Robinson v. Solem

432 N.W.2d 246, 1988 S.D. LEXIS 163, 1988 WL 124194

• Court: South Dakota Supreme Court
• Decided: November 23, 1988
• Docket: 15851
• Status: Published

Opinions

STEELE, Circuit Judge.

Kendall Robinson (Robinson) appeals from an order denying his application for a writ of habeas corpus. We affirm.

PROCEDURAL HISTORY

This habeas coitus appeal arises from the facts recited by this court in Robinson’s direct appeal. State v. Robinson, 399 N.W.2d 324 (S.D.1987). Only those facts pertinent to this appeal are reiterated here.

Robinson pled insanity. He was found guilty but mentally ill (GBMI) of one count of escape and one count of aggravated assault. He was sentenced to a total of 22 years in the state penitentiary. In his direct appeal, he claimed that under the GBMI statute (SDCL 23A-27-38), he could be involuntarily subjected to treatment at the discretion of the institutional authorities without notice and opportunity to be heard, thus exposing him to liberty deprivations greater than these faced by an offender who is merely found guilty.

This court held that his argument relating to a due process violation was premature because at that point there had been no determination that he needed further treatment, that it was available, or that treatment would be a condition of parole. We indicated that if, in the future, Robinson could show some unlawful detention, he could apply for a writ of habeas corpus when the issue was ripe for determination.

In his application for a writ of habeas corpus Robinson does not ask for medical treatment. Instead, he attacks the constitutionality of the GBMI statutory scheme. At the habeas corpus hearing he testified that he was incarcerated in the South Dakota State Penitentiary, that he had been examined by a psychiatrist and found to be in need of treatment, and that the institution was not providing for such treatment. He now contends that the GBMI statutes are violative of due process rights because under the statutory scheme, the institutional officials may, in their discretion, deny treatment even though an offender is found to be in need.

Robinson also contends that his conviction was void because of inadequate representation by counsel at his trial. He claims that his trial counsel, over his objection, presented expert testimony concerning the issue of insanity. Robinson contends that his testimony was not helpful and assured his conviction, and that defense counsel abandoned his insanity defense in final arguments.

I.

WHETHER SOUTH DAKOTA’S GUILTY BUT MENTALLY ILL STATUTORY SCHEME IS VIOLATIVE OF DUE PROCESS RIGHTS BECAUSE ITS PROVISION FOR PSYCHIATRIC TREATMENT IS DISCRETIONARY RATHER THAN MANDATORY.

We hold: that South Dakota’s Guilty But Mentally Ill statutory scheme is not viola-tive of due process rights merely because it does not assure treatment to an offender found guilty but mentally ill.

The 14th Amendment to the United States Constitution, U.S. Const, amend. XIV, and Article VI, Section 2 of the Constitution of the State of South'Dakota, S.D. Const, art VI, § 2, prohibit the deprivation of liberty without due process of law. The test to measure the validity of a statute under these constitutional provisions is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety, and general welfare. Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); People v. Carter, 135 Ill.App.3d 403, 90 Ill.Dec. 212, 481 N.E.2d 1012 (1985).

By enacting South Dakota’s GBMI statutes, our legislature intended to provide an alternative verdict available to a jury to reduce the number of offenders who were erroneously found not guilty by reason of insanity. The GBMI statutory scheme in Illinois is substantially the same as that of South Dakota.

In People v. Carter, supra, the Illinois Appellate Court found that a statutory scheme which enables a court or jury to find defendants guilty who are not so mentally ill as to be legally insane, and also provides procedures for treating such defendants, is reasonably designed to remedy a problem affecting the general welfare; such a statutory scheme is thus not viola-tive of substantive due process. The Illinois Appellate Court held in People v. Smith, 124 Ill.App.3d 805, 80 IlLDec. 310, 465 N.E.2d 101 (1984) that the fact that treatment is not assured to one found guilty but mentally ill does not of itself render the statute constitutionally defective.

