Opinion
Court of Appeals No. A-11221 No. 6461
05-10-2017
KIP EDWARD LYNCH, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-10-7992 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge. Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Kip Edward Lynch was convicted of murdering his wife and infant daughter shortly after he returned from a military deployment in Afghanistan. In this appeal, Lynch contends that the superior court committed error by allowing the State to call an Army psychotherapist as a witness at trial, over Lynch's objection that the therapist's testimony violated Lynch's psychotherapist-patient privilege. Based on our review of the record, we uphold the superior court's ruling.
Lynch received a composite sentence of 80 years' imprisonment for the two murders. He argues that this sentence is excessive, but for the reasons explained in this opinion, we conclude that the sentence is not clearly mistaken.
Underlying facts
Lynch was deployed for a year as a military policeman in Afghanistan. In early 2010, he returned to Anchorage and was given a month of post-deployment leave. Lynch moved into an apartment with his wife Kellie and their 8-month-old daughter Kyirsta.
Lynch and Kellie had met in high school in Florida, and they were married in Alaska in February 2009, shortly before Lynch's deployment to Afghanistan. While Lynch was deployed overseas, Kellie returned to Florida and lived with her mother. Their daughter was born during Lynch's deployment. In March 2010, shortly after Lynch returned from Afghanistan, Kellie and Kyirsta moved back to Alaska.
Lynch's friend and fellow military policeman, John Pitts, testified that, shortly before the murders, he heard Lynch and Kellie arguing. In particular, Pitts heard Kellie say that "she was going to take the baby and go back to Florida." Pitts added that he confronted Kellie about her statement, and she told him that she had not been serious.
Lynch and other members of his platoon had placed an order for a number of .45 caliber Sig Sauer 1911 semi-automatic pistols to commemorate their deployment. On Thursday, April 22, 2010, Lynch picked up his commemorative pistol, and he also purchased ammunition for this weapon.
The following afternoon — Friday, April 23rd — Lynch went to the gym to work out. Around 3:30, he and Kellie began to argue via text messaging. When Lynch returned home around 6:00 p.m., Kellie left the house with Kyirsta and went shopping, but the couple continued their text message argument.
At 7:36 p.m., in the midst of the ongoing texting argument between Lynch and Kellie, John Pitts texted Lynch and asked him if he wanted to go to a movie. Lynch declined. He told Pitts, "I don't think so im gettin drunk."
About one hour later (at 8:34 p.m. on Friday), Kellie sent her last text message to Lynch. No more text messages were sent from Lynch's phone, and all later incoming texts to Lynch's phone went unread.
The next day (Saturday, April 24th), Lynch failed to show up for scheduled workouts, and he also failed to show up for an outing with friends to go shooting. His colleagues called him and texted him, but he did not respond. Pitts stopped by Lynch's apartment and knocked on the door, but no one answered.
When Lynch did not show up for work two days later (i.e., on Monday morning, April 26th), Lynch's team leader Kevin O'Brien and another platoon mate, Mike Diehm, went to Lynch's apartment to check on him. No one answered the door, and when they tried the door they found it locked. O'Brien and Diehm then called the property manager, who let them into the apartment.
When they entered the apartment, O'Brien and Diehm found Kellie and Kyirsta lying dead at the top of the stairs. Kellie had been shot in the head and the back. She was still holding Kyirsta, and Kyirsta had been shot in the shoulder and the back.
Anchorage police officers quickly arrived and conducted a search of the apartment. The officers found Lynch lying under a blanket on a bed in the baby's room. He was alive, but he appeared to have shot himself from under his chin, and his wound appeared to be several days old.
Later ballistics testing showed that all of these gunshots had been fired from Lynch's Sig Sauer pistol.
Lynch's gunshot injury rendered him blind in his left eye. The bullet also passed through the left frontal lobe of his brain, resulting in a traumatic injury with effects similar to a frontal lobotomy. He received medical care for months afterward.
