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Nelson v. State (5/13/94) ap-1346
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ANDREW S. NELSON, )
) Court of Appeals No. A-4330
Appellant, ) Trial Court No. 3AN-90-5034
v. ) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 1346 - May 13, 1994]
Appeal from the Superior Court, Third Judi
cial District, Anchorage, John Reese and
Brian C. Shortell, Judges.
Appearances: Suzanne Weller, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Mannheimer,
Judge, and Wolverton, District Court Judge.*
[Coats, Judge, not participating.]
Andrew S. Nelson appeals his convictions for first-
degree murder and attempted murder, AS 11.41.100(a)(1) and
AS 11.31.-100(a), as well as the sentence he received for these
crimes. We affirm Nelson's convictions, but we remand this case
to the superior court to reconsider Nelson's sentence.
In January 1989, Andrew Nelson met Sandra Pogany while
they were registering for classes at the University of Alaska in
Anchorage. Nelson and Pogany began dating, and they became
Early in the spring of 1990, Pogany expressed dissatis
faction with their relationship; she told Nelson that she wanted
to date other men. Nelson was upset at this news, and he became
increasingly distraught in the summer of 1990 when it became
clear that Pogany intended to end their relationship.
On August 4, 1990, Nelson decided to kill Pogany's
mother. He took a pistol from his home, purchased a "brick" of
ammunition (10 boxes, each containing 50 cartridges), then drove
to the Pogany family home. However, Nelson ultimately abandoned
his plan to kill Mrs. Pogany.
Nelson then went to Russian Jack Park and contemplated
suicide, but he rejected this idea. He thought about shooting
Pogany and possibly himself. He then considered going to talk to
Pogany and shooting her in the leg so that she could not run
After mulling over these various plans, Nelson drove to
an undeveloped area behind the Anchorage International Airport,
where he test-fired his handgun to insure it would not jam.
Nelson then drove around downtown Anchorage, where he spotted
Pogany's truck. Nelson stayed and maintained surveillance of the
truck for several hours.
Around 2:30 a.m., Pogany and a man she was dating,
Thomas Van Flein, returned to the truck. When Pogany and Van
Flein began to embrace inside the cab of the truck, Nelson became
extremely angry and jealous. He decided that both Pogany and Van
Flein should die.1 Nelson left his observation point, crossed
the street, crouched behind the truck, and fired eight bullets
into the cab of the truck. Pogany was killed and Van Flein was
An Anchorage grand jury indicted Nelson for the first-
degree murder of Sandra Pogany and the attempted murder of Thomas
Van Flein. A superior court jury found Nelson guilty of both
crimes. Superior Court Judge John Reese sentenced Nelson to two
consecutive 99-year terms, for a composite sentence of 198 years'
Nelson challenges various procedural and evidentiary
aspects of his trial.
Nelson's first contention is that the superior court
should not have ordered him to submit to an independent
psychiatric examination. This issue arose because, during a pre-
trial hearing on April 10, 1991, Nelson's attorney indicated that
he planned to call Dr. G. Christian Harris, a psychiatrist, to
testify for the defense at trial. The defense attorney said that
he had not decided whether Dr. Harris would testify "solely on
the issue of intent, or whether [Dr. Harris would testify in
support of] a defense under the applicable statutes". (Nelson's
attorney was apparently referring to AS 12.47.010 and
AS 12.47.020.) Based upon the defense attorney's representation,
Superior Court Judge Brian C. Shortell ordered Nelson to file a
formal notice within one week of any defenses that would be based
on expert testimony. Judge Shortell further ordered that, condi
tioned on Nelson's giving notice that he intended to rely on a
psychological defense, Nelson would undergo psychiatric examina
tion by a state-selected doctor on May 14, 1991.
The following week (April 17), Nelson filed formal
notice of his intent to call Dr. Harris as an expert witness.
The notice was cursory; it did not specify the expected subjects
of Dr. Harris's testimony. On May 7, the prosecution filed a
motion seeking a psychiatric examination of Nelson pursuant to
AS 12.47.070.2 From the State's pleadings, it appears that the
prosecution was prompted to file a motion (rather than rely on
the May 14 examination previously scheduled by Judge Shortell)
because, in conversations between the prosecutor and defense
attorney, Nelson's attorney had told the prosecutor that he
believed the State had no right to examine Nelson. The defense
attorney's assertion was based on the fact that Nelson had never
filed formal notice of an intent to rely on either a defense of
insanity under AS 12.47.010 or a defense of diminished capacity
due to mental disease or defect under AS 12.47.020.
The next day (May 8), Judge Shortell granted the
State's motion. Judge Shortell declared that, because Nelson had
given notice that Dr. Harris would testify as an expert witness
for the defense, the court had "reason to believe that a mental
disease or defect of the defendant [would] ... become an issue in
the case", and thus it was appropriate for Nelson to submit to
examination by a psychiatrist retained by the government.
Nelson's attorney apparently filed an opposition to the
prosecution's motion, but that pleading is not part of the record
on appeal. That opposition prompted Judge Shortell to hold a
hearing, but the main topic of dispute at this hearing was
whether AS 12.47.020(b) was constitutional.3 With regard to
whether Nelson should undergo an independent psychiatric examina
tion, Nelson's attorney conceded that Dr. Harris would in fact be
testifying on the issue of whether a mental disease or defect
rendered Nelson incapable of forming an intent to kill, and
Nelson's attorney never directly challenged Judge Shortell's
decision to order an independent psychiatric evaluation.
