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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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Courts:
303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DEKEITRIC LARON LEWIS, | ) |
| ) Court of Appeals No. A-9867 | |
| Appellant, | ) Trial Court No. 3AN-04-11337 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2191 November 7, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card, John
Suddock, and Michael L. Wolverton, Judges.
Appearances: Josie Garton, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
James Fayette, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The defendant in this case, Dekeitric Laron Lewis, was
charged with several counts of assault: third-degree assault
against two of his family members (his mother and his sister),
third-degree assault against a police officer who came to their
aid, and fourth-degree assault against a second police officer.
Lewis is chronically mentally ill, but his attorney
announced that Lewis did not wish to claim insanity or even to
claim that his mental disease or defect negated a culpable mental
state needed to prove third-degree assault.
Under AS 12.47.070(a), a court is authorized to order
psychiatric evaluations of the defendant, and to disclose the
results of these examinations to the State, in four
circumstances. A court can do this if:
$ the defendant has filed notice of an intent to rely on the
defense of insanity; or
$ the defendant has filed notice of an intent to argue that,
because of mental disease or defect, the defendant lacked one or
more culpable mental states that are elements of the crime(s)
charged; or
$ there is reason to doubt the defendants mental competence 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.
Lewiss case involves this fourth clause of AS
12.47.070(a). The major issue in this appeal is whether, even
though Lewis announced that he would not argue for acquittal
based on mental disease or defect, the superior court
nevertheless had the authority under this fourth clause of
AS 12.47.070(a) to order psychiatric evaluations of Lewis, to
allow the State to introduce the results of those evaluations,
and to instruct the jury on the possibility of returning a
verdict of guilty but mentally ill.
As we explain here, the superior court correctly
perceived that even though Lewis claimed not to have raised the
issue of his mental health, Lewis did in fact raise this issue.
Because Lewis raised this issue, the superior court acted
properly when it ordered psychiatric evaluations of Lewis, when
it allowed the parties to introduce evidence of the results of
those evaluations, and when it instructed the jurors on the
possible verdict of guilty but mentally ill.
Underlying facts
Prior to the episode involved in this case,
Lewis had been diagnosed as suffering from schizo-
affective disorder with manic tendencies, as well as
antisocial personality disorder. He also has
borderline intellectual functioning.
Lewis had been prescribed medication for his
disorders, and that medication was effective: it
stabilized his thinking and his emotions when Lewis
chose to take the medication.
On November 12, 2004, Lewis was released from
custody stemming from a separate matter. Upon his
release, he stopped taking his medication. Four days
later, Lewis got into an altercation with his mother
and sister after he learned that his sister was
pregnant. During this altercation, Lewis pulled a
knife and asked his sister and mother if they were sure
that he would not hurt them. Lewiss sister managed to
get away and call the police.
When the police arrived, they found Lewis to
be extremely agitated. Lewis told the officers that he
would hurt everybody if they threatened him. After
backup officers arrived, Lewis was taken into custody.
Based on this episode, Lewis was charged with
three counts of third-degree assault for threatening
his sister, his mother, and Officer Earl Ernest. He
was also charged with fourth-degree assault upon
another police officer.
When Lewis appeared in court on January 14,
2005 following his indictment, he was obviously
mentally disturbed. A representative from the
Department of Corrections explained that Lewis had been
refusing to take his medications. Based on Lewiss
behavior in court, Superior Court Judge Michael L.
Wolverton ordered a competency evaluation.
Clinical and forensic psychologist David J.
Sperbeck evaluated Lewis and found that he lacked
competence to proceed. As a result, Judge Wolverton
delayed the criminal proceedings to see if Lewis could
be restored to competency.
On February 28, 2005, the parties appeared in
court again. Apparently, Lewis had responded well to
treatment, and Dr. Sperbeck now concluded that Lewis
was competent to proceed. Lewiss attorney announced
that she and her client agreed with this assessment,
and that they wanted the criminal proceedings to go
forward. During the ensuing discussion of future court
dates, both Judge Wolverton and the prosecutor stated
that, according to their calculations, the time for
bringing Lewis to trial under Alaska Criminal Rule 45
would expire on April 30, 2005. Lewiss attorney made
no objection to either the prosecutors or the judges
statements.
The facts pertaining to Judge Cards April 2005 order
for further psychiatric evaluations of Lewis, and the
facts pertaining to Lewiss later claim that the time
needed for these evaluations should be counted against
the State when calculating the time for bringing Lewis
to trial under Alaska Criminal Rule 45
As we explain in more detail below, the key
superior court ruling in this case was an order issued
on April 25, 2005 an order issued pursuant to
AS 12.47.070(a), directing that Lewis be examined by
two psychiatrists or forensic psychologists.
This order gave rise to Lewiss three claims
on appeal: (1) the claim that the superior court acted
illegally when it ordered these psychiatric
examinations; (2) the claim that the time needed to
accomplish these evaluations should have been counted
against the State when calculating the time for
bringing Lewis to trial under Alaska Criminal Rule 45;
and (3) the claim that Lewiss rights under the Fifth
Amendment were violated when, at his trial, information
obtained during these psychiatric evaluations was
presented to the jury.
Because these claims are so intertwined, it
would be difficult to write three distinct statements
of facts discussing these claims without considerable
redundancy. Thus, what follows is a fairly detailed
description of the procedural history of Lewiss case,
beginning in April 2005 and ending with his eventual
trial in March 2006.
The pre-trial conference of April 21, 2005 in front of
Judge Wolverton
Lewiss trial was scheduled to begin on April
18, 2005, but the trial had to be delayed because his
defense attorney became ill. Superior Court Judge
Michael L. Wolverton held a pre-trial conference on
April 21, 2005 to see when Lewiss trial could begin.
The defense attorney informed Judge Wolverton
that she needed one week to research an issue that had
recently come up. The problem, according to the
defense attorney, was that the prosecutor had been
talking about having the jury decide whether Lewis was
guilty but mentally ill as defined in AS 12.47.030.
The defense attorney told the judge that she
interpreted AS 12.47 to mean that the State could not
introduce any evidence pertaining to a defendants
mental health, or seek a guilty but mentally ill
verdict, unless the defendant affirmatively raised a
defense based on mental disease or defect.
The defense attorney also told Judge
Wolverton that Lewis was personally opposed to any
further delay, and that he wanted to begin his trial on
the following Monday that is, on April 25, 2005. But
the defense attorney declared that she needed more time
to research and file protective orders on the
psychological information.
In response, the prosecutor explained that
she thought a guilty but mentally ill verdict choice
was needed because, without evidence of Lewiss mental
health problems, and evidence that Lewis had stopped
taking his medication, it would be impossible for
Lewiss mother and sister to fully explain why they were
afraid that Lewis would injure them.
The prosecutor further pointed out that,
under AS 12.47.060(a), the issue of whether a defendant
should be found guilty but mentally ill can be raised
by either party, or by the court itself, if the
defendant is convicted but the jury does not decide
this issue. Thus, the prosecutor explained, as a
practical matter, the choice was either to have the
jury consider a guilty but mentally ill verdict at
Lewiss trial or, instead, to have the court consider
this matter in a post-conviction hearing (assuming that
Lewis was convicted).
In rebuttal, the defense attorney repeated
her position that she interpreted the provisions of AS
12.47 to mean that evidence of a defendants mental
disease or defect is not admissible at a criminal trial
unless the defendant gives advance notice of an intent
to rely on mental disease or defect to establish
insanity or to negate a culpable mental state. In
other words, if the defendant has not raised the issue,
the State is barred from introducing evidence of the
defendants mental disease or defect.
