention. It is natural and foreseeable that, under the emphasis of the state of affairs, police officers may prosecute in driving that fails to fulfill the criterion of attention and uninvolved automobilists may either neglect to respond or may respond with less than normal prudence. Id. at 38. The tribunal held that even if it is believed that the constabulary officer & # 8217 ; s or the other automobilist & # 8217 ; s behavior was negligent, this carelessness was a foreseeable consequence of the suspect & # 8217 ; s behavior. Id. at 38. Furthermore, there was no grounds in the record to exemplify that the constabulary officer or the other automobilist caused the hit by prosecuting in extraordinary, unforeseeable behavior. Id. at 38.

In contrast to Malone, there is grounds in this instance purporting to extraordinary, unforeseeable behavior by a 3rd party. On October 10, 1999, Mr. Peterman came to Mrs. Benis & # 8217 ; s house to pick up the kids. Mrs. Benis testified that she did non cognize that her hubby was intoxicated when he picked up the kids. ( R. at 12 ) . Evidence in support of this statement is that due to prior rummy driving incidents Mr. Peterman had a breath-analyzing device installed in his auto. ( R. at 16 ) . This device is designed to maintain a bibulous driver from get downing a auto. ( R. at 16 ) . The system requires a driver to take a breath into a device and register a clean breath before the ignition unlocks. ( R. at 16 ) . The driver is besides capable to turn overing retests during the trip to do certain the driver is alcohol free. ( R. at 16 ) . If intoxicant is registered, the vehicle & # 8217 ; s horn honks nonstop until the vehicle is stopped. ( R. at 16 ) . Mrs. Benis would be able to presume that since Mr. Peterman was able to drive his auto to her house, he must hold passed the breath-analyzing trial in his auto. The defence is non contending whether Mrs. Benis knew if her hubby was intoxicated. In any event, Mrs. Benis knows that a natural and foreseeable effect of allowing her kids thrust with person who is intoxicated can be decease. However, in this state of affairs testimony from Maggie O & # 8217 ; Connell indicates that Mr. Peterman had his girl Sarah blow into the tubing for him before the auto drove away. ( R. at 2 ) .

The difference between Malone and this instance are consequences or reactions that are natural and foreseeable from the suspect & # 8217 ; s behavior and consequences or reactions that are non. In Malone, the tribunal held that the constabulary officer and other automobilist & # 8217 ; s behavior was a normal reaction to the high-velocity pursuit that the suspect & # 8217 ; s behavior initiated. The suspect besides did non offer grounds to demo that the third party & # 8217 ; s carelessness was extraordinary, unforeseeable behavior. Similarly to Malone, Mrs. Benis could anticipate her hubby acquiring into an accident if he drove while intoxicated and it is a foreseeable consequence that her kids could decease if she allow them travel in the auto with him while he was rummy. However, in this instance it is extraordinary and unforeseeable that a male parent would hold his ten-year old girl, Sarah, interrupt the jurisprudence, by blowing into the breath-analyzing device so that he could illicitly drive his auto intoxicated. Unlike in Malone, where the third party & # 8217 ; s behavior was a normal reaction and foreseeable consequence from the high-velocity pursuit, a male parent holding his child break the jurisprudence is neither normal or foreseeable from a female parent neglecting to halt her kids from acquiring in the auto with their male parent. The differentiation is that the suspect in Malone would still be convicted if no 1 had gotten injured and nil could hold been done to Mrs. Benis. Therefore, in conformity with Malone this tribunal must keep that the defence presented adequate grounds to demo that when Mr. Peterman had his girl commit a condemnable act by blowing into the tubing, it was non a natural and foreseeable reaction to Mrs. Benis & # 8217 ; s failure to move.

