RABINOWITZ, Chief Justice.
Norman LeRoy Johnson was convicted of three counts of second
degree murder following a non-jury trial in superior court. The
principal contentions raised in this appeal concern the doctrine of
diminished capacity and burden of proof as it relates to the defense
of insanity.
The relevant facts and pertinent expert testimony relating to the
defense of insanity will be set forth in some detail. Appellant
Norman Johnson moved to Alaska in 1969 with his parents. His father
was employed by the Alaska State Housing Authority and during
January of 1970, was working in Kiana while Norman was attending
Anchorage Community College. Thinking that his son would enjoy a
trip into Alaska's interior, Mr. Johnson invited Norman, who was
then 19 years old, to spend his semester break vacation with him in
Kiana. After Norman had been in Kiana for a few days, his father
arranged for him to go on a caribou hunt. It was planned that Norman
would accompany Freddy Jackson, a Native and a friend of Norman's
father, to a hunting camp on the Kobuk River, about 70 miles from
Kiana, where they would join two other Natives, Clarence Arnold and
Oscar Henry. Norman and Freddy Jackson left Kiana by snowmobile.
They reached camp that evening, had dinner with Arnold and Henry,
and then went to bed.
The following morning they began to hunt. Norman was riding in a
sled behind Jackson's snowmobile. During the hunt, Norman was thrown
from the sled and left behind by the hunters. When he caught up with
them eventually by foot, he found that they had finished with their
hunting and were butchering the caribou they had killed. At this
time Norman watched Arnold and Henry cleaning and butchering a
female caribou that apparently had an unborn calf in its womb. He
later told Dr. Ure, one of the examining defense psychiatrists
that . . . this baby never had a chance, you see, and he thought
that Freddy . . . was a little callous in not too caring and he had
the same feeling of feeling sick to his stomach.
After this episode, Norman accompanied Jackson, Arnold and Henry
back to the camp.
Upon returning the men prepared dinner. During these
preparations, another Native, Clarence Wood, stopped by the
campsite. He stayed for about an hour, had dinner, and then departed
on his way back to Ambler at about 7 p.m. Wood testified through an
interpreter that while he was there Norman lay on his bed, all
huddled up, that he hardly said anything, but would answer when
spoken to. Other than that, he did not notice anything unusual about
Norman.
Sometime after Wood left the campsite, Jackson, Arnold, and Henry
began making preparations for bed. Norman later told the state
troopers that:
I got up to go to the bathroom and I went outside and I went and
I got my rifle and I just started firing into the tent.
The prosecution's evidence showed that the bullets were fired
from outside the tent, and that Jackson, Arnold and Henry were
inside the tent during the shooting. At one point, Jackson attempted
to come out of the front of the tent and was shot by Johnson as he
was coming out. All three men had numerous bullet wounds.
Following the shooting, Johnson went back inside the tent and put
on some more clothing. After failing to start one of the snow
machines, he then started out on foot for Kiana, following a
snowmobile trail leading up the Kobuk River.
The next day two hunters were flying in a small airplane in the
Kobuk River area searching for wolves. They noticed a dark object by
the river and when they flew down close to the ground, they realized
it was a man. They landed the plane, and the man told them he was
Norman Johnson, was from Kiana, and that three men were dead in the
camp down the river.
Trooper Boatright of the Alaska State Troopers testified that he
talked to Norman briefly on the day he was taken back to Kiana. He
stated Norman was
still under shock. He was cold, he was shivering, and all he
could indicate to me at that time was that his name was Norman
Johnson and that he had been up at a camp where there had been a
shooting and he didn't recall too much more of what happened.
The following day Boatright talked to Norman again. At this time
Boatright found Norman to be "calm and able to converse without any
trouble." During this interview, Norman told Boatright an
exculpatory tale concerning the events of his hunting trip with
Jackson, Henry and Arnold. Two
days later Norman was taken to trooper headquarters for another
interview. In the course of this interview, Norman confessed to
having committed the shootings at the camp.
Norman Johnson's defense at trial was based on showing that at
the time of the slayings he was suffering from a mental disease or
defect such that he was not responsible for his actions. In this
regard, Dr. J. Ray Langdon testified that he had examined Norman and
had reviewed the records of the investigation, some of Norman's
previous medical history, as well as results of tests performed by a
clinical psychologist. Dr. Langdon found that Norman was not at the
time of the examination overtly psychotic or irrational, but that
the tests and history showed evidence of severe mental illness,
namely, a latent schizophrenic process which, if it became an overt
psychosis, would most likely be of a paranoid or persecutoid type.