When Judge Wolverton declared that he would
set a trial call for May 16, 2005 apparently, to give
the parties time to brief this issue and to accommodate
the schedules of the judge and the attorneys the
defense attorney objected that Rule 45 would expire by
then. So Lewiss case was called for trial before
Superior Court Judge Larry D. Card on the date that
Lewis (personally) wanted: Monday, April 25, 2005.
The aborted trial proceedings of April 25, 2005 and
Judge Cards order directing further psychiatric
evaluations of Lewis
Although the parties assembled for trial on
April 25, 2005, Lewiss trial did not go forward that
day. Instead, Judge Card issued the ruling that lies
at the center of this appeal: he continued the trial
and ordered further psychiatric evaluations of Lewis.
At the beginning of the April 25th
proceeding, both the prosecutor and the defense
attorney announced that they were ready for trial.
However, the prosecutor then added that she would be
seeking an alternative verdict of guilty but mentally
ill.
The prosecutor conceded that Lewis had given
no notice that he intended to plead insanity or to rely
on mental disease or defect to negate a culpable mental
state. Nevertheless, the prosecutor told Judge Card
that she believed that the existence of a mental
illness [was] central to this case that Lewiss poor
mental health was a circumstance that would infuse[]
all of the testimony of [Lewiss] mother and sister, who
were fearful, in part, because Mr. Lewis had not been
taking his medication.
The prosecutor told Judge Card that she did
not intend to present any expert testimony on the
subject of Lewiss mental condition. Instead, she
intended to rely solely on the lay testimony of Lewiss
mother, who was personally familiar with his mental
health problems.
In response, the defense attorney repeated
her contention that AS 12.47 precluded any evidence of
a criminal defendants mental disease or defect whether
that evidence took the form of expert testimony or lay
testimony unless the defense gave notice that it would
raise a defense of insanity or, alternatively, that it
would claim that the defendants mental disease or
defect negated one or more of the culpable mental
states required for the crime.
Lewiss attorney asserted that Lewis had not
alleged either of those things. So, according to the
defense attorney, the State was precluded from
introducing any evidence of Lewiss mental disease or
defect. And without such evidence, the defense
attorney reasoned, it would be improper to instruct the
jury on the verdict alternative of guilty but mentally
ill.
The defense attorney conceded that there was
one way in which Lewiss defense would relate to his
mental condition, and to how Lewiss mental condition
might make a difference to the jurys assessment of
whether Lewis acted intentionally or recklessly during
the episode being litigated. But the defense attorney
contended that this defense did not pertain to Lewiss
underlying mental diseases or defects.
Rather, the defense attorney declared, Lewiss
defense would be based on evidence that, at or near the
time of the November 2004 episode, Lewiss father might
have given him Neurontin a psychotropic drug that had
not been prescribed for Lewis in an attempt to abate
Lewiss symptoms. The defense attorney implied that she
would argue to the jury that Lewiss behavior during the
November 2004 episode suggested that he had lost touch
with reality as a result of ingesting this drug.
The defense attorney conceded that, even if
she was correct that the State could not introduce
evidence of Lewiss mental diseases or defects at trial,
the question of whether Lewis should be found guilty
but mentally ill would still arise if Lewis was
convicted. In that case, the defense attorney
acknowledged, AS 12.47.060 would allow the State to
bring up the issue of Lewiss mental illness in a post-
verdict proceeding to determine whether the verdict
should be amended to guilty but mentally ill.
Nevertheless, the defense attorney argued that, from
the wording of the various provisions of AS 12.47, it
was clear that the Alaska Legislature did not want this
issue to be presented to a trial jury unless the
defendant opened the door by affirmatively relying on
mental disease or defect to establish insanity or to
negate a culpable mental state.
After hearing the parties arguments, Judge
Card concluded that, despite the States expressed
desire to go forward without expert testimony, he was
obliged by the fourth clause of AS 12.47.070(a) to
delay Lewiss trial and to order further psychiatric
evaluations of Lewis. Judge Card believed that this
result was dictated by the statute because, given the
points of contention between the parties, there was
reason to believe that a mental disease or defect of
the defendant [would] otherwise become an issue in the
case.
Judge Card declared that he did not see how
Lewiss case could be litigated without evidence
pertaining to Lewiss mental health because Lewiss
mother or sister would inevitably refer to Lewiss
mental problems and his failure to take his
medications. Judge Card also stated that the public
[is] entitled to justice here, also assumedly meaning
that Lewiss trial could not be fair without this
information. For these reasons, Judge Card ordered
that Lewis be separately examined by two psychiatrists
or forensic psychologists (as required by AS
12.47.070(a)).
After Judge Card issued this ruling, Lewiss
attorney told the judge that she did not really object
to his decision:
Defense Attorney: Your Honor, I agree
that, if the court is making a determination
that mental illness essentially will become
an issue in the case, then I think that thats
a fair decision to make, ... and the [basis
of the] courts decision is clear in the
statute.
The defense attorneys non-objection
to the renewed psychiatric evaluations was
also evidenced four days later (on April 29,
2005), at a status hearing held in front of
Judge Wolverton. At that hearing, Judge
Wolverton declared that the time for bringing
Lewis to trial under Criminal Rule 45 would
be tolled pending the completion of these
psychiatric evaluations ordered by Judge
Card. Lewiss attorney offered no objection
to Judge Wolvetons pronouncement.
Dr. Sperbecks evaluation of Lewis
Three weeks later, on May 17, 2005, pursuant
to Judge Cards order, Dr. Sperbeck submitted an
updated psychiatric evaluation to the superior
court.
In his May 17th report, Dr. Sperbeck told the
court that Lewis had been extremely suspicious and
guarded when Sperbeck interviewed him, and that it
was difficult for [Dr. Sperbeck] to determine with
any degree of reliability [Lewiss] state of mind
at the time of the offense[,] due to his
uncooperativeness.
From Dr. Sperbecks report, it appears that
Lewis told him only one thing of substance about
the assaults. As reported by Sperbeck, Lewis
said: I took some Neurontin right before I got
arrested. ... My father made me take it. ...
The Neurontin affected my memory. ... I dont
remember what happened.
Although Dr. Sperbeck could offer no opinion
on Lewiss state of mind at the time of this
episode, he did tell the court that [i]t is highly
unlikely that [Lewiss] statement that a dosage of
Neurontin affected his memory is a valid
explanation for his refusal to discuss ... his
state of mind at the time of the crime charged.
Dr. Sperbeck believed that it was more likely that
Lewis had stopped taking his medications at the
time of this episode and that, as a result, Lewis
became acutely psychotic and manic.
The proceedings in front of Judge Wolverton on July 28,
2005
Despite Dr. Sperbecks promptness in
responding to Judge Cards order, the judges order
remained unfulfilled for the next two months because
no second psychiatrist or forensic psychologist
examined Lewis. The parties returned to court on the
afternoon of July 28th, in front of Judge Wolverton, to
report this fact.
Lewiss attorney took the lead role in
explaining the situation to Judge Wolverton. Again,
her remarks contain no indication that she objected to
any aspect of Judge Cards earlier order:
Defense Attorney: I believe [the
prosecutor] and I agree that [Judge Cards]
order [of] 4/25 ... was for two psych evals.
And that may have been unclear to A.P.I.
[i.e., the Alaska Psychiatric Institute].
... Weve only received one report, from Dr.
