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Palmer v. State (7/1/2016) ap-2507

Palmer v. State (7/1/2016) ap-2507

                                                     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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



WILLIAM E. PALMER,  

                                                                    Court of Appeals No. A-10972  

                                    Appellant,                    Trial Court No. 3PA-09-2277 CR  



                           v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                          No. 2507 - July 1, 2016  



                                    

                  Appeal from the Superior Court, Third Judicial District, Palmer,  

                  Vanessa White, Judge.  



                  Appearances: ZacharyK. Brown, under contract with the Public  

                                                 

                  Defender  Agency,  and  Quinlan  Steiner,  Public  Defender,  

                                                                           

                  Anchorage, for the Appellant.   Eric A. Ringsmuth, Assistant  

                                                                       

                  Attorney General, Office of Special Prosecutions and Appeals,  

                                                       

                  Anchorage, and Michael C. Geraghty, AttorneyGeneral, Juneau,  

                                                                                          

                  for the Appellee.  



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,  

                                                        

                  Senior Judge. *  



                  Judge ALLARD, writing for the Court.  

                  Judge MANNHEIMER, concurring.  

                  Judge COATS, concurring.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                                         William E. Palmer was convicted of seven counts of third-degree assault   



after an armed stand-off with state troopers that occurred at his home near Sutton.                                                                                                                                                                                           



 Shortly after Palmer was taken into custody, it was discovered that he was suffering from                                                                                                                                                                   



a ruptured brain aneurysm.                                                           Palmer received emergency surgery to repair the aneurysm                                                                                                                                 



and was later found legally incompetent to stand trial.  A few weeks later, Palmer had  



recovered sufficiently from both the ruptured aneurysm and the surgery to be found                                                                                                                                                                      



legally competent, although he continued to have no memory of the incident that led to                                                                                                                                                                               



his arrest.   



                                         Prior to trial, the State filed a motion in limine requesting that the superior                                                                                                                          



court preclude any mention of Palmer's brain aneurysm at trial unless Palmer complied                                                                                                                                                          



with the procedural requirements that apply to defendants raising an insanity defense or                                                                                                                                                                             



                                                                                                                                                                                                                                                  1  

raising a claim of diminished capacity based on "mental disease or defect."                                                                                                                                                                           These  



                                                                                                                                                                                                                               

requirements  include  written  pretrial  notice  and  submission  to  two  court-ordered  



                                                                                                                                     2  

                                                                                         

psychiatric or psychological examinations. 



                                                                                                                                                                                                                                                     

                                         In response, Palmer's attorney acknowledged that he intended to present  



                                                                                                                                                                                                                                               

evidence that Palmer was suffering from a brain aneurysm at the time of his stand-off  



                                                                                                                                                                                                                                                   

with the troopers.  But the defense attorney asserted that he was not raising a mental  



                                                                                                                                                                                                                                            

disease or defect defense.  Instead, he intended to offer evidence of Palmer's temporary  



                                                                                                                                                                                                           3  

                                                                                                                                                                                                                                                 

and acute physical ailment to support an "involuntariness" defense.                                                                                                                                             That is, he intended  



                                                                                                                                                                                                                                                         

to argue that there was reasonable doubt as to whether Palmer's actions during the stand- 



                                                                                                                                                                                                                                                           

off with the troopers qualified as "voluntary," given the effects of his ruptured brain  



aneurysm.  



           1         See AS 12.47.010(a); AS 12.47.020(a).  



          2          See AS 12.47.010(a); AS 12.47.020(a); AS 12.47.070(a).  



           3         See AS 11.81.600(a).  



                                                                                                                               - 2 -                                                                                                                       2507
  


----------------------- Page 3-----------------------

                    The defense attorney  argued that because he was not raising a mental  

                                                                                                                          



disease or defect mens rea defense, AS 12.47.070(a) did not apply and nothing useful  

                                                                                                                           



would  be  gained  by  court-ordered  psychiatric  examinations.                                   Instead,  the  attorney  

                                                                                                                        



asserted that he had other medical experts that he intended to call at trial to support his  

                                                                                                                                



involuntariness defense.  

                                        



                    The superior court ultimately ruled - without hearing Palmer's proposed  

                                                                                                                       



expert testimony - that Palmer "was, in fact, attempting to present the jury with a  

                                                                                                                                   



defense based upon mental defect."   The court therefore concluded that Palmer was  

                                                                                                                  



required to submit to two court-ordered psychiatric examinations as a precondition to  

                                                                                                                                  



raising his defense.  The court warned Palmer's attorney that if Palmer did not submit  

                                                            



to these psychiatric examinations, the court would grant the State's motion in limine and  

                                                                                                                                



preclude him from introducing any evidence of the brain aneurysm at trial.  

                                                                                                            



                    Rather than undergo the psychiatric examinations ordered by the court,  

                                                                                                                            



Palmer's attorney withdrew the proposed involuntariness defense.  The superior court  

                                                                 



then granted the State's motion in limine and the case went to trial.  

                                                                                                



                    At trial, the jury did not hear any evidence of Palmer's ruptured brain  

                                                                                                                            



aneurysm, and the State was permitted to present evidence that the troopers thought  

                                                                                                                         



Palmer's slurred speech and unsteady gait were symptoms of intoxication.  

                                                                                               



                    The jury convicted Palmer of seven counts of third-degree assault.   At  

                                                                                                                                



sentencing, the court found that Palmer had been suffering froma "mental defect" during  

                                                                                                                           



the incident (that is, a "mental defect" caused by the rupturing of his brain aneurysm),  

                                                                                  



and that Palmer was "not himself" at the time of the incident.  

                                                                                 



                    Palmer now appeals, arguing that the trial court erred when it ordered him  

                                                                                                                               



to submit to psychiatric examinations as a precondition to asserting an involuntariness  

                                                                                                             



defense based on his ruptured brain aneurysm.  Palmer contends that the trial court's  

                                                                                                                          



                                                              -  3 -                                                        2507
  


----------------------- Page 4-----------------------

ruling unfairly forced him to choose between his constitutional right to remain silent and  

                                                                                                                               



his due process right to present his defense.  

                                                       



                    For the reasons explained in this opinion, we conclude that the court acted  

                                                                                                                             



prematurely when it ordered Palmer to waive his constitutional rights and submit to  

                                                                                                                                 



unwanted psychiatric examinations before the court had a clear understanding of the  

                                                                                                                                



legal and factual contours of Palmer's proposed involuntariness defense.  Accordingly,  

                                                                                                                 



we remand this case to the superior court to give Palmer an opportunity to make a full  

                                                                                                                    



offer of proof describing his proposed involuntary defense and the evidence he intends  

                                                                                                                          



to offer in support of it, including any (non-psychiatric) expert evidence. If Palmer's  

                                                                                                                       



offer of proof is sufficient to raise a legitimate claim of involuntariness, the trial court  

                                                                                                                             



shall then permit reconsideration of its original ruling and determine whether Palmer is  

                                                                                                                                  



otherwise entitled to a new trial in which evidence of his ruptured brain aneurysm is  

                                                                                                                                  



provided to the jury.  

