Nathanial L. Kangas v. State of Alaska ( 2020 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NATHANIAL L. KANGAS,
Court of Appeals No. A-12720
Appellant, Trial Court No. 4TA-14-00011 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2667 — March 27, 2020
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Paul R. Lyle, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Patricia L. Haines, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Coats * and Mannheimer *,
Senior Judges.
Judge MANNHEIMER.
*
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
Nathanial L. Kangas shot and killed two Alaska State Troopers who had
come to Tanana to arrest his father, Arvin Kangas. Kangas also used the same firearm
to threaten the local Village Public Safety Officer who accompanied the two troopers,
but Kangas allowed this officer to leave unharmed. Kangas subsequently removed
marijuana plants and seeds from the house where the shooting occurred. A detailed
description of this episode is set out in our decision in Arvin Kangas’s appeal: Kangas
v. State, unpublished, 2018 WL 2999802 at *2–3 (Alaska App. 2018).
Based on this incident, Nathanial Kangas was convicted of two counts of
first-degree murder (as well as one count of third-degree assault and one count of first-
degree tampering with evidence).
Because the jury found that Kangas intentionally killed the two troopers
when he knew that they were acting in the performance of their duties, Kangas was
subject to a mandatory term of 99 years’ imprisonment on each of the murder counts. 1
And under the provisions of Alaska’s consecutive sentencing statute, the superior court
was required to impose these two 99-year sentences consecutively, for a composite term
of 198 years’ imprisonment. 2
In this appeal, Kangas claims that one of the trial judge’s instructions to the
jury was improper, and that his convictions must therefore be reversed. For the reasons
explained in this opinion, we hold that the challenged jury instruction was proper.
Kangas also argues that his privilege against self-incrimination was violated
when the superior court issued a pre-trial order under AS 12.47.070(a) — that is, an
order directing that Kangas be examined by two forensic psychologists to assess his
mental condition. Although the State did not overtly use the results of these mental
1
See AS 12.55.125(a)(1).
2
See AS 12.55.127(c)(2)(A).
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examinations during Kangas’s trial, Kangas asserts that he is entitled to a new trial
because the State cannot show (beyond a reasonable doubt) that its evidence was derived
completely independently from these mental examinations. In the alternative, Kangas
argues that he is at least entitled to be re-sentenced, since the superior court expressly
relied on the results of these examinations at Kangas’s sentencing hearing.
For the reasons explained in this opinion, we conclude that these mental
examinations did not violate Kangas’s privilege against self-incrimination.
Finally, Kangas raises an issue pertaining to one of Alaska’s sentencing
statutes, AS 12.55.125(j). This statute declares that when a defendant is sentenced to a
mandatory 99-year term of imprisonment for first-degree murder, the defendant is
entitled to apply for a modification or reduction of their sentence after they have served
one-half of the mandatory 99-year term — i.e., after they have served 49½ years.
The question presented in Kangas’s case is how to apply this statute to
defendants who, like Kangas, have received two or more consecutive mandatory 99-year
terms of imprisonment. As we explain in this opinion, we interpret AS 12.55.125(j) to
mean that Kangas is eligible to apply for a modification or reduction of his sentence after
he has served 49½ chronological years of his 198-year composite sentence (i.e., 49½
years, without any reduction for good time credit).
Kangas’s challenge to the jury instruction which told the jurors that they
were allowed to infer Kangas’s mental state from the circumstantial
evidence of his actions
As we mentioned earlier, Kangas was convicted of two counts of first-
degree murder based on the fact that he shot and killed the two state troopers.
One of the elements of first-degree murder — that is, one of the allegations
that the State was required to prove beyond a reasonable doubt — was that Kangas acted
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with an intent to kill when he shot the two troopers. 3 In other words, the State had to
prove that Kangas acted with the conscious objective of causing human death. 4
When Kangas’s trial judge instructed the jurors at the conclusion of the
trial, he included an instruction which told the jurors that the State was allowed to rely
on Kangas’s actions as circumstantial evidence of whether Kangas possessed this
culpable mental state. Kangas’s trial attorney did not object to this instruction, but
Kangas now asserts that it was plain error for the judge to give this instruction.