In August 2010 (i.e., four months after the shootings), Lynch wrote a letter to Kellie's mother, asking for forgiveness "for what [he] did that day." He wrote that he remembered "bits and pieces" of what happened, and he declared that what happened was not planned — that it was "an accident to the point where I tried to end my own life."
Lynch was indicted for first-degree murder in connection with Kellie's death, and for second-degree murder in connection with Kyirsta's death. The State's theory at trial was that Lynch killed his wife and daughter, and that he then unsuccessfully tried to kill himself.
The defense theory of the case was that Lynch was incapable of doingsuch a thing, and that someone else — most likely Lynch's friend, John Pitts — had killed Lynch's wife and daughter and had tried to kill Lynch.
Whether the trial judge committed error by allowing Dr. Christopher Graver to testify at Lynch's trial
(a) Underlying facts, and the trial judge's ruling
In July 2010, about ten weeks after the shooting, Lynch was transferred to the Madigan Army Medical Center in Washington State. There, Lynch was evaluated by Dr. Christopher Graver, a clinical neuropsychologist. The Army asked Dr. Graver to evaluate Lynch for possible cognitive difficulties related to his traumatic brain injury.
The purposes of this evaluation were to assess Lynch's future rehabilitative needs, and also to assist the Army in determining whether to convene a medical evaluation board to decide whether Lynch was sufficiently fit to remain in the military. Lynch was aware that Dr. Graver was evaluating him for these purposes.
In connection with Dr. Graver's evaluation, Lynch signed a standard "informed consent" form which stated that the information he shared with Dr. Graver would be used only for treatment purposes except to the extent that this information was relevant to the evaluation board's assessment of whether Lynch should be discharged from the Army.
Based on the results of Dr. Graver's one-hour interview with Lynch, coupled with the eight hours of testing administered by Dr. Graver's technician, Dr. Graver concluded that Lynch was "malingering [his] cognitive deficits" — i.e., that Lynch was fabricating or intentionally exaggerating many of his mental problems.
In advance of Lynch's trial, the State gave notice that it intended to call Dr. Graver as a witness. In response, Lynch's defense attorney filed a motion to preclude Dr. Graver from testifying.
The defense attorney argued that Dr. Graver's evaluation and report were irrelevant to any of the issues in Lynch's case. The defense attorney also argued that the evaluation and report were based on confidential communications that were protected by the psychotherapist-patient privilege codified in Alaska Evidence Rule 504(b).
The State argued that Dr. Graver's evaluation was relevant because, if Lynch was malingering during his evaluation at the army medical center, this tended to show that Lynch was also lying when, two weeks later, he was interviewed by Anchorage Police Detective Mark Huelskoetter — and that, if Lynch was lying, this was evidence of his consciousness of guilt. The State also pointed out that Dr. Graver's testimony would be relevant to explain the workings of the human brain and the possible results of a head injury like the one Lynch suffered.
Regarding the defense claim that Dr. Graver's evaluation was protected by the psychotherapist-patient privilege, the State argued that the evaluation and report were not confidential because Lynch had signed a waiver allowing the results of his examination to be shared with the Army's medical evaluation board.
The trial judge agreed with the State that, if Lynch was malingering during his interview with Dr. Graver and the related psychological testing, this raised the inference that Lynch "didn't give his best efforts when he talked to the detective".
With regard to the question of whether Dr. Graver's testimony would violate Lynch's psychotherapist-patient privilege, the judge stated that he would defer his ruling on this question until he heard foundational testimony from Dr. Graver.
Dr. Graver's foundational testimony was offered in the middle of Lynch's trial, in a hearing outside the presence of the jury. There were five main aspects to the doctor's testimony:
First, Graver explained that he evaluated Lynch to assess possible cognitive problems related to Lynch's traumatic brain injury. Graver testified that this evaluation had two primary purposes: to assess Lynch's rehabilitative needs, and to help decide whether Lynch would go before an Army medical evaluation board. Graver further testified that Lynch was aware of both of these purposes.
