Dandova v. State
In Dandova v. State, 72 P.3d 325, 332 (Alaska App. 2003) the Court interpreted AS 11.41.115 to extend the defense of heat of passion to a charge of attempted murder.
But in Dandova, the Court pointed out that an attempt to commit a crime did not occur in the abstract, but only in connection with the underlying substantive offense.
The Court relied on prior authority that construed statutes that explicitly applied to substantive offenses to also apply to attempts to commit those offenses. The Court concluded that the legislature must have intended the heat of passion defense to apply to attempted murder.
"If the heat of passion defense did not apply to defendants charged with attempted murder, this would create severe and illogical disparities in sentencing. A defendant who, acting in the heat of passion, intentionally killed another person would face conviction for manslaughter and a sentence of up to 20 years' imprisonment. But a similarly situated defendant, likewise acting in the heat of passion, who tried to kill another person but failed would face conviction for attempted murder and a sentence of up to 99 years' imprisonment. It is inconceivable that, between these two defendants, the legislature intended to impose a five-fold penalty on the unsuccessful assailant."
In Dandova, the Court pointed out that the legislature had only applied the heat of passion defense to murder (including attempted murder).
The Court held:
"Of course, if the defendant succeeds in seriously wounding their victim, then even though the attempted murder charge may ultimately result in a conviction for attempted manslaughter (a class B felony) on account of the defendant's heat of passion, the defendant can still be convicted of first-degree assault (a class A felony) -- because heat of passion is a defense only to the specified forms of murder."