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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Groppel (11/2/2018) sp-7313

State v. Groppel (11/2/2018) sp-7313

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                       

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                         

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                      



STATE  OF  ALASKA,                                                  )  

                                                                    )                                      

                                                                          Supreme Court No.  16592  

                                Petitioner and                      )  

                                                 

                                                                                                                

                                                                          Court of Appeals Nos. A-12662/1275 1  

                                Cross-Respondent,                   )  

                                                                    )                                                               

                                                                          Superior Court No. 4FA-14-01954 CR  

           v.                                                       )  

                                                                    )                          

                                                                          O P I N I O N  

CONAR L. GROPPEL,  

                                                                    )  

                                                                    )                                               

                                                                          No. 7313 - November 2, 2018  

                                Respondent and  

                                                                    )  

                                Cross-Petitioner,                   )  

                                                                    )  

           v.                                                       )  

                                                                    )  

ALASKA COURT SYSTEM,  

                                                                    )  

                                                                    )  

                                Respondent and  

                                                                    )  

                                Cross-Respondent.                   )  

                                                                    )  



                                     

                                                                                                                  

                     Certified Question from the Court of Appeals of the State of  

                                                                                                                 

                     Alaska, on Petition for Review fromthe Superior Court of the  

                                                                                                   

                     State       of    Alaska,        Fourth        Judicial        District,       Fairbanks,  

                                                              

                     Michael A. MacDonald, Judge.  



                                                                                                         

                     Appearances:  Kenneth M. Rosenstein and Patricia Haines,  

                                                                                                       

                     Assistant Attorneys  General,  Office of Criminal Appeals,  

                                                                                                          

                     Anchorage,and JahnaLindemuth,Attorney General,Juneau,  

                                                                                                        

                     for  Petitioner  and  Cross-Respondent.                              Brooke  Berens,  

                                                                                                          

                     Assistant  Public  Advocate,  and  Richard  Allen,   Public  

                                                                                                                      

                     Advocate, Anchorage, for Respondent and Cross-Petitioner.  

                                                                                                                 

                     Thomas P. Amodio, Reeves Amodio LLC, Anchorage, for  

                                                                                                        

                     Respondent   and   Cross-Respondent.                              Kelly   R.   Taylor,  


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

                       Assistant   Public   Defender,   and   Quinlan   Steiner,   Public  

                       Defender,   Anchorage,   for   Amicus   Curiae   Alaska   Public  

                       Defender Agency.                   



                       Before:   Stowers,   Chief   Justice,   Winfree,   Maassen,   and  

                                                                                                             *   [Carney,  

                       Bolger, Justices, and Matthews, Senior Justice.                                           

                       Justice, not participating.]  

                                             



                        STOWERS, Chief Justice.  

                                                          



I.          INTRODUCTION  



                       When a criminal defendant asserts the defense of insanity or diminished  

                                                                                                                                     



capacity or the defendant's mental fitness otherwise is at issue, AS 12.47.070 requires  



the court to appoint two qualified psychiatrists or two psychologists certified by the  

                                                                                                                                                   



American Board of Forensic Psychology to examine the defendant.  This case presents  

                                                                                                                                          



the questions whom these experts serve, how they are to be chosen, and who must bear  

                                                                                                                                                 



their costs. We answer that these are the court's experts, that Alaska Psychiatric Institute  

                                                                                                                                          



(API) must provide them if API employs experts with the qualifications set out by  

                                                                                                                                                   



statute, and that if API does not employ such qualified experts, then the superior court  

                                                                                                                                               



must appoint qualified experts and the Alaska Court System must bear their costs.  

                                                                                                                                       



II.         FACTS AND PROCEEDINGS  

                                       



                        Conar  L.  Groppel  is  charged  with  first-  and  second-degree  murder,  

                                                                                                                                         



manslaughter, first- and second-degreearson,first-degreecriminalmischief, first-degree  

                                                                                                                                     



burglary, and evidence tampering.  Groppel notified the superior court he might rely on  

                                                                                                                                                    



the defense of diminished capacity, and pursuant to AS 12.47.070(a) the court was  

                                                                                                                                                 



required  to  appoint  at  least  two  qualified  psychiatrists  or  board-certified  forensic  

                                                                                                                                         



            *           Sitting by assignment made under article IV, section 11 of the Alaska                                               



Constitution and Alaska Administrative Rule 23(a).                               