The first two paragraphs of the challenged instruction read as follows:
[A person’s] mental state or state of mind may be
proved by circumstantial evidence. It rarely can be
established by any other means. While witnesses may see
and hear ... what a defendant does or fails to do, there can be
no eyewitness to the mental state or state of mind with which
the acts were done or omitted. But what a defendant does or
fails to do may indicate [their] state of mind or mental state
or [their] lack of state of mind or mental state.
It is reasonable to infer that a person ordinarily intends
the natural and probable consequences of acts he knowingly
does or knowingly omits. Any such reasonable inference is
entitled to be considered by the jury in determining whether
or not the prosecution has proved beyond a reasonable doubt
that the defendant possessed the required state of mind or
mental state.
The instruction then concluded with a third paragraph which emphasized that the jury
was entitled to consider, not only the defendant’s actions, but also the defendant’s
statements — and, indeed, “all facts and circumstances in evidence”:
3
See AS 11.41.100(a)(1)(A).
4
See AS 11.81.900(a)(1).
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In determining issues of state of mind or mental state,
the jury is entitled to consider any statements made, and acts
done or omitted by the accused, and all facts and
circumstances in evidence which may aid [in the]
determination of state of mind or mental state.
In past decisions, the Alaska Supreme Court has approved nearly identical
jury instructions. See Calantas v. State, 608 P.2d 34, 36 (Alaska 1980), and Gipson v.
State, 609 P.2d 1038, 1042 (Alaska 1980). But in this appeal, Kangas argues that this
jury instruction constitutes plain error. Kangas offers two theories as to why the
instruction is improper.
First, Kangas argues that this jury instruction is improper because it allows
the jury to infer a person’s culpable mental state from their actions.
Kangas notes that when the Alaska legislature enacted our current criminal
code, the legislature included statutory definitions of four culpable mental states:
“intentionally”, “knowingly”, “recklessly”, and “with criminal negligence”. See
AS 11.81.900(a)(1)–(4).
Kangas further notes that these four statutory definitions do not contain any
reference to circumstantial proof. That is, the definitions of these culpable mental states
do not expressly provide that a person’s culpable mental state (or lack of culpable mental
state) may validly be inferred from their actions.
Because the statutory definitions of the four culpable mental states do not
expressly authorize a jury to infer a person’s mental state from their actions, Kangas
argues that the Alaska legislature must have intended to restrict the role of circumstantial
evidence in proving these culpable mental states.
More specifically, Kangas claims that the legislature crafted these four
statutory definitions so that the government would not be allowed to rely solely on a
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defendant’s acts (or omissions) as circumstantial proof of the defendant’s mental state.
Rather, according to Kangas, any time the government relies on circumstantial evidence
to establish one of the four culpable mental states defined in AS 11.81.900(a), the
government’s proof must consist of “more than an inference from [the defendant’s]
knowing conduct”.
Kangas’s argument is unconvincing. The purpose of the four statutory
definitions is to explain what must be proved to establish each particular culpable mental
state. But these statutory definitions do not purport to explain or control the types of
evidence that can be used to establish (or rebut) the government’s allegation of a
culpable mental state.