                                 



                    In a separate claim of error on appeal, Palmer argues that the superior court  

                                                                                                                             



erred by refusing to instruct the jury on the lesser offense of second-degree harassment.  

                                                                                                                   



We find no merit to this claim, and we therefore affirm the superior court's decision on  

                                                                                                                                 



this issue.  

        



           Underlying facts and proceedings  

                                            



                    In 2009, William E. Palmer and his girlfriend Kay Anderson were living  

                                                                             



outside of Sutton.   Palmer was 62 years old at the time.   Around the beginning of  

                                                                                                                                 



September, Palmer began to act strangely:  he seemed disoriented, he was unable to  

                                                                                                                                  



maintain his balance, and his behavior became erratic. Because of this strange behavior,  

                                                                                                                       



a neighbor tried to hide Palmer's guns.  

                                                    



                    On September 5, 2009, when Palmer was unable to find some of his guns,  

                                                                                                                             



he called 911 to report that the guns had been stolen.  Palmer then gave the phone to  

                                                                                                                                  



                                                              - 4 -                                                         2507
  


----------------------- Page 5-----------------------

Anderson, who stated that Palmer had been firing a gun outside the residence, and that                                                                                                                                                                                                                                                                            



she was frightened for her life.                                                                                                             Based on this call, six state troopers responded to                                                                                                                                                                        



Palmer's residence.   



                                                         When the troopers arrived, Palmer walked out of his house holding what  



appeared to be an AK-47 rifle. The troopers told Palmer to drop the rifle, but he initially                                                                                                                                                                                                                                                      



refused to do so, asserting that he had a constitutional right to carry the firearm.                                                                                                                                                                                                                                                             Palmer  



then swung the rifle in the direction of the troopers, putting it down on the ground.                                                                                                                                                                                                                                            



                                                         Although Palmer put the rifle down, he was still carrying a .44 revolver in                                                                                                                                                                                                                                      



a "cowboy-style" holster on his hip, and he was wearing a shoulder holster that appeared                                                                                                                                                                                                                                                    



to contain another handgun.                                                                                               When Palmer reached down as though he might draw the                                                                                                                                                                                       



 .44 revolver, Trooper Joshua Varys lunged at Palmer, grabbed the revolver, and put                                                                                                                                                                                                                                                                                



Palmer "in a bear hug." Trooper Varys later testified that he believed he saved Palmer's                                                                                                                                                                                                                                                    



life   by   using   a   lesser   degree   of   force   than   would   have   been   justified  under  the  



circumstances. Several of the other troopers testified that they, too, believed that Palmer                                                                                                                                                                                                                                                         



was going to shoot them and that they would have been justified in using lethal force                                                                                                                                                                                                                                                                      



against him.   



                                                         Palmer was arrested and charged with seven counts of third-degree assault                                                                                                                                                                                                                   



for recklessly placing the six troopers and his girlfriend, Anderson, in fear of imminent                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                                 4  

serious physical injury by means of a dangerous instrument.                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                         Palmer was also charged  



                                                                                                                                                                                                                                                                                                                                                                    

with two counts of fourth-degree misconduct involving a weapon for possessing the  



                                                                                                                                                    5  

                                                                                                

firearms while he was intoxicated. 



                                                                                                                                                                                                                                                                                                                               

                                                         After his arrest, Palmer continued to behave erratically. At his arraignment  



                                                                                                                                                                                                                                                                                                                                            

that same day, the arraigning judge expressed concern that Palmer was not mentally  



              4              AS 11.41.220(a)(1)(A).  



               5             AS 11.61.210(a)(1).  



                                                                                                                                                                               -  5 -                                                                                                                                                                       2507
  


----------------------- Page 6-----------------------

competent to stand trial, and she ordered a competency evaluation.  Shortly thereafter,  

                                                                                                        



while Palmer was still at the jail following his arraignment, his behavior continued to  

                                                                                                                                  



deteriorate:  he "defecat[ed] on the dorm eating tables," he "smear[ed] feces across the  

                                                                                                                                



tables and benches," and he "exhibited confused speech" and an "unsteady gait."  

                                                                                                                    



                    Becauseofthis, Palmer was transferred toAlaskaRegional Hospital, where  

                                                                                                                            



an MRI revealed that he had a brain hemorrhage caused by a ruptured brain aneurysm.  

                                                                                                                                      



Palmer had immediate surgery to repair the ruptured aneurysm.   After the surgery,  

                                                                                                                        



Palmer remained severely mentally impaired - his speech was incomprehensible, he  

                                                                                                                                 



lacked short-term memory, he was agitated and violent, and he was "oriented to name  

                                                                                                   



only." Palmer was kept in four-point restraints at the hospital and remained in restraints  

                                                                                                                       



after his transfer back to the medical segregation unit at the Anchorage jail.  

                                                                                                              



                    Dr.  Lois  Michaud,  a  psychologist  at  the  Alaska  Psychiatric  Institute,  

                                                                                                                       



evaluated Palmer at the jail to determine if he was competent to stand trial. Dr. Michaud  

                                                                                                                       



found that Palmer's cognitive status "present[ed] a significant barrier to being found  

                                                                                                                            



competent by the Court."  Dr. Michaud noted that Palmer's "presentation was that of a  

                                                                                                                                   



confused individual who appeared disoriented."  

                                                       



                    Three  weeks  later,  Dr.  Michaud  evaluated  Palmer  again.                                 During  this  

                                                                                                                               



second evaluation, Palmer's recall of the incident involving the troopers continued to be  

                                                                                                                                 



"jumbled," but he was otherwise "oriented and alert."   Dr. Michaud concluded that  

                                                                                                             



Palmer's confused memory of the incident was a result of "the stroke and seizure he  

                                                                                                                                 



suffered at the time of the alleged events."  Dr. Michaud also reported that Palmer had  

                                                                                        



been  diagnosed  with  dementia  secondary  to  a  cardiovascular  incident,  but  that  his  

                                                                                                                                



dementia was "now resolved."  Upon receiving Dr. Michaud's second evaluation, the  

                                                                                                                                



superior court found Palmer competent to stand trial.  

