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NOTICE
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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections @ appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CYNTHIA LORD, )
) Court of Appeals No. A-10117
Appellant, ) Trial Court No. 3AN-04-2620 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2333 - November 4, 2011
)
Appeal from the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Josie Garton, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
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Cynthia Lord was charged with three counts of murder in the first degree1
for killing her three sons, Christopher, Michael, and Joseph. Superior Court Judge Philip
R. Volland conducted a non-jury trial. Lord asserted that she was not guilty by reason
of insanity.2 Judge Volland instead found that Lord was guilty but mentally ill.3
Lord asserts that Judge Volland erred in reaching this verdict. She contends
that she established that she was not guilty by reason of insanity by showing that she did
not "appreciate the nature and quality" of her conduct. She also attacks Judge Volland's
interpretation of the Alaska statutes defining the defense of insanity, and argues that
those statutes are unconstitutional.
In this decision we uphold Judge Volland's verdict that Lord was guilty but
mentally ill. We also uphold the constitutionality of the Alaska statutes that define the
defense of insanity.
Alaska's insanity defense
Before 1972, Alaska applied a version of the M'Naghten test.4 Under this
test, a defendant could be found not guilty by reason of insanity if she either did not
appreciate the nature and quality of her conduct or if she did not understand the
wrongfulness of her conduct.5 In 1972, the Alaska Legislature added the "substantial
1 AS 11.41.100.
2 See AS 12.47.010 (stating standard for affirmative defense of insanity).
3 See AS 12.47.030 (stating standard for guilty but mentally ill).
4 See Schade v. State, 512 P.2d 907, 910-11 (Alaska 1973); Chase v. State, 369
P.2d 997, 1000 (Alaska 1962).
5 Hart v. State, 702 P.2d 651, 656 (Alaska App. 1985) (quoting Wayne R.
(continued...)
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capacity test," which allowed the defense of insanity when the defendant lacked the
substantial capacity to conform her conduct to the requirements of the law.6
In 1982, the legislature amended AS 12.47, greatly limiting the defense of
insanity.7 There are now two ways for a defendant to gain an acquittal as a result of
insanity. Under AS 12.47.010(a), the defendant can establish insanity as an affirmative
defense if the defendant "was unable, as a result of mental disease or defect, to appreciate
the nature and quality of [her] conduct." In addition, AS 12.47.020 provides a
"diminished capacity" defense. Under that statute, the defendant must be found not
guilty by reason of insanity if, because of a mental disease or defect, there is a reasonable
doubt that the defendant had the culpable mental state necessary to commit the crime.8
The greatest change in the statutes governing the insanity defense was the
creation of the verdict of "guilty but mentally ill." Under AS 12.47.030, a defendant who
engages in criminal conduct is guilty but mentally ill if, because of a mental disease or
defect, the defendant lacked "the substantial capacity either to appreciate the
wrongfulness of that conduct or to conform that conduct to the requirements of the law."9
5 (...continued)
LaFave & Austin W. Scott Jr., Criminal Law § 37, at 275 (1972)).
6 Schade, 512 P.2d at 911.
7 Hart, 702 P.2d at 654.
8 AS 12.47.020(b).
9 AS 12.47.030(a).
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Under the law as it existed prior to the 1982 amendments, a defendant would be found
not guilty by reason of insanity under this standard.10
A defendant found guilty but mentally ill is not relieved of criminal
responsibility. Alaska Statute 12.47.050(a) directs the court to sentence a defendant
found guilty but mentally ill "as provided by law." In other words, the statute directs the
sentencing judge to impose a sentence based on the normal Chaney sentencing criteria.