Sperbeck. [The absence of the second
evaluation] appears, at this point, to be an
oversight. And I think we need to re-direct
A.P.I. to have a second evaluation of Mr.
Lewis. ...
Judge Card ordered [these two
evaluations] under [AS] 12.47.070, under the
theory that if it becomes clear to the court
that mental disease or defect will otherwise
become an issue in the case, the court must
the court shall order these two exams. And I
believe that thats where we are.
Because Judge Wolverton was going
to be away from work during the month of
August, he asked the two attorneys to draft
another stipulation for an order requiring
the second psychiatric evaluation. The judge
then asked the parties for their suggestions
regarding further court proceedings. When
Judge Wolverton suggested a pre-trial
conference in September (when he returned to
work), the defense attorney replied, Thats
definitely possible.
Then, when Judge Wolverton
suggested that it might make more sense to
hold the proceedings in front of Judge Card,
and when the in-court clerk reported that
Judge Card had set aside August 24th for pre-
trial conferences, the defense attorney
replied, Thats fine.
The defense attorney then addressed
the issue of Rule 45. Her remarks indicate
that she believed that Rule 45 was currently
tolled, but that the rule should perhaps
start running again, now that the psychiatric
evaluation process was taking so long:
Defense Attorney: Your Honor, my client
has ... requested that I make an inquiry
about Rule 45. My understanding from Judge
Cards order was that Rule 45 would be tolled
during the pendency of this [psychiatric]
evaluation process. However, it is taking
longer than we expected.
The Court: ... Thats clearly what
[Judge Cards] order said. And I reviewed the
log notes, [which are] to that effect. ...
So Im going to direct any further inquiry
about Rule 45 to Judge Card because ... the
case is going [to him]. ...
Defense Attorney: Okay. So well bring
it up with Judge Card ... when we go to
court.
The second psychiatric evaluation
was submitted to the superior court on August
16, 2005 thus completing the steps required
by Judge Cards order.
The pre-trial conference held before Judge Card on
August 24, 2005; the motion to dismiss for violation of
Criminal Rule 45; the ensuing motions to suppress the
results of the psychiatric evaluations and to preclude
the jury from returning a guilty but mentally ill
verdict; Judge Suddocks rulings on these motions
As explained above, a pre-trial conference in
Lewiss case was held on August 24, 2005 in front of
Judge Card. On that day, a new attorney (another
assistant public defender) entered a superseding entry
of appearance for Lewis, and this new attorney appeared
for Lewis at the pre-trial conference.
Lewiss new attorney told Judge Card that he
believed he had a valid motion to dismiss Lewiss case
under Rule 45. Judge Card tentatively scheduled Lewiss
trial for November 14, 2005, with the understanding
that trial would be delayed if the defense attorney
filed the proposed Rule 45 motion.
One week later (on September 2nd), Lewiss new
attorney filed the anticipated Rule 45 motion. In this
motion, Lewiss attorney contended that Rule 45
continued to run and expired during the time that was
needed to conduct the psychiatric evaluations ordered
by Judge Card on April 25th.
Lewiss attorney conceded that, normally, Rule
45 stops running for the time needed for psychiatric
evaluations of a defendant. However, the defense
attorney argued that there should be no tolling of Rule
45 in Lewiss case because (according to the new defense
attorney) Judge Card ordered the psychiatric
examinations over defense objection (i.e., over the
objection of Lewiss former defense attorney) to
accommodate the States desire to pursue a verdict of
guilty but mentally ill.
In early December 2005, Lewiss attorney filed
three new pleadings in which he asserted that, because
the psychiatric evaluations were ordered over defense
objection, Lewiss Fifth and Sixth Amendment rights were
violated when he participated in the psychiatric
interviews, and thus (1) the results of the evaluations
should be suppressed and (2) the jury at Lewiss trial
should be precluded from returning a guilty but
mentally ill verdict.
While these motions were pending, a new trial
judge Superior Court Judge John Suddock was assigned
to Lewiss case. On January 20, 2006, Judge Suddock
issued an omnibus order resolving all of Lewiss inter-
related motions.
Judge Suddocks decision
Judge Suddock rejected Lewiss factual
contention that Judge Cards order of April 25, 2005
(i.e., the order directing further psychiatric
evaluations of Lewis) was issued over defense
objection.
Judge Suddock noted that Judge Card ordered
the psychiatric evaluations because he believed that,
realistically, Lewiss case could not be litigated
without testimony concerning Lewiss mental health.
Judge Suddock further noted that, even though the
prosecutor declared that she was willing to go forward
without expert testimony on this issue, Judge Card
interpreted AS 12.47.070(a) as requiring him to order
the psychiatric evaluations, given his conclusion that
Lewiss mental health status would likely become an
issue in the case. Judge Suddock then pointed out
that, after Judge Card announced his ruling and the
statutory basis for it, Lewiss attorney stated that she
concurred in the ruling.
Judge Suddock (who apparently went back to
listen to the audio recording of the April 25, 2005
proceeding) quoted the defense attorneys response to
Judge Cards ruling:
Defense Attorney: I agree that if the
court is making a determination that mental
illness essentially will become an issue in
the case, then I think that thats a fair
decision to make, ... [and] the [basis of
the] courts decision is clear in the statute.
Thus, Judge Suddock rejected Lewiss
contention that the psychiatric evaluations
had been ordered over his attorneys
objection.
Judge Suddock also rejected Lewiss
contention that the State was the only party
who wished to litigate issues surrounding
Lewiss mental health, and that the defense
had never put Lewiss mental health at issue.
Judge Suddock noted that, at the
April 25th hearing, Lewiss defense attorney
told Judge Card that she intended to argue at
trial that Lewiss abnormal behavior could be
attributed to the fact that he had recently
taken the drug Neurontin, a psychotropic
medication that had not been prescribed for
him. Judge Suddock concluded that this
announced defense effectively placed Lewiss
mental status at issue. The judge reasoned
that if Lewis claimed that his assaultive
behavior was the result of ingesting
Neurontin, this claim would, as a practical
matter, force the jury to resolve issues
pertaining to Lewiss underlying mental
diseases or defects thus triggering the
provisions of AS 12.47.070(a).
For these reasons, Judge Suddock
concluded that Judge Card acted properly when
he ruled that AS 12.47.070(a) required him to
order the psychiatric evaluations. And, for
basically the same reasons, Judge Suddock
concluded that it would be proper to instruct
the trial jury on the possibility of
returning a verdict of guilty but mentally
ill and the judge declared that he would do
so.
Based on the rulings that we have
just described, Judge Suddock further
concluded that Lewis had no Fifth or Sixth
Amendment claim with respect to the court-
ordered psychiatric examinations. Judge
Suddock ruled that there was no violation of
either the Fifth or the Sixth Amendment
because (1) Lewiss attorney did not object to
these examinations, but rather concurred that
the examinations were proper; and (2) Lewiss
attorney, by raising a defense based on
Lewiss ingestion of Neurontin, affirmatively
placed Lewiss mental condition at issue thus
(as a matter of law) waiving any
constitutional right to object to the
psychiatric examinations.
Finally, having decided that Lewis
had no valid objection to the psychiatric
evaluations, Judge Suddock ruled that the
time needed to perform these evaluations was
properly excluded from the Rule 45
calculation meaning that the time for
bringing Lewis to trial had not yet expired.
Lewiss trial
Lewiss jury trial began on February 28, 2006,
with Judge Suddock presiding. The first day was
devoted to jury selection. The following day
(March 1st), both parties delivered their opening
statements.
