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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA


BRIAN ALBERT PFISTER,
                                                     Court of Appeals No. A-12019
                           Appellant,              Trial Court No. 3AN-11-12507 CR

                    v.
                                                             O P I N I O N
STATE OF ALASKA,

                           Appellee.                    No. 2600 — May 18, 2018


             Appeal from the Superior Court, Third Judicial District,
             Anchorage, Michael R. Spaan, Judge.

             Appearances: Dan S. Bair, Assistant Public Advocate, Appeals
             and Statewide Defense Section, and Richard Allen, Public
             Advocate, Anchorage, for the Appellant. Michal Stryszak,
             Assistant Attorney General, Office of Criminal Appeals,
             Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for
             the Appellee.

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

             Judge MANNHEIMER.


             In November 2011, Brian Albert Pfister and two accomplices — Joseph
Trantham and Maurice Johnson — decided to break into the home of a marijuana grower
and rob him. Pfister waited outside while his two accomplices entered the marijuana
grower’s home.
              Once Trantham and Johnson were inside the home, they pistol-whipped the
marijuana grower and demanded his money. The marijuana grower led Trantham and
Johnson to his safe — where, unbeknownst to the robbers, he kept a handgun. The
grower removed the handgun from the safe and used it to shoot Trantham and Johnson
— mortally wounding both of them. Pfister ran away, but he was later arrested.
              The State charged Pfister with first-degree burglary, first-degree robbery,
and conspiracy to commit robbery. The State also charged Pfister with two counts of
manslaughter, for causing the deaths of his two accomplices. Following a jury trial,
Pfister was convicted of all these crimes.
              In this appeal, Pfister challenges his two manslaughter convictions. He
asserts that, under Alaska law, an accomplice to a dangerous felony cannot be convicted
of manslaughter when the person who is killed as a result of the felony is another
accomplice.
              Pfister notes that, under Alaska law, he could not be convicted of felony-
murder for the deaths of his accomplices. This is because the portion of the second-
degree murder statute that defines felony-murder, AS 11.41.110(a)(3), expressly exempts
situations where the person who dies during a violent felony is “one of the participants”
in that felony.
              Based on the fact that Alaska’s felony-murder statute does not cover
situations where a felony results in the death of an accomplice to that crime, Pfister
argues that the Alaska Legislature also must have intended to exempt accomplices to a
felony from any criminal liability for the death of another accomplice. Thus, under
Pfister’s view of the law, he could not be convicted of manslaughter or any other degree



                                             –2–                                    2600

of criminal homicide based on the deaths of his two accomplices to the burglary and
robbery in this case.
             As we explain in this opinion, Pfister’s argument is inconsistent with the
common law defining the crime of manslaughter. Based on that common law, and based
on the hundred-year history of Alaska’s manslaughter statute, we conclude that Pfister’s
proposed limitation on the crime of manslaughter is inconsistent with the intent of the
Alaska Legislature. We therefore uphold Pfister’s two manslaughter convictions.
             However, for the reasons explained in this opinion, we remand Pfister’s
case to the superior court for re-sentencing.


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


             At common law, the crime of manslaughter was a residual category of
unlawful homicide. Manslaughter was defined as any unlawful homicide committed
without malice aforethought — that is, any unlawful homicide that was not murder. 1
             Thus, whenever a person caused the death of another human being, and if
that killing was neither justified nor excused, and if the killing did not constitute some
form of murder, then the person was guilty of manslaughter. 2
             One of the forms of murder recognized at common law was “felony­
murder”. In the early days of the common law, this doctrine applied only to homicides




   1
      Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd ed. 1982), p. 82; Wayne
R. LaFave, Substantive Criminal Law (3rd ed. 2018), § 15.1, Vol. 2, p. 668.
   2
       Perkins & Boyce, p. 83; LaFave, Vol. 2, p. 668.

