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Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General (opening brief), and Michael C. Geraghty, Attorney General (reply brief), Juneau, for the Petitioner.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.
Before: MANNHEIMER, Chief Judge, BOLGER, Supreme Court Justice [*], and COATS, Senior Judge [**].
In 1982, the Alaska legislature extensively revised the law that defines how a person's mental disease or defect affects their responsibility for criminal conduct. As part of that revision, the legislature created a new type of verdict in criminal cases: the verdict of " guilty but mentally ill" .
The present case involves several potential constitutional problems relating to the " guilty but mentally ill" verdict. Because of these problems, the superior court concluded that it was unconstitutional to subject defendants to this verdict.
As we explain in this opinion, the legislature has changed the manner in which the " guilty but mentally ill" verdict is litigated in the trial court. We conclude that these new procedures apply to Clifton's case, and that these new procedures resolve many of the issues in this case.
There are yet other issues presented in Clifton's case— issues that we will explain and resolve during the course of our opinion. But our ultimate conclusion is that the new procedures relating to the " guilty but mentally ill" verdict are sufficient to answer the superior court's constitutional objections. We therefore remand this case to the superior court to allow the parties to litigate whether Clifton should be found " guilty but mentally ill" .
The present case arises from the State's prosecution of Karan V. Clifton for attempted murder, and the possibility that Clifton might be found " guilty but mentally ill" .
A verdict of " guilty but mentally ill" constitutes a finding that (1) the government has proved all the elements of the charged offense (including all required culpable mental states), plus an additional finding that (2) 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."  When a defendant is found " guilty but mentally ill" (instead of merely " guilty" ), the defendant must receive treatment for their mental illness while they serve their sentence, and the defendant is ineligible for parole or furlough release while they are receiving this mental health treatment.
As we are about to explain, there was substantial reason to believe that Clifton suffered from a mental disease or defect that substantially affected her cognition and behavior at the time of the attempted murder. Nevertheless, Clifton's defense attorney announced (before trial) that Clifton would not rely on a defense of insanity or on a defense
of diminished capacity based on mental disease or defect.
In response, the prosecutor suggested that the State might invoke the procedure codified in the pre-2012 version of AS 12.47.060. This statute applied to cases where a defendant suffering from a mental disease or defect was tried and convicted of a crime, but no evidence of the defendant's mental disease or defect was introduced at trial— so that the jury was never asked to consider whether the defendant should be found " guilty but mentally ill" (as opposed to simply " guilty" ).
The pre-2012 statute allowed for a post-verdict procedure in which the prosecutor— or the court, on its own motion— could raise the issue of whether the defendant should be found " guilty but mentally ill" . If the issue was raised, the trial judge was required to make a post-verdict finding as to whether the defendant was shown to be guilty but mentally ill, using a " preponderance of the evidence" standard of proof. If so, the judge then entered a verdict of " guilty but mentally ill", and this verdict had the same legal effect as if the issue had been litigated at the defendant's trial and the jury had returned a verdict of " guilty but mentally ill" .
In Clifton's case, the superior court ruled that this procedure was unconstitutional, and the State petitioned us to review the superior court's decision.
Underlying facts of Clifton's offenses
Clifton worked as a respiratory therapist at an Anchorage long-term care facility. She apparently believed that she was under covert government surveillance, and that there was a government conspiracy to sabotage her life and physically harm her. After Clifton told her supervisor and other co-workers about this conspiracy, her employer decided to require Clifton to undergo a psychiatric fitness examination.
On August 2, 2006, Clifton attended a meeting with her supervisor, Steven Mayer, and her employer's human resources manager, Kathleen Manion. During this meeting, Mayer informed Clifton that she would have to undergo a psychiatric evaluation before she could return to work. Clifton became agitated; she declared that she would not submit to the examination, and she accused Mayer and Manion of trying to destroy her life and her livelihood.
A few moments later, Clifton drew a semi-automatic pistol from her purse, shoved the barrel against Mayer's ribs, and pulled the trigger. Fortunately, Clifton had neglected to " rack" the pistol's slide (to chamber a round), so no bullet fired.
Mayer was able to tackle Clifton and take the pistol away from her. Manion ran for help, and several other employees came to assist Mayer in restraining Clifton until the police arrived.
When the police later examined Clifton's pistol, they found that it was loaded with five rounds of ammunition. The police found another fully loaded magazine for the pistol in Clifton's purse, as well as another six loose rounds of ammunition.
Based on this incident, Clifton was indicted for attempted murder (attempting to kill Mayer). Clifton was also charged with third-degree assault for placing Manion in fear of imminent serious physical injury. Following a trial in the superior court, a jury found Clifton guilty of these crimes.
However, as we are about to explain in the next section of this opinion, Clifton has not yet been sentenced for these offenses.
Underlying facts pertaining to the question of whether, consistent with Clifton's constitutional rights, Clifton's trial judge could make a post-trial determination as to whether she should be found " guilty but mentally ill" rather than simply " guilty "
(a) How the issue arose
About one year after Clifton was indicted, while she was still awaiting trial, Clifton's defense attorney asked the superior court to hold a hearing to determine if Clifton was competent to stand trial. The court sent Clifton to be evaluated at the Alaska Psychiatric Institute, locally known as " API" .
