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Nathanial L. Kangas v State of Alaska (3/27/2020) ap-2667

Nathanial L. Kangas v State of Alaska (3/27/2020) ap-2667

                                                  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  



NATHANIAL L. KANGAS,  

                                                                Court of Appeals No. A-12720  

                                  Appellant,                  Trial Court No. 4TA-14-00011 CR  



                         v.  

                                                                        O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                  Appellee.                      No. 2667 - March 27, 2020  



                 Appe               

                        al  from  the  Superior  Court,  Fourth  Judicial  District,  

                 Fairbanks, Paul R. Lyle, Judge.  



                 Appearances:   Renee McFarland, Assistant Public  Defender,  

                                                                                  

                 and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                 Appellant.      Patricia  L.  Haines,  Assistant  Attorney  General,  

                                                                                   

                 Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  

                              

                 Attorney General, Juneau, for the Appellee.  



                 Before:     Allard, Chief  Judge, and Coats *                              * 

                                                                       and Mannheimer  ,  

                 Senior Judges.  



                 Judge MANNHEIMER.  



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



Constitution and Administrative Rule 23(a).  


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

                                         Nathanial L. Kangas shot and killed two Alaska State Troopers who had                                                                                                                             



 come to Tanana to arrest his father, Arvin Kangas.                                                                                                        Kangas also used the same firearm                                                   



 to threaten the local Village Public Safety Officer who accompanied the two troopers,                                                                                                                            



 but Kangas allowed this officer to leave unharmed.                                                                                                                  Kangas subsequently removed                                          



 marijuana plants and seeds from the house where the shooting occurred.                                                                                                                                                           A detailed   



 description of this episode is set out in our decision in Arvin Kangas's appeal:                                                                                                                                                           Kangas  



 v.  State, unpublished, 2018 WL 2999802 at *2-3 (Alaska App. 2018).                                                                                                                                                    



                                         Based on this incident, Nathanial Kangas was convicted of two counts of                                                                                                                                               



 first-degree murder (as well as one count of third-degree assault and one count of first-                                                                                                                                                             



 degree tampering with evidence).                                                                        



                                         Because the jury found that Kangas intentionally killed the two troopers                                                                                                                           



 when he knew that they were acting in the performance of their duties, Kangas was                                                                                                                                                                       



                                                                                                                                                                                                                                                                     1  

 subject to a mandatory term of 99 years' imprisonment on each of the murder counts.                                                                                                                                                                                    



                                                                                                                                                                                                                                                      

 And under the provisions of Alaska's consecutive sentencing statute, the superior court  



                                                                                                                                                                                                                                                                        

 was required to impose these two 99-year sentences consecutively, for a composite term  



                                                                                       2  

                                           

 of 198 years' imprisonment.    



                                                                                                                                                                                                                                                             

                                         In this appeal, Kangas claims that one of the trial judge's instructions to the  



                                                                                                                                                                                                                                               

jury was improper, and that his convictions must therefore be reversed.  For the reasons  



                                                                                                                                                                                                                                                           

 explained in this opinion, we hold that the challenged jury instruction was proper.  



                                                                                                                                                                                                                                              

                                         Kangasalsoarguesthathis privilegeagainst self-incriminationwasviolated  



                                                                                                                                                                                                                                                              

 when the superior court issued a pre-trial order under AS 12.47.070(a) - that is, an  



                                                                                                                                                                                                                                      

 order directing that Kangas be examined by two forensic psychologists to assess his  



                                                                                                                                                                                                                                                

 mental condition.   Although the State did not overtly use the results of these mental  



           1         See AS 12.55.125(a)(1).  



           2         See AS 12.55.127(c)(2)(A).  



                                                                                                                            - 2 -                                                                                                                       2667
  


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

examinations during Kangas's trial, Kangas asserts that he is entitled to a new trial  

                                                                                                                               



because the State cannot show (beyond a reasonable doubt) that its evidence was derived  

                                                                                                                          



completely independently from these mental examinations.  In the alternative, Kangas  

                                                                                             



argues that he is at least entitled to be re-sentenced, since the superior court expressly  

                                                                                          



relied on the results of these examinations at Kangas's sentencing hearing.  

                                                                                                                     



                    For the reasons explained in this opinion, we conclude that these mental  

                                                                                                                           



examinations did not violate Kangas's privilege against self-incrimination.  

                                                                                                                    



                    Finally, Kangas raises an issue pertaining to one of Alaska's sentencing  

                                                                                                                     



statutes, AS 12.55.125(j).  This statute declares that when a defendant is sentenced to a  

                                                                                                                                    



mandatory  99-year  term of  imprisonment  for  first-degree  murder,  the  defendant  is  

                                                                                                                                  



entitled to apply for a modification or reduction of their sentence after they have served  

                                                                                                                           



one-half of the mandatory 99-year term - i.e., after they have served 49  years.  

                                                                                                                               



                    The question presented in Kangas's case is how to apply this statute to  

                                                                                                                                  



defendants who, like Kangas, have received two or more consecutive mandatory 99-year  

                                                                                                                          



terms of imprisonment.  As we explain in this opinion, we interpret AS 12.55.125(j) to  

                                                                                                                                  



mean that Kangas is eligible to apply for a modification or reduction of his sentence after  

                                                                                                                              



he has served 49  chronological years of his 198-year composite sentence (i.e., 49   

                                                                                                                              



years, without any reduction for good time credit).  

                                                                                



          Kangas's challenge to the jury instruction which told the jurors that they  

                                                                                                                     

          were  allowed  to  infer  Kangas's  mental  state  from  the  circumstantial  

                                                                                                    

          evidence of his actions  

                                   



                    As we mentioned earlier, Kangas was convicted of two counts of first- 

                                                                                                                             



degree murder based on the fact that he shot and killed the two state troopers.  