                                                                         -2-                                                                        7313  


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

                                                                                                                                                                                                                                                                                                                                                                                                                      1  

psychologists to examine him and report upon his mental condition.                                                                                                                                                                                                                                                                                                                                                          Later Groppel also                                                                         



moved for a competency and culpability examination.                                                                                                                                                                                                      



                                                                                  Groppel was evaluated by Dr. Kristy Becker, a forensic psychologist at                                                                                                                                                                                                                                                                                                                                                                          



API. Although the superior court found Dr. Becker was "substantively qualified to give                                                                                                                                                                                                                                                                                                                                                                                                                               



 an opinion in this case," it ruled she was not qualified under AS 12.47.070 because she                                                                                                                                                                                                                                                                                                                                                                                                                                  



was not certified by the American Board of Forensic Psychology.                                                                                                                                                                                                                                                                                                                                                  The court explained                                               



 it had conferred with API representatives and "confirmed                                                                                                                                                                                                                                                                                             that [API]ha[d]                                                                                 no psychiatrist   



 qualified according to the statute to conduct the examination."                                                                                                                                                                                                                                                                                                                                              The court therefore                                                    



 announced it would appoint two statutorily qualified experts and stated, "It is the court's                                                                                                                                                                                                                                                                                                                                                                                                        



 intention that each party will be entitled to [its] own expert, each party to bear [its] own                                                                                                                                                                                                                                                                                                                                                                                                                       



 expert costs and fees."                                                                             



                                                                                  The State petitioned the court of appeals for review, arguing the Office of                                                                                                                                                                                                                                                                                                                                                                    



Public Advocacy (OPA) - which represented Groppel - should bear the costs of both                                                                                                                                                                                                                                                                                                                                                                                                                                   



 experts.   Groppel cross-petitioned for review, arguing the Alaska Court System should                                                                                                                                                                                                                                                                                                                                                                                                              



pay the entire costs of both experts. The State responded, adopting Groppel's argument                                                                                                                                                                                                                                                                                                                                                                                               



 as an alternative position.  The court of appeals then invited the Court System to file a   



                                         1                                       See  AS 12.47.020(a) ("Evidence that the defendant suffered from a mental                                                                                                                                                                                                                                                                                                                                    



 disease or defect is admissible whenever it is relevant to prove that the defendant did or                                                                                                                                                                                                                                                                                                                                                                                                                                      

 did   not have a culpable mental state which is an element of the crime.                                                                                                                                                                                                                                                                                                                                                                                                   However,  

 evidence of mental disease or defect that tends to negate a culpable mental state is not                                                                                                                                       

 admissible unless the defendant, within 10 days of entering a plea, or at such later time                                                                                                                                                                                                                                                                                                                                                                                                                         

 as the court may for good cause permit, files a written notice of intent to rely on that                                                                                                                                                                                                                                                                                                                                                                                                                             

 defense."); AS 12.47.070(a) ("If a defendant has filed a notice of intention to rely on the                                                                                                                                                                                                                                                                                                                                                                                                                                

 affirmative   defense   of   insanity   under   AS   12.47.010   or   has   filed   notice   under   AS  

  12.47.020(a), or there is reason to doubt the defendant's fitness to proceed, or there is                                                                                                                                                                                                                                                                                                                                                                                                                                        

reason to believe that a mental disease or defect of the defendant will otherwise become                                                                                                                                                                                                                                                                                                                                                                                                       

 an issue in the case, the court shall appoint at least two qualified psychiatrists or two                                                                                                                                                                                                                                                                                                                                                                                                                            

 forensic   psychologists   certified   by   the   American  Board  of   Forensic   Psychology   to  

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



                                                                                                                                                                                                                                                                -3-                                                                                                                                                                                                                                               7313
  


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

response; the Court System argued the superior court was correct to divide the costs                                                                                   



between the State and OPA, but in the alternative OPA should cover the full costs of both                                                                                

experts.2  



                                                                                                                                                                            

                           The court of appeals certified the question to this court, and we granted the  



                                                                                                                                                                       

certification. On January 24, 2018 we issued an order vacating the superior court's order  



                                                                        

and remanding with the following instructions:  



                                                                                                                             

                                          1. The court shall appoint qualified API psychiatrists  

                                                                                                                 

                           or psychologists to perform the required evaluations unless  

                                                                                                                            

                           the court finds that no psychiatrists at API are qualified and  

                                                                                                                                              

                           no  forensic  psychologists  at  API  are  certified  by  the  

                                                                                                                                                  

                           American  Board  of  Forensic  Psychology,  or  that  there  is  

                                                                                                                              

                           another legitimate reason why API staff cannot perform the  

                                                      

                           evaluations.  