It is a long-standing tenet of Alaska law that there is no legal distinction
between direct evidence and circumstantial evidence. When assessing the sufficiency
of the evidence to support a criminal conviction, courts apply the same standard
regardless of whether the government’s case is based on direct or circumstantial
evidence. 5
As our supreme court declared in Sivertsen v. State, 981 P.2d 564, 567
(Alaska 1999), “In the case of a specific-intent crime, the jury is permitted to infer intent
from circumstantial evidence such as conduct”. Indeed, in Calantas v. State, 608 P.2d
at 36, our supreme court expressly approved a jury instruction that “clearly informed the
jurors that ... it was permissible to infer that the defendant intended to kill his victims
5
Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976); Ashley v. State, 6 P.3d 738,
743 (Alaska App. 2000). See also Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432,
450 (Alaska 2002) (“The plaintiff’s evidence of a conspiracy [in restraint of trade] may either
be direct or circumstantial. ... [I]f the plaintiff presents only circumstantial evidence, the
factfinder must make inferences from that evidence to find an antitrust conspiracy. [But] a
plaintiff is not required to present any direct evidence, [and] may support his case solely with
circumstantial evidence.”).
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from the fact that he shot them”. And again, in Ollice v. Alyeska Pipeline Service Co.,
659 P.2d 1182, 1188–89 (Alaska 1983), our supreme court held that when a party’s
claim hinges on proof of a person’s mental state, and when the evidence pertaining to
that person’s mental state is primarily circumstantial (i.e., resting on inferences to be
drawn from the person’s conduct), a judge may properly instruct the jury on their
authority to draw inferences from circumstantial evidence.
If the legislature had intended to define the four culpable mental states in
a manner that would change this long-standing rule — a manner that would restrict the
use of circumstantial evidence to prove the culpable mental states, or that would render
circumstantial evidence insufficient as a matter of law to establish these culpable mental
states — then the legislature would have said so explicitly.
For these reasons, we hold that even if the circumstantial evidence
pertaining to a defendant’s mental state consists solely of the defendant’s actions or
omissions, this evidence is legally sufficient to support an inference that the defendant
acted with one or more of the culpable mental states defined in AS 11.81.900(a).
Kangas raises a separate objection to the jury instruction: he asserts that
this instruction constitutes an improper judicial comment on the weight of the evidence.
More specifically, Kangas argues that it is always improper for a judge to instruct a jury
“that it may reasonably infer an ultimate fact from circumstantial evidence”.
The record in Kangas’s case does not contain any indication that the trial
judge “commented on the evidence” as this phrase is normally understood. The judge
never expressed any personal view regarding the weight of the evidence, or the
credibility of witnesses, or the relative strength of the parties’ positions.
But according to Kangas, a judge acts improperly whenever the judge tells
the jury that the law allows the jurors to draw a particular inference from the evidence.
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Kangas argues that such an instruction is improper because the jurors will inevitably
interpret the instruction as the judge’s endorsement of the described inference.
We find Kangas’s argument unconvincing. We agree with Kangas that trial
judges must avoid making statements to the jury which either expressly or impliedly
convey the judge’s personal views regarding how the jury should resolve the merits of
the case. But one of a trial judge’s tasks is to inform the jury of the rules governing their
deliberations.
Although the jury instruction in Kangas’s case was not taken directly from
the Alaska Criminal Pattern Jury Instructions, we note that the pattern jury instructions
contain an instruction (Instruction 1.15) which incorporates this same legal principle:
A person’s mental state may be shown by
circumstantial evidence. It can rarely be established by any
other means. Witnesses can see and hear, and thus be able to
give direct evidence of, what another person does or does not
do. But no one can see or hear the mental state the person
had at the time the person acted or did not act. Yet what a
person does or does not do may indicate that person’s mental
state.
You may consider any statements made and acts done
or not done by the person and all other facts and
circumstances in evidence when determining that person’s
mental state.
Kangas argues that the particular wording of the instruction in his case is
problematic because (according to Kangas) the second paragraph of this instruction
suggested that the judge wanted the jury to draw inferences from his conduct. Again,
here is that second paragraph:
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It is reasonable to infer that a person ordinarily intends
the natural and probable consequences of acts he knowingly
does or knowingly omits. Any such reasonable inference is
entitled to be considered by the jury in determining whether
or not the prosecution has proved beyond a reasonable doubt
that the defendant possessed the required state of mind or
mental state.
