People v. Bieber

835 P.2d 542, 1992 WL 13811

• Court: Colorado Court of Appeals
• Decided: August 31, 1992
• Docket: 87CA1863
• Status: Published

Opinions

Opinion by

Judge RULAND.

Defendant, Donald W. Bieber, appeals from judgments entered upon jury verdicts finding him legally sane and convicting him of first degree murder (felony murder), aggravated robbery, and second degree aggravated motor vehicle theft. We affirm.

Between the hours of 3:00 a.m. and 7:00 a.m. on the date of the victim’s death, defendant came in contact with various individuals at a truck stop, a convenience store, and a nearby park. To these persons, he indicated a concern about “communists,” “cops or commies,” and stated that he had “killed a communist on war memorial highway.” Also, he sang “God Bless America” and the “Marine Hymn” on several occasions.

Defendant was armed with rifles and a meat cleaver. He was seen initially driving a bus and then later the victim’s pickup truck. Police were contacted when the defendant backed the pickup truck into a fence at one of the convenience stores and then left the scene.

The victim’s body was located at approximately 6:00 a.m. and defendant was arrested at approximately 8:00 a.m. The victim and defendant were not acquainted, and the prosecution’s evidence indicates that defendant shot the victim at close range for no apparent reason.

Based upon a post-arrest interrogation recorded on videotape, defendant was diagnosed as demonstrating atypical psychotic disorder. The cause of the disorder was described as possibly paranoid schizophrenia or an amphetamine delusional disorder.

An amphetamine delusional disorder is described as consisting of paranoid delusional thinking caused by long-term use of amphetamines which persist beyond the intoxication phase of the amphetamine use. Such a disorder can extend anywhere from two weeks to a year after the date this type of drug is ingested. A psychologist testified at the insanity trial that, because of such disorder, defendant’s ability to distinguish right from wrong could have been impaired on the date of the homicide.

The psychiatrist called by the prosecution at the sanity trial conceded that defendant could have suffered from an amphetamine delusional disorder on the date of the homicide and that this disorder could have affected his ability to distinguish right from wrong. This psychiatrist’s diagnosis was, however, that defendant suffered from an anti-social personality disorder which excluded the possibility that defendant was suffering from paranoid schizophrenia. In the psychiatrist’s opinion, defendant had the ability at the time he shot the victim to distinguish right from wrong.

A urinalysis performed on defendant on the day of the homicide tested positive for long-term excessive marijuana use, but the sample revealed no other controlled substance. A psychiatrist testified that amphetamines can be detected two to five days after ingestion depending upon the dosage. The prosecution and defense counsel stipulated that defendant had not ingested amphetamines for at least two days prior to the homicide.

The record reflects that defendant was a long-time drug user, ingesting numerous illegal substances including amphetamines. Defendant’s drug abuse started at age 13. As an adult, his principal source of funds was generated from the sale of illegal drugs.

The record further reflects that defendant had voluntarily entered a hospital several years before this homicide to obtain treatment for mental impairment arising from the effects of substance abuse. At that time, he expressed fear that he might hurt someone. However, apparently his drug psychosis “cleared very rapidly,” and he was released with a referral to a long-term drug treatment program.

Following his transfer to the state hospital for evaluation in this case, the psychiatrist noted that defendant’s condition improved rapidly even when he was confined in maximum security.

As pertinent here, and consistent with the statutory definition of insanity, the jury was instructed that defendant was not accountable for commission of a crime if he was so diseased or defective in mind at the time the crime was committed that he was incapable of distinguishing right from wrong. The jury was also instructed that: “care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity ... or other motives, and kindred evil conditions.”

With reference to intoxication, the jury was instructed that this term refers to a disturbance of mental or physical capacities resulting from the introduction of any substance into the body and that “intoxication does not, in itself, constitute a mental disease or defect.”

I

SANITY TRIAL

Defendant initially contends that the trial court erred during his sanity trial in refusing to instruct the jury on “settled insanity” as set forth in People v. Kelly, 10 Cal.3d 565, 111 Cal.Rptr. 171, 516 P.2d 875 (1973). Under the circumstances of this case, we disagree.

A

The “settled insanity” doctrine has been recognized in various jurisdictions as a form of mental infirmity which absolves an individual of responsibility for the commission of a crime. See People v. Free, 94 Ill.2d 378, 69 Ill.Dec. 1, 447 N.E.2d 218 (1983). This doctrine is predicated upon the view that an inability to distinguish between right and wrong because of a mental infirmity derived from excessive substance abuse should be recognized as a form of legal insanity when the mental infirmity persists after the effects of the substance itself have dissipated. See Note, Intoxication as a Criminal Defense, 55 Colum.L.Rev. 1210 at 1219 (1955); 2 C. Torcia, Wharton’s Criminal Law § 109 (14th ed. 1979). The instruction tendered by defendant at the sanity trial reflected the precepts of the settled insanity doctrine.