                                                                                                                          



                    One of the elements of first-degree murder - that is, one of the allegations  

                                                                                                                     



that the State was required to prove beyond a reasonable doubt - was that Kangas acted  

                                                                                                                             



                                                               -  3 -                                                         2667
  


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

                                                                                            3  

with an intent to kill when he shot the two troopers.                                           In other words, the State had to                     



                                                                                                                                          4  

prove that Kangas acted with the conscious objective of causing human death.                                                                  



                                                                                                                                                   

                       When Kangas's trial judge instructed the jurors at the conclusion of the  



                                                                                                                                                  

trial, he included an instruction which told the jurors that the State was allowed to rely  



                                                                                                                                                  

on  Kangas's  actions  as  circumstantial  evidence  of  whether  Kangas  possessed  this  



                                                                                                                             

culpable mental state.   Kangas's trial attorney did not object to this instruction, but  



                                                                                                                        

Kangas now asserts that it was plain error for the judge to give this instruction.  



                                                                                                                                                     

                        The first two paragraphs of the challenged instruction read as follows:  



                         

                                                                                                                             

                                   [A  person's]  mental  state  or  state  of  mind  may  be  

                                                                                                                           

                       proved   by   circumstantial   evidence.                                 It   rarely   can   be  

                                                                                                                           

                        established by any other means.  While witnesses may see  

                                                                                                                             

                        and hear ... what a defendant does or fails to do, there can be  

                                                                                                                       

                       no eyewitness to the mental state or state of mind with which  

                                                                                                                              

                       the acts were done or omitted.  But what a defendant does or  

                                                                                                                         

                        fails to do may indicate [their] state of mind or mental state  

                                                                                                          

                        or [their] lack of state of mind or mental state.  



                                                                                                                     

                                   It is reasonable to infer that a person ordinarily intends  

                                                                                                               

                       the natural and probable consequences of acts he knowingly  

                                                                                                                              

                        does or knowingly omits.  Any such reasonable inference is  

                                                                                                                   

                        entitled to be considered by the jury in determining whether  

                                                                                                                       

                        or not the prosecution has proved beyond a reasonable doubt  

                                                                                                                  

                       that the defendant possessed the required state of mind or  

                                               

                       mental state.  



                                                                                                                                                 

The instruction then concluded with a third paragraph which emphasized that the jury  



                                                                                                                                   

was entitled  to consider, not only the defendant's actions, but also the defendant's  



                                                                                                                            

statements - and, indeed, "all facts and circumstances in evidence":  



      3     See AS 11.41.100(a)(1)(A).  



      4     See AS 11.81.900(a)(1).  



                                                                        - 4 -                                                                   2667
  


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

                               In determining issues of state of mind or mental state,  

                                                                                                          

                     the jury is entitled to consider any statements made, and acts  

                                                                                                            

                     done   or   omitted   by   the   accused,   and   all   facts   and  

                                                                                                          

                     circumstances            in    evidence         which        may       aid    [in     the]  

                                                                                                          

                     determination of state of mind or mental state.  

                                                                                              



                     In past decisions, the Alaska Supreme Court has approved nearly identical  

                                                                                                                         



jury instructions.  See Calantas v. State, 608 P.2d 34, 36 (Alaska 1980), and Gipson v.  

                                                                                                                                   



State, 609 P.2d 1038, 1042 (Alaska 1980).  But in this appeal, Kangas argues that this  



jury  instruction  constitutes  plain  error.                    Kangas  offers  two  theories  as  to  why  the  

                                                                                                                                 



instruction is improper.  

                                       



                     First, Kangas argues that this jury instruction is improper because it allows  

                                                                                                                            



the jury to infer a person's culpable mental state from their actions.  

                                                                                                           



                     Kangas notes that when the Alaska legislature enacted our current criminal  

                                                                                                                          



code,  the  legislature  included  statutory  definitions  of  four  culpable  mental  states:  

                                                                                                                                       



"intentionally",  "knowingly",  "recklessly",  and  "with  culpable  negligence".                                               See  

                                                                                                                                



AS 11.81.900(a)(1)-(4).  

                                         



                     Kangas further notes that these four statutory definitions do not contain any  

                                                                                                                                 



reference to circumstantial proof. That is, the definitions of these culpable mental states  

                                                                                                                              



do not expressly provide that a person's culpable mental state (or lack of culpable mental  

                                                                                                                            



 state) may validly be inferred from their actions.  

                                                                             



                     Because the statutory definitions of the four culpable mental states do not  

                                                                                                                                 



expressly authorize a jury to infer a person's mental state from their actions, Kangas  

                                                                                                                          



argues that the Alaska legislature must have intended to restrict the role of circumstantial  

                                                                                                                 



evidence in proving these culpable mental states.  

                                                                               



                     More specifically, Kangas claims that the legislature crafted these four  

                                                                                                                               



 statutory definitions so that the government would not be allowed to rely solely on a  

                                                                                                                                    



                                                               -  5 -                                                         2667
  


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

 defendant's acts (or omissions) as circumstantial proof of the defendant's mental state.                                                                                                                                                                 



 Rather, according to Kangas, any time the government relies on circumstantial evidence                                                                                                                                       



 to establish one of the four culpable mental states defined                                                                                                                    in AS 11.81.900(a), the                                      



 government's proof must consist of "more than an inference from [the defendant's]                                                                                                                                



 knowing conduct".                                       



                                       Kangas's argument is unconvincing.                                                                          The purpose of the four statutory                                         



 definitions is to explain                                         what must be proved                                        to establish each particular culpable mental                                                          



 state.   But these statutory definitions do not purport to explain or control the types of                                                                                                                                    



 evidence   that   can   be   used   to   establish   (or   rebut)   the   government's   allegation   of   a  



 culpable mental state.                                          



                                       It is a long-standing tenet of Alaska law that there is no legal distinction                                                                                                     



 between direct evidence and circumstantial evidence.                                                                                                      When assessing the sufficiency                              



 of   the   evidence   to   support   a   criminal   conviction,   courts   apply   the   same   standard  



 regardless   of   whether   the   government's   case   is   based   on   direct   or  circumstantial  



                             5  

 evidence.     



