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Lewis v. State (11/7/2008) ap-2191

Lewis v. State (11/7/2008) ap-2191

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             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


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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