But when an appellate court reviews claims of error involving jury
instructions, the question is not whether the challenged jury instruction might contain
language that could be misinterpreted. Rather, the question is whether the jury
instructions, taken as a whole, properly informed the jury of the applicable law. 6
As we have already explained, the jury instruction that Kangas challenges
was a correct statement of the law. Furthermore, the jury instruction in Kangas’s case
ended with a third paragraph that emphasized the jury’s authority to consider, not just
Kangas’s actions, but rather the entirety of the evidence when the jurors decided whether
Kangas acted with an intent to kill:
In determining issues of state of mind or mental state,
the jury is entitled to consider any statements made, and acts
done or omitted by the accused, and all facts and
circumstances in evidence which may aid [in the]
determination of state of mind or mental state.
6
Lynden Inc. v. Walker, 30 P.3d 609, 617 (Alaska 2001) (“Jury instructions are to be
analyzed as a whole, rather than in isolation. In reviewing jury instructions, the relevant
inquiry is whether the instructions inform the jury of the applicable law.”); Baker v. State,
905 P.2d 479, 490 (Alaska App. 1995) (“It is true, as Baker points out, that Instruction 9 does
not specifically state that these elements of complicity must be proved beyond a reasonable
doubt. However, jury instructions are not to be viewed in isolation; instead, we must assess
the group of instructions as a whole.”).
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This last part of the jury instruction is simply a special application of the
general principle stated in the trial judge’s other instructions to Kangas’s jury: the
principle that the jurors were “the sole judges” of “the credibility ... [and] the weight” of
the trial testimony, and that the jurors were “the ones to finally determine what ...
conclusions of fact should be [drawn]” from that testimony.
When we evaluate the trial judge’s instruction on circumstantial evidence
in the context of the jury instructions as a whole, we conclude that no reasonable juror
would interpret the instruction as a judicial request or directive for the jurors to draw any
particular inferences from Kangas’s actions. Instead, the challenged instruction merely
clarified the jurors’ authority to draw such inferences if they believed that those
inferences were justified by the evidence.
For these reasons, we reject Kangas’s claim of error relating to this jury
instruction.
Kangas’s claim that he was illegally subjected to pre-trial psychological
evaluations, and that the statements he made during these evaluations were
extracted from him in violation of his privilege against self-incrimination
Before Kangas’s trial, the superior court issued an order under
AS 12.47.070(a), directing that Kangas be evaluated by two forensic psychologists to see
whether Kangas suffered from any mental disease or defect that might affect his
competence to stand trial or his ability to form any relevant culpable mental state.
Although Kangas’s trial attorney consented to these evaluations — in fact,
the defense attorney took affirmative steps to facilitate these evaluations — Kangas now
argues that the superior court had no authority to order these two psychological
examinations because (according to Kangas) there was no reason to believe that
Kangas’s mental condition would be at issue in his case. Kangas further argues that he
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was compelled to incriminate himself during these examinations, and that his
incriminating statements were later used against him.
According to Kangas, even though the State never directly relied on either
of the two psychological evaluations at trial, the State’s trial evidence inevitably must
have been derived, at least in part, from Kangas’s statements to the psychologists. And
in any event, Kangas claims that he is entitled to be re-sentenced because the superior
court relied on one of the examiner’s conclusions at sentencing.
For the reasons we are about to explain, we conclude that the superior court
could properly order the psychological evaluations under AS 12.47.070(a), and we
further conclude that Kangas’s statements during these evaluations were not compelled.
The underlying facts pertaining to these issues
During the investigation of Kangas’s case, the prosecutors learned (from
medical records) that, at the time of the homicides, Kangas was being treated by a
psychiatrist for a “depressive disorder” — a disorder that left Kangas with a “low
frustration tolerance”. In addition, when Kangas’s father, Arvin, was interviewed by
investigators, he suggested that Kangas’s actions might be attributable to a “lithium
deficiency”.