                                                                           



                    Prior to trial, the State filed a motion in limine asking the court to bar  

                                                                                                                                



Palmer  from offering  any  evidence  of  his  brain  aneurysm,  or  any  evidence  of  Dr.  

                                                                                                                               



                                                              -  6 -                                                        2507
  


----------------------- Page 7-----------------------

Michaud's two competency evaluations, because Palmer had not provided the State with                                                                   



                                                                                                                                                    6  

written notice of a "mental disease or defect" defense, as required by Alaska law.                                                                     The  



                                                                                                                                           

State also argued that Palmer should be required to submit to court-ordered psychiatric  



                                                                                                                                                          

examinations  under  AS  12.47.070(a)  before  any  evidence  of  a  "mental  disease  or  



                                                     

defect"could be introduced.  



                                                                                                                                                           

                         (Under AS 12.47.070(a), if a defendant gives notice of an intent to rely on  



                                                                                                                                                  

a defense of insanity or diminished capacity, or if "there is reason to believe that a mental  



                                                                                                                                                      

disease or defect of the defendant will otherwise become an issue in the case," the court  



                                                                                                                                                           

is required to appoint at least two qualified psychiatrists or forensic psychologists to  



                                                                                                                     7 

                                                                                                  

examine and report upon the mental condition of the defendant. )  



                                                                                                                                                

                        Palmer's attorney responded that he was not raising a diminished capacity  



                                                                                                                                                   

defense based on "mental disease or defect" nor was he otherwise challenging the State's  



                                                                                                                                   

proof on the culpable mental state.   Instead, he intended to raise an involuntariness  



                                                                                                                                                     

defense  based  on  the  physical  and  temporary  effects  of  Palmer's  ruptured  brain  



                                                                                                                                                           

aneurysm. That is, he intended to argue to the jury that there was a reasonable doubt as  



                                                                                                                                            

to the "voluntariness" of Palmer's actions at the time of the stand-off given the effects  



                                        

of the ruptured brain aneurysm.  



      6     See AS 12.47.010(b); AS 12.47.020(a) (precluding evidence of insanity, or evidence   



of   a  mental  disease  or  defect  that  tends  to   negate  a  culpable  mental  state,  "unless  the  

defendant, within 10 days of entering a plea, or at such later time as the court may for good                                                    

cause permit, files a written notice of intent to rely on that defense");                                                    see also  Alaska R.  

Crim. P. 16(c)(5) (same).  



      7  

                                                                                

            This statute is primarily derived from the Model Penal Code and pre-dates the 1982  

                                                              

legislative  revisions  to  Title  12.                        See  American  Law  Institute,  Model  Penal  Code  and  

                                                                                               

Commentaries  (Official  Draft,  1962,  and  Revised  Comments,  1985),  Part  I,  General  

Provisions ( 4.05 cmt.), p. 234-236.  



                                                                           -  7 -                                                                    2507
  


----------------------- Page 8-----------------------

                     The defense attorney analogized Palmer's situation to a person who has a  

                                                                                                                                    



heart attack while driving and loses control of the car.  The only difference, he argued,  

                                                                                                                          



was that Palmer's physical ailment "just happened to be in his brain."  

                                                                                                              



                     Thedefenseattorney also argued that Palmer shouldnot beforced to submit  

                                                                                                                            



to court-ordered psychiatric examinations and to face a potential verdict of "guilty but  

                                                                                                     



mentally ill" when he was not otherwise raising a mental disease or defect defense under  

                                                                                                                             



Alaska law.  

                    



                     Lastly, the defense attorney questioned the usefulness of a psychiatric  

                                                                                                                    



examination in this case, given that Palmer's ruptured brain aneurysm was a temporary  

                                                                                                                       



and  acute  medical  condition  that  had  been  "surgically  fixed"  nine  months  earlier.  

                                                                                                                                       



Instead, he argued that he would call his own (unidentified) medical experts to explain  

                                                                                                                          



his proposed involuntariness to the court, and ultimately to the jury.  

                                                                                                          



                     The court concluded that it needed the mental health examinations in order  

                                                                                                                              



to  understand Palmer's proposed defense:  

                                                      



                               The Court:  I'm going to need to hear from the [court- 

                                                                                                       

                     appointed] experts whether there was a physical problem in  

                                                                                                              

                     Mr. Palmer's brain that caused him to behave involuntarily.  

                                                                                             

                     ... And I will make the decision after hearing from those  

                                                                                                         

                     experts  and  from  the  defendant's  experts,  if  any,  as  to  

                                                                                                             

                    whether or not this falls within the four corners of a "mental  

                                                                                                      

                     disease or  defect" defense  or  whether  it constitutes some  

                                                                                                         

                     other kind of defense more related to the actus reus elements  

                                                                                                    

                     of the offenses.  

                               



In a later written order, the court stated that it ordered the mental health examinations  

                                                                                                       



under AS 12.47.070(a) because it agreed with the prosecutor that,  despite the defense  

                                                                                                         



attorney's protestations, the defense attorney "was, in fact, attempting to present the jury  

                                                                                                                                



with a defense based upon mental defect."  

                                                                   



                                                               -  8 -                                                        2507
  


----------------------- Page 9-----------------------

                    The court also stated that it had decided to appoint psychiatrists rather than  

                                                                                                                               



psychologists toperformtheevaluationsunder AS12.47.070(a) becauseofthe"physical  

                                                                                                                       



nature" of the "mental disease or defect" alleged by the defendant, and because the court  

                                                                                                                             



believed  that  "[p]sychiatrists,  as  medical  doctors,  are  better  qualified  to  determine  

                                                                                                                     



whether this defendant's brain aneur[y]sm afflicted him on the day of his arrest," and  

                                                                                                                               



whether the brain aneurysm "resulted in a diminished mental capacity that made it  

                                                                                                                                  



impossible for [the] defendant to engage in volitional acts of assault."  

                                                                                              



                    Rather        than     have       Palmer        undergo        the     court-ordered           psychiatric  

                                                                                                                  



examinations, Palmer's attorney withdrew the proposed involuntariness defense, citing  

                                                                                                                            



the attorney's concerns about the potential consequences of raising a "mental disease or  

                                                                                                                                  



defect" defense under Alaska law, including the possible consequence of a "guilty but  

                                                                      



mentally ill verdict."  

                                   



                    The court granted the State's original motion in limine and prohibited the  

                                                                                                                                



defense attorney from introducing any evidence of Palmer's ruptured brain aneurysm at  

                                                                                                                                  



trial.  