The statute directs the Department of Corrections to provide mental health treatment to
the defendant until the defendant "no longer suffers from a mental disease or defect that
causes the defendant to be dangerous to the public peace or safety."11 During treatment,
the defendant may not be released on furlough or on parole.12 At the successful
conclusion of treatment, the defendant must serve the remainder of her sentence.13
This disposition for persons found guilty but mentally ill differs from the
disposition for persons found not guilty by reason of insanity. Defendants found not
guilty by reason of insanity may be released immediately if they prove to the court by
clear and convincing evidence that they are "not presently suffering from any mental
illness that causes [them] to be dangerous to the public."14 Until that time, they are
committed to the Commissioner of Health and Social Services for treatment for a period
not to exceed the maximum term of imprisonment for the crime for which they were
10 See Schade, 512 P.2d at 910-11.
11 AS 12.47.050(b).
12 AS 12.47.050(d).
13 AS 12.47.050(c).
14 AS 12.47.090(c).
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found not guilty by reason of insanity.15 They are entitled to yearly hearings where they
have the opportunity to establish that they are "not presently suffering from any mental
illness that causes [them] to be dangerous to the public."16 If they are still in custody at
the end of the maximum term of imprisonment for the crime for which they were found
not guilty by reason of insanity, the State can file a petition for civil commitment.17
Factual and procedural background
Judge Volland issued a written verdict in this case. The following facts are
from that verdict:
Cynthia Lord is gravely disabled by mental illness.
She suffers from schizoaffective disorder, depressive type.
This disorder is characterized by delusions, hallucinations,
disordered thought process and disturbed emotional
experience. Ms. Lord has been in and out of psychiatric
hospitals since age 17, and had been receiving mental
health services in Anchorage regularly since 1994. Her
condition is not likely to improve although medication may
reduce her hallucinations. Since at least 2003, Ms. Lord
has had delusions about a force she calls "Evil," delusions
about being watched by police and the CIA, and about
Satanic labels on food. Although suffering from delusions
part of the time, Ms. Lord has been able to secure
employment in the past, attend school at Wayland Baptist
University, take care of her children, and undertake daily
15 AS 12.47.090(c)-(d).
16 AS 12.47.090(e).
17 AS 47.30.700.
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life care responsibilities such as shopping, cooking,
housecleaning, etc.
On March 16, 2004, the Anchorage Police
Department received a 911 call from Ms. Lord reporting
that she had "killed my three boys." APD had had
experiences with Ms. Lord before, and the police response
was initially skeptical about her report. However, when
officers entered her home, they found the bodies of Ms.
Lord's three children: Joseph, age 16, Michael, age 18,
and Christopher, age 19. Each boy had been killed by a
single shot to the head.
Ms. Lord gave a voluntary statement to police that
day. She told APD Detectives Mark Huelskoetter and Glen
Klinkhart that she had purchased a gun in October 2003,
when she made the decision to kill her sons. Ms. Lord said
that on the day before [she killed her sons] she mixed some
of her medication with Crystal Light so that her boys
would drink it and get sleepy. She set her alarm for early
in the morning and woke at approximately 2:30 a.m. It
took her about an hour to work up the courage to kill
Michael, her eighteen year old, during which time she
drank alcohol. She first worried that the gunshot would
wake the other boys or her neighbors. She then covered
Michael's body with a blanket and waited for her other
sons to wake up.
Ms. Lord told police that when Joseph, the youngest,
woke up she told him that Michael was sick and would not
be going to school. Joseph then left to attend classes at
East High. When Christopher woke up around 10:00 a.m.,
she waited until he was playing video games in front of the
entertainment center. She then shot him in the head, pulled
his body into another room, and covered it with clothes so
that Joseph would not see it when he came home.
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Christopher had asked about Michael, but Ms. Lord told
him that Michael was sick as she had told Joseph. She then
locked the door so "that when Joey came home ... I would
be ready with the gun." When Joseph returned from school
at around 2:30 p.m. and walked in the door, Ms. Lord
waited until Joseph's face was turned away from her and
shot him in the back of the head. She then contemplated
killing herself for a couple of hours and eventually called
the police around 4:30 p.m. Ms. Lord told detectives she
expected punishment for what she did.18
Several psychologists testified at the trial. Judge Volland summarized their
testimony:
Dr. [David] Sperbeck spent approximately eleven hours
interviewing Ms. Lord, exclusive of psychological testing.
Dr. Sperbeck testified that Ms. Lord had good recall of
events and described the shootings to him in greater detail
than to police. He testified that Ms. Lord told him that she
couldn't tell what was real or not and that she didn't want her
children to grow up in a world of deception and lies. Ms.