SDCL 23A-27-38 provides:

If a defendant is found “guilty but mentally ill” or enters that plea and the plea is accepted by the court, the court shall impose any sentence which could be imposed upon a defendant pleading or found guilty of the same charge. If the defendant is sentenced to the state penitentiary, he shall undergo further examination and may be given treatment that is psychiatrically indicated for his mental illness. If treatment is available, it may be provided through facilities under the jurisdiction of the board of charities and corrections. The board of charities and corrections may transfer the defendant from the penitentiary to other facilities under its jurisdiction and return the defendant to the penitentiary after completion of treatment for the balance of the defendant’s sentence.

SDCL 22-1-2(24) defines “mental illness” as

a substantial psychiatric disorder of thought, mood or behavior which affects a person at the time of the commission of the offense and which impairs a person’s judgment, but not to the extent that he is incapable of knowing the wrongfulness of his act. Mental illness does not include abnormalities manifested only by repeated criminal or otherwise antisocial conduct.

In his direct appeal Robinson claimed that SDCL 23A-27-38 violated his procedural due process rights because he could be forced to undergo involuntary treatment without notice and opportunity to be heard on the question of whether he was in fact in need of treatment. In this appeal, he is claiming that a jury has found him to be mentally ill; that he has been found to be in need of treatment; and that he is not receiving treatment. His current claim is, in effect, that he is not receiving adequate medical care. The obligation of the government in that regard is embodied in the Eighth Amendment prohibition against cruel and unusual punishment as well as in the due process clause of the 14th Amendment.

In finding a defendant mentally ill under South Dakota’s GBMI statute, judge or jury does not find that treatment is needed, but only that the offender has a psychiatric disorder of thought, mood, or behavior which impairs his or her judgment. There is no constitutional right to treatment merely because of that finding. Once found to be guilty but mentally ill, a defendant who is incarcerated becomes a ward of the executive branch as a prisoner. A prisoner is entitled to treatment only if a mental health provider, exercising ordinary care and skill, concludes with reasonable medical certainty: (1) that the offender’s symptoms evidence a serious disease or injury; (2) that the disease or injury is curable or may be substantially alleviated; and (3) that there exists potential for harm to the offender by reason of delay or the denial of care would be substantial. The essential test is one of medical necessity and not simply treatment which may be considered as merely desirable. Bowring v. Godwin, 551 F.2d 44 (4th Cir.1977); 60 Am.Jur.2d Penal and Correctional Institutions § 94 (1987).

South Dakota’s GBMI statutes provide that the prisoner must be psychiat-rically examined; however, the need for treatment is a determination properly left to the medical examiner. If treatment is deemed medically necessary, the determination as to the nature of, place of, extent, and duration of treatment should be within the prerogative of the prison officials. The courts have traditionally given deference to those decisions and will not intervene in the absence of fundamental constitutional violations. Rhodes v. Chapman, 452 U.S. 337, 69 L.Ed.2d 59, 101 S.Ct. 2392 (1981); Annotation, Prisoners’ Rights to Medical Care, 28 A.L.R. Fed. 279 (1976). As the Supreme Court of Illinois pointed out in People v. Kaeding, 98 Ill.2d 237, 74 Ill.Dec. 509, 456 N.E.2d 11 (1983), the legislature could not have intended to mandate treatment for all persons found guilty but mentally ill; it would be folly to waste limited resources for treatment of defendants for whom treatment would not be helpful.

If a prisoner, including one found to be guilty but mentally ill, claims that he is in need of treatment and that it is being denied him, there are remedies available. These remedies include a writ of habeas corpus application requesting that the treatment be made available or that he be released {See State of Minnesota v. Young, 282 Minn. 529, 163 N.W.2d 49 (1968)), a grievance procedure, appealable to the courts, under ARSD 17:50:06, and a petition for relief under the Civil Rights Act (42 U.S.C. § 1983 (1982)).

In Robinson’s direct appeal, this court considered the GBMI statutory-scheme in light of the Eighth Amendment prohibition against cruel and unusual punishment and ruled that the statutes of themselves do not violate that constitutional provision. We now hold that the GBMI statutory scheme is not violative of due process merely because treatment is not assured.

We do not at this time rule on the question of whether the GBMI statutory scheme is violative of procedural due process because it may compel psychiatric treatment of a prisoner without opportunity to be heard on the question of current mental illness or the necessity for treatment. Robinson has not been compelled to undergo treatment against his will; he thus lacks standing to raise the question and the issue is not ripe for determination in this case.