                                                                                                                                   

                                         2.       If  the  court  finds  that  there  are  no  qualified  

                                                                                                                                                   

                           psychiatrists and no board-certified forensic psychologists at  

                                                                                                                                        

                           API,  the  court  shall  appoint  at  least  two  neutral  expert  

                                                                                                                                        

                           witnesses   from   outside   API.                                       The   court   may   solicit  

                                                                                                                                                  

                           recommendations from the parties when deciding whom to  

                                                                                                                                                  

                           appoint.  But the experts shall report to the court and not to  

                                                                                                                                                

                           the  parties,  and  the  scope  of  the  evaluations  shall  be  

                                                                                                                                            

                           controlled by the court. The Court System shall pay for these  

                                                                                                                                

                           non-API experts pursuant to AS 12.47.070 and in accordance  

                                                                                                    [3]  

                                                                                                 

                           with Alaska Administrative Rule 8. 



We stated that an opinion explaining our order would be published at a later date.  This  

                                                                                                                                                                        



is that opinion.  

              



              2            The State's and                     the Court System's alternative positions became their                                                   



primary positions at oral argument before us: the State argued the Court System should                                                                              

pay, and the Court System maintained OPA should pay.                                                       



              3            State v. Groppel, No. S-16592 (Alaska Supreme Court Order, Jan. 25,  

                                                                                                                                                                           

2018).  



                                                                                      -4-                                                                              7313
  


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

III.       STANDARD OF REVIEW              



                                                                                                                                              4  

                      The interpretation of a statute is a question of law we review de novo.                                                     



                                                                                                                             

"We construe statutes according to reason, practicality, and common sense, considering  



                                                                                                                                5  

                                                                                                                                   We use   

the meaning of the statute's language, its legislative history, and its purpose." 



                                                                                                                                        

"a sliding scale approach, under which 'the plainer the language of the statute, the more  



                                                                                    6  

                                                                                   

convincing contrary legislative history must be.' " 



IV.        DISCUSSION  



                      Alaska  Statute  12.47.070  provides  for  psychiatric  or  psychological  

                                                                                                                        



examination of a criminal defendant when the defendant has filed notice of his intent to  

                                                                                                                                             



rely on a defense of insanity or diminished capacity, when "there is reason to doubt the  

                                                                                                                                           



defendant's fitness to proceed," or when "there is reason to believe that a mental disease  

                                                                                                                                     

or defect of the defendant will otherwise become an issue in the case."7                                                     The statute  

                                                                                                                                     



directs  the  court  to  "appoint  at  least  two  qualified  psychiatrists  or  two  forensic  

                                                                                                                                  



psychologists certified by the American Board of Forensic Psychology to examine and  

                                                                                                                                           

report upon the mental condition of the defendant."8   This opinion clarifies whom these  

                                                                                                                                        



experts serve, how they are to be selected, and who bears their expense.  

                                                                                                          



           A.         Experts Appointed Under AS 12.47.070 Are The Court's Experts.  

                                                                                                                             



                      The superior court apparently viewed the two experts it sought to appoint  

                                                                                                                                    



as being the parties' experts.  It stated, "It is the court's intention that each party will be  

                                                                                                                                             



           4          State  v.  Korkow,  314  P.3d  560,  562  (Alaska  2013).  



           5          Alaska  Airlines,  Inc.  v.  Darrow,  403  P.3d   1116,   1121  (Alaska  2017).  



           6          Id.  at   1121-22  (quoting  Bartley  v. State,  Dep't  of Admin.,  Teachers'  Ret.  



Bd.,   110  P.3d   1254,   1258  (Alaska  2005)).  



           7          AS   12.47.070(a).  



           8          Id.  



                                                                      -5-                                                              7313
  


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

entitled to [its] own expert, each party to bear [its] own expert cost and fees."                                                                  The court   



was mistaken.                Experts appointed under AS 12.47.070(a) serve as the court's expert                                                          



witnesses.  



                          In  1972   the   Alaska   Legislature   codified   the   defenses   of   insanity   and  



diminishedcapacityand provided for psychiatricexaminationofdefendants raisingthose                                                                           

                  9  The law directed the court to "appoint at least one qualified psychiatrist" or  

defenses.                                                                                                                                                         



request API's superintendent "to designate at least one qualified psychiatrist . . . to  

                                                                                                                                                                



examine and report upon the mental condition of the defendant" if there were reason to  

                                                                                                                                                                  

believe the defendant's mental condition would be at issue.10                                                         With court permission, a  

                                                                                                                                                                    



qualified expert retained by the defendant would "be permitted to witness and participate  

                                                                                                                                                  

in the examination."11  The statute required the examination report to be filed with the  

                                                                                                                                                                

clerk of the court, who would then distribute copies to the parties.12  

                                                                                                                 



                          The Alaska Legislature has twice amended this statute: first in 1981 in an  

                                                                                                                                                                 

                                                                                                  13  and again in 1982 to modify the  

act primarily concerning involuntary commitment,                                                                                                                

                                                                         

defenses available to defendants claiming mental disease or defect.14  In 1981 it added  

                                     



the phrase "or a forensic psychologist certified by the American Board of Forensic  

                                                                                                                                                     



             9           See  ch. 119,  1, SLA 1972;                            Schade v. State               , 512 P.2d 907, 911 (Alaska             



 1973).  