Clifton was initially evaluated by psychologist Lois Michaud. Michaud concluded that Clifton was not competent. The State then asked for a second opinion, so the court
ordered another evaluation, this time by psychiatrist David Sperbeck.
Both Michaud and Sperbeck concluded that Clifton suffered from a " delusional disorder" of the " persecutory type" . In August 2008, the superior court concluded that Clifton was not competent to stand trial, and the court ordered that Clifton receive treatment at API in the hope that she would recover sufficiently to stand trial.
During the ensuing months, Clifton was re-evaluated by Michaud and Sperbeck, and also by another clinician, Fred Wise. In late January 2009, the superior court concluded that Clifton was competent to stand trial, and Clifton's trial was scheduled for later that year.
In advance of trial, the State raised the issue of whether Clifton would defend the charges on the basis of mental disease or defect. Clifton's attorney declared that Clifton did not intend to rely on either the defense of insanity or the defense of diminished capacity ( i.e., lack of culpable mental state because of mental disease or defect). In other words, Clifton's defense attorney purposely chose not to introduce any evidence of her mental illness, even though this evidence was arguably relevant to assessing Clifton's mental state at the time of the crime.
The prosecutor indicated that even if Clifton chose not to raise a defense based on mental illness at trial, if the jury found her guilty at trial, the State might invoke the procedure codified in AS 12.47.060 ( i.e., the pre-2012 version of that statute) and ask the trial judge to make a post-trial finding that Clifton was " guilty but mentally ill" .
(b) The definition and consequences of a " guilty but mentally ill" verdict under Alaska law
As this Court explained in Lewis v. State, 195 P.3d 622, 637 (Alaska App.2008), a verdict of " guilty but mentally ill" constitutes a finding (1) that the government has proved all the elements of the charged offense (including all required culpable mental states), plus an additional finding (2) 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." See AS 12.47.030(a).
The consequences of a " guilty but mentally ill" verdict are spelled out in AS 12.47.050. Subsection (a) of this statute declares that when a defendant is found guilty but mentally ill, the defendant receives a normal sentence for the crime— but while the defendant is serving this sentence, the Department of Corrections is required to provide mental health treatment to the defendant as long as the defendant continues to suffer from a mental disease or defect that causes the defendant to be " dangerous to the public peace or safety" . See AS 12.47.050(b).
While the defendant is receiving this mental health treatment, the defendant is not eligible for parole and can not be released on furlough except to a secure setting. See AS 12.47.050(d).
Finally, under subsection (e) of the statute, if the defendant is still receiving this mental health treatment 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 required to file a petition for the defendant's involuntary civil commitment under AS 47.30.700.
In sum, a verdict of " guilty but mentally ill" means that a defendant becomes entitled to mental health treatment during the service of their sentence, but it also means that the defendant is ineligible for parole and furlough release as long as this mental health treatment is required, and it also means that the defendant may face a petition for involuntary commitment at the end of their sentence.
Whenever a defendant raises a defense of insanity or diminished capacity (based on mental disease or defect) at trial, " guilty but mentally ill" is one of the potential verdicts that the jury must consider. See AS 12.47.040(a).
But the post-trial procedure at issue in Clifton's case— a procedure whereby the trial judge could make a post-trial finding that
Clifton was guilty but mentally ill— was expressly authorized by the pre-2012 version of AS 12.47.060.
This former version of AS 12.47.060(a) declared that, in cases where a criminal defendant did not present evidence of mental disease or defect to support a defense of insanity or a defense of diminished capacity, and if the defendant was convicted, " the defendant, the prosecuting attorney, or the court on its own motion [could] raise the issue of whether the defendant [was] guilty but mentally ill."
If the court or either party raised the issue of whether the defendant should be found guilty but mentally ill, the court was required to hold a hearing on this issue (either before, or at, the defendant's sentencing hearing). Based on the evidence presented at this hearing, and on any other relevant evidence presented at the defendant's trial, the court was to determine whether the defendant had been shown to be guilty but mentally ill, using a " preponderance of the evidence" standard of proof. See the pre 2012 version of AS 12.47.060(b)-(c).
If the court concluded that the defendant was guilty but mentally ill, the court's decision had the same legal effect as if the jury had returned a " guilty but mentally ill" verdict at trial: the defendant became entitled to receive mental health treatment, and the defendant was subject to the same restrictions on parole and furlough release.
(c) The litigation leading to the present appeal, and a description of the superior court's decision
Two months after the jury found Clifton guilty, and while Clifton was awaiting sentencing, the State filed a motion (pursuant to the pre-2012 version of AS 12.47.060) asking the superior court to hold a hearing to determine whether Clifton should be found " guilty but mentally ill" .
In response, Clifton's attorney filed a pleading attacking the constitutionality of this post-trial procedure on several grounds.
The superior court held a hearing to receive evidence on the issue of Clifton's mental health, and then the court allowed the parties to ...