Nelson was examined by Dr. Irvin Rothrock, a
psychiatrist hired by the government. However, when the prosecu
tion called Dr. Rothrock to the stand at Nelson's trial, Nelson
objected to Dr. Rothrock's testimony. For the first time, Nelson
raised the argument (explained in more detail below) that
AS 12.47.070 did not apply to his case and that therefore Judge
Shortell had lacked authority to order Nelson's examination by an
independent psychiatrist. The trial judge, Superior Court Judge
John Reese, ruled that Nelson's objection was moot.
Judge Reese declared that, regardless of whether Judge
Shortell's order had been proper at the time it was entered, it
was now clear that Nelson intended to rely on a psychiatric
defense (lack of capacity to form an intent to kill), and
therefore the government would now be entitled to have Nelson
examined by an independent psychiatrist if that examination had
not already occurred. Judge Reese therefore allowed the prosecu
tion to present Dr. Rothrock's testimony.
On appeal, Nelson renews his argument that Judge
Shortell committed error when he ordered Nelson to be examined by
a government-retained psychiatrist under AS 12.47.070. Nelson
concedes that this statute authorizes an independent examination
of the defendant whenever "there is reason to believe that a
mental disease or defect of the defendant will ... become an
issue in the case". And mental disease or defect was clearly an
issue in Nelson's case; indeed, in his brief to this court,
Nelson declares that Dr. Harris "was the central witness for the
defense". However, Nelson contends that AS 12.47.070 is
unresolvably in conflict with Alaska Criminal Rules 16(c)(4) and
Criminal Rules 16(c)(4) and (5) read, in pertinent
(4) Reports or Statements of Experts.
The trial court may require that the prosecut
ing attorney be informed of and permitted to
inspect and to copy or photograph any reports
or statements of [defense] experts made in
connection with the particular case,
including results of physical or mental
examinations and of scientific tests,
experiments or comparisons which are intended
by the defendant to be used at trial.
Information obtained by the state under the
provisions of this section shall be used only
for cross-examination or rebuttal of defense
(5) Notice of Intent to Raise Insanity
Defense. Following substantial compliance by
the state with section (b) of this rule[,] a
defendant who intends to offer evidence of a
defense of insanity shall inform the state of
such intention at the time of plea or at such
other time as may be designated by the trial
court. The court may order the defendant to
submit to a psychiatric examination by a
psychiatrist or psychologist selected by the
court, and the report shall be made available
to both parties.
Nelson claims that these rules supplant AS 12.47.070 because they
pre-date that statute and because AS 12.47.070 was not passed by
two-thirds' vote for the specific purpose of amending Rule 16(c).
See Leege v. Martin, 379 P.2d 447, 450-51 (Alaska 1962).
Our review of this issue is necessarily de novo, since
Judge Reese found the question moot and did not resolve it.4
Nelson's argument rests on a constricted reading of
Rules 16(c)(4) and (c)(5). On its face, Rule 16(c)(4) authorizes
a trial court to order that the prosecuting attorney be given
access to the reports and statements of defense experts,
including the results of mental examinations that the defense
intends to use at trial. Nelson contends that Rule 16(c)(4)
implicitly bars a trial judge from issuing any other discovery
order. In particular, Nelson argues that Rule 16(c)(4) precludes
a trial judge from ordering a defendant to submit to an
independent psychiatric examination unless such an examination is
specifically authorized by Rule 16(c)(5).
The text of Rule 16(c)(4) contains no such restriction,
and we decline to infer one. While the rule limits the ways in
which the government can use reports and test results obtained
from defense experts, Rule 16(c)(4) simply does not address the
question of whether a court may order independent examination or
scientific testing of the defendant or the defendant's posses
sions or any other person or thing whose mental or physical
properties are at issue in the case.
Nelson's textual analysis of Rule 16(c)(4) is cursory
at best. He cites no authority for his restrictive
interpretation of the rule. Moreover, his suggested
interpretation is at odds with the declared purpose of Rule 16:
to "expedite trial, minimize surprise, ... [and provide pre-trial
disclosure] as full and free as possible consistent with
protection of persons, effective law enforcement, and the
adversary system". Criminal Rule 16(a). As exemplified
by the facts of Nelson's case, these purposes would be thwarted
by Nelson's interpretation of the rule. When Judge Reese
overruled Nelson's objection to Dr. Rothrock's testimony, he
found that Nelson's defense was clearly based on psychiatric
testimony that Nelson lacked the capacity to form an intent to
kill. Given Nelson's defense, Judge Reese declared that he
certainly would have ordered Nelson's examination if Judge
Shortell had not previously ordered the examination.
Nelson asks us to read Rule 16(c)(4) not only to bar
Judge Shortell from ordering a pre-trial psychiatric examination,
but also to bar Judge Reese from ordering a mid-trial examination
-- even after Nelson presented Dr. Harris's testimony and specifi
cally asked the jury to acquit him of first-degree murder due to
his mental condition. We can not interpret Rule 16(c)(4) in this
Nelson next argues that, even if Rule 16(c)(4) does not
bar the independent psychiatric examination, Criminal Rule
16(c)(5) does. Rule 16(c)(5) authorizes a trial court to order a
defendant to undergo independent psychiatric examination when the
defendant "intends to offer evidence of a defense of insanity".
Nelson points out that he never formally raised an insanity
defense. He therefore contends that the superior court lacked
any authority to order him to submit to an independent
As he did with regard to Rule 16(c)(4), Nelson argues
that Rule 16(c)(5) must be interpreted to forbid anything it does
not specifically permit. Nelson asserts that Rule 16(c)(5) was
intended to preclude a trial judge from ever ordering an indepen
dent psychiatric examination of a defendant unless and until that
defendant filed a formal notice of an intent to "offer evidence
of a defense of insanity". We again reject Nelson's restrictive
Well before trial began, Nelson's attorney announced
that he would present the testimony of a psychiatrist, Dr.