             10           Ch. 119,  1, SLA 1972.
  

                                                              



             11          Id.
  



             12          Id.
  



             13           Ch. 84,  2, SLA 1981.  

                                                            



             14           Ch. 143,  22, SLA 1982.  

                                                                 



                                                                                -6-                                                                         7313
  


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

                              15  

Psychology."                       The 1982 bill increased the number of qualified experts from one to two,                                                                             



                                                                                                                                                     16  

and removed the language referring to the superintendent of API.                                                                                                                     

                                                                                                                                                            Neither of these  



                                                                                                                                                     

changes altered the character of these examiners as experts for the court.  



                                                                                                                                                                                                   

                              1.	            The history of the 1982 amendments reveals legislative intent  

                                                                                                       

                                             to provide non-partisan experts.  



                                                                                                                                                                                          

                              An early House Judiciary Committee draft of the 1982 bill revising the  



                                                                                                                                      17  

                                                                                                                                                                        

psychiatricexamination lawcalled for "at least three"experts,                                                                              and thefinal amendment  



                                                     18  

                                         

required "at least two."                                                                                                                                                      

                                                           One legislator explained, "[G]etting the benefit of different  



                                                                                                                                                                                     

opinions . . . [is] the real point here, not that they pick some guy who supposedly is super  



                                                                                                                                                                                19  

                                                                                                                                                                                      

objective and scientifically accurate.  It's not that.  It's a subjective judgment." 



                                                                                                                                                                                   

                              The  House  Judiciary  Committee  hearings  also  make  clear  the  court- 



                                                                                                                                                                  

appointed experts are separate from prosecution or defense experts.  A representative  



               15	            Ch. 84,  2, SLA 1981.                  



               16	            Ch.   143,      22,   SLA   1982.     This   law   moved   the   provision   from   AS  



 12.45.087 to its current location at AS 12.47.070 and made other changes immaterial to  

                                                                                                                                                                                             

our analysis.                 Compare  ch. 119,  1, SLA 1972,                                              with  ch. 143,  22, SLA 1982.                          



               17             H. Judiciary Comm., Bill Cook's Draft of Senate Bill (S.B.) 535, 12th Leg.,  

                                                                                                                                                                                      

2d Sess., Alaska Leg. Microfiche Collection No. 1642.  

                                                                                                              



               18             H. JudiciaryComm.,SecondWorkDraftforInsanity DefenseAmendments  

                                                                                                                                                                    

to H. Comm. Substitute (H.C.S.) for Comm. Substitute (C.S.) for S.B. 535, 12th Leg.,  

                                                                                                                                                               

2d Sess., Alaska Leg. Microfiche Collection No. 1642.  

                                                                                                              



               19             H. Judiciary Comm., Hearing on S.B. 535, 12th Leg., 2d Sess., May 20,  

                                                                                                                                                                                          

 1 9 8 2 ,                   a u d i o                   r e c o r d i n g                           a t           1 : 1 8 : 5 7                        -          1 : 1 9 : 1 5 ,  

http://www.akleg.gov/ftr/archives/1982/HJUD/B79R30-HJUD-28-820519-820524.mp3  

[hereinafter Hearing Audio]; see also MODEL  PENAL  CODE   4.05 cmt. 2 n.5 (A                                                                                                  M. L     AW  

                                                                                    

INST . 1985) ("Given thedivergent                                          views among psychiatrists concerning mental disease,                                                 

some authors have advocated deemphasizing the 'impartiality' of psychiatric testimony                                                                                       

of court-appointed psychiatrists in favor of presenting the finder of fact with as much                                                                                              

psychiatric information as possible.").                     