As we have explained, both Lewiss previous
attorney and his current attorney had repeatedly
declared that they did not intend to argue that,
because of mental disease or defect, Lewis lacked
the culpable mental states required for third-
degree assault. But despite these earlier
protestations, this was precisely the defense that
Lewiss attorney outlined to the jury in his
opening statement:
Defense Attorney: Ladies and gentlemen,
this case is really about a man whos mentally
ill. We cant avoid that topic. Its part of
the whole substance of this case. Dekeitric
Lewis has been diagnosed [as mentally ill] in
the past, and his family is aware of that.
[The] man [charged with these crimes] was
mentally ill. [He] had been prescribed ...
medication to control his thoughts and his
actions that result from this mental illness.
... [He] had been locked away in an
institution and kept from his family for a
... substantial period of time ... . But,
several days before this incident, he was
released from that [supervised] setting; he
was released from that residential setting
where he was monitored and supervised and
basically thrown back out on the street.
. . .
[Lewis went to stay with his father.]
[And h]is father was concerned because Mr.
Lewis, when he came to stay with him, was
pacing, acting anxiety-[filled], not acting
rational. And his father was concerned. ...
His father believed, apparently, that Mr.
Lewis was not taking [his prescribed]
medications ... . These medications,
obviously, are important to keeping him in a
steady frame of mind and from the [behavior]
that his father saw, apparently Mr. Lewis was
not taking his medication.
The defense attorney then described
how Lewiss father concluded that it would be
better if Lewis went to stay with his mother
but when Lewis got to his mothers house, he
learned that his sister was pregnant by
someone that Lewis did not think highly of.
According to the defense attorney, this made
Lewis angry:
Defense Attorney: [Lewiss] mental
illness ... makes him very excitable on
issues that concern his role as protector of
the family. And he felt, apparently, that he
had not protected the family, and his sister
had gotten pregnant, and so hes angry at her.
The defense attorney described how Lewis had
words with his sister, and then backed her
into a bathroom and resisted his mothers
attempts to intervene. The defense attorney
told the jurors that Lewiss sister was
worried [about] what [was] going to happen
you know, how far [Lewis was] going to go
because [she and her mother] dont know
exactly what [Lewis] is capable of when hes
in this state, where his mental illness is
not controlled by medication.
The defense attorney then described
how Lewis picked up a sharp knife a steak
knife or a boning knife:
Defense Attorney: What he was intending
to do with that knife is not really clear,
because hes in such a mental state. ... He
may have said words to the effect of, Im
going to cut you, but he may have also been
intending to cut himself. One really doesnt
know. Thank God no one was cut. He didnt,
you know, actually lunge at anybody or try to
cut anybody with this knife. Hes just
holding it [and] hes talking as if hes I
mean, for want of a better term, like an
insane person.
. . .
Hes very upset ... . And where ... his
mind [is] during this whole time is really
the question that comes to the fore when you
... do your deliberations after youve heard
all the evidence. You know legally, what
does this mean? What happened? Is this a
family dispute? Is it a crime? Well, what
its going to come down to, I think, in your
deliberations will be: What was his mental
state during the times that he made these
threatening ... words to people?
The defense attorney then expressly stated
his main contention that Lewis lacked the
culpable mental state required for third-
degree assault:
Defense Attorney: Whats probably ...
crucial [to your decision] is: Did Mr. Lewis
act recklessly? Because the law defines
recklessly in a way that requires a person to
be aware of a certain type of risk, and to
consciously disregard that risk and go ahead
and do their conduct anyway. ... [T]he law
requires [proof] that [the] person [was]
aware of the risk that they [would] place
someone in fear by what theyre doing, and
consciously disregard it. Now, ...
consciously disregard implies a certain
mental coherence that the law requires before
a person can be said to be reckless. I think
the evidence will show that [Lewis] did not
have [the] mental coherence to know that he
was consciously disregarding this risk.
. . .
The law requires [proof that he]
actually, ... coherently [was] conscious of
the risk, and ... consciously disregard[ed]
it. That [proof is] very difficult on these
facts. You have a man who is mentally ill
and off his medication, apparently. Its very
difficult to determine what was in his mind.
And ladies and gentlemen, I dont think the
proof will be there, ... beyond a reasonable
doubt, that Mr. Lewis in his mind was aware
of and consciously disregard[ed] ... the
effect he was having on other people.
The prosecutor then presented the
States case. The States first five witnesses
were the 911 dispatcher and four people who
were either victims of, or witnesses to, the
assaults. The States final witness was Dr.
Sperbeck.
Although Dr. Sperbeck testified
during the States case-in-chief, he
essentially performed the role of a rebuttal
witness. In his testimony, Dr. Sperbeck
responded to the defense argument that Lewis
lacked the culpable mental state for third-
degree assault, either because of Lewiss
underlying mental condition or
(alternatively) because Lewis had recently
taken Neurontin.
Dr. Sperbeck told the jurors that
Lewis had borderline intellectual
functioning, and that he suffered from schizo-
affective disorder, manic type, as well as
antisocial personality disorder. Dr.
Sperbeck informed the jurors that Lewis had
been prescribed medications for these
disorders, and that the medications did work
for him stabilizing his thinking and his
emotions.
Dr. Sperbeck testified that Lewiss
mental illnesses did not prevent him from
acting intentionally or recklessly, but
Sperbeck did not offer an opinion as to
whether Lewis actually was acting
intentionally or recklessly during the events
being litigated.
In response to a question from the
prosecutor, Dr. Sperbeck agreed that the
jurors would have to answer that question for
themselves: they would have to look to the
things said or done at or near the time of
the events and then evaluate [for themselves]
whether Mr. Lewis had the ability to intend
the consequences of his conduct.
Dr. Sperbeck did, however, address
the contention that Lewiss ingestion of
Neurontin might have caused him to think and
act erratically. Dr. Sperbeck told the jury
that, although Neurontin was not one of
Lewiss regularly prescribed medications,
Neurontin is in fact used for the treatment
of schizo-affective disorder (one of Lewiss
mental conditions). This drug helps to
reduce a patients manic symptoms and the
intensity of a patients mood swings.
Thus, Dr. Sperbeck testified, if
Lewis did in fact take Neurontin, it probably
did not worsen his condition. Dr. Sperbeck
explained that Neurontin is actually used in
psychiatric facilities to treat the disorder
[that Lewis] has, so its unlikely that it
would have had any negative effects on him.
[Its] more likely that it would have had
positive [effects]. [And] if he only had one
dose, its most likely that it would have had
no effect because [m]ost psychotropic
medications require a certain period of time
for them to build up in the blood system and
have a therapeutic effect ... or any effect.
In sum, during direct examination
by the prosecutor, Dr. Sperbeck offered no
opinion as to whether Lewis acted with the
culpable mental states required for third-
degree assault. Dr. Sperbeck confined
himself to the two assertions (1) that Lewiss
mental diseases and defects would not have
prevented him from having those culpable
mental states, and (2) that Lewiss ingestion
of Neurontin was unlikely to have adversely
affected his behavior or thinking.
The cross-examination by the
defense attorney was a different story.
During cross-examination, Lewiss attorney
repeatedly tried to get Dr. Sperbeck to offer
opinions on what Lewiss mental state actually
was on the day of this incident. By his
questions, the defense attorney suggested
that Lewis lost touch with reality on the day
of the assaults because he had not been
taking his normal medications.
Following Dr. Sperbecks testimony,
the State rested. Lewis did not present a
case. The jury found Lewis guilty but
mentally ill on all four counts.