                                                                                                                                                                                                             

                                      As our supreme court declared in Sivertsen v. State, 981 P.2d 564, 567  



                                                                                                                                                                                                                                       

 (Alaska 1999), "In the case of a specific-intent crime, the jury is permitted to infer intent  



                                                                                                                                                                                                                                          

 from circumstantial evidence such as conduct".  Indeed, in Calantas v. State, 608 P.2d  



                                                                                                                                                                                                                                              

 at 36, our supreme court expressly approved a jury instruction that "clearly informed the  



                                                                                                                                                                                                                                  

jurors that ... it was permissible to infer that the defendant intended to kill his victims  



          5        Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976); Ashley v. State , 6 P.3d 738,  



 743 (Alaska App. 2000).  See also Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432,  

                                                                                              

 450 (Alaska 2002) ("The plaintiff's evidence of a conspiracy[in restraint of trade] may either  

                                                                                                                                                                                                                                        

 be direct or circumstantial.  ...  [I]f the plaintiff presents only circumstantial evidence, the  

                                                                                                                                                                          

 factfinder must make inferences from that evidence to find an antitrust conspiracy.  [But] a  

                                                                                                                                                                                                                                    

 plaintiff is not required to present any direct evidence, [and] may support his case solely with  

                                                                                                                                                                                                                                           

 circumstantial evidence.").    



                                                                                                                     -  6 -                                                                                                               2667
  


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

from the fact that he shot them".  And again, in Ollice v. Alyeska Pipeline Service Co.,  

                                                                                                                               



659 P.2d 1182, 1188-89 (Alaska 1983), our supreme court held that when a party's  

                                                                                                                          



claim hinges on proof of a person's mental state, and when the evidence pertaining to  

                                                                                                                                  



that person's mental state is primarily circumstantial (i.e., resting on inferences to be  

                                                                                                                                 



drawn  from the person's  conduct),  a judge may  properly  instruct the jury on  their  

                                                                                                                              



authority to draw inferences from circumstantial evidence.  

                                                                            



                     If the legislature had intended to define the four culpable mental states in  

                                                                                                             



a manner that would change this long-standing rule - a manner that would restrict the  

                                                                                                                                 



use of circumstantial evidence to prove the culpable mental states, or that would render  

                                                                                                                           



circumstantial evidence insufficient as a matter of law to establish these culpable mental  

                                                                                                                           



states - then the legislature would have said so explicitly.  

                                                                                            



                     For  these  reasons,  we  hold  that  even  if  the  circumstantial  evidence  

                                                                                                                       



pertaining to a defendant's mental state consists solely of the defendant's actions or  

                                                                                                                     



omissions, this evidence is legally sufficient to support an inference that the defendant  

                                                                                                                      



acted with one or more of the culpable mental states defined in AS 11.81.900(a).  

                                                                                                                               



                     Kangas raises a separate objection to the jury instruction:  he asserts that  

                                                                                                                               



this instruction constitutes an improper judicial comment on the weight of the evidence.  

                                                                                                                                      



More specifically, Kangas argues that it is always improper for a judge to instruct a jury  

                                                                                                                                



"that it may reasonably infer an ultimate fact from circumstantial evidence".  

                                                                                                                       



                     The record in Kangas's case does not contain any indication that the trial  

                                                                                                                               



judge "commented on the evidence" as this phrase is normally understood.  The judge  

                                                                                                                             



never  expressed  any  personal  view  regarding  the  weight  of  the  evidence,  or  the  

                                                                                                                                



credibility of witnesses, or the relative strength of the parties' positions.  

                                                                                                                 



                     But according to Kangas, a judge acts improperly whenever the judge tells  

                                                                                                                               



the jury that the law allows the jurors to draw a particular inference from the evidence.  

                                                                                                                       



                                                               -  7 -                                                         2667
  


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

Kangas argues that such an instruction is improper because the jurors will inevitably  

                                                                                                                      



interpret the instruction as the judge's endorsement of the described inference.  

                                                                                                                          



                     Wefind Kangas's argumentunconvincing. Weagreewith Kangas that trial  

                                                                                                                               



judges must avoid making statements to the jury which either expressly or impliedly  

                                                                                                                      



convey the judge's personal views regarding how the jury should resolve the merits of  

                                                                                                                                  



the case. But one of a trial judge's tasks is to inform the jury of the rules governing their  

                                                                                                                              



deliberations.  

                        



                     Although the jury instruction in Kangas's case was not taken directly from  

                                                                                                                              



the Alaska Criminal Pattern Jury Instructions, we note that the pattern jury instructions  

                                                                                                                   



contain an instruction (Instruction 1.15) which incorporates this same legal principle:  

                                                                                                                                    



                               A     person's        mental        state      may       be     shown        by  

                                                                                                           

                     circumstantial evidence.  It can rarely be established by any  

                                                                                                      

                     other means.  Witnesses can see and hear, and thus be able to  

                                                                                                              

                     give direct evidence of, what another person does or does not  

                                                                                                            

                     do.  But no one can see or hear the mental state the person  

                                                                                                      

                     had at the time the person acted or did not act.  Yet what a  

                                                                                                               

                     person does or does not do may indicate that person's mental  

                                                                                                       

                     state.  

                               



                               You may consider any statements made and acts done  

                                                                                                          

                     or   not   done   by   the   person   and   all   other   facts   and  

                                                                                                          

                     circumstances in evidence when determining that person's  

                                                                                                   

                     mental state.  