                                                                                             -7-	                                                                                     7313
  


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

from the Department of Law testified that he opposed the increase in experts from one                                                                                                                                                              



to two:   



                                       We'll   have   two   disinterested   psychiatrists,   assuming   a  

                                       disinterested                              psychiatrist                            can             be            found.                         If         they're  

                                       disinterested, one is likely to go one way; another is likely to                                                                                                          

                                       go the other way.                                     And then each party is going to bring in                                                                            

                                       further psychiatrists.                                         I think we're doubling the number of                                                                      

                                       psychiatrists likely to appear in any given trial.                                                                                             Currently,  

                                       someone from API is usually appointed by the court.                                                                                                         If that   

                                       psychiatrist says the person is insane, the State usually goes                                                                                                    

                                       along with that.                                If that person - if that psychiatrist says the                                                                         

                                       person  is  sane,   the   defense   goes   out   and   gets   its   own  

                                       psychiatrist.   So there are usually two psychiatrists testifying                                                                                   

                                       in any trial.                       Here we're going to have two court-appointed                                                 

                                       psychiatrists   and   then   it's   very   likely   that   the   parties   are  

                                       going to go out and get their own psychiatrists. . . .                                                                                                    And  

                                       we're likely to have four psychiatrists instead of two. I don't                                                                                               

                                       see any need for this.                                         [20]  



The members of the Committee disagreed, expressing the view that psychiatry "is not an  

                                                                                                                                                                                                                                                       

exact science" and  that "it is better  to  have more than  one opinion."21                                                                                                                                                   In  another  

                                                                                                                                                                                                                                      

                                                                                                                                                                                       



representative's  view,  "the  worst  case  situation  .  .  .  is  that  we  might  have  four  

                                                                                                                                                                                                                                                

psychiatrists instead of two. So what?"22  Moreover, at oral argument before us the Court  

                                                                                                                                                                                                                                             



 System agreed that the experts were neutral experts for the court.  

                                                                                                                                                                              



                                       These legislators' openness to multiple psychiatric opinions is consistent  

                                                                                                                                  



with comments from the drafters of the Model Penal Code, upon which the original 1972  

                                                                                                                                                                                                                                               



statute is based.  

                            



                    20                 Hearing Audio,                                 supra  note 19, at 32:14-33:14.                     



                    21                 Id.  at 1:11:30-1:11:43.   



                    22  

                                                        

                                       Id. at 1:13:36-1:13:56.  



                                                                                                                           -8-                                                                                                                 7313
  


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

                        2.	         The   Model   Penal  Code   drafters'   comments   are   persuasive   

                                    authority supporting our interpretation.           



                        The principal goal of the 1972 law was to overhaul Alaska's legal standard                                            



                                                                                                                                          23  

for the insanity defense, which this court declined to do in                                                    Pope v. State            .     Justice  



                                                                                                                                           

Connor  filed  a  lengthy  dissent  on  this  issue,  criticizing  the  "retrograde  decision"  



                                                                                                                                                 

formulating the state's then-extant insanity test and praising the approach of the Model  



                      24  

                                                                                                                                              

Penal Code.                 This critique apparently proved persuasive to Representative William  



                                                                                                   25  

                                                                                                                                                         

Moran, who chaired the House Judiciary Committee.                                                        The committee took care to  



                                                                                                                                                     

incorporate substantially all of Sections 4.01 (insanity or diminished capacity) to 4.05  



                                                                                                                              26  

                                                                                                                        

(psychiatric examination) of the Model Penal Code into the 1972 bill. 



                                                                                                                                                   

                        Although a robust draft of the Model Penal Code was completed by 1962,  



                                                                                27  

                                                                                                                                           

it  was  not  published  officially  until  1985.                                     The  1985  version  included  extensive  



                                                                                                                                                   

commentary by the drafters, including their discussion of the model provision for court- 



                                                                                       

appointed experts.  The commentary notes this section  



                                                                                                                                  

                        allows,  but  does  not  require,  the  court  to  order  that  a  

                                                                                                                                

                        psychiatrist  representing  the  defendant  be  permitted  to  



            23          478  P.2d  801,  806  (Alaska   1970).  



            24          Id .  at  809-12  (Connor,  J.,  dissenting  in  part).  



            25          Minutes,  H.  Judiciary  Comm.  Hearing  on  H.  Bill  (H.B.)  341,  7th  Leg.,  2nd  



Sess.,  May   1,   1972,  Alaska  Leg.  Microfiche  Collection  No.  30.  



            26          Id .;  Minutes, H. Judiciary  Comm. Hearing  on H.B.  341, 7th  Leg.,  2nd Sess.,  



Jan.  21,  1972,  Alaska  Leg.  Microfiche  Collection  No.  27;  compare  MODEL  PENAL  CODE  

  4.05  (AM.  LAW  INST .,  Proposed  Official  Draft  1962),  with  ch.  119,    1,  3,  SLA  1972.   

The  1972  bill  does  not  include  a  version  of  Section  4.02(2)  of  the  Model  Penal  Code  -  

which   addresses   life   imprisonment   as   an   alternative   to   capital   punishment -   likely  

because  Alaska  abolished  the  death  penalty  in   1957.   Ch.   132,  SLA   1957.  