Second, Dr. Graver explained that Lynch reviewed and signed a standard Army "informed consent" form. This form stated that "[g]enerally, information discussed during your evaluation and treatment sessions is confidential and may not be released to anyone outside of the Department of Defense Military Health System without your permission."
Third, Dr. Graver explained that this "informed consent" form also stated that "under some limited circumstances, your information may be released without your permission." The form then listed eight situations where Lynch's information would not be treated as confidential. The second of these exceptions stated that Lynch's commanders could obtain his information "when authorized by regulation to ensure [Lynch's] fitness for duty". The eighth exception listed on the form was labeled "Investigations". It notified Lynch that his records "[might] be requested in ... courts martial", and that the records "potentially [might] be subpoenaed by civilian courts" in connection with an investigation.
Fourth, Dr. Graver testified that Lynch placed his initials next to all eight exceptions listed on the form, indicating that he had read them and that he understood them.
And fifth, Dr. Graver testified that Lynch knew at the time that he was under investigation for the homicide of his wife and daughter.
Based on this foundational evidence, the trial judge ruled that Lynch had waived any expectation of confidentiality with regard to his interview with Dr. Graver and the results of the related testing.
The judge then ruled that Dr. Graver would be allowed to offer his opinion that Lynch had been malingering during his evaluation — although the judge prohibited Dr. Graver from offering an opinion as to whether any particular statement made by Lynch was knowingly false.
(Toward the end of Dr. Graver's trial testimony, Lynch's attorney directly asked him whether he was able to offer an opinion as to whether Lynch could or could not remember the events surrounding the death of his wife and child. Dr. Graver told the jurors that he could not offer an opinion on that subject.)
(b) Why we conclude that Dr. Graver's testimony did not violate Lynch's psychotherapist-patient privilege
The psychotherapist-patient privilege protects "confidential communications" made to a mental health care provider. Alaska Evidence Rule 504(a)(4) defines "confidential communication" as a communication that is
not intended to be disclosed to third persons other than those [who are] present to further the interest of the patient in the consultation, examination, or interview, or [other] persons reasonably necessary for the transmission of the communication, or [other] persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.
Here, Lynch's trial judge concluded that Lynch's communications to Dr. Graver and his medical technician were not confidential within the meaning of this rule because Lynch signed the Army's "informed consent" form.
We would be concerned if the judge had relied solely on Lynch's agreement to the eighth exception listed on the form — the one relating to "investigations". This eighth exception notified Lynch that his medical information "potentially [might] be subpoenaed by civilian courts" in connection with an investigation. But the fact that a court may issue a subpoena for confidential information does not mean that the information must necessarily be produced. If the information is privileged, the privilege holder can assert the privilege against the court subpoena. Thus, Lynch's acknowledgement that a court might issue a subpoena for his medical records did not, of itself, constitute a waiver of his psychotherapist-patient privilege.
However, the trial judge's ruling is justified on a separate ground. Lynch was told that one of the purposes of Dr. Graver's evaluation and testing was to allow the Army's medical evaluation board to assess whether Lynch should remain in the Army or be discharged as no longer fit for duty. The form Lynch signed stated that his commanders could obtain this information "when authorized by regulation to ensure [his] fitness for duty". Because of this, Lynch's situation is analogous to the situation that we confronted in Grandstaff v. State, 1171 P.3d 1176 (Alaska App. 2007).
In Grandstaff, a medical doctor was under investigation by the Department of Labor for sexual misconduct with patients; at the same time, he was seeking renewal of his medical license. The State Medical Board asked Grandstaff to submit to a psychological evaluation, and Grandstaff agreed. Before this evaluation, Grandstaff signed a release that authorized the doctor to report his findings to the Department of Labor and the State Medical Board. This doctor later testified at Grandstaff's trial for sexual assault, describing various inculpatory statements that Grandstaff made during the evaluation.
Grandstaff, 1171 P.3d at 1191.
Ibid.
Ibid.
Grandstaff argued that the doctor's testimony violated Grandstaff's psychotherapist-patient privilege. But this Court held that the privilege did not apply because the doctor made it clear to Grandstaff that anything they discussed would likely be reported to the State Medical Board. Thus, "a reasonable person in Grandstaff's position would not believe that the contents of his conversation with [the doctor] would be confidential."