                                          –3–                                        2600

that were caused during an attempt to perpetrate a felony — because, in those days, any
completed felony was already punishable by death. 3
             Later, when the law allowed lesser penalties for felonies, the felony-murder
doctrine was altered to cover any unintended homicide that resulted from the perpetration
or attempted perpetration of an inherently dangerous felony, or from any other felony
that was perpetrated in a dangerous manner. 4 In such instances, the common law viewed
the defendant’s intent to commit the felony as “malice aforethought” — thus elevating
the homicide to murder — even though the defendant had no intent to kill. 5
             Because the only intent required for felony-murder was the intent to commit
the felony, the felony-murder rule applied to deaths that were attributable to the
commission of a felony even if those deaths were unforeseen or even quite unexpected:

                     If [the] intent [to commit the felony] is shown[,] the
             resulting homicide is murder even if it was quite accidental.
             ... [For example,] if arson results in the death of a fireman
             who was trying to put out the fire, the arsonist is recognized
             as having caused this death and is guilty of murder under the
             felony-murder rule. 6

Indeed, even the accidental killing of an accomplice during the perpetration of the felony
was felony-murder for this same reason. 7




   3
       Perkins & Boyce, pp. 70-71.
   4
       Perkins & Boyce, pp. 62-65 & 70-72; LaFave, Vol. 2, pp. 604-612.
   5
       Perkins & Boyce, p. 71.
   6
       Perkins & Boyce, pp. 67-68.
   7
       Perkins & Boyce, p. 68; LaFave, Vol. 2, p. 618.

                                          –4–                                        2600

               The common law also recognized a related doctrine that is commonly
referred to as the “misdemeanor-manslaughter” rule.
               Under this rule, a person was guilty of manslaughter if they engaged in
any unlawful act that was not covered by the felony-murder rule and, as a result, another
person died.
               The misdemeanor-manslaughter rule is sometimes treated as if it were a
separate legal doctrine, distinct from (but related to) the felony-murder rule. However,
in truth, the misdemeanor-manslaughter rule follows directly from the definition of
manslaughter.
               As we explained earlier, the common law defined manslaughter as any
unlawful homicide that did not constitute murder. Thus, if a person engaged in an
unlawful act, and if that act resulted in the unintended death of another human being, and
if that death did not constitute felony-murder, then the crime was manslaughter.


       Alaska’s historical definitions of manslaughter and felony-murder


               During the eighty-year interval between the earliest codification of Alaska
territorial law (the Carter Code of 1900) 8 and the effective date of Alaska’s current
criminal code (January 1, 1980), 9 Alaska adhered to the common-law definition of
manslaughter. That is, manslaughter was the residual category of unlawful homicide:
it encompassed any unlawful homicide that did not constitute either first- or second-
degree murder.




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

   9
       See SLA 1978, ch. 166, § 25.


                                           –5–                                       2600

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

                      [W]hoever unlawfully kills another, except as provided
               in [the sections defining first- and second-degree murder], is
               guilty of manslaughter ... .

The next four sections of the Carter Code (Part I, Sections 7 through 10) described four
specific types of killing, including “negligent homicide”. But each of these sections
ended with language declaring that this type of unlawful killing was “deemed
manslaughter” and was to be “punished accordingly”.
               This statutory format — one statute defining manslaughter as any unlawful
killing that did not constitute murder, followed by four accompanying statutes, each
declaring that a specific type of killing was manslaughter — was carried forward, with
essentially no change, in every codification of Alaska law until 1980, the year when
Alaska’s current criminal code went into effect. 10
               But even though Alaska law followed the common-law approach to the
crime of manslaughter as the residual category of homicide, Alaska law departed
significantly in its approach to the felony-murder rule.
               Up until January 1980 (when our current criminal code took effect), there
was no provision of Alaska law that raised an unintended killing to murder, even if the
killing occurred during the perpetration of a felony. Rather, Alaska’s version of the
felony-murder rule applied only to intentional killings that were committed during the
perpetration of certain listed felonies (rape, arson, robbery, or burglary).