            27          MODEL  PENAL  CODE  (AM.  LAW  INST .   1985).  



                                                                            -9-	                                                                   7313
  


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

                                         witness and participate in the examination.                                                                                         This is meant to                            

                                         assure the defendant opportunity for an adequate psychiatric                                                                                         

                                         examination   by   an   expert   of   his   choice.     By   making   it  

                                         possible                       for            court-appointed                                        and              defense                       experts                     to  

                                         participate in the same examination, it may also ameliorate                                                                                           

                                         some    of    the    problems    of    the    so-called    "battle    of    the  

                                         experts."[28]  



The  drafters  also  contemplated  defense-side  experts:                                                                                                                      "The  Model  Code  does  not  

                                                                                                                                                                                                                                                            



guarantee [the] defendant an expert of his own choice if he is unable to afford one," but  

                                                                                                                                                                                                                                                              



"[g]iven the central place of psychiatric testimony for claims of irresponsibility . . . , the  

                                                                                                                                                                                                                                                        

practice of providing such an expert at government expense seems reasonable."29  

                                                                                                                                                                                                                                                          



                                         The purpose of the Model Penal Code's psychiatric examination section is  

                                                                                                                                                                                                                                                                   



clear - to furnish a court-appointed expert, separate from the experts of the prosecution  

                                                                                                                                                                                                                                    



or the defendant. This expert would provide to the court a report addressing "the crucial  

                                                                                                                                                                                                                                                   

questions the court must answer."30                                                                                   The court-appointed  expert's  report would be  

                                                                                                                                                                                                                                                               



                    28                   MODEL  PENAL  CODE   4.05 cmt. 2 (A                                                                                M. L         AW  INST . 1985).   



                    29                   MODEL                        PENAL                     CODE                             4.05                cmt.                2         (AM.                 LAW                 INST .                 1985).   



AS 18.85.100(a)(2) provides a criminal defendant "the necessary services and facilities                                                                                                                                                       

of . . . representation, including investigation and other preparation"; the court of appeals                                                                                                                                                    

has interpreted this to include payment of expert witnesses by the Public Defender                                                                                                                                                        

Agency   or   OPA.     See   Crawford   v.   State,   404   P.3d  204,   206   (Alaska   App.   2017)  

("[W]hen   a   criminal   defendant   receives   the   services   of   a   court-appointed   attorney  

through   either   the   Public   Defender   Agency   or   the   Office   of   Public   Advocacy,   the  

defendant is entitled to have the agency provide the necessary incidents of that legal                                                                                                                                                    

representation - for example, to pay for any necessary clerical support, investigative                                                                                                                                          

services, and expert evaluations and testimony.").                                                              



                    30                   MODEL  PENAL  CODE   4.05 cmt. 3 (A                                                                                M. L         AW  INST . 1985).   



                                                                                                                              -10-                                                                                                                       7313
  


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

"supplemented   by   psychiatric   evidence   the   defendant   or   prosecution   may   wish   to  

introduce."31  



                    In its responsetothe cross-petitions for review the Court Systemargued the  

                                                                                                                                 



inclusion of two experts shows the legislature envisioned one expert for the prosecution  

                                                                                                                   



and one for the defense.  The superior court apparently shared this interpretation when  

                                                                                                                            



it announced its "intention that each party [would] be entitled to [its] own expert."  But  

                                                                                                                               



this interpretation is not consistent with the structure of AS 12.47.070, its legislative  

                                                                                                                     



history, or the commentary to the Model Penal Code from which the statute was derived.  

                                                                                                                                      



The  experts  are  appointed  by  the  court,  not  retained  by  the  parties.                                They  answer  

                                                                                                                



statutorily prescribed questions, not the parties' questions.  The experts report directly  

                                                                                                               



to the court, not to the parties. Finally, the statute expressly contemplates the parties may  

                                                                                                                              



retain their own experts.  

                          



                    We hold experts appointed under AS 12.47.070 are experts for the superior  

                                                                                                                        



court  under  the  supervision  of  the  court  and  are  appointed  to  make  the  statutorily  

                                                                                                                     



specified determinations. They are not under the control of the parties. To the extent the  

                                                                                                                                



superior court's order envisioned experts supervisedby the parties or retained to advance  

                                                                                                                        



either's position in the case, this was error.  