Contrary to the prosecution’s contention, we conclude that there was sufficient evidence and inferences from evidence here to create a reasonable doubt whether defendant suffered from a form of mental infirmity which qualifies as settled insanity and which would, therefore, warrant giving the tendered instruction.

The first issue then is whether this form of mental infirmity excuses a defendant from responsibility for the commission of crime within the statutory scheme adopted by the General Assembly in this state. In my view, it does not.

In 1984, the General Assembly amended the statute defining legal insanity and adopted a strict M’Naghten test for resolution of that issue. See People v. Low, 732 P.2d 622 (Colo.1987); M. Wesson, Crimes & Defenses in Colorado 117 (1989).

With reference to substance abuse, specific limitations have been adopted relative to defenses predicated upon the voluntary ingestion of any substance. See Cordova v. People, 817 P.2d 66 (Colo.1991); People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1980). Thus, evidence of voluntary intoxication may be offered to negate the existence of a specific intent if that intent is an element of the crime charged; however, that evidence is incompetent as a defense to general intent crimes. People v. Low, supra.

Further, in Hendershott v. People, 653 P.2d 385 (1982), our supreme court had occasion to discuss the concepts underlying the public policy of this state pertinent to mental infirmity. With reference to voluntary intoxication, the court stated:

The concept of self-induced intoxication, by definition, requires that the defendant be aware at the outset that the substance he is about to ingest may affect his mental faculties. It is a matter of common knowledge that the excessive use of liquor or drugs impairs the perceptual, judgmental and volitional faculties of the user. Also, because the intoxication must be ‘self-induced/ the defendant necessarily must have had the conscious ability to prevent this temporary incapacity from coming into being at all. Self-induced intoxication, therefore, by its very nature involves a degree of moral culpability. The moral blameworthiness lies in the voluntary impairment of one’s mental faculties with knowledge that the resulting condition is a source of potential danger to others. See generally Model Penal Code § 208, Comment 3 (Tent. Draft No. 9, 1959). It is this blameworthiness that serves as the basis for DelGuidice’s rule of exclusion. Thus, when a defendant chooses to knowingly introduce intoxicants into his body to the point of becoming temporarily impaired in his powers of perception, judgment and control, the policy enunciated in DelGuidice prohibits him from utilizing his intoxication as a defense to crimes requiring the mens rea of ‘knowingly,’ ‘willfully,’ ‘recklessly’ or ‘with criminal negligence.’ There is nothing in DelGuidice, however, that is inconsistent with permitting a defendant to contest these culpability elements by evidence of a mental impairment caused by a known mental disease or defect, or by other evidence of an incapacity not directly caused by self-induced intoxication. (emphasis supplied)

Finally, in People v. Low, supra, our supreme court had occasion to address the distinction between impaired mental condition and insanity. In that discussion, the court noted:

Temporary insanity is not part of the statutory framework for resolving a defendant’s nonresponsibility for a criminal act, and was not a proper ground for the trial court’s entry of a judgment of acquittal.

In view of these considerations, I consider the application of the settled insanity doctrine as not being consistent here with the policy underlying our statutory scheme. Instead, because it is common knowledge both that mental infirmity is a by-product of excessive substance abuse and that this infirmity is a source of potential danger to others, I would hold that when this infirmity is directly caused by voluntary intoxication, even though the effects of the substance have dissipated, the defendant is not diseased within the contemplation of the legal insanity statute. This imputation of knowledge concerning the effects of substance abuse is particularly significant as regards defendant here since he had previously sought treatment for mental illness that he recognized as arising from his drug use. See § 16-8-101, C.R.S. (1986 Repl. Vol. 8A).

Moreover, as shown by defendant’s history in which there were temporary periods of psychosis followed by recovery, adoption of the defense of settled insanity here would have the effect of re-establishing the concept of temporary insanity that has been rejected by the General Assembly. See People v. Low, supra.

Accordingly, I find no error in the court’s refusal to give the jury instruction proffered by the defendant.

B

Defendant contends that the trial court committed reversible error by admitting evidence of a felony conviction and his history of prior drug sales during the sanity trial. We agree with the trial court’s resolution of this issue.

Generally, evidence of prior criminality of an accused is not admissible. See CRE 404(a)(1); People v. Peterson, 633 P.2d 1088 (Colo.App.1981). However, in an insanity trial, this rule is relaxed since the prejudice that may occur by the admission of such evidence is lessened by a separate trial on the issue of guilt. See Trujillo v. People, 150 Colo. 235, 372 P.2d 86 (1962).