                    At trial, Palmer's defense to the assault charges was limited to his claim  

                                                                                                                                      



that the State had not proven beyond a reasonable doubt that the troopers had been in  

                                                                                                                                  



fear  of  imminent  serious  physical  injury,  given  their  professional  training  as  law  

                                                                                                                              



enforcement officers. The jury did not hear any evidence about Palmer's ruptured brain  

                                                                                                                             



aneurysm and none of the witnesses were permitted to mention the brain aneurysm.  

                                                                                                                 



                    However, during trial, the troopers were permitted to testify that Palmer's  

                                                                                                                       



slurred speech, impairedbalance, and blank unfocused staremadethemthinkthat Palmer  

                                                                                                                          



was intoxicated. After the prosecutor presented this testimony, Palmer's attorney argued  

                                                                                                                           



that the prosecutor had opened the door to evidence of the brain aneurysm to explain  

                                                                                                                         



why Palmer was acting in a way that might lead the troopers to think he was intoxicated.  

                                                                                                                   



                                                              -  9 -                                                        2507
  


----------------------- Page 10-----------------------

                    The  court  did  not  allow  the  defense  attorney  to present this rebuttal  

                                                                                   



evidence, declaring that Palmer had passed up "the golden opportunity" to introduce this  

                                                                                                                                



evidence when he refused to submit to the psychiatric examinations ordered by the court.  

                                                                                                                            



                    Thejurysubsequently convicted Palmer oftheseven counts ofthird-degree  

                                                                                                                   



assault (against the six troopers and his girlfriend).  The jury acquitted Palmer of the  

                                                                                                                                



weapons misconduct charges (for possessing firearms while intoxicated).  

                                                                                              



                    At sentencing, the superior court heard additional testimony fromPalmer's  

                                                                                                                        



girlfriend about Palmer's symptoms before and during the incident.   Based on  this  

                                                                                                                         



testimony, the court found that Palmer was suffering from a "mental defect" - that is,  

                                                                                                                                 



the ruptured brain aneurysm - at the time of the incident with the troopers.  The court  

                                                                                                                             



also found that Palmer had established the statutory mitigator AS 12.55.155(d)(5) -that  

                                                                                                                                



his conduct "was substantially a product of physical or mental infirmities resulting from  

                                                                                                                              



the defendant's age" - based on the brain aneurysm.  

                                                                   



                    In its sentencing remarks, the court stated:  "[I] have no doubt, from the  

                                                                                                                                



record before me, that Mr. Palmer experienced a profound event ... - the physical insult  

                                                                                                                             



to his brain caused by the aneurysm that changed his behavior ... .  Mr. Palmer was not  

                                                                                                                                



himself on the night of the incident, and ... his actions were beyond his control because  

                                                                                                                         



of this aneurysm."  

            



                    The court ultimately sentenced Palmer to a composite term of 7 years with  

                                                                                                                              



6 years suspended (1 year to serve).  

                                             



                    This appeal followed.  

                                        



                                                              -  10 -                                                       2507
  


----------------------- Page 11-----------------------

                         Why we conclude that the superior court erred in ordering Palmer to                                                                                                                                                                                               

                        submit to psychiatric examinations under AS 12.47.070(a) without first                                                                                                                                                                                     

                        giving   Palmer's   attorney   an   opportunity   to   support   his   proposed  

                         involuntariness defense with an appropriate offer of proof                                                                                                                                      



                                                 On appeal, Palmer argues that the superior court erred when it ordered him                                                                                                                                                                                   



to   submit   to   psychiatric   examinations   as   a   precondition   to   raising   his   proposed  



involuntariness defense.                                                                   Palmer contends that because he was not raising a statutory                                                                                                                                     



mental disease or defect defense under Title 12, the procedural requirements under AS                                                                                                                                                                                                                          



 12.47.070(a) did not apply to him.                                                                                               Palmer also argues that the superior court's ruling                                                                                    



unfairly forced him to choose between his constitutional right to remain silent and his                                                                                                                                                                                                                         



due process right to present his defense.                                                                                                           



                                                 In response, the State argues that none of Palmer's arguments are properly                                                                                                                                                                  



before this Court because Palmer voluntarily withdrew his proposed defense prior to                                                                                                                                                                                                                                 



undergoing any of the court-ordered psychiatric examinations. The State is correct that,                                                                                                                                                                                                                    



ordinarily, a defendant's withdrawal of his proposed defense would result in waiver of                                                                                                                                                                                                                              



                                                                                                                                                          8  

any appellate claim based on that defense.                                                                                                                                                                                                                                                

                                                                                                                                                                 But, as previously explained, we conclude  



                                                                                                                                                                                                                                                                                                             

that application of that rule in this case would be unjust given the unique facts and  



                                                                                                   

circumstances of this case.  



                                                                                                                                                                                                                                                                                                                    

                                                 In the superior court, Palmer disclaimed any intent to rely on a defense of  



                                                                                                                                                                                                                                                                                                                    

mental disease or defect.  Instead, he asserted that he intended only to raise a defense of  



                                                                                                                                                                                                                                                                                            

involuntariness based on the effects of the ruptured brain aneurysm. That is, he intended  



                                                                                                                                                                                                                                                                                            

to argue to the jury that, based on the effects of this "acute and temporary physical  



                                                                                                                                                                                                                                                                                                                

ailment," there was reasonable doubt as to the voluntariness of his actions during the  



                                                                   

stand-off with the troopers.  



            8           See,  e.g.,  Sam  v.  State,  842  P.2d  596,  598-99  (Alaska  App.  1992)   (holding  that  



defendant's abandonment of his diminished capacitydefense precludes review of trial court's                                                                                                                                                                                          

evidentiary ruling).  



                                                                                                                                                   -  11 -                                                                                                                                               2507
  


----------------------- Page 12-----------------------

                     The prosecutor nevertheless argued (and the superior court essentially  

                                                                                                                     



agreed) that Palmer's proposed defensewasindistinguishablefromaclaimofdiminished  

                                                                                                                     



capacity based on mental disease or defect under AS 12.47.020.  We disagree.  

                                                                                                                           



                    As Palmer correctly points out, thereareimportant distinctionsbetween the  

                                                                                                                                  



defense of diminished capacity under AS 12.47.020(a) and the proposed involuntariness  

                                                                                                              



defense that Palmer sought to raise. There are also important distinctions between the  

                                                                                                                                 



post-verdict dispositions of defendants who successfully raise these two defenses.  

                                                                                                                                



                     The defense of diminished capacity under Alaska law is a failure-of-proof  

                                                                                                              



defense - that is, a defense grounded in the constitutional requirement that the State  

                                                                                                                              



prove all elements of a crime beyond a reasonable doubt.  Thus, unlike the affirmative  

                                                                                                    



defense of insanity, a defendant bears no burden of proof with regard to a claim of  

                                                                                                                                  



diminished capacity.  