Additional evidence that Kangas potentially suffered from a mental disease
or defect was contained in letters that Kangas and his father Arvin sent from jail; in their
letters, both Kangas and his father mentioned Kangas’s mental health problems. And
when Arvin Kangas was brought to trial (a trial that preceded his son’s trial), both Arvin
and Kangas’s mother Judy testified about Kangas’s mental health problems.
Based on this information, the prosecutor in Kangas’s case filed a pre-trial
motion asking the superior court to issue an order under AS 12.47.070(a), directing that
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Kangas be examined by two forensic psychologists to assess his mental condition on the
ground that “there is reason to believe that a mental disease or defect of the defendant
will ... become an issue in the case.”
Kangas’s defense attorney told the court that he did not oppose the
requested psychological evaluations, so long as the evaluations could be scheduled so
that they did not conflict with the attorney’s other obligations. (That is, the defense
attorney wished to attend these evaluations.)
Based on the information contained in the prosecutor’s motion, and based
on the defense attorney’s non-opposition, the superior court issued an order for the
psychological evaluations.
The court sent a copy of this order to the Alaska Psychiatric Institute in
Anchorage (API), asking for two qualified psychiatrists or forensic psychologists to
perform the evaluations. But the director of API informed the court that she did not have
two psychiatrists or forensic psychologists on her staff who were certified to perform this
type of evaluation.
After learning of the director’s response, the superior court held a hearing
with the prosecutor and the defense attorney. At this hearing, the two attorneys agreed
that Dr. Wendy Elliott of API could perform one of the evaluations even though she was
not board-certified to perform this type of work. And the attorneys informed the court
that, working together, they would find a mutually agreeable psychiatrist or psychologist
to perform the other evaluation.
At an ensuing hearing held two weeks later, the prosecutor and the defense
attorney informed the court that they had selected Dr. David Sperbeck to perform the
other evaluation.
Kangas was subsequently evaluated by both Dr. Elliott and Dr. Sperbeck.
One of Kangas’s defense attorneys attended both of these evaluations.
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At the beginning of Dr. Elliott’s session with Kangas, she informed Kangas
of the nature and purpose of the evaluation, as well as the fact that she was employed by
the court, and that Kangas would not be able to claim that the interview or the doctor’s
ensuing evaluation were confidential. Dr. Elliott also informed Kangas that she might
be called to testify about the information contained in her report. Finally, Dr. Elliott told
Kangas that he had a right to refuse to participate in the evaluation. After hearing all of
this, Kangas agreed to participate, and Dr. Elliott performed the evaluation.
Dr. Sperbeck likewise informed Kangas that he was employed by the court,
and that the information which Kangas provided during the evaluation would not be
confidential — that, instead, any information that Kangas shared with Dr. Sperbeck
might be included in the report that Sperbeck would send to the court. According to
Dr. Sperbeck, Kangas “demonstrated an understanding and acceptance of these
conditions.”
The prosecutor did not call either Dr. Elliott or Dr. Sperbeck as witnesses
at Kangas’s trial, nor did the prosecutor introduce any portion of their reports. However,
after the jury found Kangas guilty, the prosecutor and the defense attorney agreed that
the two psychologists’ reports should be provided to the pre-sentence investigator, and
that the two reports should be attached to the pre-sentence report so that the superior
court would be apprised of them.
At Kangas’s sentencing, the superior court expressly referred to some of
Dr. Sperbeck’s conclusions when the court found that Kangas was a “worst offender”
for sentencing purposes.
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Why we uphold the superior court’s decision to order the psychological
evaluations
On appeal, Kangas acknowledges that he “did not object” to the superior
court’s order for the psychological examinations, but Kangas claims that the superior
court committed plain error when it issued this order. As we are about to explain, we
reject Kangas’s characterization of his claim as one of “plain error”. Any error was
invited. But more importantly, the record shows that Kangas was not compelled to
participate in the psychological evaluations against his wishes, and thus there was no
error.