Ibid.
Id. at 1192.
We reach the same conclusion in Lynch's case. Like the defendant in Grandstaff, who knew that his medical license was at stake and that the doctor's findings would be reported to the State Medical Board, Lynch knew that his continued service in the Army was at stake, and that Dr. Graver's findings would be reported to the Army's medical evaluation board for the purpose of determining whether Lynch would remain in the service or be discharged. Thus, a reasonable person in Lynch's position would understand that his communications with Dr. Graver (and Dr. Graver's medical technician) were not intended to be "confidential" within the meaning of Alaska Evidence Rule 504(a)(4).
Lynch argues that, unlike the release signed by the defendant in Grandstaff, the "informed consent" form in Lynch's case affirmatively stated that "[g]enerally, information discussed during [his] evaluation and treatment ... [was] confidential". But the fact that this language appeared in the form is not dispositive; we must consider the totality of the relevant circumstances.
Dr. Graver told Lynch that one of the purposes of the evaluation was to assist the Army in determining Lynch's fitness for duty — and that Lynch's information could be disclosed for this purpose. This exception to the general rule of confidentiality was also explicitly stated in the second exception listed on the "informed consent" form. As we explained earlier, this second exception advised Lynch that his commanders could obtain his information "when authorized by regulation to ensure [his] fitness for duty".
We therefore conclude that Lynch's case is analogous to Grandstaff, and that Lynch's communications to Dr. Graver and his medical technician were not intended to be confidential within the meaning of Evidence Rule 504. Our conclusion on this issue is supported by the commentary to Rule 504, which states that the rule's purpose is to "encourage those with mental or emotional problems to seek help." Neither Grandstaff nor Lynch were voluntarily seeking help. Instead, because of their conduct, both Grandstaff and Lynch were required to submit to an evaluation whose purpose was to aid a third party in assessing their fitness to remain in their profession.
Commentary to Alaska Evidence Rule 504(a)(3), fourth paragraph.
In sum, we hold that the psychotherapist-patient privilege did not protect Lynch from disclosure of Dr. Graver's evaluation.
(c) Dr. Graver's testimony — in particular, his conclusion that Lynch was malingering — did not violate Alaska Evidence Rule 404(b)(1)
Lynch argues in the alternative that, even if Dr. Graver's testimony did not violate Lynch's psychotherapist-patient privilege, the doctor's testimony was nevertheless barred by Alaska Evidence Rule 404(b)(1).
Evidence Rule 404(b)(1) declares that evidence of a specific instance of a person's behavior is not admissible when the sole purpose of this evidence is to prove that the person has a particular underlying trait of character, so that this character trait can then be used as circumstantial evidence that the person acted in conformity with this trait during the episode being litigated.
Linehan v. State, 224 P.3d 126, 147 (Alaska App. 2010).
As we acknowledged in Smithart v. State, 946 P.2d 1264 (Alaska App. 1997), "the distinction between acts offered to prove propensity and acts offered for another purpose is not easily drawn". But we offered the following test for evaluating this distinction:
Quoting Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (6th ed. 1994), Rule 404, p. 322.
[W]e think that it is helpful to consider whether the factfinder is [being] asked to engage in a two-step reasoning process: to infer from [a person's] behavior on one occasion something about the nature of [the] person[,] and then to infer from [the person's nature] how the person probably would have behaved on another occasion when the only connection between the two occasions is that the factfinder believes that people of a certain type would act the same way both times.
. . .
Smithart, 946 P.2d at 1271 (emphasis added).
In other words, Rule 404(b) bars evidence of the defendant's other wrongful acts if the only relevance of those other wrongful acts is to show that the defendant is a person who, by nature, engages in such wrongful acts, and if there is no connection between those prior acts and the episode being litigated other than the assumption that people of a certain character would act the same way on both occasions.
Quoting Federal Rules of Evidence Manual, pp. 322-23.