                                  



                     Instead, under Alaska Statute 12.47.020(a), "evidence that the defendant  

                                                                                                                       



suffered from a mental disease or defect is admissible whenever it is relevant to prove  

                                                                                                           



that the defendant did not have a culpable mental state which is an element of the crime."  

                                                                                                                                       



 However, the statute also provided that "evidence of mental disease or defect that tends  

                                                                                                                              



to negate a culpable mental state" is not admissible unless the defendant complies with  

                                                                                                                               



the procedural requirements required to raise this defense - namely, written notice of  

                                                                                                                                   



intent       to     rely       on      the     defense          and      submission            to     the      court-ordered  

                                                                                                    



psychiatric/psychological examinations under AS 12.47.070(a).  

                                                                                                    



                     In addition, a defendant who prevails on a claim of diminished capacity is  

                                                                                                                                   



not  necessarily  relieved  of  criminal  responsibility  or  released  from  state  custody.  

                                                                                                                                       



AS 12.47.020(b) provides that "when the trier of fact finds that all elements of the crime  

                                                                                                                             



are proved but that, as a result of a mental disease or defect, there is a reasonable doubt  

                                                                                                                             



                                                              -  12 -                                                        2507
  


----------------------- Page 13-----------------------

as to the existence of a culpable mental state," a verdict of "not guilty by reason of                                                              

insanity" rather than "not guilty" is entered.                               9  



                                                                                                                                  

                       The trier of fact is then required to determine whether the defendant is  



                                                                                                                                          

guilty of any lesser included offenses. If the defendant is found guilty of a lesser  



                                                                                                                                         

included  offense,  a  verdict  of  "guilty  but  mentally  ill"  is  entered  on  the  lesser  



                                10  

                                                                                                                                                   

included offense.                  A defendant who is found "guilty but mentally ill" under Alaska  



                                                                                                                                                  

law  is  not  relieved  of  criminal  responsibility.  Instead  there  are  two  primary  



                                                                                                                                        

consequences  to  this  verdict:  (1)  the  Department  of  Corrections  is  required  to  



                                                                                                                                             

provide mental health treatment to the defendant during his incarceration; and (2)  



                                                                                              

the  defendant  is  ineligible  for  parole  or  furlough  while  the  need  for  treatment  



                   11  

continues.                                                                                                                                         

                       Upon completion of the sentence for the lesser included offense (or if the  



                                                                                                                                                   

defendant is not found guilty of any lesser included offense) the defendant then faces the  



                                                                                                                                           

consequences of having been found "not guilty by reason of insanity" of the original  

offense.12  



                                                                                                                                         

                       Under AS 12.47.090, a defendant who is "not guilty by reason of insanity"  



                                                                                                                                            

is not released from custody.  Instead, the defendant is automatically subject to further  



                                                                                                                                                     

commitment in the state's custody and is  presumed to be dangerous to the public and in  



                                                                13  

                                                                                                                                                    

need of long-term psychiatric care.                                   The defendant can rebut this presumption by  



      9     AS 12.47.020(b); but see Barrett v. State, 772 P.2d 559, 575-76 (Alaska App. 1989)  



                                                                                                                                                       

(Bryner, J., concurring) (expressing "serious reservations" about the constitutionality of a  

                                          

verdict of "not guilty by reason of insanity" under AS 12.47.020(b)).  



      10    AS 12.47.020(c).  



      11  

                          

            See AS 12.47.050; see also State v. Clifton, 315 P.3d 694, 699 (Alaska App. 2013)  

(describing the consequences of a "guilty but mentally ill" verdict).  



      12    See AS 12.47.020(b); AS 12.47.090.  



      13    See AS 12.47.090.  



                                                                       -  13 -                                                                 2507
  


----------------------- Page 14-----------------------

proving, by clear and convincing evidence, that he is "not presently suffering from any                                                                      



                                                                                                                                      14  

mental illness that causes the defendant to be dangerous to the public."                                                                   



                                                                                                                                                                

                         But this burden is intended to be a high one. The term "mental illness" in  



                                                                                                                                                               

this context is intended to be  "substantially broade[r]" than the Title 12 definition of  



                                                                                                                                                             

"mental disease or defect" and is defined as "any mental condition that increases the  



                                                                                                                                           15  

                                                                                                                              

propensity of the defendant to be dangerous to the public peace or safety" 



                                                                                                                                                      

                         If the defendant fails to prove his burden that he is free from "any mental  



                                                                                                                                         

illness," the defendant is automatically committed to the custody of the department of  



                                                                                                                                                       

health and social services and will remain under state custody (typically in a secure  



                                                                                                                                                              

psychiatric facility) until such time as the defendant can meet the burden of proving by  



                                                                                                                                                 

clear and convincing that "the mental illness is cured or corrected" or until the maximum  



                                                                                                                                                        

term of imprisonment that would have applied if the defendant had been found guilty  



                                   16  

                                       

otherwise expires. 



       14    AS 12.47.090(c);                 see also  AS 12.47.090(a) (providing for immediate post-verdict  



hearing in front of same trier of fact if prior notice was properly provided); AS 12.47.090(b)                    

(providing  for  automatic  commitment  to  commissioner  of   health  and  social  services  if  

defendant did not provide prior notice); AS 12.47.090(e) (providing for periodic court review  

to determine whether defendant can meet burden of proving that commitment is no longer   

necessary).  



       15    AS 12.47.090(k)(2) (emphasis added); See also House Journal Supp. No. 64, at 13-14  



(June 2, 1982) (emphasizing that definition of mental illness substantiallybroadens definition  

                                                                                                                                                  

of "mental disease or defect" and is intended to ensure that "not guilty by reason of insanity"  

                                                                                                                                                    

defendant is "free of any mental condition that bears upon the issue of his dangerousness"  

                                                                                                                                 

before release from state custody can be ordered by the court); contrast House Journal Supp.  

                                                                                                                               

No. 64, at 7-8 (June 2, 1982) (emphasizing narrowness of statutory definition of "mental  

                                                                                                                                                     

disease or defect").  



       16    See AS 12.47.090(d).  



                                                                            -  14 -                                                                      2507
  


----------------------- Page 15-----------------------

                                   Like the defense of diminished capacity, the defense of involuntariness is                                                                                                                 



afailure-of-proofdefense that is grounded in the constitutional requirement that the State                                                                                                                            



prove all elements of a crime beyond a reasonable doubt.                                                                                                   But unlike the defense of                                        



diminished capacity, a defendant raising a claim of                                                                                    involuntariness seeks to challenge                                



the State's proof of the                                    actus reus                  of the crime, rather than the defendant's mental state.                                                                      



That   is,   the   defendant  intends   to   argue   that   there   is   reasonable   doubt   as   to   the  



voluntariness  of his acts (as that term is defined under criminal law).                                                                                                             



                                   The   defense   of   involuntariness  is   well-established   under   Alaska   law.   