Lord told Dr. Sperbeck that she knew the boys were her
children but that they acted like robots. Dr. Sperbeck
testified that, despite the fact that Ms. Lord's actions were
prompted by her hallucinations, she clearly knew that she
was killing her children.
He testified that his opinion was that "Lord understood the nature and
quality of her conduct" in that she "under[stood] the consequences of [her] act[s]." She
"understood that placing a gun to the head of her children would kill them." Dr.
Sperbeck was confident from Lord's repeated statements to him that she knew she was
18 Footnotes omitted.
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killing her boys. Judge Volland found that Dr. Lawrence Maile testified similarly to Dr.
Sperbeck:
Based on Ms. Lord's systematic planning to kill her sons, her
ability to identify her sons, distinguish them as human beings,
and describe the consequences of her direct actions on her
sons, Dr. Maile expressed the professional opinion that there
[were] no impediments to Ms. Lord being found criminally
responsible for the charges she faces.
Dr. Bruce Gage testified for the defense. Judge Volland summarized his
testimony as follows:
Dr. Gage concluded that Ms. Lord did "understand that she
was killing her boys so, to that extent, she understood the
nature of her act." However, Dr. Gage was of the opinion
that this did not take into account Ms. Lord's reason for
killing her children, i.e., to save them. Dr. Gage was of the
opinion that if this motivation and context for her act is
considered, Ms. Lord did not understand the nature and
quality of her conduct. Dr. Gage opined that if Ms. Lord
believed she was saving her children, she did not appreciate
the quality of her act because she did not appreciate its true
consequences.
Cynthia Lord testified at the trial. Judge Volland summarized her testimony
as follows:
During her testimony, [Ms. Lord] spoke with the same flat
affect that was characteristic of her interview with police,
and apparently characteristic of her discussions with
mental health professionals for the last decade. She
described her delusions at length. Ms. Lord retold the
killing of her children with the same detail she gave to
police. On cross-examination, Ms. Lord admitted that she
knew she was pointing a gun at Michael and that when she
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----------------------- Page 9-----------------------
shot the gun it would kill him. She stated that had her
daughter been in the home at the time, she would have
killed her also "because she's one of the siblings." Ms.
Lord testified that she knew Michael was dead after she
shot him. She also admitted that after killing Joseph, she
thought: "Oh my god, I killed my son." Regarding
Christopher, she admitted on cross-examination that "I got
the gun and I shot him in the head" and that she had told
[another examining doctor] that she shot him in the back of
the head because she did not want the last thing he saw to
be his mother shooting him. As to Joseph, she said "I shot
him." She acknowledged that when she shot her boys, she
intended to pull the trigger and knew that a bullet would go
into their heads and they would die. She admitted they
were her boys and that they were human. She said she
thought about killing herself "because she couldn't live
without them."19
In reaching his verdict, Judge Volland first addressed whether Lord had the
mens rea for murder in the first degree. As already explained, under AS 12.47.020(b) a
defendant is not guilty by reason of insanity if, "as a result of mental disease or defect,
there is a reasonable doubt as to the existence of a culpable mental state that is an
element of the crime."
To establish the mens rea for murder in the first degree, the State had to
prove beyond a reasonable doubt that Lord intended to cause the death of Michael,
Joseph, and Christopher. Alaska law states that a person acts intentionally "when the
person's conscious objective is to cause that result; when intentionally causing a
19 Footnotes omitted.
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particular result is an element of an offense, that intent need not be the person's only
objective."20
Judge Volland found that "the evidence is overwhelming that Ms. Lord
engaged in a deliberate, conscious, and detailed plan to kill her three sons." He then set
out Lord's meticulous planning that preceded the murders, and noted the opinions of the
psychologists who testified at trial that Lord intended to kill her sons:
According to Dr. Sperbeck and Dr. Maile, Ms. Lord knew her
sons were her sons at the time of the shootings. Even Dr.
