Dolchok v. State, 1828
| Decision Date | 08 March 1974 |
| Docket Number | No. 1828,1828 |
| Citation | 519 P.2d 457 |
| Parties | Andrew D. DOLCHOK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
R. Collin Middleton, Anchorage, for appellant.
John E. Havelock, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.
Before RABINOWITZ, C. J., CONNOR, ERWIN and BOOCHEVER, JJ., and DIMOND, J. Pro Tem.
The appellant, Andrew Dolchok, killed and robbed Harry Hibbs, a cab driver. He was tried by the superior court without a jury, found guilty of first degree murder and sentenced to life imprisonment. On this appeal, he contends that the trial court ought to have found him not guilty by reason of insanity.
Legal insanity, as a defense to the commission of a crime, is couched in terms of lack of responsibility for criminal conduct as a result of a mental disease or defect. AS 12.45.083 provides in part:
(a) A person is not responsible for criminal conduct if at the time of the conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
(b) 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.
Subdivision (b) means that once evidence of insanity is introduced, the burden is on the state to prove sanity beyond a reasonable doubt. 1 Since there was evidence of insanity in this case, the ultimate question is whether the state sustained its burden of proof.
Appellant made a written statement or confession which was introduced without objection. He stated that he had hired the cab driver, Hibbs, to take him to Eagle River. When they arrived in that area, appellant pulled out a .32 caliber pistol which he had stolen earlier in the day. Hibbs begged appellant not to shoot him and told appellant that he could have his money and the taxicab. Hibbs at first tried to escape by running, but was stopped by appellant and forced to put all of his money on the cab. Hibbs tried to disarm appellant, and appellant shot him in the chest. Appellant's account of what then occurred is as follows:
I went over and he said, 'You shot me once', and started to beg me not to shoot him again. Kept on saying that he had a family to support. I told him, I said, 'You disobeyed all my orders that I gave you.' I told him, 'Why didn't you obey what I said?' He said, 'Please don't shoot me no more.' I watched him for about five minutes trying to get up. Then I squatted down next to him. I told him, I said, 'You are standing before the Judge, Jury and Prosecutor.' I said, 'Since you disobeyed all my orders, I find you guilty and I sentence you to death.' He said, 'Please, you shot me once, don't shoot me again.' Then I shot him in the head. I watched him for about fifteen to twenty minutes.
Appellant tried to conceal the cab and remove his fingerprints. He walked to the camp of a friend and tried, without success, to get some horses to go into the bush for a few days. He then walked to Palmer, checked into a hotel, went drinking with friends, and persuaded a teenage girl to share his room for the night in return for $40. The next day he went to Fairbanks, was arrested for forgery, released on his own recognizance, and was later arrested for stealing a car. By that time, the investigation into Hibbs' death led to appellant and he was arrested for murder.
Appellant's account of events that took place prior to the killing indicate that during the day he had been drinking a considerable amount of alcohol. He stated that he stole a pistol from a parked car. He forced a thirteen or fourteen year old girl to engage in sexual relations in the back seat of another car, and followed this by bumming drinks from people in downtown Anchorage. At about one o'clock in the afteroon, he said that his head 'went into a buzz' and that he tried to communicate with other people, 'but they just kept shining me on.'
He asked another cab driver for some money and was told to 'get lost.' He was kicked out of a bar because he couldn't pay for the drinks he had ordered. He then went looking for a prostitute, stating that '(M)y intentions were to kill.' He found a prostitute, but she rejected him because he had no money. He did her no harm. Appellant stated: 'Then I had a hate for everybody.' He went back to the bar from which he had previously been ejected, and was again kicked out. It was after this that he hired Hibbs to take him to Eagle River.
These events are related in some detail because they have a bearing on the evidence of insanity that was presented, and the trial judge's conclusion that, in spite of such evidence, sanity had been established beyond a reasonable doubt and appellant was criminally responsible for the killing.
The evidence supporting the defense of insanity came principally from the testimony of Dr. Langdon, a psychiatrist. Based upon the events related by appellant, upon applellant's past history, and upon what Dr. Langdon termed the 'full diagnosis' of appellant, it was the doctor's opinion that appellant was chronically mentally ill from a schizophrenic disorder. The doctor was asked by defense counsel, in the words of the statute, whether as a result of such mental disease appellant lacked the substantial capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of law. Dr. Langdon responded:
That was my opinion; that he was able to understand the nature or the wrongfulness of his conduct, but that because of the illness he was not able to conform his behavior inasmuch as he didn't agree with the general idea of the wrongfulness of it as applied to himself.
In addition to this expert testimony, a psychologist, Dr. Jon Burke, testified that from the results of psychological tests given to appellant, it was his opinion that, at the time of the tests, appellant was suffering from a major mental illness, and that the results of the tests suggested the 'inability really to control the acting out of his impulses.' Finally, there was placed in evidence a written report of Dr. Rader, another psychiatrist. He found appellant 'chronically ill,' but did not offer an opinion as to whether he was legally insane at the time of the killing. Counsel for the state apparently conceded that had Dr. Rader been called to testify he would not have disagreed with Dr. Langdon's conclusions.
Dr. Langdon's testimony was sufficient evidence of insanity to place on the state the burden of proving sanity beyond a reasonable doubt. Appellant contends there was absolutely no evidence tending to show that he was not insane when the killing took place, and therefore that the state failed to meet its burden of proof.
Relying on the evidence of appellant's behavior as related in detail in his confession, the trial judge disagreed with appellant's position and found that he was not insane when he shot and killed the cab driver. In reviewing the evidence, the judge was influenced by the fact that prior to the killing appellant did control his emotions when he was refused drinks and thrown out of a bar, when his request for money from another cab driver was rejected, and when he was turned down by a prostitute. He controlled his behavior until he got the cab driver, Hibbs, off into a remote area where he took Hibbs' money and then killed him. He was in sufficient command of his mental faculties, after the killing, to attempt to hide the cab and Hibbs' body and wipe away his fingerprints. As the judge stated in reaching the conclusion that appellant was not insane at the...
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