Lewiss argument that Judge Card should not have ordered
the psychiatric evaluations, and that these
evaluations were conducted in violation of Lewiss
rights under the Fifth Amendment
As explained above, the parties assembled in
court on April 25, 2005 for what was to have been
the start of Lewiss trial. But after the
prosecutor announced that she wanted to submit a
guilty but mentally ill verdict to the jury
because the testimony of Lewiss mother and sister
would inevitably touch on his mental health
problems, and after the defense attorney announced
that Lewis intended to argue that he lacked the
culpable mental states required for third-degree
assault because of his ingestion of Neurontin,
Judge Card concluded in the words of AS
12.47.070(a) that there [was] reason to believe
that a mental disease or defect of the defendant
[would] ... become an issue in the case. Based on
this finding, Judge Card delayed Lewiss trial and
ordered that Lewis be examined and evaluated by
two psychiatrists or forensic psychologists.
On appeal, Lewis concedes that AS
12.47.070(a) appears to authorize Judge Cards
action. In fact, as Judge Card noted when he
issued his order, the statute appears to require
this action whenever a judge determines that there
is reason to believe that a defendants mental
disease or defect will become an issue in the
case.
(Under AS 12.47.070(a), when a court
determines that there is reason to believe that a
defendants mental disease or defect will 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 defendant. (Emphasis added))
Nevertheless, Lewis claims on appeal that
these psychiatric examinations were conducted in
violation of his Fifth Amendment privilege against self-
incrimination.
Before addressing this Fifth Amendment claim,
we note that Lewiss brief to this Court also contains
passing references to the Sixth Amendment right to
counsel. However, Lewis presents no separate argument
or analysis under the Sixth Amendment. Moreover, the
record in Lewiss case provides no reason to believe
that his Sixth Amendment right to counsel was violated.
A criminal defendant has the right to the
assistance of counsel when deciding whether to
participate in a psychiatric examination if that
examination takes place in connection with a criminal
prosecution after the defendants right to counsel has
attached.1 But as we explained above, and as Judge
Suddock noted in his decision dated January 20, 2006,
Lewiss attorney did not object when Judge Card ordered
the psychiatric evaluations in this case. Indeed,
viewing the record in the light most favorable to Judge
Suddocks decision, Lewiss attorney expressly concurred
in Judge Cards action. In particular, with regard to
Judge Cards conclusion that mental disease or defect
would apparently be an issue in the case, the defense
attorney told the judge, I think that thats a fair
decision to make. And with regard to Judge Cards
decision to order the psychiatric evaluations, the
defense attorney told the judge that the [basis of the]
courts decision is clear in the statute.
These facts seemingly dispose of any claim
that the psychiatric examinations were conducted in
violation of Lewiss Sixth Amendment right to counsel.
Lewiss counsel knew that the examinations had been
ordered, and she did not object. Nor is there anything
in the record to indicate that the defense attorney was
denied the opportunity to counsel Lewis about the
potential benefits and dangers of participating in
these examinations.
Given this record, and given the lack of
meaningful briefing regarding the Sixth Amendment, we
conclude that if, indeed, Lewis intended to present a
Sixth Amendment claim, that claim is waived.
We therefore turn to Lewiss Fifth Amendment
claim. The resolution of this claim hinges on the
answer to the question: Did Lewis affirmatively put
his mental condition at issue?
In Estelle v. Smith, 451 U.S. 454, 101 S.Ct.
1866, 68 L.Ed.2d 359 (1981), the United States Supreme
Court held that a criminal defendant has a Fifth
Amendment right to decline to participate in a
psychiatric examination to the extent that (1) the
results of the examination are to be introduced by the
State either to prove the defendants guilt or to
enhance the defendants sentence, and (2) the
psychiatric evaluation will be based on the defendants
statements elicited during the examination. 451 U.S.
at 461-66, 101 S.Ct. at 1872-75.
Relying on Estelle and on this Courts ensuing
decision in R.H. v. State, 777 P.2d 204 (Alaska App.
1989), Lewis argues that Judge Card violated his Fifth
Amendment right against self-incrimination when the
judge ordered the psychiatric evaluations on April 25,
2005.
But as this Court explained in R.H., a
defendant waives their right to claim a Fifth Amendment
privilege with respect to statements made during
psychiatric examinations if the defendant intends to
rely on psychiatric testimony of their own, or if the
defendant has otherwise affirmatively placed [their]
mental condition in issue. 777 P.2d at 211. See also
Estelle, 451 U.S. at 465-66, 101 S.Ct. at 1874, citing
with approval several court decisions holding that when
a defendant asserts an insanity defense, the defendant
can be required to participate in psychiatric
examinations conducted on behalf of the government.
Lewis concedes that he would have no Fifth
Amendment claim if he had asserted the affirmative
defense of insanity defined in AS 12.47.010 (inability
to appreciate the nature and quality of ones conduct
because of mental disease or defect). Lewis likewise
concedes that he would have had no Fifth Amendment
claim if he had asserted the alternative defense of
diminished capacity defined in AS 12.47.020(b)
(reasonable doubt, based on mental disease or defect,
as to whether the defendant possessed one or more of
the culpable mental states required for the crime).
But Lewis argues that his case is different because he
did not plead either of these defenses, nor did he
offer expert testimony regarding his mental diseases or
defects.
There are two answers to Lewiss argument two
reasons why we conclude that Lewis waived his Fifth
Amendment privilege to object to the psychiatric
evaluations ordered by Judge Card.
Lewis put his mental health at issue when he asserted
that his behavior was attributable to his ingestion of
Neurontin
Even though Lewis did not plead insanity as
defined in AS 12.47.010 or diminished capacity as
defined in AS 12.47.020, Lewis did in fact place his
mental condition at issue. He did so when, through his
attorney, he told Judge Card that he intended to argue
that his erratic thinking and behavior on the day of
the assaults was attributable to his recent ingestion
of Neurontin.
As explained in Lewiss opening brief to this
Court, Lewis informed Judge Card that he was planning
to argue that his behavior [on the day in question] was
the result of his father giving him the drug Neurontin,
a drug that ... was not prescribed [for him], and that
he also intended to have his family [members] testify
that [his] behavior on the day in question was
different from his normal behavior.
As Judge Suddock correctly perceived, this
Neurontin defense implicitly rested on the assertion
that Lewiss mental state on the day in question was
significantly different from his typical mental state
i.e., the mental state he would otherwise have had, if
he had not ingested Neurontin.
For people who do not suffer from mental
illness, the question of whether their mental state was
significantly affected by the ingestion of a medication
can be answered by comparing their mental state on the
occasion in question to the normal mental state enjoyed
by most people. But for people like Lewis who suffer
from mental illness, the question of whether their
mental state was significantly affected by the
ingestion of a medication can not be gauged by
comparing their thinking and behavior to the normal
thinking and behavior of most people. Rather, the
effect of the medication can only be gauged by first
ascertaining the defendants typical thinking and
behavior i.e., the thinking and behavior that the
defendant would normally exhibit, as shaped by the
defendants mental diseases or defects and then
comparing that to the thinking and behavior that the
defendant exhibited on the day in question.
In other words, in order for the jury to
meaningfully evaluate Lewiss claim that his erratic
thinking and behavior was attributable to his ingestion
of Neurontin, the jury would have to be informed of
Lewiss underlying mental diseases or defects. The jury
would also need to understand how these chronic
diseases or defects would shape Lewiss everyday
thinking and behavior, and how the ingestion of
Neurontin might affect someone with Lewiss mental
conditions.