Alaska Statute 11.81.600(a) declares that the minimal requirement for criminal liability                                                                                                                      



                                                                                                                                                                                         17  

under Alaska law is the performance of a voluntary act or omission.                                                                                                                                          

                                                                                                                                                                                                 Our caselaw  



                                                                                                                                                                                                                          

likewise recognizes that, although rarely disputed, the performance of a voluntary act  



                                                                                                                                                                                                                    

"remains an implicit element of all crimes" for which the State bears the burden of proof  



                                                                        18  

                                                                               

beyond a reasonable doubt. 



                                                                                                                                                                                                    

                                   Thus, when a defendant produces evidence sufficient to raise a reasonable  



                                                                                                                                                                                                                           

doubt that his actions were voluntary, the defendant is entitled to a jury instruction on  



                                                                                                                                                                                                    

this defense, and the State must prove the element of voluntariness beyond a reasonable  

doubt.19  



                                                                                                                                                                                                                          

                                   As a general matter, an act is considered "involuntary" for purposes of the  



                                                                                                                                                                                                   

criminal law if it is the result of reflexive or convulsive movements, or movements  



         17      See AS 11.81.600(a).  



         18      State v. Simpson, 53 P.3d 165, 169 (Alaska App. 2002); see also Mooney v. State, 105  



P.3d 149, 155 (Alaska App. 2005); Kuchnicki v. State, 604 P.2d 1099, 1103-04 (Alaska  

                                                                                                                                                                       

 1979) (Singleton, J., concurring) (recognizing defense of automatism under Alaska law and  

                                                                                                                                                                             

characterizing  it  as  excluding  criminal  responsibility  where  a  defendant  acts  during  

                                                                                                                                                                       

convulsions, sleep, unconsciousness, hypnosis, or seizures).  



         19      Id.  



                                                                                                         -  15 -                                                                                                    2507
  


----------------------- Page 16-----------------------

                                                                                 20  

during sleep, unconsciousness, or hypnosis.                                           Also known as "automatism," the concept                        



of involuntariness "connot[es] the state of a person who, though capable of action, is not                                                                    



                                                           21  

conscious of what he is doing."                                 



                                                                                                                                                           

                         Courts in other jurisdictions have recognized that involuntariness can arise  



                                                                                                                                                    

in a wide variety of conditions, including "epileptic and post-epileptic states, clouded  



                                                                                                                                                         

states of consciousness associated with organic brain disease, [and] concussional states  



                                                  22  

                                                       

following head injuries[.]" 



                                                                                                                                                            

                         The Alaska courts have yet to address the variety of conditions that can lead  



                                                                                                                                                           

to a claim of involuntariness. Nor do we believe that it is prudent to do so in this case  



                                                                                                            

given the deficiencies of the record before us on appeal.  



                                                                                                                                                    

                         Wenote that, although there appears to belittledisputethatPalmer suffered  



                                                                                                                                                       

a ruptured brain aneurysm around the time of the stand-off with the troopers, the effects  



                                                                                                                                                                     

of the brain aneurysm on the voluntariness of his actions is not immediately obvious.  



                                                                                                                                                        

The record suggests that Palmer was actively engaged with the troopers during the stand- 



                                                                                                                                                              

off and that he made various statements about his "constitutional rights." These facts are  



                                                                                                                                                      

not necessarily inconsistent with a claim of involuntariness, but they require further  



                                                                                                                               

explanation of Palmer's brain aneurysm than has been provided so far.  



      20     See, e.g., Simpson, 53 P.3d at 169; Mooney , 105 P.3d at 155.  



      21     2 Wayne R. LaFave, Substantive Criminal Law   9.4(a), at 33 (2d ed. 2003) (quoting  



F. Whitlock, Criminal Responsibility and Mental Illness, at 119-20 (1963)).  



      22  

                                     

            Id. ; see also People v. Garcia, 113 P.3d 775, 782-83 (Co. 2005) (involuntariness  

                                                                              

based  on  hypoglycemia);  Reed  v.  State,  693  N.E.2d  988,  989-992  (Ind.  App.  1998)  

(involuntariness based on transient ischemic attack/stroke); State v. Hinkle, 489 S.E.2d 257,  

                                            

263-264 (W. Va. 1996) (involuntariness based on undiagnosed brain disorder); Fulcher v.  

State, 633 P.2d 142, 144-47 (Wyo. 1981) (involuntariness based on concussion).  



                                                                            -  16 -                                                                      2507
  


----------------------- Page 17-----------------------

                       In   the   superior   court,   Palmer's   defense   attorney   asserted   that   he   had  



                                                                                          23  

additional evidenceand (presumably                            non-psychiatric)                                                      

                                                                                             medical expertsthat heintended  



                                                                                                                                           

to call to support the proposed involuntariness defense. We therefore remand this case  



                                                                                                                                   

to the superior court to give Palmer an opportunity to present this additional evidence  



                                                                                                                                

and to argue that there is sufficient evidence of his proposed defense to raise a reasonable  



                                                                                                                                           

doubt as to the voluntariness of his actions during the stand-off with the troopers.  



                                                                                                                                                

                       If the superior court concludes that Palmer's offer of proof on remand is  



                                                                                                                                              

sufficient  to  raise  his  proposed  involuntariness  defense,  the  parties  should  then  be  



                                                                                                                             

allowed to litigate whether the psychiatric examinations required under AS 12.47.070(a)  



                                                                                                                                              

otherwise apply to this case.   Because this question is not yet ripe in Palmer's case, we  



                                                                                                                                          

do not resolve it here.  However, we note that, although some courts continue to view  



                                                                                                                                             

involuntariness asasubset ofa mental disease or defect/insanity defense, most courts and  



                                                                                                                                               

commentators appear to agree that "the better rationale" is to view the two defenses as  



                          24  

                               

             

legally distinct. 



      23   As the United States Supreme Court recently re-affirmed in                                       Kansas v. Cheever, 134   



S.Ct. 596 (2013), a defendant may not introduce expert testimony that is based on interviews             

with the defendant without opening the door to claims that he has thereby waived his Fifth   

Amendment rights.  Id.  at 603 ("Any other rule would undermine the adversarial process,   

allowing a defendant to provide the jury, through an expert operating as proxy, with a one-  

sided and potentially inaccurate view of his mental state at the time of the alleged crime.");                    

see also Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987).  