Dr. Langdon stated that the circumstances surrounding the
incident as related to him by Norman could have accounted for a "decompensation"
of the schizophrenic process resulting in an overt but brief
psychotic episode. He also stated it was possible that because
Norman was in a totally unfamiliar situation, in the extremely cold
Arctic wilderness, with
three Eskimos, his mental illness might have become overt. The
doctor also testified that the emotion that would accompany the type
of acute decompensation that Norman went through would be "primarily
a panic." Finally, Dr. Langdon testified that in his opinion
I feel probably knew the nature and quality of actions but that
he did not believe it was criminal or wrongful at the time.
Dr. Barbara Ure, a psychiatrist, also testified in Norman's
behalf. On the basis of extensive interviews, Dr. Ure found evidence
that Norman was a fetishist. Her opinion as to why Norman had shot
and killed his three hunting companions was as follows:
the ego of the fetishist is what is involved in this killing, . .
. is he identified with the baby and the mother the lost -
compromised his own body image which was already fairly well
compromised, that is, he was insecure as to who he was, having lost
contact with his culture, with his geography, he was pretty much
displaced . . .
these men would become the enemy, you see, and he - they - he
could be killed by them just like this caribou was and this baby
caribou . . . really it's the baby that never had a chance because
this is Norman in a certain sense . . . who really never had a
chance . . . . did not get up to urinate, he did have an erection,
not a sexual sort of thing but in a sense of asserting his identity,
preserving his - his survival and that it was totally incongruous to
even consider the possibility of masturbating but then there's one
other point that is when a fetishist cannot deny his identification
with his mother he generally does break down, you see, and so this
is what I think did happen and that I do believe he did see the tent
. . . and that his survival was threatened and that he doesn't know
what he was doing and that he shot in self defense.
Finally, Dr. Ure testified in response to an inquiry as to
whether Norman knew the nature and quality of his act when he did
the shooting:
For the moment he didn't realize what he was doing. He knows that
you're not supposed to shoot people . . . but for the moment this
took a second place because he had to save himself from an - a
danger which suddenly became very real. This danger was inside but
he thought it was outside.
She also stated that she believed his act was the product of
mental disease.
Dr. John Rollins testified for the state. He had examined Norman
pursuant to court order. In his opinion, Norman showed no signs of
mental disease, disorder or defect that would preclude him from
being able to conform to the law. He further testified that he
believed Norman had the capacity to deliberate about the acts he was
committing, particularly because of his ability to recall details of
the events.
Dr. Walter Rapaport testified for the state on rebuttal. Rapaport
had not examined Norman. He was permitted, over defense objection,
to review a transcript of the testimony of Drs. Langdon and Ure, as
well as their reports prior to testifying, Rapaport
found no evidence of mental illness in Norman Johnson. He stated he
believed Johnson was capable of premeditation, malice aforethought,
and that Johnson had the mental capacity to appreciate the nature
and quality of his acts as well as their wrongfulness. His opinion
was based on the fact that Norman remembered a good deal about the
episode, the evidence of flight and concealment, and the absence
generally of any symptoms of major mental illness. He stated that
fetishism is not a symptom characteristic of any particular illness,
although it may be associated with mental illness. Regarding this
case, he stated:
[evidence of fetishism] in nowise would alter my opinion as to
his mental capacity relative to issues which I have given an
opinion.
The superior court applied the American Law Institute Model Penal
Code test for criminal insanity. Although
it placed the burden of proof as to the insanity upon appellant,
more particularly, Johnson was required to overcome the presumption
of sanity by a preponderance of the evidence. In its findings
regarding Johnson's state of mind, the trial court stated in part:
Applying the [A.L.I.] rule to the testimony, primarily of the
psychiatrists and by further removing the speculative aspects of
their testimony or their subjective presumptions, I find that, using
the ALI test, the Defendant does not meet the test and is,
therefore, responsible for his criminal conduct.
His substantial recall of the sequence of events during the
shooting, attempts to cover his actions and withholding details
attempting to avoid responsibility also all tend to show a
substantial capacity to appreciate the wrongfulness of his conduct,
and an attempt to conform his conduct to the requirements of law. I
recognize that some testimony exists that Defendant may not have
been aware of what he was doing, but there is no testimony that any
such lapse was, except by speculation and conjecture, due to any
substantial mental and disease or defect. I thus find that the
Defendant has failed to carry the burden by a preponderance of the
evidence that his actions were caused by mental illness.