   10
       See the 1949 Compiled Laws of Alaska, §§ 65-4-4 through 65-4-8, and (following
statehood) former AS 11.15.040 through AS 11.15.080.

                                             –6–                                          2600

              Any unlawful (and unprovoked) intentional homicide was already second-
degree murder under Alaska law. 11 The effect of Alaska’s idiosyncratic felony-murder
statute was to raise this homicide from second-degree murder to first-degree murder if
the intentional killing occurred during one of the listed felonies. 12
              (Alaska’s distinctive pre-1980 version of the felony-murder rule is
described and explained in Gray v. State, 463 P.2d 897, 902-04 (Alaska 1970).)
              Because the Alaska definition of felony-murder was so restricted (i.e.,
because the felony-murder rule applied only to intentional killings), Alaska had a
correspondingly broad “misdemeanor-manslaughter” rule.
              As we have explained, manslaughter was the residual category of criminal
homicide under pre-1980 Alaska law: it encompassed any unlawful homicide that did
not constitute murder. Because Alaska’s narrow felony-murder rule simply did not apply
to unintended killings (even when the killings resulted from the perpetration of a felony),
those unintended killings fell into the residual category of manslaughter.
              In Keith v. State, 612 P.2d 977, 988-89 (Alaska 1980), our supreme court
recognized this principle. The court characterized Alaska’s “distinctive” statutory
scheme as embodying not only the traditional misdemeanor-manslaughter rule but also
a “felony-manslaughter rule”. Id. at 988.


        Alaska’s current definitions of manslaughter and felony-murder


              As we have just explained, under Alaska’s pre-1980 criminal law, the crime
of murder did not include unintended killings, even when those killings resulted from the


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

   12
        See Carter Code, Part I, Section 3; CLA 1949, § 65-4-1; and AS 11.15.010.


                                            –7–                                       2600

perpetration of a felony. Instead, the crime of manslaughter encompassed all unintended
killings that resulted from any unlawful act.
              The drafters of Alaska’s current criminal code made significant changes to
this area of the law. They created Alaska’s first true felony-murder rule, and they also
made two substantive changes to the definition of manslaughter.
              Alaska now has a felony-murder provision — AS 11.41.110(a)(3) — that
mirrors the common-law doctrine of felony-murder in most respects. Under this statute,
an unintended homicide is now murder (second-degree murder) if the homicide occurs
during the commission or attempted commission of a specified serious felony:

                    (a) A person commits the crime of murder in the
              second degree if ...

                     (3) under circumstances not amounting to murder in
                 the first degree under AS 11.41.100(a)(3), while acting
                 either alone or with one or more persons, the person
                 commits or attempts to commit [one of the following
                 felonies] and, in the course of or in furtherance of that
                 crime or in immediate flight from that crime, any person
                 causes the death of a person other than one of the
                 participants[.]

              For purposes of the present appeal, the key aspect of this felony-murder
provision is that it departs from the common-law rule with respect to the death of an
accomplice. At common law, if an accomplice died during the perpetration of a felony,
the surviving accomplices could be convicted of felony-murder. But under Alaska’s
felony-murder statute, a person cannot be convicted of felony-murder based on the death
of one of the other participants in the felony.




                                           –8–                                     2600

                The drafters of AS 11.41.110(a)(3) did not explain why they placed this
limitation on the scope of the felony-murder doctrine. 13 However, Professor LaFave
notes that several other modern criminal codes contain this same limitation on the felony-
murder rule. 14 And some modern appellate court decisions have reached this conclusion
as a matter of statutory interpretation — although this approach is certainly not
unanimous. 15
                Turning to the crime of manslaughter, the drafters of our current criminal
code modified the definition of this crime in two substantive ways.
                First, negligent homicide became a crime in its own right — defined
separately from manslaughter, and punishable by a lesser penalty. See AS 11.41.130.
                Second, the drafters of our criminal code decided to abolish the
“misdemeanor-manslaughter” rule — the rule that a person was guilty of manslaughter
if they unintentionally caused the death of another human being while perpetrating any
unlawful act (unless the unlawful act was the kind that would support a conviction for
felony-murder). 16
                The drafters abolished the misdemeanor-manslaughter rule by defining
manslaughter in a new way. Under the drafters’ manslaughter statute, AS 11.41.120(a),