II.

WHETHER ROBINSON RECEIVED ADEQUATE REPRESENTATION OF COUNSEL AT HIS TRIAL.

We hold: that Robinson received adequate representation of counsel at his trial.

At his trial Robinson pled insanity to the charges against him. The facts were abundantly clear that he had escaped from the Hughes County jail and that in the process of doing so, he assaulted a law enforcement officer. The insanity plea was thus his most viable defense.

Insanity is an affirmative defense, and the burden is on the defendant to show by clear and convincing evidence that he was insane at the time of the alleged offense. SDCL 22-5-10. The state, therefore, has no obligation to submit any evidence of sanity in its case in chief.

Robinson contends that the state’s expert, Dr. Pesce, testified in the state’s case that Robinson was insane, and that when the state rested there was some evidence of insanity upon which Robinson should have relied. Instead, defense counsel called its own expert, Dr. Lord, in Robinson’s case and over Robinson’s objection Dr. Lord did not unqualifiedly testify that Robinson was insane. On cross-examination Dr. Lord admitted that at the time of the offense, Robinson knew the difference between right and wrong. Robinson claims that under these circumstances, defense counsel made a judgment which amounted to ineffective assistance of counsel. Robinson further claims that in the final argument defense counsel abandoned the insanity defense and instead argued that Robinson was mentally ill.

We find Robinson’s claims to be without merit. In the first place, Robinson misplaces the order of proof as it occurred. The state, at the time it rested, rightfully had presented no evidence pertaining to the insanity defense. The state’s expert was presented as a rebuttal witness to Robinson’s expert. Prior to the time for presentation of Robinson’s case, his attorney had access to a letter report authored on June 4, 1985, by the state’s expert, Dr. Pesce. In that letter, Dr. Pesce stated that he “... [h]ad no reason to believe that he [Robinson] was insane at the time of the crime.”

After the state had rested its case in chief, the burden shifted to Robinson to present some evidence of insanity. Defense counsel had no reason to believe that the state’s own expert would testify that Robinson was insane in direct contradiction to his letter report. Under the circumstances, defense counsel did the best he could with what he had; he called Dr. Lord, a psychiatrist, who testified that Robinson had a psychological, disorder that affected his mood, behavior and thought, and that Robinson had lost contact with reality. Although under cross-examination Dr. Lord did testify that in his opinion Robinson knew the difference between right and wrong, a jury could have concluded from the whole of Dr. Lord’s testimony, coupled with testimony from certain lay witnesses, that Robinson was temporarily insane at the time the offense was committed.

Dr. Pesce, the state’s expert, was called by the state in rebuttal. At the end of his testimony, the state asked him:

Question: [djoctor, do you feel that there was anything that resulted from your examination which would lead you to believe that he [Robinson] was at anytime insane?

Answer: Yes.

Notwithstanding the above answer, Dr. Pesce earlier in his testimony stated that he did not regard Robinson to be mentally ill or to have any memory deficits; that he had a good memory without amnestic episodes, and did not display any evidence of a psychotic disorder. It appears from a fair reading of all of Dr. Pesce’s testimony that in giving his answer to the question regarding Robinson’s sanity, he merely misunderstood a question rather inartfully asked. In any event, defense counsel on cross-examination wisely did not ask Dr. Pesce to clarify his response.

The record clearly shows that defense counsel did not abandon the insanity defense in closing argument. He did what he could with Dr. Lord’s testimony, and argued to the jury that with the evidence presented, they could find his client temporarily insane. He asked for a verdict of not guilty by reason of insanity.

In order to succeed on an ineffective assistance of counsel claim, two requirements must be met: (1) that counsel’s performance was deficient; (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984); Luna v. Solem, 411 N.W.2d 656 (S.D.1987). In this case, Robinson has shown neither.

The holding of the trial court is affirmed.

WUEST, C.J., concurs. MORGAN, J., concurs in part and concurs in result in pari. SABERS, J., concurs in result in part and dissents in part. HENDERSON, J., dissents. STEELE, Circuit Judge, sitting for MILLER, J., disqualified.