Thus, when Lewis declared that he intended to
present a defense based on his ingestion of Neurontin,
he was placing his mental diseases and defects at
issue. He therefore waived any Fifth Amendment
objection to the States evaluation of those mental
diseases and defects, and to the States presentation of
evidence concerning the results of that evaluation.
At trial, Lewis abandoned his Neurontin defense and
instead argued explicitly that, because of his
underlying mental diseases or defects, he lacked the
culpable mental states required for third-degree
assault
Our second, independent reason for rejecting
Lewiss Fifth Amendment claim is that, contrary to all
of Lewiss attorneys pre-trial protestations, Lewiss
defense at trial was that, because of mental disease or
defect, Lewis lacked the culpable mental states
required for third-degree assault. Lewiss trial
attorney may not have given notice of this defense as
required by AS 12.47.020(a), but he did pursue this
defense.
Lewiss attorney delivered his opening
statement to the jury at the beginning of trial, rather
than waiting for the conclusion of the States case-in-
chief. As we explained earlier in this opinion, that
opening statement began with the assertion that Lewiss
case was about a man whos mentally ill a man who had
been prescribed medications to keep[] him in a steady
frame of mind, and who had apparently [stopped] taking
his medications.
The defense attorney told the jurors that
[Lewiss] mental illness ... [made] him very excitable
on issues that concern his role as protector of the
family. And he felt, apparently, that he had not
protected the family, and his sister ha[d] gotten
pregnant, and so [he became] angry at her. The defense
attorney next described how Lewiss mother and sister
became fearful because they did not know how far [Lewis
was] going to go [or] exactly what [Lewis is] capable
of when ... his mental illness is not controlled by
medication.
The defense attorney told the jurors that
Lewis picked up a sharp knife and began talking ...
like an insane person. The defense attorney then
expressly argued that, because of mental illness, Lewis
lacked the culpable mental state required for third-
degree assault:
Defense Attorney: [The element of]
consciously disregard implies a certain
mental coherence that the law requires before
a person can be said to be reckless. I think
the evidence will show that [Lewis] did not
have [the] mental coherence to know that he
was consciously disregarding this risk.
. . .
The law requires [proof that he]
actually, ... coherently [was] conscious of
the risk, and ... consciously disregard[ed]
it. That [proof] is very difficult on these
facts. You have a man who is mentally ill
and off his medication, apparently. Its very
difficult to determine what was in his mind.
And ladies and gentlemen, I dont think the
proof will be there, ... beyond a reasonable
doubt, that Mr. Lewis in his mind was aware
of and consciously disregard[ed] ... the
effect he was having on [other] people.
During the defense attorneys cross-
examination of Lewiss mother, the attorney
elicited testimony that Lewis was diagnosed
as a schizophrenic in the 1990s, and that
Lewis had told his mother that he hears
voices. However, Lewis apparently does not
believe that he is mentally ill; rather, he
asserts that it is other people who are
mentally ill.
Lewiss mother explained that Lewis
has been prescribed medication to control his
schizophrenia, but that he does not like to
take the medication. In addition, Lewiss
mother testified that she knew that Lewis was
not taking his medication at the time of the
incident in this case because he didnt have
any medications to take.
(On this last point, Lewiss mother
was mistaken. The prosecutor and the defense
attorney later stipulated and informed the
jury that when Lewis was released from
custody on November 12, 2004 (four days
before the incident in this case), he
received a weeks supply of his medications.)
According to Lewiss mother, Lewis
was restless pacing and talking and this is
why Lewiss father gave him the Neurontin.
Lewiss mother described Lewis as just not
himself.
During the defense attorneys cross-
examination of Lewiss sister, he elicited
similar testimony. Lewiss sister testified
that Lewis began to manifest signs of mental
illness at the age of 18 or 19. She
described an incident where Lewis ran down
the street without shoes or socks and started
knocking on the door of a house that the
family used to live in, asking his mother to
open the door and then talking to his mother
as if she was there.
Lewiss sister confirmed her mothers
testimony that Lewis does not believe that he
is mentally ill, and he does not like to take
his medications. Lewiss sister explained
that sometimes Lewiss illness was better, and
sometimes it was worse, but that she had
never seen him as ill as he was on the day of
the assaults in this case. She had observed
other times when he would pace back and
forth, all night long without sleeping, and
times when he heard voices.
Lewiss sister agreed with the
defense attorney that Lewiss behavior on the
day in question was at least partly
attributable to his mental illness. And she
confirmed her mothers testimony that Lewis
was not taking his medications.
As we have already explained, Dr.
Sperbeck was the States final witness, and he
offered testimony that was essentially
rebuttal in nature. Dr. Sperbeck described
Lewiss psychological diagnoses: borderline
intellectual functioning; schizo-affective
disorder, manic type; and antisocial
personality disorder. Dr. Sperbeck testified
that these mental illnesses did not prevent
Lewis from acting intentionally or
recklessly, but Sperbeck stated that he could
not offer a reliable opinion as to whether
Lewis actually was acting intentionally or
recklessly during the events being litigated.
Dr. Sperbeck indicated that the jurors would
have to look to the things said or done at or
near the time of the events, so that they
could evaluate [for themselves] whether
Mr. Lewis had the ability to intend the
consequences of his conduct.
Dr. Sperbeck did, however, testify
that Lewiss ingestion of Neurontin was
unlikely to have caused his erratic thinking
and behavior because Neurontin is used for
the treatment of schizo-affective disorder
(one of Lewiss mental conditions), and if the
drug had any effect on Lewis, it would have
been to reduce the manic symptoms and mood
swings that characterize his schizo-affective
disorder.
During his cross-examination of Dr.
Sperbeck, Lewiss attorney elicited testimony
that Lewiss mental state would have rapidly
deteriorated if he stopped taking his
medications. According to Dr. Sperbeck,
Lewiss behavior would change noticeably if he
missed even a single dose. Dr. Sperbeck
declared that if (as the testimony suggested)
Lewis stopped taking his medications when he
was released from custody four days before
this incident, by the time of the incident
Lewis would have begun suffering from
paranoia and he could possibly have started
hearing voices or otherwise becoming
delusional.
The defense attorney elicited the
fact that Lewis had refused to cooperate
during Dr. Sperbecks psychiatric examination
of him and that, for this reason, Sperbeck
was unable to offer an opinion as to whether
Lewiss behavior on the day of the assaults
was intentional or reckless. The defense
attorney then elicited the fact that Lewis
had begun manifesting serious emotional
disturbance when he was in junior high
school, and that Lewis had an extensive
history of commitments to the Alaska
Psychiatric Institute eighteen in all, both
voluntary and involuntary.
When the defense attorney asked Dr.
Sperbeck if Lewis was resistant to taking his
medication, Dr. Sperbeck responded, Resistant
isnt really a strong enough term. Sperbeck
explained that he was unaware of any instance
where Lewis voluntarily took his medications
when he was outside of an institutional
setting: He has distinguished himself as
extraordinarily non-compliant.
The defense attorney also elicited
the fact that when Dr. Sperbeck performed the
first post-arrest psychiatric evaluation of
Lewis in this case, Sperbeck found Lewis to
be incompetent to proceed even though, by
that time, Lewis had been involuntarily
medicated for six days.
Toward the end of this cross-
examination, the defense attorney elicited
the following testimony from Dr. Sperbeck:
Were talking about a young man who
[earlier, before diagnosis and treatment,]
was uniquely under-achieving in every aspect
of his life dangerous, on the verge of all
kinds of tragedy towards himself and other
people. And [he] was finally properly
evaluated and treated. I mean, this is a
young man who, for six weeks, sat in a jail
cell before I found out about him with
Kleenex in his ears because he was hearing
voices. [But] we got him properly diagnosed
and treated, and ... on the road to recovery.
