concurring.
Although I have no disagreement with the court’s opinion, I think it appropriate to discuss my view of the precise procedural effect of the introduction by the defense of evidence of insanity. AS 12.45.083(b) provides:
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.
The meaning of this section was explained in Dolchok v. State, 519 P.2d 457, 458 (Alaska 1974): “Subdivision (b) means that once evidence of insanity is introduced, the burden is on the state to prove sanity beyond a reasonable doubt.” In addition, in Alto v. State, 565 P.2d 492, 497 (Alaska 1977), we said: “Although we have never before articulated a definite legal standard regarding the quantum of evidence which must be adduced to trigger the state’s burden to prove sanity, ... the rule of law seems to be that ‘some’ evidence of the defendant’s insanity is sufficient. . [W]e hereby adopt it.”
It thus appears that if “some” evidence is sufficient to place the burden of proof on the state to prove the defendant’s sanity, then it is really not up to the defendant to prove anything on this issue. If this is so, I do not see how the prosecutor can characterize the testimony of Dr. Rothrock, a psychiatrist retained by the state as an expert witness on this issue in the case at bar, as “rebuttal testimony.” It appears that the testimony is necessarily part of the prosecution’s case in chief on this issue. See McCurry v. State, 538 P.2d 100, 106 (Alaska 1975).
BURKE, Justice,concurring in the result.
I concur in the result reached by my colleagues. However, I would rest my decision on the fact that disclosure of the expert’s report is required by Criminal Rule 16(b)(l)(iv). I think also, however, that McCurry v. State, 538 P.2d 100 (Alaska 1975) is distinguishable on two grounds: (1) McCurry involved disclosure of the identity of a rebuttal witness. Here the identity of the expert was disclosed. It is only his report that is sought. (2) The report is “realistically part of [the state’s] case in chief.” As such it should have been disclosed even under our holding in McCurry. 538 P.2d at 106.