                                          



                     Kangas argues that the particular wording of the instruction in his case is  

                                                                                                                                   



problematic because (according to Kangas) the second paragraph of this instruction  

                                                                                                                    



suggested that the judge wanted the jury to draw inferences from his conduct.  Again,  

                                                                                                                           



here is that second paragraph:  

                               



                       



                                                               -  8 -                                                         2667
  


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

                                                                It is reasonable to infer that a person ordinarily intends                                                                                          

                                           the natural and probable consequences of acts he knowingly                                                                                                    

                                           does or knowingly omits.                                                            Any such reasonable inference is                                                                       

                                           entitled to be considered by the jury in determining whether                                                                                                          

                                           or not the prosecution has proved beyond a reasonable doubt                                                                                                                   

                                           that the defendant possessed the required state of mind or                                                                                                                               

                                           mental state.                             



                                           But   when   an   appellate   court   reviews  claims   of   error   involving   jury  



instructions, the question is not whether the challenged jury instruction might contain                                                                                                                                                                       



language   that   could   be   misinterpreted.     Rather,   the   question   is   whether   the   jury  

instructions,  taken as a whole                                                                 , properly informed the jury of the applicable law.                                                                                                               6  



                                                                                                                                                                                                                                                    

                                           As we have already explained, the jury instruction that Kangas challenges  



                                                                             

was a correct statement of the law.  Furthermore, the jury instruction in Kangas's case  



ended with a third paragraph that emphasized the jury's authority to consider, not just  



                                                                                                                                                                                                                                                             

Kangas's actions, but rather the entirety of the evidence when the jurors decided whether  



                                                                                                                   

Kangas acted with an intent to kill:  



                                             

                                                                                                                                                                                                                           

                                                                In determining issues of state of mind or mental state,  

                                                                                                                                                                                                                               

                                           the jury is entitled to consider any statements made, and acts  

                                                                                                                                                                                                                            

                                           done   or   omitted   by   the   accused,   and   all   facts   and  

                                                                                                                                                                                                                          

                                           circumstances                                       in           evidence                            which                     may                  aid             [in             the]  

                                                                                                                                                                                                 

                                           determination of state of mind or mental state.  



           6         Lynden Inc. v. Walker , 30 P.3d 609, 617 (Alaska 2001) ("Jury instructions are to be   



analyzed as a whole, rather than in isolation.                                                                                                   In reviewing jury instructions, the relevant   

inquiry is whether the instructions inform the jury of the applicable law.");                                                                                                                                                            Baker v. State                              ,  

905 P.2d 479, 490 (Alaska App. 1995) ("It is true, as Baker points out, that Instruction 9 does  

not specifically state that these elements of complicity must be proved beyond a reasonable                                                                            

doubt.  However, jury instructions are not to be viewed in isolation; instead, we must assess   

the group of instructions as a whole.").  



                                                                                                                                    -  9 -                                                                                                                              2667
  


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

                    This last part of the jury instruction is simply a special application of the  

                                                                                                          



general principle stated in the trial judge's other instructions to Kangas's jury:   the  

                                                                                                                                



principle that the jurors were "the sole judges" of "the credibility ... [and] the weight" of  

                                                                                                                                  



the trial testimony, and that the jurors were "the ones  to finally determine what ...  

                                                                                                                                  



conclusions of fact should be [drawn]" from that testimony.  

                                                                                             



                    When we evaluate the trial judge's instruction on circumstantial evidence  

                                                                                                                        



in the context of the jury instructions as a whole, we conclude that no reasonable juror  

                                                                                                                              



would interpret the instruction as a judicial request or directive for the jurors to draw any  

                                                                                                                                



particular inferences from Kangas's actions.  Instead, the challenged instruction merely  

                                                                                                                           



clarified  the  jurors'  authority  to  draw  such  inferences  if  they  believed  that  those  

                                                                                                                            



inferences were justified by the evidence.  

                                                                 



                    For these reasons, we reject Kangas's claim of error relating to this jury  

                                                                                                                               



instruction.  

                   



          Kangas's claim that he was illegally subjected to pre-trial psychological  

          evaluations, and that thestatements hemadeduringtheseevaluations were  

                                                                                                                    

          extracted from him in violation of his privilege against self-incrimination  

                                                                                                



                    Before   Kangas's   trial,   the   superior   court   issued   an   order   under  

                                                                                                                           



AS12.47.070(a), directing that Kangas beevaluated by two forensic psychologists to see  

                                                                                                                                 



whether  Kangas  suffered  from  any  mental  disease  or  defect  that  might  affect  his  

                                                                                                                                



competence to stand trial or his ability to form any relevant culpable mental state.  

                                                                                                                               



                    Although Kangas's trial attorney consented to these evaluations - in fact,  

                                                                                                                               



the defense attorney took affirmative steps to facilitate these evaluations - Kangas now  

                                                                                                                               



argues  that  the  superior  court  had  no  authority  to  order  these  two  psychological  

                                                                                                               



examinations  because  (according  to  Kangas)  there  was  no  reason  to  believe  that  

                                                                                                                              



Kangas's mental condition would be at issue in his case.  Kangas further argues that he  

                                                                                                                                  



                                                              -  10 -                                                         2667
  


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

was  compelled  to  incriminate  himself  during  these  examinations,  and  that  his  

                                                                                                                              



incriminating statements were later used against him.  

                                                                                    



                    According to Kangas, even though the State never directly relied on either  

                                                                                                                            



of the two psychological evaluations at trial, the State's trial evidence inevitably must  

                                                                                                                             



have been derived, at least in part, from Kangas's statements to the psychologists.  And  

                                                                                                                              



in any event, Kangas claims that he is entitled to be re-sentenced because the superior  

                                                                                                                       



court relied on one of the examiner's conclusions at sentencing.  