      24   See 2 Wayne R. LaFave, Substantive Criminal Law  9.4, at 32-41 (2d ed. 2003); see  

                                                                                               

also People v. Garcia, 113 P.3d 775, 782-83 (Co. 2005); Smith v. State, 663 S.E.2d 155, 156- 

                                                                                                                  

 157 (Ga. 2008); McClain v. State , 678 N.E. 2d 104, 108-09 (Ind. 1997); Mendenhall v. State ,  

77 S.W.3d 815, 818 (Tex. Crim. App. 2002); State v. Hinkle, 489 S.E.2d 257, 263-264 (W.  

                                                      

Va. 1996); Fulcher v. State, 633 P.2d 142, 144-47 (Wyo. 1981); cf. Paradiso v. State, 2012  

WL  880624,  at  *2  (Alaska  App.  Mar.  14,  2012)  (unpublished)  (Bolger,  J.,  concurring)  

        

(noting  that  defendant  who  is  otherwise  statutorily  restricted  from  raising  diminished  

                                                                                                                   

capacity could potentially raise an involuntary defense under same facts).  



                                                                    -  17 -                                                              2507
  


----------------------- Page 18-----------------------

                 Why   we   conclude   that   the   superior   court   properly   rejected   Palmer's  

                 request to instruct the jury on the lesser included offense of harassment                                                                            



                                 As a separate point on appeal, Palmer argues that the superior court erred                                                                                                



by refusing to instruct the jury on second-degree harassment as a lesser included offense                                                                                                            



of third-degree assault.                                   We find no merit to this claim.                                



                                 At trial, Palmer asked the superior court to instruct the jury on the offense                                                                                       



of second-degree harassment as a lesser included offense to the charge of third-degree                                                                          



assault against TrooperVarys. Aperson                                                             commits thecrimeofsecond-degreeharassment                                                 



if "with              intent to               harass or                 annoy   another   person,   that person                                                     ...   insults,   taunts, or   



challenges   another   person   in   a   manner   likely   to   provoke   an   immediate   violent  



                          25  

response."                                                                                                                                                                                                      

                                 Palmer argued that the jury could convict him of harassment based on the  



                                                                                                                                                                                                                  

"challenge" implicit in his initial refusal to put the AK-47 rifle down in response to  



                                           

Trooper Varys's order.  



                                                                                                                                                                                              

                                 Under Alaska's cognate approach to lesser included offenses, a defendant  



                                                                                                                                                                                                                    

is entitled to a lesser included instruction if, based on the evidence presented at trial, it  



                                                                                                                                                                                                            

would  be  impossible  for  the  defendant  to  commit  the  greater  offense  without  also  



                                                                                                                                                                                                                    

committing  the  lesser  offense,  and  "if  there  is  some  evidence  which  could  lead  a  



                                                                                                                                                                                                                

reasonable jury to find that the element which distinguishes the greater offense from the  



                                                                             26  

                                                                                                                                                                                                                

lesser  has  not  been  proved."                                                        Here,  the  jury  could  have  convicted  Palmer  of  



                                                                                                                                                                                                     

third-degree assault without convicting him of second-degree harassment and Palmer  



                                                                                                                                                                        

presented no evidence that he intended to harass or annoy Trooper Varys.  



                                                                                                                                                                                                              

                                 To show that Palmer had the reckless mental state required to convict him  



                                                                                                                                                                                                               

of third-degree assault, the State relied on evidence that Palmer pointed a rifle in the  



        25       AS 11.61.120(a)(1).  



        26       Wilson v. State, 670 P.2d 1149, 1151 (Alaska App.1983).  



                                                                                                    -  18 -                                                                                               2507
  


----------------------- Page 19-----------------------

direction of the troopers and reached toward a second gun, declaring that he was acting  

                                                                                                                            



within his constitutional rights.   From this evidence, the jury could have found that  

                                                                                                                               



Palmer acted in reckless disregard of the risk that his actions placed the trooper in fear  

                                                                                                                               



of imminent serious physical injury without finding that Palmer did so with the intent to  

                                                                                                                                  



harass or annoy the trooper.  Therefore, the trial court did not err in refusing to instruct  

                                                                                                                         



the jury on this lesser offense.  

                                   



          Conclusion  



                    We  REMAND  this  case  to  the  superior  court  for  further  proceedings  

                                                                                                                  



consistent with this opinion.  Within 120 days (a deadline that can be extended for good  

                                                                                                                             



cause),  the  superior  court  shall  notify  this  Court  of  the  outcome  of  the  remand  

                                                                                                                        



proceedings.  We retain jurisdiction of this case.  

                                                                   



                                                              -  19 -                                                       2507
  


----------------------- Page 20-----------------------

Judge MANNHEIMER, concurring.  

                                                          



                    This case involves an unusual circumstance:  the defendant, William E.  

                                                                                                                                 



Palmer, was charged with several counts of assault, and he wished to defend these  

                                                                                                                            



charges by asserting that his assaultive behavior was the result of a ruptured aneurysm  

                                                                                                                      



in his brain.  

                    



                    The  issues  presented  in  this  appeal  stem  primarily  from  profound  

                                                                                                                     



disagreements between the attorneys and the trial judge as to (1) how to categorize this  

                                                                                                                               



defense legally, and (2) how the defense should be litigated procedurally.  

                                                                                                                  



                    Palmer's attorney claimed that the ruptured aneurysm and the resulting  

                                                                                                                       



hemorrhage within Palmer's brain deprived Palmer of his capacity to act "voluntarily"  

                                                                                                                 



(as that term is used in the criminal law).  This claim has factual components - for  

                                                                                                                                



instance, whether Palmer's assault on the troopers was inconsistent with his "baseline"  

                                                                                                                     



behavior (i.e., his pre-aneurysm behavior), and whether Palmer's aneurysm ruptured  

                                                                                                                       



before  Palmer  threatened  the  troopers  with  the  firearm  or,  instead,  immediately  

                                                                                                                 



afterwards, while the troopers were struggling with Palmer to physically subdue him.  

                                                                                                                                    



                    The answers to these questions are not self-evident, and they potentially  

                                                                                                                    



involve either  neurological expertise,  or  psychological expertise, or  both.                                         For  this  

                                                                                                                               



reason,  the  superior  court  could  properly  require  Palmer's  attorney  to  support  his  

                                                                                                                                



proposed defense with expert testimony - and require him to reveal this anticipated  

                                                                                                                    



expert testimony to the State before trial.  