Why we reject Kangas’s characterization of this issue as a claim of
“plain error”
The record shows that Kangas is not entitled to make a claim of plain error.
Any error here was invited by Kangas’s attorney.
True, it was the prosecutor who filed the motion asking the court to order
the two psychological examinations. But Kangas’s attorney did not simply fail to object
to the proposed order. Instead, he affirmatively told the superior court that he did not
object — and then the defense attorney actively worked to arrange and facilitate the
psychological examinations.
As we have described, when the director of the Alaska Psychiatric Institute
informed the superior court that she did not have psychiatrists or forensic psychologists
on her staff who were certified to conduct this type of examination, Kangas’s attorney
told the court that he would agree to have Dr. Wendy Elliott perform one of the
examinations even though she was not board-certified in this area of practice. And
Kangas’s attorney then worked with the prosecutor to find a second psychologist
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(Dr. David Sperbeck) to conduct the other examination. In other words, over a period
of weeks, Kangas’s attorney worked to promote and facilitate the psychological
examinations.
Given this record, even if it was error for the superior court to order these
examinations, the error was invited. And because the error was invited, we will not
reverse the trial court’s ruling unless it presents an “exceptional situation where reversal
is necessary to preserve the integrity of the judicial process or to prevent a miscarriage
of justice.” 7 Kangas’s case does not present this type of exceptional situation.
Why we reject Kangas’s assertion that he was unlawfully compelled to
participate in the two psychological examinations
We begin our analysis of this question by describing the United States
Supreme Court’s decision in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d
359 (1981).
In Estelle, the Supreme Court held that unless a criminal defendant has
either requested a psychiatric examination or has indicated that they will put their mental
state at issue, 8 it is unlawful for a court to compel the defendant to participate in a
psychiatric examination if the defendant’s statements to the examiner can later be used
against the defendant at trial or sentencing.
To make sure that a defendant’s statements are not compelled, Estelle held
that when a defendant in this situation makes statements to a psychiatric examiner, those
7
Johnson v. State, 328 P.3d 77, 86 (Alaska 2014), quoting Parson v. Alaska Housing
Finance Corp., 189 P.3d 1032, 1038 (Alaska 2008); Williams v. State, 440 P.3d 391, 396–97
(Alaska App. 2019).
8
Estelle, 451 U.S. at 466, 101 S.Ct. at 1874–75.
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statements are not admissible unless the defendant, with the assistance of counsel,
consented to participate in the examination after being affirmatively warned (1) that they
had the right not to participate, and (2) that any statements they made during the
examination could be used against them. 9 (Compare Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where the Supreme Court laid down an analogous
rule for persons subjected to custodial interrogation by the police.)
In the present appeal, Kangas asserts that he was ordered to involuntarily
participate in the psychological examinations conducted by Dr. Elliott and Dr. Sperbeck,
even though he had done nothing to put his mental condition at issue. Based on these
assertions, Kangas argues that his statements to Elliott and Sperbeck were compelled,
and that, under Estelle, the Fifth Amendment protected him from any later use of his
statements, either by the State at his trial or by the court at his sentencing.
We reject Kangas’s characterization of the record.
First, the record shows that the superior court had proper grounds for
concluding that the mental examinations were authorized under AS 12.47.070(a) — i.e.,
“reason to believe that a mental disease or defect of the defendant [would] ... become an
issue in the case.”
Second, the record shows that Kangas was not compelled to participate in
the psychological examinations against his will.
Although the superior court issued an order directing Kangas to be
examined, the court did not issue this order until after Kangas’s attorney affirmatively
told the court that he did not object to these examinations. And then, as we have
described, the defense attorney took repeated steps in the ensuing weeks to promote and
9
Estelle, 451 U.S. at 467–472, 101 S.Ct. at 1874–77.