                                                                                                   



                    For the reasons we are about to explain, we conclude that the superior court  

                                                                                                                             



could properly order the psychological evaluations under AS 12.47.070(a), and we  

                                                                                                                               



further conclude that Kangas's statements during these evaluations were not compelled.  

                                                                                                                                     



               The underlying facts pertaining to these issues  

                                                                              



                    During the investigation of Kangas's case, the prosecutors learned (from  

                                                                               



medical records) that, at the time of the homicides, Kangas was being treated by a  

                                                                                                                                  



psychiatrist for a "depressive disorder" - a disorder that left Kangas with  a  "low  

                                                                                                                            



frustration tolerance".  In addition, when Kangas's father, Arvin, was interviewed by  

                                                                                                                                



investigators, he suggested that Kangas's actions might be attributable to a "lithium  

                                                                                                                       



deficiency".  

                     



                    Additional evidence that Kangas potentially suffered froma mental disease  

                                                                                                                          



or defect was contained in letters that Kangas and his father Arvin sent from jail; in their  

                                                                                                                             



letters, both Kangas and his father mentioned Kangas's mental health problems.  And  

                                                                                                                             



when Arvin Kangas was brought to trial (a trial that preceded his son's trial), both Arvin  

                                                                                                                           



and Kangas's mother Judy testified about Kangas's mental health problems.  

                                                                                                                      



                    Based on this information, the prosecutor in Kangas's case filed a pre-trial  

                                                                                                                        



motion asking the superior court to issue an order under AS 12.47.070(a), directing that  

                                                                                                                               



                                                             -  11 -                                                         2667
  


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

Kangas be examined by two forensic psychologists to assess his mental condition on the  

                                                                                                                                 



ground that "there is reason to believe that a mental disease or defect of the defendant  

                                                                       



will ... become an issue in the case."  

                                                          



                    Kangas's  defense  attorney  told  the  court  that  he  did  not  oppose  the  

                                                                                                                                



requested psychological evaluations, so long as the evaluations could be scheduled so  

                                                                                                                                  



that they did not conflict with the attorney's other obligations.  (That is, the defense  

                                                                                                                         



attorney wished to attend these evaluations.)  

                                                                       



                    Based on the information contained in the prosecutor's motion, and based  

                                                                                                                             



on the defense attorney's non-opposition, the superior court issued an order for the  

                                                                                                                                



psychological evaluations.  

                                           



                    The court sent a copy of this order to the Alaska Psychiatric Institute in  

                                                                                                                                  



Anchorage (API), asking for two qualified psychiatrists or forensic psychologists to  

                                                                                                                                  



perform the evaluations. But the director of API informed the court that she did not have  

                                                                                                                              



two psychiatrists or forensic psychologists on her staffwho were certified to performthis  

                                                                                                                                



type of evaluation.  

                               



                    After learning of the director's response, the superior court held a hearing  

                                                                                                                          



with the prosecutor and the defense attorney.  At this hearing, the two attorneys agreed  

                                                                                                                           



that Dr. Wendy Elliott of API could perform one of the evaluations even though she was  

                                                                                                                               



not board-certified to perform this type of work.  And the attorneys informed the court  

                                                                                                                             



that, working together, they would find a mutually agreeable psychiatrist or psychologist  

                                                                                                                  



to perform the other evaluation.  

                                                    



                    At an ensuing hearing held two weeks later, the prosecutor and the defense  

                                                                                                                          



attorney informed the court that they had selected Dr. David Sperbeck to perform the  

                                                                                                                                



other evaluation.  

                            



                    Kangas was subsequently evaluated by both Dr. Elliott and Dr. Sperbeck.  

                                                                                                                                      



One of Kangas's defense attorneys attended both of these evaluations.  

                                                                                                             



                                                              -  12 -                                                         2667
  


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

                    At the beginning of Dr. Elliott's session with Kangas, she informed Kangas  

                                                                                                                          



of the nature and purpose of the evaluation, as well as the fact that she was employed by  

                                                                                                                                 



the court, and that Kangas would not be able to claim that the interview or the doctor's  

                                                                                                                         



ensuing evaluation were confidential.  Dr. Elliott also informed Kangas that she might  

                                                                                                                            



be called to testify about the information contained in her report. Finally, Dr. Elliott told  

                                                                                                                               



Kangas that he had a right to refuse to participate in the evaluation.  After hearing all of  

                                                                                                                                  



this, Kangas agreed to participate, and Dr. Elliott performed the evaluation.  

                                                                                                                     



                    Dr. Sperbeck likewise informed Kangas that he was employed by the court,  

                                                                                                                             



and that the information which Kangas provided during the evaluation would not be  

                                                                                                                                 



confidential - that, instead, any information that Kangas shared with Dr. Sperbeck  

                                                                                                                      



might be included in the report that Sperbeck would send to the court.  According to  

                                                                                                                                  



Dr.  Sperbeck,  Kangas  "demonstrated  an  understanding  and  acceptance  of  these  

                                                                                                                            



conditions."  

                     



                    The prosecutor did not call either Dr. Elliott or Dr. Sperbeck as witnesses  

                                                                                                                       



at Kangas's trial, nor did the prosecutor introduce any portion of their reports. However,  

                                                                                                                       



after the jury found Kangas guilty, the prosecutor and the defense attorney agreed that  

                                                                                                                               



the two psychologists' reports should be provided to the pre-sentence investigator, and  

                                                                                                                                



that the two reports should be attached to the pre-sentence report so that the superior  

                                                                                                                        



court would be apprised of them.  

                                                     



                    At Kangas's sentencing, the superior court expressly referred to some of  

                                                                                                                                  



Dr. Sperbeck's conclusions when the court found that Kangas was a "worst offender"  

                                                                                                                      



for sentencing purposes.  