   13
        See Alaska Criminal Code Revision, Tentative Draft, Part I (1977), pp. 27-29.
   14
       Wayne R. LaFave, Substantive Criminal Law (3rd ed. 2018), § 14.5(d), Vol. 2, p. 622
& n. 72.
   15
       See Commonwealth v. Tejeda, 41 N.E.3d 721 (Mass. 2015), and State v. Bonner, 411
S.E.2d 598 (N.C. 1992), where the courts endorsed an exclusion for the deaths of
accomplices. But see State v. Pellegrino, 480 A.2d 537 (Conn. 1984); State v. Baker, 607
S.W.2d 153, 155-56 (Mo. 1980); and State v. Oimen, 516 N.W.2d 399 (Wis. 1994) — all
endorsing the common-law rule that an accomplice to a felony is guilty of felony-murder if
another accomplice is killed during the commission of the crime.
   16
        See Alaska Criminal Code Revision, Tentative Draft, Part I (1977), p. 34.

                                            –9–                                         2600

it was no longer sufficient for the government to prove that the defendant acted with the
intent to commit an unlawful act, and that a death ensued. Instead, the government
would have to prove that the defendant acted either intentionally, knowingly, or
recklessly with regard to the possibility that their conduct might cause the death of
another human being:

                      (a) A person commits the crime of manslaughter if the
               person ... intentionally, knowingly, or recklessly causes the
               death of another person under circumstances not amounting
               to murder in the first or second degree.

Former AS 11.41.120(a) (pre-2006 version). 17
               By requiring proof of one of these three culpable mental states, the
manslaughter statute effectively abolishes the misdemeanor-manslaughter rule — a rule
that did not require proof of any culpable mental state apart from the intent to perpetrate
an unlawful act.
               (The manslaughter statute omits “negligence” from the list of culpable
mental states because, as we explained earlier, criminally negligent homicide is now
independently defined as a lesser crime. 18)




   17
       In 2006, the legislature amended the manslaughter statute by adding subsection (a)(3).
This subsection imposes strict liability for manslaughter when a death ensues as a result of
the defendant’s furnishing another person with one of the listed controlled substances. See
SLA 2006, ch. 53, § 3.
   18
        See Alaska Criminal Code Revision, Tentative Draft, Part I (1977), pp. 34-35.

                                           – 10 –                                       2600

       Why we conclude that, even though Pfister cannot be convicted of felony-
       murder for the deaths of his accomplices, he can be convicted of
       manslaughter for these deaths


               As we explained at the beginning of this opinion, Pfister was convicted of
two counts of manslaughter based on the deaths of his two accomplices in the robbery.
Pfister argues that the Alaska Legislature did not intend the manslaughter statute to apply
to situations like his.
               Pfister notes that AS 11.41.110(a)(3) expressly exempts people in his
situation from conviction for second-degree murder under a felony-murder theory.
Based on this, Pfister argues that the legislature must also have intended for there to be
no lesser criminal liability for people in his situation — and that, therefore, he cannot be
convicted of manslaughter based on the deaths of his two accomplices.
               We conclude that when an accomplice to a felony is killed by the victim,
or by police officers responding to the crime, Alaska law allows the surviving
accomplices to be prosecuted for manslaughter (or for the lesser offense of criminally
negligent homicide).
               We reach this conclusion because the crime of manslaughter requires proof
of an element beyond the elements of felony-murder. Unlike the crime of felony-murder,
manslaughter requires proof that the defendant acted with a culpable mental state (either
intentionally, knowingly, or recklessly) regarding the possibility that their conduct would
cause the death of another human being. The crime of felony-murder, on the other hand,
only requires proof that the defendant acted with the intent of perpetrating one of the
felonies listed in AS 11.41.110(a)(3).
               It will often be true that a defendant’s intent to commit one of these listed
felonies will be strong evidence that the defendant acted at least recklessly regarding the
possibility that someone would die. But this is not invariably so. That is why the