As we explained earlier, the State argued (and the trial judge agreed) that Dr. Graver's testimony was relevant because, if Lynch was indeed purposely giving false responses when he was interviewed and tested by Dr. Graver and his technician, this tended to show that Lynch was lying when he was later interviewed by Detective Huelskoetter and he claimed not to remember how his wife and daughter were killed, or how he himself came to be shot.
On appeal, Lynch argues that the judge's rationale for admitting this evidence is the very rationale that is prohibited by Rule 404(b)(1): that if Lynch lied to one person, this tended to show that Lynch was characteristically a liar, and thus he was more likely to lie to another person.
Lynch would be correct if the trial judge's rationale for admitting the contested evidence was the premise that Lynch's lies to Dr. Graver demonstrated Lynch's general character for untruthfulness. But Dr. Graver's testimony was not offered to show that Lynch was generally or characteristically a liar. Rather, the doctor's testimony was offered to prove that Lynch lied about a particular subject — his mental functioning as it related to his ability to recall the events of the homicide, and his ability to deliberately misrepresent his memory of, and role in, the killing of his wife and daughter.
Although Dr. Graver did not interview Lynch as part of the criminal investigation, the State presented testimony that Lynch was aware (at the time of Dr. Graver's evaluation) that the police might be investigating him for the murder of his wife and child. If, as Dr. Graver concluded, Lynch fabricated or purposely exaggerated his cognitive difficulties during his interview with Dr. Graver and during the related psychological tests, a reasonable person could conclude that Lynch's lies were part of a purposeful attempt to establish an exculpatory medical record — a record that would support Lynch's later assertion to the police that he remembered nothing of the events surrounding his wife's and daughter's deaths.
In other words, it was reasonable for the trial judge to conclude that if Lynch purposely misrepresented his mental functioning to Dr. Graver, this dishonest conduct had a case-specific relevance beyond what it might suggest about Lynch's overall character for truthfulness or untruthfulness.
Because the evidence had this case-specific relevance, it was not barred by Evidence Rule 404(b)(1).
See Linehan v. State, 224 P.3d 126, 147 (Alaska App. 2010); Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska App. 1997).
Why we conclude that Lynch's sentence is not excessive
Lynch was convicted of first-degree murder for killing his wife, and convicted of second-degree murder for killing his daughter. Both of these crimes carry maximum sentences of 99 years' imprisonment. AS 12.55.125(a) and (b).
At the time of Lynch's crimes, first-degree murder carried a mandatory minimum sentence of 20 years' imprisonment. AS 12.55.125(a) (pre-2016 version). And because Lynch's act of second-degree murder consisted of killing his own child who was under the age of 16, Lynch's conviction for second-degree murder likewise carried a mandatory minimum sentence of 20 years' imprisonment. See AS 12.55.125(b). Under AS 12.55.127(c)(2), the superior court was required to impose these mandatory 20-year terms consecutively. Thus, Lynch faced a minimum composite sentence of 40 years' imprisonment, and his potential maximum sentence was 198 years.
The superior court sentenced Lynch to a composite term of 80 years to serve, with another 20 years suspended. (Lynch received 80 years with 20 suspended for the first-degree murder conviction, and he received a partially consecutive 60 years (20 years consecutive and 40 years concurrent) for the second-degree murder conviction.)
On appeal, Lynch argues that he should have received a sentence at or near the 40-year mandatory minimum. He argues that his actions constituted "the tragic result of combat trauma on a young man who ... never [before] engaged in anti-social or criminal behavior", and he further argues that he does not present a substantial risk of future violence.
At his sentencing hearing, Lynch presented testimony from two soldiers who knew him well because they were deployed with him in Afghanistan. These soldiers described a life of near-constant alert, of dangers posed by an enemy who could blend with the civilian population, and of repeated deaths and woundings — both of coalition soldiers and of civilians.
The sentencing judge declared that the testimony of Lynch's Army comrades was "gripping", and the judge commented that "this country ... may have let [Lynch] down" in failing to provide mental health counseling to him upon his return from deployment.