                                       



                                                              -  13 -                                                         2667
  


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

           Why we uphold the superior court's decision to order the psychological  

                                                                                                     

          evaluations  



                    On appeal, Kangas acknowledges that he "did not object" to the superior  

                                                                                                                        



court's order for the psychological examinations, but Kangas claims that the superior  

                                                                                                                        



court committed plain error when it issued this order.  As we are about to explain, we  

                                                                                                                                



reject Kangas's characterization of his claim as one of "plain error".  Any error was  

                                                                                                                              



invited.   But more importantly, the record shows that Kangas was not compelled to  

                                                                                                                                 



participate in the psychological evaluations against his wishes, and thus there was no  

                                                                                                                         



error.  

            



                Why we reject Kangas's characterization of this issue as a claim of  

                                                                                                                       

                "plain error"  

                           



                    The record shows that Kangas is not entitled to make a claim of plain error.  

                                                                                                                                     



Any error here was invited by Kangas's attorney.  

                                                                              



                    True, it was the prosecutor who filed the motion asking the court to order  

                                                                                                                            



the two psychological examinations. But Kangas's attorney did not simply fail to object  

                                                                                                                           



to the proposed order.  Instead, he affirmatively told the superior court that he did not  

                                                                                                                               



object - and then the defense attorney actively worked to arrange and facilitate the  

                                                                                                                               



psychological examinations.  

                                              



                    As we have described, when the director of the Alaska Psychiatric Institute  

                                                                                                                        



informed the superior court that she did not have psychiatrists or forensic psychologists  

                                                                                                                



on her staff who were certified to conduct this type of examination, Kangas's attorney  

                                                 



told  the  court  that  he  would  agree  to  have  Dr.  Wendy  Elliott  perform  one  of  the  

                                                                                                                               



examinations even though she was not board-certified in this area of practice.   And  

                                                                                                                             



Kangas's  attorney  then  worked  with  the  prosecutor  to  find  a  second  psychologist  

                                                                                                                



                                                             -  14 -                                                         2667
  


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

(Dr. David Sperbeck) to conduct the other examination.  In other words, over a period                                                                                                       



of   weeks,   Kangas's   attorney   worked   to   promote   and   facilitate   the   psychological  



examinations.    



                                Given this record, even if it was error for the superior court to order these                                                                                   



examinations, the error was invited.                                                       And because the error was invited, we will not                                                           



reverse the trial court's ruling unless it presents an "exceptional situation where reversal                                                                                              



is necessary to preserve the integrity of the judicial process or to prevent a miscarriage                                                                                      



                           7  

of justice."                                                                                                                                                                               

                                Kangas's case does not present this type of exceptional situation.  



                                                                                                                                                                                         

                        Why we reject Kangas's assertion that he was unlawfully compelled to  

                                                                                                               

                       participate in the two psychological examinations  



                                                                                                                                                                                              

                                We begin our analysis of this question by describing the United States  



                                                                                                                                                                                          

 Supreme Court's decision in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d  



                               

359 (1981).  



                                                                                                                                                                                                    

                                In Estelle, the Supreme Court held that unless a criminal defendant has  



                                                                                                                                                                                             

either requested a psychiatric examination or has indicated that they will put their mental  



                                 8  

                                                                                                                                                                                                         

state at issue,                      it is unlawful for a court to compel the defendant to participate in a  



                                                                                                                                                                                                  

psychiatric examination if the defendant's statements to the examiner can later be used  



                                                                                                        

against the defendant at trial or sentencing.  



                                                                                                                                                                                                   

                                To make sure that a defendant's statements are not compelled, Estelle held  



                                                                                                                                                                                                

that when a defendant in this situation makes statements to a psychiatric examiner, those  



        7       Johnson v. State , 328 P.3d 77, 86 (Alaska 2014), quoting Parson v. Alaska Housing  



Finance Corp., 189 P.3d 1032, 1038 (Alaska 2008); Williams v. State, 440 P.3d 391, 396-97  

                                                                                                                                                             

(Alaska App. 2019).  



        8       Estelle, 451 U.S. at 466, 101 S.Ct. at 1874-75.  



                                                                                               -  15 -                                                                                            2667
  


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

statements   are   not   admissible   unless   the   defendant,   with   the   assistance   of   counsel,  



consented to participate in the examination after being affirmatively warned (1) that they                                                



had  the   right   not   to   participate,   and   (2)   that   any   statements   they   made   during   the  



                                                                   9  

                                                                                                                                          

examination could be used against them.                               (Compare Miranda v. Arizona, 384 U.S. 436,  



                                                                                                                                

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where the Supreme Court laid down an analogous  



                                                                                                                 

rule for persons subjected to custodial interrogation by the police.)  



                                                                                                                           

                      In the present appeal, Kangas asserts that he was ordered to involuntarily  



                                                                                                                                 

participate in the psychological examinations conducted by Dr. Elliott and Dr. Sperbeck,  



                                                                                                                        

even though he had done nothing to put his mental condition at issue.  Based on these  



                                                                                                                              

assertions, Kangas argues that his statements to Elliott and Sperbeck were compelled,  



                                                                                                                                            

and that, under Estelle, the Fifth Amendment protected him from any later use of his  



                                                                                                                             

statements, either by the State at his trial or by the court at his sentencing.  



                                                                                                             

                      We reject Kangas's characterization of the record.  



                                                                                                                            

                      First, the record shows that the superior court had proper grounds for  



                                                                                                                                           

concluding that the mental examinations were authorized under AS 12.47.070(a) - i.e.,  



                                                                                                                                             

"reason to believe that a mental disease or defect of the defendant [would] ... become an  



                                 

issue in the case."  