The defence has presented sufficient grounds to exemplify that the extraordinary, unforeseeable behavior of Mr. Peterman holding his girl commit a condemnable act is, as a affair of jurisprudence, a superseding or intervening cause that excuses Mrs. Benis from liability. In Kusmider v. State, 688 P.2d 957 ( Alaska Ct. App. 1984 ) , the suspect went to the house of his girlfriend & # 8217 ; s familiarity, an affray arose and the suspect shot the familiarity. Id. at 958. After the paramedics had inserted a tubing into the familiarity & # 8217 ; s throat on the ambulance, the familiarity started to thrash his weaponries and pulled the tubing from his pharynx. He died at the infirmary. Id. at 958. The suspect claimed that the jury should hold been allowed to see whether the paramedics failure to keep the familiarity & # 8217 ; s weaponries constituted an intervening or supplanting cause of decease. Id. at 958. The lone grounds the suspect offered was that the paramedics who treated the familiarity might hold been negligent in neglecting to keep the familiarity & # 8217 ; s weaponries. Id. at 959. The suspect did non reason that he could hold presented grounds that the paramedic & # 8217 ; s behavior inflicted any new hurts on the acquaintenance ; he relied on their failure to move. Id. at 960. Since the suspect ne’er offered cogent evidence that the paramedics failure to act was grossly negligent or that the consequences were unforeseeable because they inflicted new hurts, the grounds was deficient to exemplify that their behavior was an intervening cause. Id. at 959-60. It was apparent that the gunfire fired by the suspect remained a significant factor in doing the acquaintenance & # 8217 ; s decease. Id. at 960.

On the contrary, in this instance the defence has presented grounds to exemplify that after the hubby had the girl blow in to the tubing, Mrs. Benis did non stay a significant factor in doing her kids & # 8217 ; s decease. Comparing Kusmider and Mrs. Benis we see similarities and differences. Mrs. Benis neglecting to halt her childs from acquiring in the auto with her hubby while he was rummy is similar to the suspect in Kusmider firing a shooting at the familiarity. In both instances, Mrs. Benis knew that decease could ensue from her action and so did the suspect in Kusmider. The difference is in the behavior of the 3rd party. In Kusmider the paramedics failed to keep the acquaintenance & # 8217 ; s weaponries but there was no grounds to exemplify that this failure aggravated the hurts caused by the gunfire. In this instance after Mrs. Benis acted, testimony indicates that the male parent affirmatively had the girl blow into the tubing so that he could run the car. ( R. at 2 ) . The legal significance is even if the paramedics restrained the acquaintenance & # 8217 ; s arms the suspect & # 8217 ; s gunfire would still hold been a significant factor in doing the decease. However, in this instance if the male parent were the 1 who blew into the tubing he wouldn & # 8217 ; Ts have been able to drive the auto. In this instance the grounds illustrates that one time Mr. Peterman had his girl blow into the tubing Mrs. Benis was no longer the significant factor. If the hubby had blown into the tubing the auto wouldn & # 8217 ; Ts have started and at that place would hold been no accident. Therefore, under Kusmider the tribunal would happen that the grounds was sufficient to demo grossly negligent and unforeseeable behavior that constitutes an intervening cause and interrupts the concatenation of proximate causing.

In decision, this tribunal must change by reversal the lower tribunal & # 8217 ; s determination because the defence presented sufficient grounds to exemplify that Mrs. Benis was non the proximate cause of her kids & # 8217 ; s decease. Once Mr. Peterman had his girl blow into the tubing, it was extraordinary, unforeseeable behavior that did non happen as a normal reaction nor was it foreseeable from Mrs. Benis & # 8217 ; s behavior. The tribunals in Malone and Kusmider, as a affair of jurisprudence, would keep that the behavior of Mr. Peterman constituted a superseding or intervening cause that interrupted the concatenation of proximate cause.

Decision

Case case in point, legislative history, statutory reading and public policy all support a determination that the Supreme Court of Alaska should continue the jurisprudence of the land: 1 has to hold the specific purpose to advance or ease the discourtesy. Furthermore, the defence has presented sufficient grounds to exemplify that Mrs. Benis was non the legal cause of her kids & # 8217 ; s decease.

Respectfully Submitted

Attorney for the Appellant

April 3, 2000