And ... he has done much better. Hes ...
almost completely normal [when he is] on his
medications.
Later, when Lewiss attorney
delivered his summation to the jury, he never
mentioned the evidence that Lewiss father had
given him Neurontin. Instead, the defense
attorney focused exclusively on the argument
that, because of Lewiss underlying mental
illness, Lewis did not have the culpable
mental states required for third-degree
assault.
The defense attorney told the
jurors that Lewiss mental illness was the key
to the case:
Defense Attorney: We [ordinarily] make
assumptions, [based on] the way people treat
us [and] the way they act, [about] what they
may be thinking. But all that is thrown
aside when you have someone who is mentally
ill. How do you know what [people] are
really thinking when they are mentally ill?
Its hard enough with people [whom] we love
and were close to who [are] not mentally ill.
. . .
Were talking [about] someone who is ...
off his med[ication]s someone who has been
prescribed these psychotropic meds and is
now, according to Dr. Sperbeck, three to four
days later, going to be de-compensating very
seriously. And that means their perceptions
of reality are changed their ability to
differentiate truth from fiction, their
ability to tell whether theyre listening to
voices in their head, or theyre listening to
their own thoughts, or [whether] someone
[else] is actually talking to them.
All those common assumptions that we
make about people, that we use to try and
decide [if they] were ... reckless you just
cant do that with someone thats mentally ill,
especially when theyre not under their
medication. So I think [that] the State just
cant prove that Mr. Lewis was reckless or
intentional in the way he acted toward his
mother, his sister, and the officers.
Toward the end of his summation,
the defense attorney urged the jurors to
consider the testimony of Lewiss mother and
sister:
Defense Attorney: Who knows [Lewis]
better than his sister and his mom? Probably
no one. ... And what [did] they say,
spontaneously, [when] the officers came in?
Hes not himself. Thats not him. His mother
said, I looked in his face, and he was like
someone possessed. Thats not my son. ...
Thats the strongest evidence I think you
have that, yes, [Lewis] is mentally ill,
[and] it was so affecting his conduct that he
couldnt form those mental states that [are]
required by the law.
In sum: It is true that Lewiss
attorneys repeatedly declared in pre-trial
hearings that they did not intend to argue
that, because of mental illness, Lewis lacked
the culpable mental states required for third-
degree assault. But at trial, the defense
changed course and made precisely this
argument.
For this reason as well, we
conclude that Lewis affirmatively placed his
mental diseases or defects at issue and,
thus, Lewis waived any Fifth Amendment
objection to Dr. Sperbecks testimony.
Lewiss argument that the jury should not have been
given the option of returning a verdict of guilty
but mentally ill
On appeal, Lewis renews his argument that it
was improper for Judge Suddock to give the jury
the option of returning a verdict of guilty but
mentally ill.
A brief description of the guilty but mentally ill
verdict
The verdict of guilty but mentally ill is
defined in AS 12.47.030(a) and AS 12.47.040(b). This
verdict constitutes a finding that the government has
proved (beyond a reasonable doubt) all the elements of
the offense charged against the defendant, including
all required culpable mental states; and an additional
finding (by a preponderance of the evidence) that,
because of mental disease or defect, the defendant
lacked ... the substantial capacity either to
appreciate the wrongfulness of [their] conduct or to
conform [their] conduct to the requirements of law. AS
12.47.030(a).
The consequences of this verdict are spelled
out in AS 12.47.050. Subsection (a) of this statute
declares that a defendant who is found guilty but
mentally ill shall receive a normal sentence for their
crime but, under subsection (b), the Department of
Corrections is required to provide mental health
treatment to the defendant so long as the defendant
continues to suffer from a mental disease or defect
that causes the defendant to be dangerous. Subsection
(d) of the statute declares that, during the portion of
the sentence in which the defendant is receiving mental
health treatment under subsection (b), the defendant is
not eligible for parole and can not be released on
furlough except to a secure setting.
Finally, under subsection (e) of the statute,
if the defendant is still receiving mental health
treatment under subsection (b) as the defendant nears
the end of their sentence, and if the Commissioner of
Corrections has good cause to believe that the
defendant still suffers from a mental illness that
causes them to be dangerous, the Commissioner is
obligated to file a petition for the defendants
involuntary commitment under AS 47.30.700.
Lewiss argument
Under Alaska law, there are two ways in which
a defendant may be found guilty but mentally ill. In
some instances, AS 12.47.040 declares that the trial
jury must make this decision. But if this issue is not
presented to the jury, and if the defendant is
convicted at trial, AS 12.47.060 declares that the
defendant, the prosecuting attorney, or the court on
its own motion may raise the issue of whether the
defendant is guilty but mentally ill.
If this issue is raised after trial, AS
12.47.060 directs the court to determine whether the
defendant is guilty but mentally ill based on any
pertinent evidence presented at trial and on any
additional evidence presented at the post-conviction
hearing.
In this appeal, Lewis argues that the
question of whether he was guilty but mentally ill was
presented to the wrong fact-finder. Lewis conceded to
the superior court, and he concedes again on appeal,
that if he had been found guilty at his trial, the
superior court would have been authorized by
AS 12.47.060 to investigate and decide whether he was
guilty but mentally ill. But Lewis argues that it was
legally improper to present this issue to his trial
jury.
Lewiss claim hinges on a question of
statutory interpretation. The statute in question is
AS 12.47.040(a):
Form of verdict when evidence of mental
disease or defect is admissible.
(a) In a prosecution for a crime when
the affirmative defense of insanity is raised
under AS 12.47.010, or when evidence of a
mental disease or defect of the defendant is
otherwise admissible at trial under AS 12.47.
020, the trier of fact shall find, and the
verdict shall state, whether the defendant is
(1) guilty;
(2) not guilty;
(3) not guilty by reason of insanity;
or
(4) guilty but mentally ill.
Lewis notes that, even though the
title of this statute seemingly refers to all
cases where evidence of a defendants mental
disease or defect is admissible, the text of
the statute does not state so broad a rule.
According to the text of the statute, a trial
judges obligation to instruct the jury on the
verdict of guilty but mentally ill arises
only when (1) the defendant raises the
defense of insanity under AS 12.47.010 or
when (2) evidence of a mental disease or
defect of the defendant is otherwise
admissible at trial under AS 12.47.020.
(To the extent that the title of
the statute might suggest a different,
broader rule that is inconsistent with the
text of the statute, we would be obliged to
ignore the title. Section headings and the
captions of statutes are not part of the
law.2)
Lewis contends that his jury should
not have been instructed on the potential
verdict of guilty but mentally ill because he
neither raised the defense of insanity as
defined in AS 12.47.010 nor raised the
defense of diminished capacity as defined in
AS 12.47.020 i.e., the defense that, because
of mental disease or defect, he lacked one or
more culpable mental states required to prove
the crime.
But as Judge Suddock correctly
noted when he denied Lewiss pre-trial motion
to preclude a guilty but mentally ill verdict
in this case, Lewiss argument is based on a
misreading of AS 12.47.040(a).
First, although the statute defines
a group of cases where the jury must receive
a guilty but mentally ill verdict, the
statute does not expressly preclude trial
judges from giving this verdict to the jury
in other cases. Potentially, this option
remains open to trial judges in all cases
where evidence of a defendants mental disease
or defect is admitted for any purpose.