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facilitate these examinations. There is no indication that the superior court ordered
Kangas to do something that he was otherwise unwilling to do.
In addition, Kangas was expressly warned by at least one of the forensic
psychologists that he had the right not to participate in the examination — and both of
the psychologists warned Kangas that whatever he said to them would be reported to the
court, and could potentially be used against him. Aided by counsel (who attended both
examinations), Kangas agreed to participate in both examinations.
Accordingly, we hold that Estelle did not bar the use of Kangas’s
statements to the two forensic psychologists, and that the superior court could properly
order the two psychological examinations.
Why we interpret AS 12.55.125(j) to mean that Kangas is entitled to seek
a modification or reduction of his sentence after he serves 49½ years in
prison
The jury found that Kangas intentionally killed two peace officers when he
knew that they were acting in the performance of their duties. Because of these findings,
the superior court was required to sentence Kangas to a mandatory term of 99 years’
imprisonment on each of the two counts of first-degree murder. See AS 12.55.125(a)(1).
Under Alaska law, defendants who are sentenced to a mandatory 99-year
term for first-degree murder are not eligible for good time credit against their sentence,
nor are they eligible for discretionary parole. See AS 33.20.010(a)(1) and AS 33.16.­
090(a)(1), respectively. As a result, Kangas must serve the entire 99 years of each
murder sentence. And under Alaska’s consecutive sentencing statute, the superior court
was required to impose these two 99-year sentences consecutively, for a composite term
of 198 years’ imprisonment — again, without eligibility for parole. See AS 12.55.­
127(c)(2)(A) and AS 33.16.090(b)(7)(A), respectively.
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But under AS 12.55.125(j), defendants who receive a mandatory 99-year
term of imprisonment are eligible to apply for a modification or reduction of their
sentence after they have served one-half of the mandatory 99-year term — i.e., after they
have served 49½ chronological years.
The question presented in Kangas’s case is how to apply this statute to
defendants who, like Kangas, have received more than one mandatory 99-year term of
imprisonment.
At Kangas’s sentencing, the superior court interpreted AS 12.55.125(j) as
meaning that Kangas would have to serve one-half of his 198-year composite sentence
— i.e., 99 years — before he would be eligible to apply for a modification or reduction
of his sentence under the statute. (In other words, Kangas would not be eligible to apply
until he was 119 years old.)
For the reasons we are about to explain, we construe AS 12.55.125(j) to
mean that Kangas will be eligible to apply for a modification or reduction of his sentence
after he serves 49½ years of his composite sentence.
The legislature enacted AS 12.55.125(j) as part of the same session law
where the legislature prescribed a mandatory 99-year sentence for offenders who murder
peace officers who are engaged in the performance of their duties. See SLA 1992,
ch. 79, § 23 (mandatory 99-year sentence) and § 25 (opportunity to seek modification
or reduction of the sentence after 49½ years).
The legislative history of AS 12.55.125(j) is fairly limited. At a meeting
in January 1992, when the House Judiciary Committee was considering whether to enact
mandatory 99-year sentences, several members of the committee (as well as several
witnesses who appeared before the committee) discussed the desirability of creating a
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“safety valve” that would allow judges to alter a mandatory 99-year sentence. 10 At a
second meeting of the committee two days later, a witness representing the Alaska
Action Trust proposed a provision that would allow such defendants to apply for a
modification or reduction of their sentence halfway through their mandatory term, giving
these defendants the opportunity to prove that they had been rehabilitated. 11 (This
witness later submitted a position paper on behalf of the Alaska Action Trust further
explaining this proposal.) 12
On January 27, 1992, the House Judiciary Committee unanimously adopted
an amendment to House Bill 396 that incorporated this suggestion. 13 This provision
ultimately was enacted as AS 12.55.125(j).