Harris, to prove that Nelson, due to his mental condition, lacked
an intent to kill. Judge Shortell responded reasonably by
ordering Nelson to undergo an independent psychiatric evaluation,
and Judge Reese responded reasonably by allowing the jury to hear
the results of that independent evaluation. We can not accept
Nelson's assertion that, because he never gave formal notice of
an insanity defense, neither Judge Shortell nor Judge Reese was
authorized to order an independent psychiatric examination. Such
an interpretation of Rule 16(c)(5) would contradict not only the
purposes listed in Rule 16(a) but common sense as well.
For these reasons, we affirm the superior court's
ruling that, under AS 12.47.070, Nelson could be examined by an
independent psychiatrist even though Nelson never gave formal
notice of a defense under either AS 12.47.010 or AS 12.47.020.
We turn now to Nelson's claim that the prosecuting attorney asked
improper questions when she cross-examined Dr. Harris and
examined Dr. Rothrock.
On two occasions before the murder of his daughter, Mr.
Pogany reported incidents of vandalism to the police. Both acts
of vandalism were directed toward his airplane. On one occasion,
someone placed sugar in the aircraft's fuel tank. Later, in
early June 1990, someone exploded a pipe bomb in the aircraft,
resulting in its destruction.
On August 7, 1990 (two days after the shooting of
Pogany and Van Flein), Anchorage Police Investigator Kenneth
Spadafora received a telephone call from B.B., a classmate of
Nelson's brother, Greg Nelson. B.B. told Investigator Spadafora
that, approximately one or two months before, he had had a
conversation with Greg Nelson regarding the bombing of Mr.
Pogany's airplane. According to B.B., Greg Nelson had said that
his brother (Nelson) had had an argument with Ms. Pogany, that
his brother was upset with Ms. Pogany, and "that's why we did
it." Greg Nelson also told B.B. that they had used a pipe bomb.
Police laboratory analysis of the bomb indicated that a
double-based smokeless gunpowder was used in the bomb. When the
Nelson residence was searched following the murder, a large
amount of this same type of powder was found.
As discussed earlier, Dr. G. Christian Harris testified
at Nelson's trial that, in his opinion, Nelson had been suffering
a major depressive episode when he shot Pogany and Van Flein, and
that this major depression had impaired Nelson's ability to form
an intent to kill. Dr. Harris's conclusion that Nelson had
lacked an intent to kill rested in part on Dr. Harris's
understanding that Nelson did not have a significant history of
antisocial, aggressive, or violent conduct. (Dr. Harris
testified that he was aware of only one antisocial episode in
Nelson's past: an act of shoplifting.)
During cross-examination, however, Dr. Harris admitted
that his notes from his interview with Nelson showed that Nelson
had mentioned something about bombing a plane:
PROSECUTOR: And, Doctor, didn't you
testify that there was nothing else signifi
cant that you found out [about Nelson's histo
ry and background]? You mentioned the alco
holism, ... the shoplifting. You indicated
that there is nothing else significant that
you found, isn't that correct?
DR. HARRIS: Well, I may have. There
was some mention -- and I, this is my error -
- having to do with a bombing of an air
plane. And I did not go back to get any
information about that particular episode.
And so I can't really comment on that. But
aside from that possibility, whatever that
was about -- whether it was an accusation or
whatever, I don't know.
. . . .
PROSECUTOR: [Y]ou didn't think there
was anything significant about the bombing of
DR. HARRIS: I told you I made an error.
PROSECUTOR: So you would admit, Doctor,
that that's something that you should have
DR. HARRIS: It's something that has
been alluded to elsewhere that I'm satisfied
does not reflect anything having to do with
violence or antisocial personality.
PROSECUTOR: Well, Dr. Harris, assuming
that Mr. Nelson had in fact bombed the plane,
doesn't that indicate violence, or aggres
sion, or anger?
DR. HARRIS: Yes.
PROSECUTOR: And didn't you testify
[earlier] that you had not found any indica
tion of that?
DR. HARRIS: Yes.
PROSECUTOR: And so wouldn't this affect
that conclusion of yours?
DR. HARRIS: Depending on what the
actual story is about that, it might.
PROSECUTOR: And, Doctor, assuming that
the bombing of the plane perhaps directed at
the Pogany family, would that be of signifi
DR. HARRIS: It could be, yes.
. . . .
PROSECUTOR: And, Doctor, wouldn't it be
significant if the bombing of this plane --
assuming it occurred during the time that
they were having the problems, he and Sandra
Pogany -- would it be significant that it hap
pened during that time period?
DR. HARRIS: It could be of sig
. . . .
PROSECUTOR: Now, Doctor, assuming that
the bombing occurred just two months before
the murder, and that it was Gary Pogany's air
plane, and that it followed a discussion
[about] Sandra Pogany telling her relatives
that she was breaking up with Andy, and he
found out about that and was angry, wouldn't
that have significance?
DR. HARRIS: It could have.
. . . .
PROSECUTOR: And, Doctor, bombing a
plane would require pretty intentional
conduct, wouldn't it? You'd have to get a
bomb, you would have to place a bomb, you
would have to set the bomb off, correct?
DR. HARRIS: Well, it would certainly
involve the same level of intent that we
would associate even with the events of
August 4 and 5, in the sense that it could be
that it was massively affected by some mental
disorder or mental disease. Or it might have
been that he wasn't that ill in mid-June. I
certainly think that he was much more
deranged by mid-July, for instance, than he
was in mid-June.
PROSECUTOR: But this is not something
that you took into consideration in formulat
ing your opinion in this case, is that cor
DR. HARRIS: No, I did not go back and
question him about this bombing a plane alle
PROSECUTOR: When you prepared your
report in this case, Dr. Harris, did you
review your notes?
