"Insanity, as the word is used in these instructions, means such a diseased and deranged condition of the mental facilities of a person as to render him incapable of knowing the nature and quality of his act and of distinguishing between right and wrong in relation to the act with which he is charged." For a full discussion, see Pope v. State, 478 P.2d 801 (Alaska 1970) (dissenting opinion). "Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity.

Id. at 276 (footnote omitted) (emphasis in original). See also Pope v. State, 478 P.2d 801, 803-04 (Alaska 1970), reh. denied, 480 P.2d 697 (Alaska 1971); Roberts v. State, 458 P.2d 340, 346 (Alaska 1969). This conclusion effectuates the purpose of Civil Rule 42(c)(3) and preserves the separate identity of the Niebert lawsuit.

The first issue on appeal is whether the trial court erred in admitting certain unspecified incriminating statements Ripley made to the police dispatcher and later to the officer on the scene. The trial court believed that Pope v. State, 478 P.2d 801 (Alaska 1970), was controlling and accordingly denied Ripley's motion to suppress these statements. On appeal, Ripley contends that since the investigation had focused on her as soon as she began her conversation with the dispatcher, she was entitled to a Miranda warning at that point, and that all subsequent statements were illegally tainted and should have been suppressed.

We must first resolve the following issue: Did a search occur when the officers lifted the slides to the light or were the slides, and their contents, within the plain view of the officers? Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Davenport, 510 P.2d 78 (Alaska 1973); Bell v. State, 482 P.2d 854 (Alaska 1971); Pope v. State, 478 P.2d 801 (Alaska 1970); Klockenbrink v. State, 472 P.2d 958 (Alaska 1970); Stevens v. State, 443 P.2d 600 (Alaska 1968). If the slides were seized in violation of the defendant's constitutional rights, any evidence derived therefrom would also be inadmissible as a "fruit of the poisoned tree".

As we stated in Channel Flying, Inc. v. Bernhardt,See Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 574 (Alaska 1969) ("In short, when a proper affidavit has been timely filed, the judge involved is without power or jurisdiction to take any further action in the proceeding."); see also McCracken v. State, 521 P.2d 499, 510 (Alaska 1974); Pope v. State, 478 P.2d 801, 804 (Alaska 1970). 451 P.2d 570 (Alaska 1969).

Therefore, I conclude that this questioning falls under the on-the-scene questioning exception to the Miranda rule. This court discussed the parameters of that exception in Ripley v. State, 590 P.2d 48 (Alaska 1979), and Pope v. State, 478 P.2d 801 (Alaska 1970). The purpose of the exception is to facilitate the traditional function of police officers in investigating crime.

All of the cases cited by Hensel for the proposition that the state must prove lack of diminished capacity beyond a reasonable doubt once the defendant has introduced some evidence of diminished capacity involved trial proceedings. See McKinney v. State, 566 P.2d 653 (Alaska 1977); Alto v. State, 565 P.2d 492 (Alaska 1977); Dolchok v. State, 519 P.2d 457 (Alaska 1974); Johnson v. State, 511 P.2d 118 (Alaska 1973); Pope v. State, 478 P.2d 801, 806-14 (Alaska 1970) (Connor, J., dissenting). AS 12.45.083 is contained in the Code of Criminal Procedure.

Like many courts, we have not before explicitly delineated a test for custodial interrogation, but our previous decisions are consistent with a reasonable person standard. In Pope v. State, 478 P.2d 801, 805 (Alaska 1970), this court said: See Peterson v. State, 562 P.2d 1350, 1361-62 (Alaska 1977) (defendant not in custody until his formal arrest; before that, police had done nothing to restrict defendant's freedom); J.M.A. v. State, 542 P.2d 170 (Alaska 1977) (juvenile in custody during questioning — foster parent told defendant not to leave home, defendant was questioned there by foster parent, social worker and police officer, confronted with marijuana found in his jacket, and left in the custody of police officer); cf. Blue v. State, 558 P.2d 636, 642 n. 9 (Alaska 1977) (defendant, not formally arrested, was in custody because he was not free to leave, the defendant had been frisked and, at one point, handcuffed).

"[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong." 10 Cl. Fin. at 210, 8 Eng. Rep. at 722, cited in Pope v. State, 478 P.2d 801, 808 (Alaska 1970) (dissenting opinion). This court, in Schade v. State, 512 P.2d 907 (Alaska 1973) abandoned the M'Naghten Rule and adopted a new test following the enactment of AS 12.45.083.

In Pope v. State, this court explained the rationale of the five-day limit in the following terms: 478 P.2d 801 (Alaska 1970). [T]he granting of the five-day period is to allow a party or his attorney an opportunity to investigate the judge to whom the case is assigned and if necessary file the requisite affidavit for disqualification, thus avoiding the waste of judicial time which would result if an affidavit or disqualification were not filed until the date of trial because this would mean that the case would have to be continued until another judge could be assigned and the disqualified judge would not be ready at that time to start the trial of another action. (478 P.2d at 804.)