Gage stated in his written report that Lord knew she was
killing her sons. Dr. Gage also acknowledged that Ms. Lord
had to have the intent to kill her sons to also have the intent
to save them.
After finding that Lord had the mens rea to commit murder in the first
degree, Judge Volland examined whether Lord had established the affirmative defense
of insanity. Under AS 12.47.010(a), a defendant is not guilty by reason of insanity if the
defendant establishes by a preponderance of the evidence that, when engaged in the
criminal conduct, the defendant was "unable, as a result of mental disease or defect, to
appreciate the nature and quality of that conduct."
Judge Volland first discussed State v. Patterson,21 in which the Alaska
Supreme Court examined the meaning of AS 12.47.010(a) - in particular, the meaning
of "unable, as a result of mental disease or defect, to appreciate the nature and quality of
that conduct."22 The court observed that the legislative history of the statute contained
two examples of defendants who could establish that they were unable to appreciate the
20 AS 11.81.900(a)(1).
21 740 P.2d 944 (Alaska 1987).
22 Id. at 946-49.
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nature and quality of their acts under this standard: a defendant who is "unable to realize
that he is shooting someone with a gun when he pulls the trigger on what he believes to
be a water pistol, or a murder defendant who believes he is attacking the ghost of [his]
mother rather than a living human being."23 According to the House Judiciary
Committee report on the legislation, the defense of insanity would not apply "to a
defendant who contends that he was instructed to kill by a hallucination, since the
defendant would still realize the nature and quality of his act, even though he thought it
might be justified by a supernatural being."24
Turning to the facts of this case, Judge Volland concluded:
[T]o appreciate the nature and quality of murder means that
the defendant must have understood the act that he or she
engages in will cause the death of another person. Thus, for
Ms. Lord to prevail on the defense of insanity under AS
12.47.010(a), she must show, by a preponderance of the
evidence, that she was unable, as a result of her mental
illness, to recognize that pointing a gun at the head of her
sons and pulling the trigger, knowing they were her sons,
would kill them.
The court rejects Dr. Gage's reasoning that
understanding the "quality" of an act requires inquiry into the
context of the act and the defendant's motivation. In the
court's view this invites an inquiry into wrongfulness. This
is especially true in Ms. Lord's case. Ms. Lord's motivation
to save her children is precisely why she did not consider the
act to be wrongful. Even Dr. Gage admitted that in Ms.
Lord's case, her motivation and belief that her act was not
wrong "correspond."
23 Id. at 946 n.8.
24 Id.
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Judge Volland summarized why he concluded that Lord did not establish
that she failed to appreciate the nature and quality of her conduct:
There is much evidence that Ms. Lord appreciated that she
was killing her children. She stated the same to Dr. Sperbeck
and Dr. Maile and admitted in her own testimony that after
killing Michael, she recognized that she had just shot one of
her children. Ms. Lord had to work up the courage to shoot
Michael. She covered her children after she shot them so she
would not see them. She shot her sons in the back of the
head or while they were sleeping so they would not see their
mother shoot them. She shot each boy in a way that would
cause instant death and the least pain. [The court finds that
these actions are not consistent with a mother shooting
[children] she believes are non-human clones or robots. The
evidence at trial that Ms. Lord did not believe her boys were
her boys was equivocal at best. The court does not find that
Ms. Lord's statement to Dr. Sperbeck that "I was 80% sure
I'd never see them again on this earth" evidenced that she did
not believe she was killing them. Ms. Lord's admissions on
cross-examination convinced the court that she knew she was
killing her boys.] Because of this, the court concludes that
the defense has not established by a preponderance of the
evidence that Ms. Lord failed to appreciate the nature and
quality of her conduct as a result of her mental disease.25
Judge Volland concluded, by a preponderance of the evidence, that Lord
was guilty but mentally ill. He concluded that the "evidence is undisputed that Ms. Lord
suffers from a severe, disabling mental illness," and that she "killed her children to save
them from 'Evil' and to send them to heaven. She believed that she was doing the right
25 Footnote incorporated as bracketed text.
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thing and would do it over again; she testified to this belief at trial. The court finds her
belief genuine and firmly held."