DR. HARRIS: Yes, I did. Somehow I
Nelson's attorney did not object at any point during this cross-
The next day, the prosecution called Dr. Rothrock to
the stand during its rebuttal case. During her direct
examination of Dr. Rothrock, the prosecutor asked him
hypothetical questions concerning the allegation that Nelson had
participated in the bombing of an airplane:
PROSECUTOR: Dr. Rothrock, [turning] to
some information that Mr. Nelson may not have
given you, to see if ... it has any signifi
cance to you. Did he [Nelson] indicate any
thing to you about a plane-bombing incident?
DR. ROTHROCK: No.
PROSECUTOR: Dr. Rothrock, assuming that
you were given information that Mr. Nelson
had in fact participated in the bombing of
Gary Pogany's airplane on June 8th or June
9th, two months before the murder, and that
that bombing of the plane occurred after an
argument with Sandra Pogany, would that have
significance to you?
DR. ROTHROCK: Well, certainly the
making of a pipe bomb and putting it in a
plane and detonating it would be an awfully
complicated act to ascribe to some sort of
unconscious reflex behavior. I would assume
this had to be intentional behavior. It was
intentional behavior occurring within the
context of being very emotionally upset at
Sandy. And I think, there, you have ...
DEFENSE COUNSEL: Your Honor, I think
that this is going well beyond the hypotheti
cal. It's assuming facts [that are] not in
evidence, and ... I believe that, at this
point, we're into 404(b) material that goes
well beyond the exception ... .
A colloquy then ensued between the prosecutor, the defense
attorney, and Judge Reese. The discussion ended in the following
PROSECUTOR: Your Honor, I'm willing to
move on, but [my questions were] in response
to the information that Dr. Harris had, that
there was a plane bombing that Mr. Nelson did
not inform Dr. Rothrock about, and I'm just
trying to find out what significance this
sort of information would have ...
DEFENSE COUNSEL: Well ...
THE COURT: Make sure that what Dr.
Rothrock is responding to is the same thing
that we heard about from Dr. Harris. It
shouldn't go beyond that.
DEFENSE COUNSEL: To make it clear: Dr.
Harris indicated that it was an indication of
an accusation of a bombing, and he didn't go
beyond that. Now we're ... into all sorts of
things that, I have no idea where they're
coming from. And perhaps ...
THE COURT: That was the extent of ...
DEFENSE COUNSEL: ... we should have a
hearing as to where they're coming from.
THE COURT: [To the prosecutor:] Do you
need to pursue this? If so, you'll need to
make that distinction. Or you can move on.
PROSECUTOR: I'll narrow the question
down, Your Honor.
THE COURT: Okay.
At the conclusion of this discussion, the prosecutor asked Dr.
Rothrock two more questions about the plane bombing allegation
and then moved on. Nelson's attorney did not object to the
prosecutor's follow-up questions, nor did he request any other
relief from the court until near the end of trial, when the
defense attorney proposed an instruction concerning facts
mentioned or assumed in hypothetical questions to expert
witnesses. Judge Reese gave the proposed instruction, which
In examining an expert witness, counsel
may propound to him a type of question known
in the law as a hypothetical question. By
such a question the witness is asked to
assume to be true a set of facts, and to give
an opinion based on that assumption.
In permitting such a question, the court
does not rule, and does not necessarily find
that all the assumed facts have been proved.
It is for you, the jury, to find from all the
evidence whether or not the facts assumed in
a hypothetical question have been proved. If
you should find that any assumption in such a
question has not been proved, you are to
determine the effect of that failure of proof
on the value and weight of the expert opinion
based on the assumed facts.
On appeal, Nelson contends that the prosecutor's
questions to Dr. Harris and Dr. Rothrock violated Alaska Criminal
Rule 404(b) (governing admission of evidence of other crimes),
and that this violation of Rule 404(b) deprived him of a fair
trial. Nelson asserts that the prosecutor's hypothetical
questions to Dr. Harris and Dr. Rothrock were direct evidence of
prior bad acts, that there was no proper purpose for these
questions, and that the questions should have been excluded as
unfairly prejudicial. As pointed out above, Nelson's attorney
did not object to the prosecutor's cross-examination of Dr.
Harris, and the trial judge sustained all of the defense
attorney's objections to the prosecutor's examination of Dr.
Rothrock. Thus, Nelson's argument is raised for the first time
on appeal, and we review it for plain error only. Criminal Rule
47(b); Evidence Rules 103(a)(1) and 103(d).
Evidence Rule 404(b) codifies the rule that evidence of
a defendant's other crimes should not be admitted unless that
evidence has probative value apart from demonstrating the
defendant's general criminal propensities, and then only if the
probative value of the evidence outweighs its potential for
unfairly prejudicing the jury. However, Nelson affirmatively
relied on Dr. Harris's psychiatric evaluation to demonstrate that
he lacked the culpable mental state required for first-degree
murder and attempted murder (i.e., an intent to kill). When
Nelson chose to raise this defense, the prosecutor was entitled
to cross-examine Dr. Harris concerning the basis of his opinion.
This cross-examination could properly include not only questions
about the factors that Dr. Harris explicitly considered, but also
questions about any other factors that a psychiatrist would
reasonably rely on when evaluating Nelson's capacity to act with
intent to kill.
Because the prosecutor's questions regarding the plane-
bombing were pertinent to the jury's evaluation of Dr. Harris's
expert opinion, these questions were within the proper scope of
cross-examination under Evidence Rule 611(b) and they were not
barred by Rule 404(b). Nelson's case is similar to the facts
presented in Jansen v. State, 764 P.2d 308 (Alaska App. 1988).