Lynch also presented expert testimony from a clinical psychologist, Dr. Fred Wise.
Dr. Wise directly challenged Dr. Graver's conclusion that Lynch had been malingering during his Army psychological evaluation. Dr. Wise criticized Dr. Graver's choice of psychological tests, because he believed that these tests included an unusual number of "symptom validity" tests (i.e., tests whose primary purpose was not to evaluate Lynch's mental condition, but rather to evaluate the honesty of his answers). Dr. Wise also criticized Dr. Graver's decision to administer all of the tests — eight hours of testing, in total — on the same day, at a time when Lynch was still physically recovering from the gunshot injury to his brain. This, said Wise, was "bad professional practice".
Dr. Wise told the sentencing judge that it looked like Dr. Graver had decided beforehand that Lynch was malingering, and that Graver then selected tests — and interpreted the test results — in a manner designed to support his conclusion: "[He] picked and chose the test scores that supported his diagnosis [of malingering], and [he] ignored the ones that didn't." Dr. Wise pointed out that, on some of the "harder" symptom validity tests (i.e., harder to fool), Lynch scored perfectly — which, according to Wise, "is what you would expect for somebody who is not exaggerating their difficulties." Dr. Wise did not mince words: "I think [Dr. Graver] frankly misinterpreted or ... misrepresented some of the test data."
Dr. Wise also testified on a different subject: his own evaluation of Lynch's mental condition and prognosis, based on psychological testing that he performed after Lynch's trial.
Dr. Wise administered a battery of tests to Lynch, and Lynch scored within normal limits on almost all of them — which meant, according to Dr. Wise, that "if [Lynch is] faking memory impairment, he's ... pretty bad [at it]." Based on these test results, Dr. Wise rejected Dr. Graver's conclusion that Lynch was feigning cognitive impairment.
As to Lynch's claim that he had no memory of the events surrounding the homicides and his own attempted suicide, Dr. Wise testified that this might very well be true, for one of two reasons. First, people sometimes suffer "retrograde amnesia" following a traumatic event — an inability to remember the things that happened a week or two before the traumatic event. Dr. Wise also offered another possibility: that Lynch was repressing the memories of what he did, because his actions were so "ego-dystonic" — that is, so inconsistent with how Lynch sees himself.
In terms of Lynch's prospects for rehabilitation and the likelihood that Lynch would pose a danger to other people in the future, Dr. Wise testified that there are two main outcomes when people suffer the kind of frontal lobe injury that Lynch inflicted on himself.
Some people develop uncontrollable impulsivity — an inability to consciously anticipate and dampen their emotional responses, which leaves them prone to overwhelming anger or sadness. But Lynch had never manifested symptoms of this condition during the months that had elapsed since the murders and attempted suicide. Dr. Wise pointed out that Lynch had been in custody and under close surveillance ever since the shootings — so if Lynch's brain injury had stripped him of impulse control and left him unable to stifle his violent impulses, the authorities would almost certainly know of it.
Instead of uncontrolled impulsivity, Dr. Wise found that Lynch was manifesting flat affect and lack of initiative — a condition that Wise described as "the other side of what often happens with frontal lobe injuries." Dr. Wise conceded that this condition "has its own drawbacks from a social standpoint. But in terms of impulsive, violent behavior, it ... [augurs] against impulsive, violent behavior."
Dr. Wise testified that Lynch did not suffer from antisocial personality disorder or its precursor, conduct disorder. Wise also noted that, given the lengthy term of imprisonment that Lynch was facing, Lynch was inevitably going to be much older by the time he got out of prison — another factor that reduces the risk of future dangerousness.
Dr. Wise summed up his testimony by asserting that Lynch had "minimal risk factors" for a recurrence of dangerous criminal behavior. He told the sentencing judge that he thought Lynch's double murder / attempted suicide was the result of "a fairly isolated, perfect storm of bad things coming together".
All of this evidence, viewed in the light most favorable to Lynch, would clearly have justified a lesser sentence. But the sentencing judge did not view the evidence that way.