                                           – 11 –                                      2600

drafters of our criminal code rejected the misdemeanor-manslaughter doctrine and,
instead, insisted on proof that the defendant acted at least recklessly with regard to the
possibility that someone would die as a result of their actions.
              Moreover, in these situations, we see no inconsistency between a legislative
policy to spare defendants the severe penalties of second-degree murder while, at the
same time, subjecting these defendants to the lesser penalties of manslaughter or
criminally negligent homicide.
              We acknowledge that our manslaughter statute does not expressly call for
this result. But as we have explained, the crime of manslaughter is — and traditionally
has been — a residual category of unlawful homicide, encompassing the various types
of unlawful killings that do not constitute some form of murder.
              Thus, for example, no provision of Alaska law expressly states that an
intentional homicide committed in the heat of passion is manslaughter. Instead,
AS 11.41.115(a) simply declares that heat of passion is a defense to murder. But because
an unlawful intentional killing in the heat of passion is not murder, it is manslaughter
under AS 11.41.120.
              The same principle applies to Pfister’s case. Under our second-degree
murder statute, a homicide that results from the commission of a felony does not
constitute felony-murder if the person killed was an accomplice to the felony. But
because the killing is not murder, it falls within the residual category of manslaughter if
the State can prove (1) that the defendant’s conduct was a substantial factor in causing
the death, 19 and (2) that the defendant acted at least recklessly with respect to the
possibility that someone would die as a result of their actions.



   19
      See Johnson v.State,224 P.3d 105, 109-111 (Alaska 2010); Rogers v.State,232 P.3d
1226, 1233 (Alaska App. 2010); State v. Malone, 819 P.2d 34, 36 (Alaska App. 1991).

                                          – 12 –                                      2600

              For these reasons, we hold that Pfister could lawfully be convicted of
manslaughter for the deaths of his two accomplices.


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


              As we explained near the beginning of this opinion, Pfister was also
convicted of first-degree burglary and conspiracy to commit first-degree robbery.
              First-degree burglary is a class B felony, 20 and Pfister (who was a first
felony offender) faced a presumptive sentencing range of 1 to 3 years’ imprisonment for
this crime. 21 But even though the sentencing judge found no aggravating factors, the
judge imposed a sentence above the presumptive range: 4 years’ imprisonment with 2
years suspended. The State concedes that, in the absence of aggravating factors, this
sentence was unlawful.
              Likewise, conspiracy to commit first-degree robbery is a class B felony
(because first-degree robbery is a class A felony). 22       So again, Pfister faced a
presumptive range of 1 to 3 years’ imprisonment for this crime 23 — and again, although
no aggravating factors were proved, the judge imposed a sentence above the
presumptive range: 4 years’ imprisonment with 2 years suspended. The State concedes
that this sentence was unlawful as well.
              We accordingly direct the superior court to re-sentence Pfister.




   20
        AS 11.46.300(b).
   21
        Former AS 12.55.125(d)(1) (2010 version).
   22
        AS 11.41.500(b); AS 11.31.120(i)(3).
   23
        Former AS 12.55.125(d)(1) (2010 version).

                                           – 13 –                                   2600

       Conclusion


              Pfister’s two convictions for manslaughter are AFFIRMED, but he must be
re-sentenced because his sentences for first-degree burglary and conspiracy to commit
first-degree robbery are illegal.




                                        – 14 –                                  2600