                                                          



          B.        If Possible, API Must Perform Psychiatric Examinations.  

                                                                                           



                    The statute provides little guidance as to whom the court should appoint as  

                                                                                                                                  



experts.  The only statutory requirement is that an expert be a "qualified psychiatrist[]"  

                                                                                                               

or a "forensic psychologist[]certified by the American Board of Forensic Psychology."32  

                                                                                                                                      



But Alaska trial courts have historically appointed API to perform these psychiatric  

                                                                                                                    



evaluations.  There is even a form order that the superior court uses to appoint API for  

                                                                                                                                



          31        MODEL  PENAL  CODE    4.05  cmt.  2  (AM.  LAW  INST .   1985).  



          32        AS   12.47.070(a).  



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

psychiatric examinations.                                      The original 1972 statute explicitly allowed the court to                                                                             



                                                                                                                                   33  

request the superintendent of API to designate an expert.                                                                                                                                        

                                                                                                                                         Although this language was  



                                                                                                                                                                                                   

removed in 1982, the legislature rejected a proposal to require "disinterested experts" out  



                                                                                                                                                                                    34  

                                                                                                                                                                          

of concerns this language could be interpreted as barring evaluations by API. 



                               We believe this historical practice is sound:  API is an agency of the State  

                                                                                                                                                                                              



of Alaska which exists in large part to serve the people and needs of the State, including  

                                                                                                                                                                                    



the  Court  System.                                  The  superior  court  must  appoint  qualified  psychiatrists  or  

                                                                                                                                                                                                   



psychologists employed by API for evaluations under AS 12.47.070 unless there is a  

                                                                                                                                                                                                  



legitimate reason not to - for example, if API does not employ a qualified psychiatrist  

                                                                                                                                                                               



or psychologist as defined by the statute.  This is a determination that must be made by  

                                                                                                                                                                                                    



the superior court.  

                              



                               If API cannot provide qualified experts to complete these examinations -  

                                                                                                                                                                                                    



either  because the court finds no psychiatrists at API are qualified and no forensic  

                                                                                                                                                                                       



psychologists at API are certified by the American Board of Forensic Psychology, or  

                                                                                                                                                                                                     



because there is another legitimate reason why API cannot perform the evaluations -  

                                                                                                                                           



then  the  court  shall  appoint  experts  from  outside  API.                                                                                    The  court  may  solicit  

                                                                                                                                                                                          

recommendations  from the  parties  when  deciding  whom to  appoint,35   but  it  is  not  

                                                                                                                                                                                           



                33             Ch. 119,  1, SLA 1972.                      



                34             Hearing Audio,                       supra  note 19, at 1:15:47 - 1:19:27 ("I tend to feel that [the                                                               



word 'disinterested'] would exclude anybody at API. They are the ones already - if the                                                                                                             

State arrests somebody, at the time they are arrested, where do they take them?  Do they  

                                                                                                                                                                                                

put them in jail or do they put them in API? If they send them to API, the guy who looks                                                                                                      

at them there I would think would no longer be a disinterested psychiatrist.").                                                                                                            Early  

drafts of the amendment included the "disinterested" language. See supra notes 17-18.  

                                                                                                                                                                                           



                35             See MODEL  PENAL  CODE   4.05 cmt. 2 n.8 (A                                                            M. L      AW  INST . 1985) ("Under              

                                         

Ariz. R. Crim. P. 11.3(c), the court appoints one expert from both prosecution's and                                                                           

                                                                                                                                                                           (continued...)  



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

required   to   do   so; the superior                                                                                                     court  has broad                                                          discretion   in   selecting   its qualified   



experts. We reiterate: these experts are neutral experts for the court. The experts report                                                                                                                                                                                                                                                            



to the court and not to the parties, and the scope of their evaluations is controlled by the                                                                                                                                                                                                                                                                      



court.  



                                                         Here, the superior court explained in its order that it had "confirmed that   



 [API]    ha[d]    no    psychiatrist    qualified    according    to    the    statute    to    conduct   the  



examination." It     is not clear fromthe                                                                                                                 record whether the court made its own independent  



determination on this issue or simply accepted API's representation.                                                                                                                                                                                                                                   In a letter to the                                        



 superior court, API's clinical director stated API had only one forensic psychologist on                                                                                                                                                                                                                                                                            



 staff and she was not board-certified.                                                                                                                       But the letter did not discuss the qualifications of                                                                                                                                                    



any of API's psychiatrists; it merely said, "API does not have psychiatrists who conduct                                                                                                                                                                                                                                                     



forensic evaluations for Competency to Stand Trial or Mental Culpability."                                                                                                                                                                                                                                                       Whether a   



psychiatrist is qualified within the meaning of AS 12.47.070 is a determination to be                                                                                                                                                                                                                                                                               



made by the court.                                                                



                                                         We   note   the   legislature   did   not   define   or   limit   the   word   "qualified"  



preceding "psychiatrists" as it did in specifying the qualifications it wanted an appointed                                                                                                                                                                                                                                          



psychologist to possess - namely that the psychologist be a forensic psychologist                                                                                                                                                                                                                                       



certified by the American Board of Forensic Psychology.                                                                                                                                                                                                   We hold API is required to                                                                                   



provide qualified psychiatrists or psychologists as defined by the statute to serve as                                                                                                                                                                                                                                                                               



                            35                           (...continued)  



                                                                                                                                                                                                                                                                                                                               

defendant's lists of psychiatric experts to examine the defendant; under N.J.  2C:4-5(a),  

                                                                                                                                                                                                                                                                                                                                                               

the psychiatrist is appointed either from a list agreed to by the court prosecutor and  

                                                                                                                                                                                                      

defendant or upon agreement by the court and parties.").  