The judge declared that Lynch's service in Afghanistan, and the mental consequences of that service, was "a factor in this tragedy." The judge stated that he was considering this factor — but that it did not absolve Lynch.
Based on the evidence at trial, the judge found that, even if Lynch could not remember it, Lynch had been "so full of rage and hate" that he shot his wife "numerous times" until he "emptied the clip" into her — killing his daughter in the process. The judge then commented:
The Court: I don't know why you did it. ... I think, from what I heard [at trial], ... that you just felt like you were getting picked on and picked on and picked on ... , and you finally snapped. Whether you were jealous ... [or] were mad; whether you had more than one beer, I don't know[.] Nobody does.
The judge declared that he considered Lynch's rehabilitation to be an important sentencingfactor, but not "the key component" in the sentence. The judge had doubts about whether Lynch could be rehabilitated — because, even after all the evidence, the judge was still not sure what was behind Lynch's behavior:
The Court: [Y]our affect before [the murders] was almost the same as after the ... the self-inflicted wound. ...
Can you avoid trouble again? [You don't have a prior history of violent encounters or aggressiveness.] You were the guy who never got angry. You were the guy who never raised your voice to your wife. And so it makes it difficult for me, when I don't understand how this happened in the first place, to say, 'No problem: you're going to be rehabilitated.' I don't know [whether that will happen].
The judge made it clear that he did not consider psychology to be an exact science — and, for that reason, the judge viewed the whole issue of whether Lynch might or might not have been malingering when Dr. Graver examined him "as [simply] a disagreement [between] professionals. [Even] Dr. Graver, under cross-examination, admitted ... that ... this was [only] his opinion."
The judge then added that he thought it was most likely true that Lynch could not consciously remember the events surrounding the shooting: "I suspect, if I had to guess, that Dr. Wise's suggestion [was correct] — that ... you're suffering from repression, where you repressed a memory that you don't want to remember. ... I have no reason to disbelieve that you have no memory of this event, okay?"
Nevertheless, the judge declared that, given the circumstances, he believed that the goal of sentencing rehabilitation "[was] trumped by [the goals of] community condemnation [and] isolation."
The judge decided to emphasize isolation because of the unpredictability of what Lynch did. The judge remarked that "[if he had] talked to [Lynch] two days ... before this happened, [he] wouldn't have predicted a violent act." And the judge noted that there was no way to predict what Lynch would be like in 20 years: "[Our] science is not exact enough to answer these questions." The judge then explained that he had fashioned Lynch's sentence so that, if and when he got out of prison, he would be under active supervision for the rest of his life.
But though the judge declared that isolation was an important component of his sentencing decision, the judge stated that the "critical part" of his decision was community condemnation of the tragic and violent act that ended two people's lives and that affected so many friends and family members.
The judge added that, if it had not been for Lynch's service in the military and the mitigating factors that flowed from it, the judge would have imposed a much more severe sentence — even more severe than the State's recommendation of 109 years to serve.
Sentencing, like psychology, is not an exact science. This is the reason appellate courts review sentencing decisions under the "clearly mistaken" standard of review. As this Court explained in Erickson v. State,
"Clearly mistaken" is ... a deferential standard of review; ... it gives considerable leeway to individual sentencing judges. The "clearly mistaken" test is founded on two concepts: first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within "a permissible range of reasonable sentences". State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)[.]950 P.2d 580, 586 (Alaska App. 1997), quoted with approval in State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000).
We concede that, given the facts of Lynch's case, a different sentencing judge might reasonably have decided to impose a lesser sentence. But in any individual case, the sentencing judge bears primary responsibility for determining the priority and relationship of the various sentencing goals under the facts of that case.
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); Pickard v.State, 965 P.2d755, 760 (Alaska App. 1998).
We have carefully examined the record in Lynch's case, and we conclude that the sentencing judge's decision was not clearly mistaken. Accordingly, we uphold Lynch's sentence.
Conclusion
The judgement of the superior court is AFFIRMED.