Why we uphold Judge Volland's verdict that Lord was guilty but
mentally ill
Lord argues that Judge Volland interpreted the Alaska statutes setting out
the defense of insanity too narrowly. She argues that, in arriving at his verdict, Judge
Volland only applied AS 12.47.020, the diminished capacity statute, which provides that
a defendant is not guilty by reason of insanity if, "as a result of mental disease or defect,
there is a reasonable doubt as to the existence of a culpable mental state that is an
element of the crime." Lord argues that the defense of insanity is broader, because
AS 12.47.010(a) also establishes an affirmative defense of not guilty by reason of
insanity if the defendant engaged in criminal conduct but "was unable, as a result of
mental disease or defect, to appreciate the nature and quality of that conduct."
In rejecting Lord's insanity defense, Judge Volland found that, even though
the "evidence [was] undisputed that Ms. Lord suffers from a severe, disabling mental
illness," Lord formed the culpable mental state to commit murder in the first degree. He
found that "the evidence is overwhelming that Ms. Lord engaged in a deliberate,
conscious, and detailed plan to kill her three sons."
Lord agrees that this finding was sufficient for Judge Volland to reject a
"diminished capacity" defense under AS 12.47.020. But she asserts that Judge Volland
erred by using these same findings to reject her affirmative defense of not guilty by
reason of insanity under AS 12.47.010. Lord argues that if the legislature intended to
restrict the insanity defense to only an inquiry about whether a defendant could form the
mens rea to commit the crime, then AS 12.47.010 would be superfluous. She argues that
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the legislative history of the statutes governing the insanity defense show no intent to
limit the defense in this way.
Lord argues that, applying the proper test in AS 12.47.010(a), the evidence
at trial established the affirmative defense of insanity because it showed that she had no
understanding of the meaning of death, and therefore did not appreciate the nature and
quality of her acts. But Judge Volland rejected the factual basis for this argument. He
found that Lord knew she was killing her boys and appreciated the nature of death based
on her testimony that she "was 80% sure I would never see them again on this earth."
In explaining his verdict, Judge Volland carefully considered the testimony
of the psychologists as well as the evidence of Lord's hallucinations and delusions. He
concluded that, in spite of these mental defects, Lord understood the nature and quality
of her acts. He set out her meticulous reasoning and the steps she took as she planned
and carried out the killing of her sons. He concluded that she understood what she was
doing and understood the concept of death - she knew with substantial certainty that,
by killing her sons, she was removing them from this earth and that she would never see
them alive again. We conclude that there is no merit to Lord's claim that Judge Volland
failed to make the findings necessary to reject her affirmative defense of insanity.
To find that Lord was guilty but mentally ill, Judge Volland had to find that
she lacked "the substantial capacity either to appreciate the wrongfulness of [her]
conduct or to conform that conduct to the requirements of the law."26 Judge Volland
concluded that, because of her mental illness, Lord sincerely believed she was doing the
right thing by killing her sons "to save them from 'Evil' and send them to heaven." He
found that, because of her mental disease or defect, she lacked the substantial capacity
26 AS 12.47.030(a).
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to appreciate the wrongfulness of her conduct. Judge Volland's findings are supported
by the record, and they support his verdict that Lord was guilty but mentally ill.
Why we reject Lord's constitutional attacks
Lord's initial constitutional attack is based on her argument that Judge
Volland misinterpreted AS 12.47.010 to provide a defense of not guilty by reason of
insanity than is no broader than the "diminished capacity" defense in AS 12.47.020. She
argues that the judge's narrow interpretation, in conjunction with the more severe
sentencing provisions that follow a verdict of guilty but mentally ill, violated her federal
and state guarantees to due process and to be free from cruel and unusual punishment.
But as already explained, Judge Volland carefully considered whether Lord appreciated
the nature and quality of her conduct as required by AS 12.47.010(a), and concluded that
she did. We have upheld those findings.
Lord raises a more fundamental attack on the statutes setting out the defense
of not guilty by reason of insanity. Lord argues that the statutes violate both the United
States and Alaska constitutions by imposing criminal responsibility in cases in which the
defendant does not have the capacity to appreciate the wrongfulness of her conduct.