                                                                                                                                              

                      Second, the record shows that Kangas was not compelled to participate in  



                                                                                   

the psychological examinations against his will.  



                                                                                                                                            

                      Although  the  superior  court  issued  an  order  directing  Kangas  to  be  



                                   

examined, the court did not issue this order until after Kangas's attorney affirmatively  



                                                                                                                                        

told the court that he did not object to these examinations.   And then, as we have  



                                                                                                                                           

described, the defense attorney took repeated steps in the ensuing weeks to promote and  



      9    Estelle, 451 U.S. at 467-472, 101 S.Ct. at 1874-77.  



                                                                   -  16 -                                                               2667
  


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

facilitate these examinations.   There is no indication that the superior court ordered  

                                                                                                                        



Kangas to do something that he was otherwise unwilling to do.  

                                                                                                  



                    In addition, Kangas was expressly warned by at least one of the forensic  

                                                                                                                        



psychologists that he had the right not to participate in the examination - and both of  

                                                                                                                                 



the psychologists warned Kangas that whatever he said to them would be reported to the  

                                                                                                                                



court, and could potentially be used against him.  Aided by counsel (who attended both  

                                                                                                                             



examinations), Kangas agreed to participate in both examinations.  

                                                                                                       



                    Accordingly,  we  hold  that  Estelle  did  not  bar  the  use  of  Kangas's  

                                                                                                                     



statements to the two forensic psychologists, and that the superior court could properly  

                                                                                                                       



order the two psychological examinations.  

                                                                   



           Why we interpret AS 12.55.125(j) to mean that Kangas is entitled to seek  

                                                                                                                   

          a modification or reduction of his sentence after he serves 49  years in  

                                                                                                                       

          prison  



                    The jury found that Kangas intentionally killed two peace officers when he  

                                                                                                                                 



knew that they were acting in the performance of their duties. Because of these findings,  

                                                                                                                       



the superior court was required to sentence Kangas to a mandatory term of 99 years'  

                                                                                                                           



imprisonment on each of the two counts of first-degree murder. See AS 12.55.125(a)(1).  

                                                                                                           



                    Under Alaska law, defendants who are sentenced to a mandatory 99-year  

                                                                                                                         



term for first-degree murder are not eligible for good time credit against their sentence,  

                                                                                                                      



nor are they eligible for discretionary parole.  See AS 33.20.010(a)(1) and AS 33.16.- 

                                                                                                                         



090(a)(1), respectively.   As a result, Kangas must serve the entire 99 years of each  

                                                                                                                             



murder sentence. And under Alaska's consecutive sentencing statute, the superior court  

                                                                                                                             



was required to impose these two 99-year sentences consecutively, for a composite term  

                                                                                                                             



of 198 years' imprisonment - again, without eligibility for parole.  See AS 12.55.- 

                                                                                                                         



127(c)(2)(A) and AS 33.16.090(b)(7)(A), respectively.  

                                                                                        



                                                             -  17 -                                                         2667
  


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

                    But under AS 12.55.125(j), defendants who receive a mandatory 99-year  

                                                                                                                        



term of imprisonment  are eligible to apply for a modification or reduction of their  

                                                                                                                             



sentence after they have served one-half of the mandatory 99-year term - i.e., after they  

                                                                                                                              



have served 49  chronological years.  

                                                            



                    The question presented in Kangas's case is how to apply this statute to  

                                                                                                                                 



defendants who, like Kangas, have received more than one mandatory 99-year term of  

                                                                                                                                 



imprisonment.  

                         



                    At Kangas's sentencing, the superior court interpreted AS 12.55.125(j) as  

                                                                                                                                 



meaning that Kangas would have to serve one-half of his 198-year composite sentence  

                                                                                                                                     



- i.e., 99 years - before he would be eligible to apply for a modification or reduction  

                                                                                                                      



of his sentence under the statute. (In other words, Kangas would not be eligible to apply  

                                                                                                                            



until he was 119 years old.)  

                                             



                    For the reasons we are about to explain, we construe AS 12.55.125(j) to  

                                                                                                                                     



mean that Kangas will be eligible to apply for a modification or reduction of his sentence  

                                                                                                                       



after he serves 49  years of his composite sentence.  

                                                                                 



                    The legislature enacted AS 12.55.125(j) as part of the same session law  

                                                                                                                  



where the legislature prescribed a mandatory 99-year sentence for offenders who murder  

                                                                                                                         



peace officers who are engaged in the performance of their duties.   See  SLA 1992,  

                                                                                                                           



ch. 79,  23 (mandatory 99-year sentence) and  25 (opportunity to seek modification  

                                                                  



or reduction of the sentence after 49  years).  

                                                                        



                    The legislative history of AS 12.55.125(j) is fairly limited.  At a meeting  

                                                                  



in January 1992, when the House Judiciary Committee was considering whether to enact  

                                                                                                                            



mandatory 99-year sentences, several members of the committee (as well as several  

                                                                                                                         



witnesses who appeared before the committee) discussed the desirability of creating a  

                                                                                                                                  



                                                             -  18 -                                                         2667
  


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

                                                                                                                                                                 10  

"safety valve" that would allow judges to alter a mandatory 99-year sentence.                                                                                         At a   



second meeting of the committee two days later, a witness representing the Alaska                                                                                



Action Trust proposed a provision that would allow such defendants to apply for a                                                                                            



modification or reduction oftheir sentencehalfway                                                     through their mandatory term, giving                          



                                                                                                                                                              11  

                                                                                                                                                                                  

these defendants the opportunity to prove that they had been rehabilitated.                                                                                          (This  



                                                                                                                                                                  

witness later submitted a position paper on behalf of the Alaska Action Trust further  



                                                     12  

                                                          

explaining this proposal.)  