Jansen was on trial for manslaughter and assault stemming from a
motor vehicle accident. During the defense case, Jansen called a
psychiatrist to testify that Jansen had no aggressive tendencies
nor any impulse to act recklessly. The trial judge allowed the
prosecuting attorney to cross-examine the defense psychiatrist by
asking if the psychiatrist was aware of Jansen's two prior
convictions for driving while intoxicated. Jansen, 764 P.2d at
309-310. On appeal, this court affirmed the trial court's
We agree ... that the two prior DWI
convictions were relevant to [the
psychiatrist's testimony] that there was
nothing in Jansen's history ... which would
support a finding of recklessness. By
putting Jansen's mens rea directly in issue
... Jansen opened [the door] to cross-
examination about the basis for [the
. . . .
By offering this evidence, Jansen opened the
door for the state to impeach [Jansen's ex
pert] by showing that he had either
overlooked or disregarded significant
evidence of past recklessness.
Jansen, 764 P.2d at 310, 311.
In Nelson's case, Dr. Harris testified that, in
reaching his psychiatric diagnosis of Nelson, he had considered
Nelson's history and background. The prosecutor then asked the
significance of the doctor's own notation concerning a plane
bombing. The doctor conceded that Nelson must have mentioned
this incident to him, but that he had not pursued it. The doctor
also conceded the obvious -- that, if Nelson had planted a bomb
in Pogany's father's airplane near the time of the shootings,
this could have significance to Nelson's diagnosis and to the
doctor's conclusion that Nelson lacked the capacity to act
intentionally when he shot Pogany and Van Flein.
Because the plane-bombing was the type of datum that a
psychiatrist would reasonably rely on in reaching a conclusion
about Nelson's capacity to act with intent to kill, the
prosecutor's questions were within the proper scope of cross-
examination. When, as in Nelson's case, one party relies on the
testimony of an expert witness, "the opposing party [is entitled]
to challenge the expert's opinion by showing that it is based
upon insufficient facts or that it overlooks significant factors
germane to the opinion". Jansen, 764 P.2d at 310-11 n.2.
Turning to the prosecutor's questioning of Dr.
Rothrock, the portion of the proceedings quoted above (at pages
15-16 of this opinion) shows that the defense attorney did not
object to the fact that Dr. Rothrock was asked about the plane
bombing, but rather to the scope of Dr. Rothrock's answer. Judge
Reese sustained the defense attorney's objection to the scope of
Dr. Rothrock's answer. Judge Reese directed the prosecutor to
limit her questions to Dr. Rothrock, and the prosecutor asked
only two follow-up questions. In answer to these two questions,
Dr. Rothrock stated that a plane-bombing would be the kind of
event that he would find significant when evaluating a person.
The prosecutor then moved on to other areas of inquiry. Again,
we find no error.
As a separate argument on appeal, Nelson challenges
another portion of the prosecutor's cross-examination of Dr.
Harris. Nelson's contention involves the following exchange:
PROSECUTOR: ... Doctor, Alaska juries
have disagreed with you in the past, haven't
DR. HARRIS: They have, I suppose.
PROSECUTOR: Do you recall the David
Tugatuk (ph) case?
DR. HARRIS: No, I don't.
PROSECUTOR: You don't recall testifying
that he had an active psychosis and a dissoci
ative reaction which impaired his capacity to
DR. HARRIS: I already said I didn't --
didn't recall the name.
PROSECUTOR: I'm trying to refresh your
recollection. That doesn't refresh it?
DR. HARRIS: Well, I've seen a lot of
different individuals, you know, that had
dissociative reactions that killed, that had
psychotic illnesses who killed. The question
is always, okay, well, is this individual
criminally responsible, or did he have a
mental illness that interfered with that
ability to formulate intent. And just the
name David Tugatuk (ph) -- is [that] it?
DR. HARRIS: Doesn't remind me right now
of any particular case.
At this point, Nelson's attorney objected to the prosecutor's
DEFENSE COUNSEL: Your Honor, if the
prosecutor intends to go through varying
cases on which this jury is not going to be
given the total scenario of the case, what
the jury instructions were, and what the
issues were, I'm going to object to her sug
gesting what any other jury did insofar as
dealing with Dr. Harris.
PROSECUTOR: Your Honor, I'll move on.
Nelson's attorney requested no further relief from the court.
We agree with Nelson that the prosecutor's questions
were improper. The fact that other juries in other cases might
not have accepted Dr. Harris's conclusions had no relevance to
the jury's decision of Nelson's case; such cross-examination
invited the jury to engage in unfounded speculation about those
other cases and the tenor of Dr. Harris's testimony on those
other occasions. However, the prosecutor ceased this line of
questioning when Nelson's attorney objected, and Nelson's
attorney never asked the trial judge for a curative instruction,
an admonition, a mistrial, or any other type of relief. We note
that the prosecutor did not refer to this line of questioning
during her summation to the jury.
Nelson makes a plain error argument. He asserts that,
despite his attorney's failure to seek relief from the trial
court, the trial judge committed plain error by allowing Nelson's
case to proceed. Nelson does not specify whether he believes the
trial judge should have declared a mistrial or simply given the
jury a curative instruction. In either event, we find no plain
Nelson's attorney was the person charged in the first
instance with assessing the effect of the challenged cross-
examination on Nelson's trial. He apparently did not think that
the challenged cross-examination was worth pursuing. Given the
brevity of the improper cross-examination and the fact that the
parties engaged in extensive examination of the substance of both
Dr. Harris's and Dr. Rothrock's expert opinions, Nelson has
failed to show that Judge Reese committed plain error when he
allowed the trial to continue without further action regarding
the objectionable cross-examination.