If the State proves beyond a reasonable doubt that the defendant possessed
the mens rea required by a criminal statute, the United States Constitution does not
require any further inquiry into the defendant's mental state to support a conviction.27
27 See, e.g., Powell v. Texas, 392 U.S. 514, 535-36 (1968) (refusing to define an
insanity defense in constitutional terms and stating that "The doctrines of actus reus, mens
rea, insanity, mistake, justification, and duress have historically provided the tools for a
constantly shifting adjustment of the tension between the evolving aims of the criminal
law and changing religious, moral, philosophical, and medical views of the nature of man.
This process of adjustment has always been thought to be the province of the States.");
(continued...)
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Lord argues that we should interpret the Alaska Constitution more broadly than the
Supreme Court has interpreted the federal constitution.28 But we have previously
rejected constitutional attacks on the Alaska statutes that set out the defense of not guilty
by reason of insanity. In Hart v. State,29 the defendant argued that holding a person who
lacked the capacity to conform her conduct to the requirements of the law criminally
responsible for that conduct violated the due process, cruel and unusual punishment, and
equal protection clauses of the United States and Alaska constitutions.30 In rejecting
those constitutional challenges, we observed that the Alaska statutes required the State
"to prove beyond a reasonable doubt that the defendant engaged in conscious voluntary
acts ... and possessed the requisite mens rea for the offense."31 We ultimately concluded
that "the State may constitutionally eliminate a separate insanity defense based on
'irresistible impulse' or inability to conform one's conduct to the requirements of the
27 (...continued)
see also Clark v. Arizona, 548 U.S. 735, 752-53 (2006); Walker v. Endell, 850 F.2d 470,
473 (9th Cir. 1987) (rejecting the argument that the Due Process Clause of the United
States Constitution requires that "criminal intent" be an element of kidnapping and
robbery); Davis v. McCotter, 766 F.2d 203, 204 (5th Cir. 1985) (rejecting the argument
that "voluntariness" is a constitutionally required element of robbery); United States v.
Mitchell, 725 F.2d 832, 835 (2d Cir. 1983) (refusing to "constitutionaliz[e] a particular
formula for disproving the defense of duress").
28 Myers v. Alaska Psychiatric Institute, 138 P.3d 238, 245 (Alaska 2006) (citing
Anchorage Police Dep't Employees Ass'n v. Anchorage , 24 P.3d 547, 550 (Alaska 2001)
& Breese v. Smith, 501 P.2d 159, 170 (Alaska 1972)) (recognizing that the Alaska
Constitution's guarantees of privacy and individual liberty are "broader in scope" than
those in the federal constitution).
29 702 P.2d 651 (Alaska App. 1985).
30 Id. at 653.
31 Id. at 655-56 (footnotes omitted).
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law."32 We stated that the "determination of the point at which a person's mental
condition justifies exculpation is ... an ethical question for legislators and juries, not
courts."33 We also upheld the statutes establishing the verdict of guilty but mentally ill
against constitutional attack in Barrett v. State.34 We adhere to those decisions.
Judge Volland required the State to prove beyond a reasonable
doubt that Lord possessed the mens rea for first-degree murder
Lord argues that Judge Volland impermissibly shifted the burden of proving
the mens rea of first-degree murder - i.e., the intent to cause death - on to her. But the
record clearly shows that in reaching his verdict, Judge Volland carefully examined the
evidence and concluded that the State had proved beyond a reasonable doubt that Lord
intended to cause the death of Michael, Joseph, and Christopher Lord. The record is
therefore clear that Judge Volland correctly applied the standard of proof.
Conclusion
The judgment of the superior court is AFFIRMED.
32 Id. at 659 (footnote omitted).
33 Id. (citations omitted); see generally Wayne R. LaFave, Substantive Criminal
Law, § 7.1(d) at 521-23 (2d ed. 2003) (collecting arguments in favor of and opposed to
abolishing the insanity defense).
34 772 P.2d 559, 573 (Alaska App. 1989).
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