                                                        



                    But as Judge Allard's lead opinion explains, the expert analysis that would  

                                                                                                                           



be needed to answer these questions is not necessarily the kind of analysis that would be  

                                                                                                                                 



derived  from  the  psychiatric  examinations  authorized  by  AS  12.47.070.                                         Palmer's  

                                                                                                                       



attorney in fact contended that he could reasonably base his proposed defense on other  

                                                                                                                             



types of expertise.             The superior  court should  have given  the defense attorney  the  

                                                                                                                                



                                                              - 20 -                                                        2507
  


----------------------- Page 21-----------------------

opportunity  to show that this was true before the court ordered Palmer to undergo                                                                                                            



psychiatric evaluation under AS 12.47.070.                                      



                                Palmer's proposed defense also raised legal questions.                                                                                Most importantly,   



Palmer   asserted   that   if   his   assaultive   behavior   was   indeed   the   result   of   behavioral  



changes caused by his ruptured aneurysm, then his actions were not "voluntary" for                                                                                                                         



purposes of the criminal law.                                



                                 The law does not punish people for involuntary acts or omissions.                                                                                                        As  



stated   in   AS   11.81.600(a),   "The   minimal   requirement   for   criminal   liability   is   ...   a  



voluntary act or the omission to perform an act that the person is capable of performing."                                                                                                                           



For purposes of imposing criminal liability, the law does not view an involuntary action                                                                                                            



                             1  

as an "act".                                                                                                                                                                            

                                 Thus, if a defendant's actions were "involuntary" (within this specialized  



                                                                                                                                                                                                   

sense), the government will have failed to prove the "actus reus" of the charged crime.  



                                                                                                                                                                                                              

                                 There is general agreement that bodily movements resulting from reflex or  



                                                                            2  

                                                                                                                                                                                       

                                                                                Thereisalso general agreement that bodily movements  

convulsion arenot "voluntary".  



                                                                                                                                                                      3  

                                                                                                                                                                                             

performed  during  unconsciousness  or  sleep  are  not  "voluntary".                                                                                                        But  a  person's  



                                                                                                                                                                                                           

conscious bodily movements remain "voluntary" even when, due to mental illness, the  



                                                                                                                                                           4  

                                                                                                                                                               

person feels an "irresistible impulse" to engage in that conduct.  



                                                                                                                                                             

                                As Judge Allard's lead opinion notes, some courts have held that when a  



                                                                                                                                                                                                     

person's consciousness is altered by an acute brain injury, the person is entitled to argue  



                                                                                                                                                                                             

that their ensuing conduct was not "voluntary".  But the question of whether a person's  



         1      Rollin M. Perkins   &   Ronald N. Boyce,  Criminal Law   (3rd edition 1982), p. 837;  



Wayne R. LaFave, Substantive Criminal Law (2nd ed. 2003),  6.1(c), Vol. 1, pp. 425-29.  



        2       LaFave ,  6.1(c), Vol. 1, pp. 426-27, 429.  



        3       Id. at 426-27.  



        4       See  id. at 428-29.  



                                                                                                  - 21 -                                                                                              2507
  


----------------------- Page 22-----------------------

actions should be deemed "voluntary" or "involuntary" for purposes of the criminal law                                                                                                                         



is ultimately not a medical question.                                                        It is, instead, a question of social policy:                                                             Under  



what circumstances are we                                         going to hold people criminally accountable for their actions?                                                                   



As the United States Supreme Court noted in                                                                      Powell v. Texas                        , "[t]he doctrines of                            actus  



reus,  mens rea                     , insanity, mistake, justification, and duress" are all tools that our society                                                                                    



employs to make "a constantly shifting adjustment ... between the evolving aims of the                                                                                                                          



criminal law and changing religious, moral, philosophical, and medical views of the                                                                                                                            



                                        5  

nature of man."                              



                                                                                                                                                                                                                     

                                 When a person's perceptions and behavior are substantially affected by a  



                                                                                                                                                                                                  

brain hemorrhage or other brain trauma, some might reasonably analogize the situation  



                                                                                                                                                                                                      

to sleepwalking or "automatism" - thus reaching the conclusion that if the person  



                                                                                                                                                                                                  

engagesinassaultiveconduct, that conductshould bedeemed "involuntary"forpurposes  



                                                   

of the criminal law.  



                                                                                                                                                                                                                

                                 But other people might reasonably conclude that the brain hemorrhage has  



                                                                                                                                                                                          

not affected the "voluntariness" of the person's actions - that, instead, the hemorrhage  



                                                                                                                                                                                                     

has skewed the person's perception of danger, or has weakened the person's normal  



                                                                                                                                                                                                         

ability to subdue their aggressive impulses. Under this view, the person's actions might  



                                                                                                                                                                                                                  

plausibly be deemed "voluntary" because those actions would remain the product of  



                                         

conscious will.  



                                                                                                                                                                                                           

                                 Because Palmer declined to pursue his "involuntariness" claim, this legal  



                                                                                                                                             

question has not been litigated, and I wish to emphasize that this Court's opinion does  



                                        

not resolve this question.  



        5        392 U.S. 514, 536; 88 S.Ct. 2145, 2156; 20 L.Ed.2d 1254 (1968).  



                                                                                                    - 22 -                                                                                                2507
  


----------------------- Page 23-----------------------

Judge COATS, concurring.  

                         



                    At Palmer's sentencing, the superior court stated: "[I] have no doubt, from  

                                                                                                                              



the record before me, that Mr. Palmer experienced a profound event ... - the physical  

                                                                                                                        



insult to his brain caused by the aneurysm that changed his behavior ... . Mr. Palmer was  

                                                                                                                               



not himself on the night of the incident, and ... his actions were beyond his control  

                                                                                                                          



because of this aneurysm."  Based on this finding by the superior court, it appears to me  

                                                                                                                                



that Palmer in all probability had a colorable defense to the crimes with which he was  

                                                                                                                               



charged - a defense that he was never allowed to present during his trial.  

                                                                                                           



                    We have remanded this case to allowPalmer an opportunity to present non- 

                                                                                                                              



psychiatric medical expert testimony in support of his proposed involuntariness defense.  

                                                                                                                        



I would expand this remand to allow the expert testimony to also address whether the  

                                                                                                                                



effects of Palmer's aneurysm might cast doubt on whether Palmer had the required  

                                                                                                                        



mental state to commit the offenses.  

                                          



                    I also write separately to clarify that nothing in the majority's decision  

                                                                                                                        



prevents Palmer from also presenting lay witness testimony on his behavior leading up  

                                                                                                                                 



to and during the crime to support his defense. At sentencing, the court heard testimony  

                                                                                                                      



from Palmer's girlfriend about Palmer's symptoms before and during the incident -  

                                                                                                                                 



testimony the sentencing court apparently found useful and convincing.  

                                                                                            



                                                              - 23 -                                                        2507
  

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