Nelson's next argument on appeal concerns a portion of
the prosecutor's argument to the jury. At the end of her summa
tion, the prosecutor said:
There are many, many reasons in this
case, many facts from which you can find that
Andrew Nelson acted intentionally, and why
you should find Andrew Nelson acted
intentionally. [Defense counsel] raised
another reason. That reason is this:
(Indiscernible) simple justice. Recall the
testimony the night Sandra Pogany was killed.
She was in this courthouse. Remember?
Thomas Van Flein (indiscernible). She came
here with him. She had plans to go to law
school. She was going to pursue the legal
profession. She walked in these halls, she
went to the supreme court courtroom. She had
expected justice, law, the courtroom to be
part of her life, part of her
(indiscernible). Well, it's now part of her
death. Because of Sandra Pogany's death,
that's why we're here in the courtroom.
That's why (indiscernible). Andrew Nelson
chose Sandra Pogany's future for her. He
wiped it out. Now it's your chance to decide
his future. This is your chance to do
justice in this case. Andrew Nelson knew he
would pay a price for his actions. He put it
out of his mind. The time has come, ladies
and gentlemen. The time has come. The
evidence in this case supports only two
verdicts. Guilty of murder in the first
degree, and guilty of murder -- attempted
murder in the first degree.
As Nelson points out, the prosecutor's argument can easily be
construed as an improper exhortation to the jury to find that
Nelson acted with intent to kill, not because of the facts and
the applicable law, but because of the enormity of Nelson's
actions. He claims on appeal that this segment of the
prosecutor's summation denied him a fair trial.
However, Nelson's trial attorney did not object to the
prosecutor's argument. Nelson must therefore demonstrate that
the trial judge committed plain error by failing to declare a
mistrial sua sponte.
Under the double jeopardy clause, a criminal defendant
can not be retried following a mistrial unless (1) the defendant
sought the mistrial, or (2) a mistrial was manifestly necessary.
Koehler v. State, 519 P.2d 442, 448 (Alaska 1974); Staael v.
State, 697 P.2d 1050, 1053 (Alaska App. 1985). For this reason,
trial judges must be cautious about declaring a mistrial when the
defendant has not asked for one.
The challenged portion of the prosecutor's summation
occurred at the end of lengthy, substantive arguments by both
sides that detailed the evidence on the question of Nelson's
intent. As can be seen from the quoted excerpt, the prosecutor
ended her argument by again directing the jury's attention to the
evidence. In context, we do not find that Judge Reese committed
plain error when he failed to terminate Nelson's trial because of
these few sentences in the prosecutor's argument. As this court
stated in March v. State, 859 P.2d 714 (Alaska App. 1993),
Here, because [the defendant] did not re
quest a mistrial, declaration of a mistrial
would have violated his double jeopardy right
absent an independent basis for concluding
that there was a "manifest necessity" for a
mistrial. Koehler, 519 P.2d at 448; Browning
v. State, 707 P.2d 266, 269 (Alaska App.
1985). The record in this case does not
disclose the "very extraordinary and striking
circumstances" under which a mistrial may be
declared without the defendant's consent.
Lewis v. State, 452 P.2d 892, 896 (Alaska
1969). We find no error in the court's fail
ure to declare a mistrial sua sponte.
March, 859 P.2d at 717.
Nelson's final attack on his conviction involves the
wording used by the prosecutor and the two expert witnesses, Dr.
Harris and Dr. Rothrock, in their discussions relating to whether
Nelson acted with an intent to kill. At various points in the
examination of these witnesses, both the prosecutor and the
witnesses themselves referred to the issue as whether Nelson had
the mental capacity to intentionally perform an act (or varia
tions of this phrasing). Nelson points out that this phrasing
confuses the criminal code's discrete concepts of (1) knowingly
performing an act and (2) intending an act to have a particular
result. Under the terminology used by the criminal code,
"knowingly" refers to conduct or to circumstances, while "inten
tionally" refers to results. See AS 11.81.900(a)(1) and
900(a)(2).5 Nelson correctly notes that the issue at his trial
was not whether he "intentionally" (that is, knowingly) fired the
gun at Pogany and Van Flein, but, rather, whether he intended to
kill them when he fired the gun.
Nelson's trial attorney did not object to the phrasing
of either the prosecutor's questions or the expert witnesses'
answers. In fact, defense counsel himself elicited similar
phrasing during his direct examination of Dr. Harris.6 Thus, we
review Nelson's claim for plain error only.
From our review of the record, we do not think that the
jury was confused by the wording of the prosecutor's questions
and the experts' answers. During their closing arguments, both
prosecutor and defense counsel told the jury that the issue
before them was whether Nelson intended to cause the death of
Pogany and Van Flein. Moreover, the jury instructions clearly
asked the jurors to decide the pertinent question: whether Nelson
acted with intent to kill when he shot Pogany and Van Flein.
Judge Reese told the jurors that, in order to find
Nelson guilty of the first-degree murder of Pogany, they had to
find that Nelson "intended to cause the death of another person"
when he caused the death of Sandra Pogany. Judge Reese also told
the jurors that, in order to find Nelson guilty of the attempted
first-degree murder of Van Flein, the jurors had to find that
Nelson "intended to cause the death of another" when he shot
Thomas Van Flein. The court then gave the jury the following
instruction defining the culpable mental state of "inten
A person acts "intentionally" with re
spect to a result described by a provision of
law defining an offense when the person's
conscious objective is to cause that result.
"Conscious objective" means purpose. Thus, a
defendant acts with the intent to kill when
it is his conscious objective or purpose to
kill at the time he does the acts which
result in death or serious physical injury.