However, with regard to the situation posed by Kangas’s case — i.e., cases
where a defendant has received two or more mandatory 99-year sentences — the
legislative history is silent. It does not appear that the Judiciary Committee (or any other
legislative committee) ever discussed how this provision would be applied to defendants
who received more than one 99-year sentence.
10
Recording of the House Judiciary Committee proceedings of January 22, 1992
commencing at 9:54 a.m., @ 1:00:25 – 1:15:30 (consideration of House Bill 396):
http://www.akleg.gov/ftr/archives/1992/HJUD/03-HJUD-920122.mp3
11
Recording of the House Judiciary Committee proceedings of January 24, 1992
commencing at 9:40 a.m., @ 30:11 – 30:35 (consideration of House Bill 396):
http://www.akleg.gov/ftr/archives/1992/HJUD/05-HJUD-920124.mp3
12
Position paper of the Alaska Action Trust regarding House Bill 396 (January 26,
1992), pages 5–6.
13
Recording of the House Judiciary Committee proceedings of January 27, 1992
commencing at 10:19 a.m., @ 7:10 – 7:15:
http://www.akleg.gov/ftr/archives/1992/HJUD/07-HJUD-920127.mp3
– 19 – 2667
We further note that it was not until twelve years later (in 2004) that the
legislature enacted AS 12.55.127, the statute which requires that all of a defendant’s
mandatory 99-year terms be imposed consecutively. See AS 12.55.127(c)(2)(A). We
have found nothing in the legislative record to indicate that the legislature ever
considered how this requirement of consecutive sentencing would affect a defendant’s
eligibility to apply for a modification or reduction of a mandatory 99-year sentence under
AS 12.55.125(j).
We acknowledge that the policy behind the legislature’s actions points in
two directions.
When the legislature enacted mandatory 99-year sentences for the murder
of a police officer, and when the legislature later required consecutive sentencing for
defendants who murder more than one officer, the legislature obviously intended to
express society’s most severe condemnation of this type of murder, and to ensure that
the defendant’s sentence fully reflected the value of each individual officer’s life.
On the other hand, any sentence of 99 years without possibility of parole,
and without any reduction for good time credit, effectively means that even the youngest
of offenders will spend the rest of their days in prison, and will die there. The legisla­
ture’s decision to allow such defendants to seek modification or reduction of their
sentence after serving a full 49½ years in prison demonstrates the legislature’s
acknowledgement that, over the course of half a century, an offender’s thinking and
behavior might be altered to the point where the defendant was no longer a danger to
society, so that the defendant’s term of imprisonment might be reduced, or the defendant
might be released on parole.
Neither the language of AS 12.55.125(j) nor the pertinent legislative record
provides a clear answer as to which of these policies the legislature considered
paramount in situations where a defendant receives two or more mandatory 99-year
– 20 – 2667
sentences. Given this ambiguity, and because AS 12.55.125(j) is a penal statute, we are
required to construe AS 12.55.125(j) against the government. 14
We accordingly hold that, even when a defendant has received two or more
consecutive mandatory 99-year sentences for the crime of first-degree murder, the
defendant is eligible to apply for a modification or reduction of their composite sentence
under AS 12.55.125(j) after the defendant has served 49½ chronological years of their
sentence.
Conclusion
The judgement of the superior court is AFFIRMED, but Kangas will be
eligible to apply for a modification or reduction of his sentence under AS 12.55.125(j)
after he serves 49½ years.
14
See State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985), opinion adopted by the
supreme court in State v. Andrews, 723 P.2d 85, 86 (Alaska 1986) (“Ambiguities in criminal
statutes must be narrowly read and construed strictly against the government.”); see also
Wells v. State, 706 P.2d 711, 713 (Alaska App. 1985) (“It is well established that, in
accordance with the rule of lenity, ambiguities in penal statutes must be resolved in favor of
the accused.”).
– 21 – 2667