                                                                                                                                                                 

                           OnJanuary27, 1992,theHouseJudiciaryCommitteeunanimously adopted  



                                                                                                                                            13  

                                                                                                                                                             

an amendment to House Bill 396 that incorporated this suggestion.                                                                                 This provision  



                                                                                           

ultimately was enacted as AS 12.55.125(j).  



                                                                                                                                                                      

                           However, with regard to the situation posed by Kangas's case - i.e., cases  



                                                                                                                                                                         

where  a  defendant  has  received  two  or  more  mandatory  99-year  sentences  -  the  



                                                                                                                                                                      

legislative history is silent. It does not appear that the Judiciary Committee (or any other  



                                                                                                                                                           

legislative committee) ever discussed how this provision would be applied to defendants  



                                                                                                 

who received more than one 99-year sentence.  



       10     Recording  of   the  House  Judiciary   Committee  proceedings  of   January   22,  1992  



commencing at 9:54 a.m., @ 1:00:25 - 1:15:30 (consideration of House Bill 396):  

                                                                                                                                               

   http://www.akleg.gov/ftr/archives/1992/HJUD/03-HJUD-920122.mp3  



       11  

                                                                                                                                                             

              Recording  of  the  House  Judiciary  Committee  proceedings  of  January  24,  1992  

commencing at 9:40 a.m., @ 30:11 - 30:35 (consideration of House Bill 396):  

                                                                                                                                               

   http://www.akleg.gov/ftr/archives/1992/HJUD/05-HJUD-920124.mp3  



       12  

                                                                                                                                                                          

              Position paper of the Alaska Action Trust regarding House Bill 396 (January 26,  

 1992), pages 5-6.  



       13  

                                                                                                                                                             

              Recording  of  the  House  Judiciary  Committee  proceedings  of  January  27,  1992  

commencing at 10:19 a.m., @ 7:10 - 7:15:  

    

                                                                                                                                               

    http://www.akleg.gov/ftr/archives/1992/HJUD/07-HJUD-920127.mp3  



                                                                                  -  19 -                                                                              2667
  


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

                    We further note that it was not until twelve years later (in 2004) that the  

                                                                                                                               



legislature enacted AS 12.55.127, the statute which requires that all of a defendant's  

                                                                                                                  



mandatory 99-year terms be imposed consecutively.  See AS 12.55.127(c)(2)(A).  We  

                                                                                                                              



have  found  nothing  in  the  legislative  record  to  indicate  that  the  legislature  ever  

                                                                                                                             



considered how this requirement of consecutive sentencing would affect a defendant's  

                                                                                                                   



eligibility to apply for a modification or reduction ofamandatory99-year sentence under  

                                                                                                                            



AS 12.55.125(j).  

                            



                    We acknowledge that the policy behind the legislature's actions points in  

                                                                                                                                 



two directions.  

                          



                    When the legislature enacted mandatory 99-year sentences for the murder  

                                                                                                                         



of a police officer, and when the legislature later required consecutive sentencing for  

                                                                                                                                



defendants who murder more than one officer, the legislature obviously intended to  

                                                                                                                                 



express society's most severe condemnation of this type of murder, and to ensure that  

                                                                                                                              



the defendant's sentence fully reflected the value of each individual officer's life.  

                                                                                                                             



                    On the other hand, any sentence of 99 years without possibility of parole,  

                                                                                                                          



and without any reduction for good time credit, effectively means that even the youngest  

                                                                                                                       



of offenders will spend the rest of their days in prison, and will die there.  The legisla- 

                                                                                                                 



ture's  decision to allow such defendants to seek modification or reduction of their  

                                                                                                                            



sentence  after  serving  a  full  49   years  in  prison  demonstrates  the  legislature's  

                                                                                                                 



acknowledgement that, over the course of half a century, an offender's thinking and  

                                                                                                                



behavior might be altered to the point where the defendant was no longer a danger to  

                                                                                                                                 



society, so that the defendant's term of imprisonment might be reduced, or the defendant  

                                                                                                                     



might be released on parole.  

                                             



                    Neither the language of AS12.55.125(j) nor the pertinent legislative record  

                                                                                                                           



provides  a  clear  answer  as  to  which  of  these  policies  the  legislature  considered  

                                                                                                                   



paramount in situations where a defendant receives two or more mandatory 99-year  

                                                                                                                        



                                                             - 20 -                                                          2667
  


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

sentences.   Given this ambiguity, and because AS 12.55.125(j) is a penal statute, we are                                                                

required to construe AS 12.55.125(j) against the government.                                                      14  



                                                                                                                                                      

                        We accordingly hold that, even when a defendant has received two or more  



                                                                                                                                                        

consecutive  mandatory  99-year  sentences  for  the  crime  of  first-degree  murder,  the  



                                                                                                                                               

defendant is eligible to apply for a modification or reduction of their composite sentence  



                                                                                                                                                      

under AS 12.55.125(j) after the defendant has served 49  chronological years of their  



                   

sentence.  



            Conclusion  



                        The judgement of the superior court is AFFIRMED, but Kangas will be  

                                                                                                                                                          



eligible to apply for a modification or reduction of his sentence under AS 12.55.125(j)  

                                                                                                                                        



after he serves 49  years.  

                                                 



      14    See State v. Andrews                , 707 P.2d 900, 907 (Alaska App. 1985), opinion adopted by the   



supreme court in State v. Andrews, 723 P.2d 85, 86 (Alaska 1986) ("Ambiguities in criminal  

statutes must be narrowly read and construed strictly against the government.");                                                                see also  

 Wells  v.  State,  706  P.2d  711,  713  (Alaska   App.   1985)  ("It  is  well  established  that,  in  

                                                 

accordance with the rule of lenity, ambiguities in penal statutes must be resolved in favor of  

the accused.").  



                                                                          - 21 -                                                                      2667
  

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