                                                                                                                                                                                -13-                                                                                                                                                                       7313
  


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

court-appointed, neutral expert witnesses or must explain at an evidentiary hearing why                                                                                                      



                     36  

it cannot.                                                                                                                                                                                

                            If statutorily adequate experts can be appointed from API, they must be.  



                                                                                                                                                                                         

               C.	             If The Court Appoints Non-API Experts, The Court System Must  

                                                           

                               Bear Their Costs.  



                                                                                                                                    

                               Historically, API has performed psychiatric or psychological evaluations  



                                                                                                                                                                                  

under AS 12.47.070, and the costs have been absorbed by API. Nothing in the statutory  



                                                                                                                                                                                             

text or legislative history suggests who should bear the costs of these evaluations if API  



                                                                                                                                                                                                

cannot performthem. However the experts are appointed by the court, supervised by the  



                                                                                                                                                                                                 

court, and report directly to the court.  We conclude that when API is determined to be  



                                                                                                                                         

unable to provide qualified experts, the Court System must bear the costs of the court- 



                                                                                                                                                                                                 

appointed experts.  This conclusion is consistent with Alaska Administrative Rule 8,  



                                                                                                                                                                                                 

which provides that fees for physicians performing "[a]n examination under order of  



                                                                                                                                                                                                 

court [for involuntary commitment proceedings] or such other examinations as may be  



                                                                                                                                                                                                    

ordered by the court upon its own motion" and "[g]iving medical expert testimony at a  



                                                                                                                                                                                           

hearing when ordered by the court in relation to such examination . . . shall be paid from  



                                                           

funds appropriated to the judiciary."  



                                                                                                                                                                                        

                               The superior court's order that the parties each bear the cost of one expert  



                                                                                                                                                                                         

was error.   If API cannot provide experts to perform the evaluations, then the Court  



                                                                                                                                      37  

                                                                                                                    

System must bear the costs of the court-appointed experts. 



               36              If it becomes necessary for the superior court to conduct an evidentiary                                                                     



hearing, that hearing must be searching and produce a comprehensive record for review.                                                                                                                  

While API may not employ psychologists certified by the American Board of Forensic                                                                                                

Psychology as required by AS 12.47.070, no such limiting certification is required by the                                                                                                       

statute for psychiatrists: the statute only requires "qualified psychiatrists."                                                                                             



               37              If API can provide only one qualified expert, then the superior court shall  

                                                                                                                                                                                           

appoint the second expert and the Court System will pay only for the second expert.  

                                                                                                                                                                                 



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

V.        CONCLUSION  



                                                                                              

                    For the above-stated reasons, we VACATE the superior court's order on  



                                                                                                                 

the appointment and payment of experts and REMAND with the following instructions:  



                                                                                             

                               1. The court shall appoint qualified API psychiatrists  

                                                                                                      

                    or psychologists to perform the required evaluations unless  

                                                                                            

                    the court finds that no psychiatrists at API are qualified and  

                                                                                                          

                    no  forensic  psychologists  at  API  are  certified  by  the  

                                                                                                             

                    American  Board  of  Forensic  Psychology,  or  that  there  is  

                                                                           

                    another legitimate reason why API staff cannot perform the  

                                        

                    evaluations.  



                                                                                                 

                              2.     If  the  court  finds  that  there  are  no  qualified  

                                                                                                             

                    psychiatrists and no board-certified forensic psychologists at  

                                                                                                     

                    API,  the  court  shall  appoint  at  least  two  neutral  expert  

                                                                                                     

                    witnesses   from   outside   API.                    The   court   may   solicit  

                                                                                                            

                    recommendations from the parties when deciding whom to  

                                                                                                             

                    appoint.  But the experts shall report to the court and not to  

                                                                                                           

                    the  parties,  and  the  scope  of  the  evaluations  shall  be  

                                                                                                        

                    controlled by the court. The Court System shall pay for these  

                                                                                               

                    non-API experts pursuant to AS 12.47.070 and in accordance  

                                                                        

                    with Alaska Administrative Rule 8.  



                                                              -15-                                                         7313
  

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