RACHELLE A. WATERMAN, Appellant,
STATE OF ALASKA, Appellee
Appeal from the Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge. Trial Court No. 1KE-04-1312 CR.
Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
When a defendant is charged with criminally negligent homicide under AS 11.41.130, one of the elements the State must prove is that the defendant failed to perceive a risk of human death that was substantial and unjustifiable -- " of such a nature and degree that the failure to perceive it constitute[d] a gross deviation from the standard of care that a reasonable person would observe in the situation." See AS 11.81.900(a)(4), the statutory definition of " criminal negligence" .
The question presented in this appeal is whether " the standard of care that a reasonable person would observe in the situation" should vary according to the age of the defendant -- more specifically, whether a different standard of care should apply in cases where the defendant is a teenager or young adult under the age of 25, before the prefrontal cortex of the brain is fully developed.
The defendant in this case argues that when a juvenile or young adult is charged with criminally negligent homicide (or any other crime involving proof of criminal negligence), the " reasonable person" standard of care specified in the statute should not be evaluated against the conduct we would expect of a mature adult, but rather the conduct we would expect of a teenager or young adult of " similar age, intelligence, and experience" .
In the absence of legislation, this might be a question for the judicial branch to answer. But the legislature has spoken on this issue. Even though current scientific research indicates that the development of the prefrontal
cortex is not complete in most people until they reach their mid-twenties, it is the law of Alaska (and every other American jurisdiction) that all persons who have reached the age of 18 years are governed by the normal criminal law -- its definitions of criminal offenses, and its specified penalties. And the Alaska legislature (like the legislatures of many other states) has amended our juvenile delinquency laws so that, with regard to the most serious felonies, the normal criminal law applies to persons as young as 16 years. See AS 47.12.030.
One could argue that, given recent scientific research into brain development, the threshold age of adult criminal responsibility should be altered, or different standards of culpability should apply to persons younger than 25. But the assessment of the proper scope of criminal responsibility hinges on more than brain science. Even among fully mature adults, there is considerable variation in perception, physical ability, intellect, and self-control.
Because of this, the problem of defining the nature and extent of criminal responsibility involves larger issues of philosophy, morality, and social policy. And under our government of divided powers, it is the legislative branch that is primarily responsible for addressing and resolving these issues.
It is true that there are constitutional limits on the legislature's authority to define the scope of criminal responsibility and the range of punishments that may be imposed for violations of the criminal law. But we conclude that it is constitutional for the legislature to specify a single standard of care for criminally negligent homicide, even when the defendant is a young adult under the age of 25, or even a teenager as young as 16. We therefore affirm Waterman's conviction.
In November 2004, Rachelle Waterman's mother was murdered by two young men -- Brian Radel and Jason Arrant. Waterman had recently dated both of these men. According to the State's evidence, the two young men began plotting to kill Waterman's mother because Waterman told them that she was suffering physical and emotional abuse at the hand of her mother.
Specifically, Waterman reported that her mother had beaten her, thrown her down the stairs, threatened her with a knife, and threatened to sell her into slavery. Waterman openly suggested that she wanted her mother dead.
In response, the young men decided that one of them (Brian Radel) would ambush Waterman's mother with a shotgun. When the other young man (Jason Arrant) told Waterman about this plan, Waterman asked Arrant not to go through with it. But Arrant never communicated this information to Radel, so Radel proceeded to the ambush spot.
The ambush never took place -- because, when Radel arrived at the spot, he realized that he had forgotten to bring the bolt that connected the shotgun's barrel to its stock.
Arrant informed Waterman about this unsuccessful murder attempt: he wrote her an e-mail in which he referred to it as a " hunting trip" . Waterman did not warn her mother, nor did she alert the police. Rather, Waterman sent a letter to Arrant in which she said that she was tempted to take a " hunting trip" herself.
Several weeks later, after Waterman again reported that her mother had beaten her, the two young men decided to try again. This time, the plan was to make it look as if Waterman's mother was killed in a traffic accident.
The two men waited until a weekend in November when both Waterman and her father were out of town. Then they broke into the Waterman residence, kidnapped Waterman's mother, drove her out of town in the family van, beat her to death, placed her body in the van, let the van go over the edge of the road, and set the van on fire with gasoline.
The State indicted Waterman for first-degree murder, conspiracy to commit murder, second-degree murder (under the felony-murder provision of the statute), and kidnapping -- all on the theory that Waterman was complicit in Radel's and Arrant's crimes. Even though Waterman was 16 years old at
the time of the homicide, she was charged as an adult under the provisions of AS 47.12.030(a).
As an alternative to the murder and conspiracy charges, the State also charged Waterman with criminally negligent homicide -- under the theory that even if Waterman did not actively plot her mother's death, she nevertheless placed her mother in a situation of peril by her actions, and she was therefore guilty of criminally negligent homicide because she failed to take reasonable steps to warn her mother, or to alert the authorities, that Radel and Arrant were plotting to kill her mother.
As a defense to the State's primary charges (murder and conspiracy to commit murder), Waterman contended that she was not serious when she spoke of wanting her mother dead, and that she did not think that Radel and Arrant would really go so far as to kill her mother.
As a defense to the lesser charge of criminally negligent homicide, Waterman presented expert testimony on adolescent brain development. According to this testimony, the prefrontal cortex -- the portion of the human brain responsible for planning, the ability to think in the long-term, and the ability to control impulsive behavior and risk-taking -- does not become fully developed until a person is around 25 years old. Thus, even though adolescents and young adults are just as capable as more mature adults when it comes to perceiving or understanding the risks that accompany certain behavior, they have a lesser ability to " appreciate" these risks -- i.e., a lesser ability to weigh those risks, assess the likely consequences, and stop themselves from engaging in the risky behavior.
In conjunction with this expert testimony, Waterman's attorney asked the trial judge to modify the jury instruction defining the standard of care that the jurors should use when evaluating Waterman's conduct.
Instead of the standard defined in the culpable negligence statute, AS 11.81.900(a)(4) -- a gross deviation from the standard of care that " a reasonable person" would observe in the situation -- Waterman's attorney asked the judge to tell the jurors that they should decide whether Waterman's conduct constituted a gross deviation from the standard of care to be expected of " a person of similar age, intelligence, and experience" .
The trial judge declined to give this instruction because he concluded that, even with respect to defendants as young as Waterman, the legislature wanted a defendant's conduct to be evaluated against the normal adult standard of criminal negligence -- and that the legislature was not constitutionally required to adopt a different standard.
At the conclusion of the trial, the jury found Waterman not guilty of the most serious charges against her (conspiracy to commit murder, first-degree murder, second-degree murder, and kidnapping). That is, the jury concluded that the State failed to prove that Waterman was complicit in the murder and kidnapping plot.
However, the jury found Waterman guilty of the lesser offense of criminally negligent homicide. That is, the jury found (1) that there was a substantial and unjustifiable risk that Radel and Arrant would kill Waterman's mother, (2) that Waterman failed to perceive this risk, and (3) that Waterman's failure to perceive this risk constituted a " gross deviation from the standard of care that a reasonable person ...