In sum, we find no error.
We turn now to Nelson's claim that his sentence is
excessive. Both first-degree murder and attempted murder are
unclassified felonies with maximum penalties of 99 years'
imprisonment. AS 11.41.100(b) and AS 12.55.125(a); AS
11.31.100(d)(1) and AS 12.55.125(b). Judge Reese sentenced
Nelson to the maximum term for each crime and ran these sentences
consecutively, for a total of 198 years to serve.
Nelson was a first felony offender; in fact, he had no
criminal history of any kind. Nelson contends that he has, in
effect, received a sentence of life imprisonment without parole,
and he argues that the record fails to support such a sentence.
We first consider Nelson's claims that he should not
have been sentenced to the maximum term for either the murder or
the attempted murder. Alaska law requires that, before a
defendant receives the maximum sentence for a crime, he or she
must be properly classified as a "worst offender". A finding of
"worst offender" can be premised either upon the defendant's
criminal history or the seriousness of the defendant's present
crimes. Capwell v. State, 823 P.2d 1250, 1256 (Alaska App.
Judge Reese never explicitly found that Nelson was a
worst offender. However, the sentencing record plainly reveals
that Judge Reese viewed Nelson as a defendant who had committed
particularly serious crimes and whose prospects for
rehabilitation were guarded.
Viewed in the light most favorable to upholding Judge
Reese's sentencing decision, the evidence shows that Nelson
committed premeditated, deliberate murder. Nelson obtained a
handgun, purchased ammunition, practiced shooting the gun, went
in search of Pogany, waited by her truck for hours, and then shot
her and her companion Van Flein when they returned to the
vehicle. Nelson consciously weighed his potential criminal
liability and decided that it was worth spending 30 to 40 years
in prison in exchange for taking his victims' lives.
Nelson's crime would have been first-degree murder even
under the common law's more restrictive definition of this crime.
This alone would have justified Judge Reese in finding Nelson's
murder of Pogany to be among the most serious first-degree
murders and to merit the 99-year maximum sentence. George v.
State, 836 P.2d 960, 963 (Alaska App. 1992); Riley v. State, 720
P.2d 951, 952 n.1 (Alaska App. 1986).
With regard to the attempted murder of Van Flein, the
evidence supports the conclusions that Nelson intended to kill
Van Flein along with Pogany, and that Nelson premeditated Van
Flein's death as he watched Pogany and Van Flein inside the
truck. Considering the number of shots Nelson fired into the cab
of the truck, Van Flein's survival is a fortuity. Van Flein was
struck four times. He still carries two of the bullets (in his
neck and shoulder), and he has suffered long-term impairment of
his right arm and hand. Judge Reese could properly find that
Nelson's assault on Van Flein was among the worst attempted
murders and that Nelson should receive the maximum term for this
crime as well. We do not find this sentence clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
A more troublesome issue is raised by Judge Reese's
decision to make these sentences totally consecutive. Before a
judge imposes consecutive sentences that exceed the maximum
sentence for the defendant's most serious crime, the judge must
find that a sentence of that length is necessary to protect the
public. Mutschler v. State, 560 P.2d 377, 380-81 (Alaska 1977);
George v. State, 836 P.2d at 963-64.
Judge Reese did not refer to the Mutschler rule in his
sentencing remarks. He did explain that he believed consecutive
sentences were necessary to reflect Nelson's violation of the
person of each victim. See Cooper v. State, 595 P.2d 648 (Alaska
1979), a case involving one assaultive act directed at three
victims; the supreme court approved a composite sentence greater
than the maximum term for any single count of assault. However,
Judge Reese did not otherwise address his decision to make
Nelson's terms of imprisonment consecutive.
The Alaska Supreme Court and this court have
occasionally dispensed with the requirement of an express finding
of necessity when the sentencing record has unequivocally
established that the defendant posed an extreme danger of future
misconduct and lacked potential for rehabilitation. See, e.g.,
Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Collins v. State,
778 P.2d 1171, 1177-78 (Alaska App. 1989) (Singleton, J.,
concurring); Krukoff v. State, 702 P.2d 664, 666 (Alaska App.
1985). The State relies on this line of cases, asserting that
Judge Reese implicitly made the finding required to justify the
Judge Reese stated that he believed it would be
difficult to treat the underlying causes of Nelson's antisocial
behavior; he further believed that one of the main impediments to
Nelson's rehabilitation was Nelson's lack of awareness of the
extent of his problem and concomitant lack of resolve to obtain
and successfully complete treatment. Judge Reese declared:
Certainly we want hope, and we don't
want to lose a member of society, especially
someone with as much to offer as Andy Nelson
has. So much promise. But I don't really
feel good about [his] rehabilitative
potential[.] I'm just simply not convinced
that that is real. I heard nothing about any
real effort toward obtaining therapy,
obtaining an answer to this problem[.]
. . . .
I listened very hard for remorse, which
would seem to be a window out of this[, but]
I heard only passing comments from Mr. Nelson
in his allocution about remorse. I have
trouble accepting it as genuine. ... [Y]our
words were about the terrible position you're
in, and how confusing it is, and how you
can't think of anything else to say -- which,
I think, means, "How can I talk my way out of
this?" ... I find nothing in [your remarks]
that showed me that you have felt the horror
of what you have done.