Second, contrary to Lewiss
argument, the statutory mandate to instruct
the jury on a verdict of guilty but mentally
ill is not limited to cases where the
defendant affirmatively raises a defense of
diminished capacity based on mental disease
or defect under AS 12.47.020. Rather, the
statute says that the jury shall be
instructed on the verdict of guilty but
mentally ill in all cases where evidence of a
mental disease or defect ... is otherwise
admissible at trial under AS 12.47.020.
The statute referred to, AS
12.47.020, does not limit the admissibility
of evidence of mental disease or defect to
cases where the defendant raises a defense of
diminished capacity. Rather, subsection (a)
of this statute declares that [e]vidence that
the defendant suffered from a mental disease
or defect is admissible whenever it is
relevant to prove that the defendant did or
did not have a culpable mental state which is
an element of the crime. (Emphasis added)
Lewis relies on the next sentence
of AS 12.47.020(a): [E]vidence of mental
disease or defect that tends to negate a
culpable mental state is not admissible
unless the defendant ... files a written
notice of intent to rely on that defense.
But as Judge Suddock correctly pointed out,
this clause of the statute only limits the
introduction of evidence of mental disease or
defect that tends to negate a culpable mental
state. It does not speak to evidence of a
mental disease or defect that tends to prove
a culpable mental state.
As we have explained, evidence of
Lewiss mental diseases or defects was
relevant to rebut his claim that his erratic
behavior was due entirely to his ingestion of
Neurontin. Offered for this purpose, the
evidence tended to prove, not defeat, the
States allegations of third-degree assault.
Accordingly, the evidence was admissible
under the first sentence of AS 12.47.020(a).
And because this evidence was admissible at
trial under AS 12.47.020, Lewiss trial judge
was obliged under AS 12.47.040(a) to instruct
the jury on the verdict of guilty but
mentally ill.
This resolves Lewiss claim of
error. We note, however, that Lewiss claim
fails for an additional reason: Despite his
repeated protests that he did not intend to
raise a defense of diminished capacity based
on mental disease or defect, Lewis did in
fact pursue this defense at trial. We
described Lewiss litigation strategy his
opening statement, his examination of the
witnesses, and his summation to the jury
earlier in this opinion. Because Lewis
pursued this defense, the trial judge
correctly instructed the jury on the verdict
of guilty but mentally ill.
It is true that Lewis failed to
give notice of this defense. Potentially,
Lewiss failure to comply with the notice
requirement codified in the second sentence
of AS 12.47.020(a) might have given the State
a valid ground to object to Lewiss pursuit of
this defense. (We do not decide that issue.)
But Lewis can not use his failure to comply
with the notice requirement as a sword to
advance his own interests. In other words,
Lewis was not entitled to (1) pursue a
defense of diminished capacity based on
mental disease or defect and then, when the
State asked the trial judge to instruct the
jury on guilty but mentally ill, (2) object
that this verdict was improper because he had
failed to give proper notice of this defense.
In Lewiss reply brief to this
Court, he suggests that he was forced to
relinquish the defense that he announced
before trial (the Neurontin-intoxication
defense) and, instead, to pursue a defense of
diminished capacity based on mental disease
or defect. Lewis declares that he was forced
to adopt this new litigation strategy after
Judge Suddock ruled that the jury would be
given a guilty but mentally ill verdict, and
that the State would be allowed to call Dr.
Sperbeck to testify about his evaluation of
Lewis.
During the proceedings in the
superior court, Lewiss attorney said nothing
on this subject; he offered no explanation
for his change in litigation strategy. And
there is nothing in the record to support
Lewiss assertion that Judge Suddocks ruling
forced him to change his strategy. In
particular, Judge Suddocks rulings did
nothing to derail the Neurontin-intoxication
defense that Lewis announced before trial.
It is true that Dr. Sperbecks
report, and his later testimony, seriously
undercut Lewiss proposed Neurontin-
intoxication defense. As explained above,
Dr. Sperbeck (both in his report and in his
trial testimony) declared that it was
unlikely that Neurontin would have
disoriented Lewis or disrupted his thinking
because Neurontin is, in fact, prescribed for
schizo-affective disorder; it reduces a
patients manic symptoms and mood swings.
But the admissibility of Dr.
Sperbecks testimony on this issue did not
hinge on Judge Suddocks rulings. True, Judge
Suddock ruled that Lewis had no valid Fifth
Amendment objection to Dr. Sperbecks
examination of Lewis, or to Sperbecks later
testimony about the results of that
examination. But Dr. Sperbecks testimony
about Lewiss mental illnesses and the effects
of Neurontin would have been admissible even
if Judge Suddock had ruled in Lewiss favor on
these issues.
As explained above, there were two
primary aspects to Dr. Sperbecks testimony in
this case: his description of Lewiss
underlying mental illness, and his testimony
concerning the effects of Neurontin on
someone with that mental condition. Dr.
Sperbecks diagnosis of Lewis as suffering
from schizo-affective disorder and antisocial
personality disorder was not based on the
most recent psychiatric examination that
Lewis challenges in this appeal. Rather, it
was based on Dr. Sperbecks prior diagnoses
and treatment of Lewis during his many prior
commitments (both voluntary and involuntary)
to the Alaska Psychiatric Institute. And Dr.
Sperbecks testimony concerning the psycho
tropic effects of Neurontin was based on his
general expertise as a forensic psychologist
and on his knowledge of the therapeutic uses
of Neurontin not on anything that Lewis said
to him during their interview.
In other words, Dr. Sperbeck would
still have been able to offer this testimony
on these two subjects even if Judge Suddock
had sustained Lewiss Fifth Amendment
objection to having Dr. Sperbeck testify
about his most recent examination of Lewis.
For these reasons, the record does
not dispel the presumption that Lewiss
attorney freely chose his litigation
strategy. Rather, the record suggests that
the defense attorney, having seen
Dr. Sperbecks report in particular, the
portion of the report where Dr. Sperbeck
described the psychotropic effects of
Neurontin and the unlikelihood that Lewiss
erratic behavior could be attributed to his
ingestion of that drug voluntarily decided
to abandon the Neurontin-intoxication defense
and to advance a diminished capacity defense
instead.
And because Lewis presented a
defense of diminished capacity based on
mental disease or defect, Judge Suddock was
obliged under AS 12.47.040(a) to instruct the
jury on the potential verdict of guilty but
mentally ill.
Lewiss argument that the delay attributable to the
psychiatric evaluations ordered by Judge Card
should have been counted against the State for
purposes of Criminal Rule 45
Lewis contends that the delay attributable to
the psychiatric evaluations (April 25 through
August 24, 2005) should have been counted against
the State for purposes of Criminal Rule 45. But
Lewiss argument is premised on the assertion that
Judge Card acted illegally by ordering these
evaluations over the defense attorneys objection,
and in violation of Lewiss rights under the Fifth
Amendment.
As we have explained, (1) Lewiss attorney did
not object to the evaluations and (2) the
evaluations did not violate Lewiss rights under
the Fifth Amendment. Accordingly, we reject
Lewiss Rule 45 claim.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Estelle v. Smith, 451 U.S. 454, 469-471; 101 S.Ct. 1866,
1876-77; 68 L.Ed.2d 359 (1981).
2See AS 01.05.006; DeNuptiis v. Unocal Corp., 63 P.3d 272,
278 n. 15 (Alaska 2003); Ketchikan Retail Liquor
Dealers Assn v. Alcoholic Beverage Control Board, 602
P.2d 434, 438 (Alaska 1979).
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