The superior court then went on to determine the appropriate
degree of homicide stating:
There is testimony that Defendant is below average mentally and
further that his conduct is not entirely normal, although not
mentally ill as defined by the test used. Defendant suffers from a
fetishistic disorder, and there is question concerning his
development towards maturity. Further, Defendant probably underwent
some stresses due to the cold; remoteness of the area where the
incident took place; the foreign language used around him and
perhaps even the inability of Defendant to keep up with the
experienced hunters. I merely review this to assist in determining
the ability of the Defendant to premeditate, and to experience
malice aforethought. The stresses, individually, are not sufficient
to be seriously considered. Collectively, however, it could with any
provocation such as anger, fear, jealously, etc., cause some
irrational or impassioned behavior. The description of the hunting
scene, the testimony of the psychiatrists highlighting feelings of
persecution and the evidence in general fails to show any
premeditation.
The superior court subsequently determined that Johnson should
receive three concurrent terms of life imprisonment "with the
understanding that he obtain psychiatric treatment and that the
parole board release him when they are convinced that he is no
longer a danger to society and he has received his treatment." The
judgment of conviction entered by the superior court contained a
reference to Norman Johnson's need for psychiatric care. The
judgment omitted any reference to the fact that Johnson was to be
released when the parole board was convinced that he is no longer a
danger to society. Johnson has appealed from the trial court's
judgment of conviction and the sentences which were imposed.
Johnson's first specification of error is to the effect that the
trial court erred in failing to grant his motion for judgment of
acquittal made at the close of the prosecution's case as to all
counts of first and second degree murders. Johnson argues that even
if the trial court properly found that he was not suffering from a
mental disease such that he should be completely absolved of
criminal responsibility, the court should have applied the doctrine
of diminished capacity. Under that doctrine, Johnson contends that
since the prosecution's evidence failed to show malice, an essential
element of both first and second degree murders, he was erroneously
convicted of three counts of second degree murder.
The state argues that there was sufficient evidence to support a
finding that Johnson acted out of malice and was guilty of homicide
in the second degree. Viewing the evidence in the most favorable
light, the state asserts that the following facts show the existence
of malice and purpose to kill:
(1) Johnson had to leave the tent to get to the rifles; (2) the
first shots were fired from his own rifle, indicating selection; (3)
to use his rifle it was first necessary for Johnson to remove it
from its case; (4) Johnson had to go to where the rifles were
stored; (5) he fired at least 10 shots from at least two rifles; (6)
the shots showed aim, as Judged by the terrible destruction of life,
by the patterns of holes in the tent and in the victims, and by the
shot which struck Freddy Jackson as he emerged wounded from the
tent; (7) finally, the pattern of shots showed that Johnson changed
his position.
The state further argues that this court should not adopt the
doctrine of diminished capacity since it would impose an added
burden on the prosecution in proving intent beyond a reasonable
doubt, particularly because this defense, unlike a defense of
insanity, can be brought up without prior notice to the state. The
state also argues that the court, in fact, applied the doctrine of
diminished capacity, and that there was sufficient evidence to
support the trial court's Conclusions that Johnson was guilty of
second degree homicides.
From the record, it is apparent that the trial court did apply a
diminished capacity doctrine in determining that Norman Johnson was
not guilty of first degree murders. The diminished capacity doctrine
is based on the theory that while an accused may not have been
suffering from a mental disease or defect at the time of his
offense, sufficient to absolve him totally of criminal
responsibility, the accused's mental capacity may have been
diminished by intoxication, trauma, or mental disease to such an
extent that he did not possess a specific mental state or intent
essential to the particular offense. In
the case at bar, the trial court found that "the evidence in general
fails to show any premeditation," and also mentioned the stresses
that were bearing upon Johnson at the time of the shooting. Although
the court did not state explicitly how these stresses worked to
negate premeditation, it did appear to take these matters into
account.
Nevertheless, Johnson argues that a reasonable man necessarily
must have had a reasonable doubt as to whether he acted with malice
aforethought, and therefore he could not have been found guilty of
murder in the second degree.
Criterion for review of sufficiency questions in criminal cases
has been stated by this court in the following manner:
In determining the issue raised by such a challenge, the evidence
and the inferences to be drawn therefrom are to be viewed in a light
most favorable to the state. The question, then, is whether the
finding of guilt is supported by substantial evidence, that is, such
relevant evidence which is adequate to support a Conclusion by a
reasonable mind that there was no reasonable doubt as to appellant's
guilt.
Since malice was an essential element of second degree murder,
that element should have been proven beyond a reasonable doubt, and
the narrow question on appeal in this case is whether the trial
court's finding that there was malice is supported by substantial
evidence that is "adequate to support a Conclusion . . . that there
was no reasonable doubt" as to that element.