Later in his remarks, Judge Reese addressed the sentencing
criterion of isolating Nelson to protect the public:
Looking ... at the isolation issue, I
think the issue there is dangerousness -- ...
whether or not Mr. Nelson is dangerous. And
I have to admit it's not clear to me. I
really want to say, well, you're not
dangerous now, you're okay now, but I can't
find that. I don't know. I am disturbed at
the way you've presented yourself -- by not
reacting to the things that everybody else
seemed to react to so much, and that I
You were involved in the airplane bomb
ing. I think it's more likely than not that
you were involved in putting sugar in the
airplane, which should only be considered an
attempted murder. The time involved in pre
paring for and executing and following up
these crimes is time you spent carefully and
analytically doing something. This is the
kind of a person you are. I see no differ
ence today in that. So, I have trouble con
vincing myself that you're not presently
Despite this pessimism, however, Judge Reese also
apparently believed that Nelson should have a chance to obtain
parole release at some point during his imprisonment. Judge
Reese stated that he wanted parole to be "an opportunity to
soften [the sentence], an opportunity for hope":
I do not think that it's appropriate to re
strict your eligibility for parole. ... I
think our parole board does a pretty good
job, and they look at things pretty
carefully. ... I have no reason to doubt the
ability of the Alaska Parole Board to analyze
your situation appropriately when the time
comes. I do recommend that, when that time
comes, ... [the parole board members] look
carefully and hopefully at your degree of
success in dealing with the psychological
issues here, and that you've been able to get
beyond the trap of your intellectual skills
so that you're able to get in touch with
what's really going on, and perhaps ... find
success in changing a very difficult-to-
change part of your personality. I think
that's the key, and I would direct the parole
board's attention to that and recommend that
they pay particular attention to that.
As Judge Reese indicated in his sentencing remarks,
Nelson's actions during the summer of 1990 demonstrate good
reason to believe that he presents a serious and long-term danger
to society. His acts of stalking and lying in ambush for Ms.
Pogany on the night of the murder put his conduct among the worst
first-degree murders. Moreover, before he attacked Pogany and
Van Flein, Nelson had actively considered killing Ms. Pogany's
mother simply so that Ms. Pogany would feel the pain of loss.
Additionally, Nelson had earlier disabled and eventually bombed
Ms. Pogany's father's airplane in yet another apparent attempt to
take revenge on Ms. Pogany. These factors move Nelson's actions
well beyond the realm of an ordinary crime of passion. As Judge
Reese found, Nelson's actions as a whole demonstrate a marked
coldness, a calculation, and a substantial disregard for the
value of human life.
Nevertheless, Judge Reese's remarks concerning parole -
- particularly, Judge Reese's expressed hope that parole eligibil
ity might provide an incentive for Nelson's rehabilitation --
seem to indicate that Judge Reese entertained a guarded
expectation that Nelson might be rehabilitated some day. Given
this ambiguity in Judge Reese's sentencing remarks, we can not
overlook Judge Reese's failure to make an explicit Mutschler
Therefore, while we affirm Nelson's individual 99-year
sentences for the crimes of first-degree murder and attempted
murder, we remand this case to allow the superior court to
address the Mutschler requirement. If, on remand, Judge Reese
again decides to run the two sentences consecutively, either in
whole or in part, he must make the appropriate finding under
Mutschler (that the composite sentence is necessary to protect
Nelson's convictions for first-degree murder and
attempted murder are AFFIRMED. His 99-year terms of imprisonment
for these two crimes are likewise AFFIRMED, but this case is
REMANDED for Mutschler findings.
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 Testimony at trial also revealed that Nelson consciously
weighed the probable consequences of his action before he shot
Pogany and Van Flein. Nelson calculated that he would likely
receive 30 to 40 years in prison for the murders, and he
concluded that he should kill the two anyway.
2 This statute provides, in pertinent part:
Psychiatric Examination. (a) If a defen
dant has filed a notice of intention to rely
on the affirmative defense of insanity under
AS 12.47.010 or has filed notice under
AS 12.47.020(a), or there is reason to doubt
the defendant's fitness to proceed, or there
is reason to believe that a mental disease or
defect of the defendant will otherwise become
an issue in the case, the court shall appoint
at least two qualified psychiatrists or two
forensic psychologists ... to examine and
report upon the mental condition of the de
3 Nelson argued that the legislature acted unconstitutional
ly when, in AS 12.47.020(b), it declared that a defendant who
proves diminished capacity through mental disease or defect
should not be released but rather should be institutionalized in
the same manner as if the defendant had proved the affirmative
defense of insanity.
4 Even if the superior court had ruled on Nelson's claim,
we would still exercise independent review because the question
is one of law. See Stiegele v. State, 685 P.2d 1255 (Alaska App.
5 Compare Neitzel v. State, 655 P.2d 325, 332-34 (Alaska
App. 1982), where this court concluded that, when the legislature
used the phrase "intentionally performs an act" in the former
second-degree murder statute, the legislature really meant
"knowingly performs an act".
6 For example, Nelson's attorney elicited the following
answer from Dr. Harris during direct examination:
DEFENSE COUNSEL: What was your purpose in coming
into this case and in seeing Mr. Nelson?
. . . .
DR. HARRIS: ... My purpose was to perform a
psychiatric evaluation of Mr. Nelson, and to establish,
if appropriate, any diagnosis of any mental disorder;
and, furthermore, to answer questions as to whether any
such mental disorder ... interfered with Mr. Nelson's
ability to intend an act.
Later during the direct examination, Dr. Harris referred to
Nelson's ability to "think through a course of action and know
what's going on".
7 On remand, the parties may wish to address the
calculation of Nelson's parole eligibility. Under
AS 33.16.100(d), a prisoner sentenced for murder or attempted
murder must serve "at least one-third of the period of
confinement imposed" before becoming eligible for parole. The
statute does not specify whether this one-third is calculated
strictly according to the number of days the prisoner actually
spends in confinement, or whether the prisoner's accrued good
time credit counts toward service of the required one-third of
the period of confinement.