Thus, evidence tending to establish that a defendant was sane is admissible even if it implicates prior criminality, unless the probative value of such evidence is substantially outweighed by its prejudicial effect. See CRE 403; People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977). This latter determination is within the sound discretion of the trial court, and that decision will not be overturned absent an abuse of that discretion. People v. Rubanowitz, 688 P.2d 231 (Colo.1984).

Here, defendant sought to prevent the psychiatrist from testifying about a prior drug conviction. The court reserved its ruling on this issue because the parties agreed to consider the issue at an in camera hearing. However, prior to presentation of the psychiatrist’s testimony, the prosecutor asked another witness if he was familiar with defendant’s statement that defendant had sold drugs his entire life. Defense counsel immediately moved for a mistrial on the basis that the question was against the parties’ agreement.

However, even if we assume the prosecutor’s question violated the parties’ agreement, the violation was not so severe that the drastic remedy of a mistrial was warranted. See People v. Abbott, 690 P.2d 1263 (Colo.1984). And, after reviewing this testimony, we conclude that the trial court did not abuse its discretion in admitting it into evidence. See People v. Renfrow, supra.

C

Defendant further contends that there is a reasonable probability that he was prejudiced in the sanity trial by the submission to the jury of undisclosed evidence. We find no reversible error.

The defendant has a responsibility to check exhibits and to object to the inclusion of evidence not admitted during trial. See Government of Virgin Islands v. Joseph, 685 F.2d 857 (3rd Cir.1982); see also People v. McGrath, 793 P.2d 664 (Colo. App.1989).

If a defendant fails to fulfill this obligation and an exhibit is admitted without objection, we may review such oversight only to determine if plain error occurred. Crim.P. 52(b). A plain error is an error that substantially affects the fundamental fairness of the trial proceedings and casts serious doubt on the reliability of the jury’s determination. Wilson v. People, 743 P.2d 415 (Colo.1987).

After the jury returned its verdict finding that defendant was sane, the prosecution learned that a small plastic bag containing an unidentified white powder was found inside of one of the People’s exhibits. This exhibit contained several bags of marijuana that had been seized from defendant’s bus. The plastic bag was not separately marked for identification or introduced into evidence.

Apparently, neither the prosecutor nor defense counsel was aware of its presence inside the exhibit. However, in an affidavit submitted to the trial court by a juror, the juror noted the presence of the bag as well as the fact that it had not been admitted.

Defendant argues that these circumstances show prejudicial error because the jury could have inferred that the bag had been seized by the police from defendant’s bus and that he was under the influence of amphetamines when he killed the victim. In addition, he asserts that since defense counsel argued several times during closing that there was no evidence presented indicating defendant’s use of amphetamines during the period leading up to the homicide, the discovery of the white powder severely undermined counsel’s credibility.

Here, there was a stipulation by both parties that defendant had submitted to a drug test on the day of the murder. This test showed that amphetamines were not present in defendant’s body. The stipulation, of which the jury was informed, also stated that the test could detect the presence of amphetamines within two to five days of usage, depending upon the amount taken. Thus, under these circumstances, we conclude that the submission of the bag containing the white residue to the jury did not constitute plain error. See Crim.P. 52(b).

II

GUILT TRIAL

Lastly, defendant contends that, under § 18-1-406(2), C.R.S. (1986 Repl.Vol. 8B), the trial court erred in denying his statutory right to waive a jury trial on the charge of aggravated robbery which was the underlying felony to the felony murder charge. We disagree.

During pre-trial motions, defense counsel stated that defendant wished to announce to the court that he wanted to waive his right to a jury trial on the count of aggravated robbery. Defendant argued that the court could sit as the trier of fact for the aggravated robbery charge, but objected to the court instructing the jury as to its decision for purposes of the felony murder. Such a procedure, defendant argued, would take away his right to have all of the elements of the felony murder charge decided by the jury. Defendant did not seek severance of the counts.

Section 18-1-406(2) provides:

Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.

Our supreme court has held that this statutory right to waive a jury trial is substantive in nature and controls over Crim.P. 23(a)(5) which requires the prosecutor’s consent for a defendant’s oral request to waive his right to a jury trial.

Nevertheless, we conclude that any error by the trial court in denying defendant’s request was harmless. See Crim.P. 52(a).

Since multiple convictions for both aggravated robbery and felony murder are not permitted, the procedure sought by defendant here would have effectively made any determination by the trial court meaningless. See People v. Raymer, 626 P.2d 705 (Colo.App.1980), aff'd, 662 P.2d 1066 (Colo. 1983). Therefore, we conclude that the trial court did not commit prejudicial error in refusing to follow the procedure requested by defendant.

We also conclude that remand is not necessary since the trial court properly recognized in the mittimus that the aggravated robbery charge merged with the felony murder. See People v. Raymer, supra.

The judgment is affirmed.

TURSI, J., specially concurs. DUBOFSKY, J., dissents.