In Gray v. State, 463 P.2d 897, 901 (Alaska 1970), we discussed
the element of malice in homicide:
Murder, at common law, was defined as the unlawful killing of a
human being with malice aforethought, either express or implied.
Express malice could be found in the deliberate intention of the
defendant to take the life of the deceased unlawfully, while implied
malice could be found either where the evidence showed circumstances
indicating that . . . he knowingly did an act which might result in
death or grievous bodily harm, or where defendant killed another in
the course of perpetrating a felony.
Based on our review of the record, we hold that the prosecution's
evidence showed that Norman Johnson acted with malice. The
prosecution's evidence disclosed that Johnson walked out of the
tent, went over to where the hunters' guns were kept, picked up his
gun, and began firing into the tent knowing his three companions
were inside. From these acts it may reasonably be inferred that he
knew death would result from firing into the tent. Although the
prosecution did not show any particular reasons why Johnson may have
intended to kill the three men, the fact that he aimed and fired in
their direction is enough to infer malice.
The defense countered the implication of malice by psychiatric
testimony that Johnson was suffering from a major mental illness,
and that at the time he shot his companions, he believed the act was
necessary to save his own life. In this regard, the testimony of
Drs. Rollins and Rapaport was in direct conflict with the testimony
of Drs. Ure and Langdon. Rollins and Rapaport both failed to find
any evidence of a major mental illness and stated that Johnson had
the capacity to appreciate the wrongfulness of his acts. Although
they did not specifically testify that Johnson was not acting under
a delusion that his life was in danger, that was the import of their
testimony and a fair inference to be drawn therefrom. Since the
trial court, as the trier of fact, was free to resolve this conflict
in testimony by rejecting the theories of the defense psychiatrists,
we find there was "substantial evidence" that Johnson acted with
malice. We therefore hold that the trial court did not err in
denying Johnson's motion for judgment of acquittal as to all counts
of second degree murder.
Appellant has also specified as error the trial court's ruling
which permitted Dr. Rapaport, the prosecution's expert rebuttal
witness, to testify after he had read the testimony of Drs. Ure and
Langdon, expert defense witnesses. Johnson asserts this ruling was
erroneous because the court had, under our rules of procedure, at
the beginning of the trial excluded witnesses from being present in
the courtroom while other witnesses gave testimony.
In Dickens v. State, 398 P.2d 1008 (Alaska 1965), we held that
the exclusion of witnesses is within the trial court's discretion.
Dr. Rapaport stated that his opinion was not influenced in any way
by the Conclusions of Drs. Ure and Langdon, but that he utilized
their testimony primarily to gain an understanding of the factual
data on which they based their opinions and Conclusions. Given the
circumstance that Dr. Rapaport used only the factual data contained
in the testimony of Drs. Ure and Langdon, we hold that the trial
court did not abuse its discretion in permitting Dr. Rapaport to
testify, despite its previous order excluding witnesses not at the
time under examination.
Another point raised is Johnson's contention that the trial
court's imposition of three concurrent life sentences for three
counts of murder in the second degree was excessive. Under the
sentencing objectives set forth in State v. Chaney, 477 P.2d 441
(Alaska 1970), the trial court is to consider several factors:
rehabilitation, protection of society, deterrence of the offender,
deterrence of other members of the community, and reaffirmation of
societal norms. Our review of the record convinces us that the trial
court considered these criteria. Under the "clearly mistaken."
standard of review of Chaney and Nicholas v. State, 477 P.2d 447,
449 (Alaska 1970), we
cannot say that the concurrent sentences imposed in this case were
excessive.
Johnson's final point is that the trial court erred in placing
the burden of proof as to insanity upon him. The state argues that
the better rule requires that the accused rebut the presumption of
sanity by a preponderance of the evidence. The state further
contends that any other rule would place an impossible burden upon
the state in practical terms.
In its opinion, the trial court stated that as to the burden of
proof when sanity is made an issue, I must agree with the State's
position . . . it is my opinion that the presumption of sanity and
responsibility must be strongly adhered to subject to the normal
rebuttal ability to overcome this presumption by a preponderance of
the evidence.
Since the judgment and commitment was entered in this case,
Alaska's legislature enacted the following statute treating the
subject of mental disease or defect and criminal responsibility:
Reliance on mental disease or defect as excluding responsibility
is an affirmative defense. The burden of proof beyond a reasonable
doubt does not require the prosecution to disprove an affirmative
defense unless and until there is evidence supporting the defense.
The requirement of evidence supporting the affirmative defense is
not satisfied solely by evidence of an abnormality which is
manifested only by repeated criminal or otherwise antisocial
conduct.
