State v. Wicks

657 P.2d 781, 98 Wash. 2d 620, 1983 Wash. LEXIS 1352

• Court: Washington Supreme Court
• Decided: February 3, 1983
• Docket: 48483-0
• Status: Published

Opinions

Stafford, J.

Defendant John Wicks appeals from a judgment and sentence imposed following his conviction of two counts of second degree assault and one count of third degree assault. There is no question defendant committed the several acts which form the basis for the charges against him.

At trial, defendant offered two defenses: (1) he was too intoxicated to form an intent to commit the crimes charged, and (2) he was insane at the time the three acts were committed. The jury was instructed on the subject of voluntary intoxication and rejected that defense. The trial court refused, however, to submit the issue of insanity to the jury.

Defendant assigns error to the trial court's rejection of the insanity defense. He contends there was sufficient evidence of insanity to submit the issue to the jury. We do not agree. The record is devoid of substantial evidence to support a plea of insanity.

A plea of insanity is an affirmative defense. An accused has the burden of sustaining it by a preponderance of the evidence. It is error to instruct the jury on the defense of insanity absent substantial evidence. State v. Tyler, 77 Wn.2d 726, 739, 466 P.2d 120 (1970), vacated as to imposition of death penalty, 408 U.S. 937, 33 L. Ed. 2d 756, 92 S. Ct. 2865 (1972); see also State v. Johnson, 92 Wn.2d 671, 683, 600 P.2d 1249 (1979). Further, two statutes bear upon this defense. RCW 9A. 12.010 provides:

To establish the defense of insanity, it must be shown that:

(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:

(a) He was unable to perceive the nature and quality of the act with which he is charged; or

(b) He was unable to tell right from wrong with reference to the particular act charged.

RCW 10.77.010(7) provides that:

No condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute "insanity".

Thus, pursuant to RCW 10.77.010(7), evidence of voluntary intoxication, by itself, is insufficient to justify an insanity instruction.¹ This is so even if defendant although sane suffers from a preexisting mental illness. The voluntary use of intoxicants is the direct and immediate cause of insanity, not the preexisting mental illness. United States v. Jewett, 438 F.2d 495 (8th Cir)., cert. denied, 402 U.S. 947 (1971); State v. Booth, 169 N.W.2d 869 (Iowa 1969); Evilsizer v. State, 487 S.W.2d 113 (Tex. Crim. App. 1972).

Finally, even chronic addiction to alcohol does not, by itself, constitute insanity. Seattle v. Hill, 72 Wn.2d 786, 798, 435 P.2d 692 (1967), cert. denied, 393 U.S. 872 (1968). But, '"if the mania, insanity or unsoundness of mind, though produced by drunkenness, be permanent and fixed, so as to destroy all knowledge of right and wrong, then the person thus laboring under these infirmities would not be responsible."'" State v. Huey, 14 Wn.2d 387, 396, 128 P.2d 314 (1942), quoting Beck v. Georgia, 76 Ga. 452 (1886). See also State v. Miller, 177 Wash. 442, 32 P.2d 535 (1934). Thus, the only time alcohol and drug related insanity may successfully be used as an insanity defense is when the influence of alcohol or drugs triggers an underlying psychotic disorder of a settled nature, such as delirium tremens. See Note, Intoxication as a Criminal Defense, 55 Colum. L. Rev. 1210, 1219 (1955).

We decline to depart from this position, for, as stated by Justice Hale in State v. Bower, 73 Wn.2d 634, 646, 440 P.2d 167 (1968), "To hold otherwise would allow one to steel his nerves, blanket his conscience, and fortify his resolve by taking drugs in preparation for a criminal enterprise."

Thus, while keeping in mind that insanity caused by voluntary intoxication does not constitute a defense, we now turn to the record itself to determine whether there was substantial evidence warranting an insanity instruction.

Those testifying at trial included several members of defendant's family, several witnesses to the incident, and three mental health professionals. Family members testified that defendant, age 29 at the time of trial, has been mentally disturbed and has manifested irrational behavior since he sustained a severe head injury at the age of 14 months. According to his mother, part of defendant's difficulties have been attributed to organic brain damage which brought on a condition described as psychomotor epilepsy, although the mental health experts disagree as to whether he truly suffers from that disease. In October of 1972, 6 years prior to the incident in question, he was shot and fragments of three of the six bullets that penetrated his body remain in his head, near his left temple, pressing on vital nerves. The defendant allegedly suffers from seizures and/or blackouts, and the blackouts have become more frequent in recent times. He has been repeatedly hospitalized in mental institutions in several states since he was in the eighth grade, including 14 confinements at Dammasch State Hospital in Oregon. Moreover, he has attempted suicide at least four or five times. His mother further testified that he is supposed to take 100 milligrams of Dilantin four times a day for epilepsy and 50 or 75 milligrams of Thorazine each day.

Several days before the incident, defendant spent two days drinking "quite a bit" of beer. Family members testified his eyes "were glassy", he was "kind of belligerent", and he had been taking "pain pills". His sister testified that "he drank between 15 and 20 quarts of beer" and had been sniffing "pain pills" in a protracted spree during the 2 days preceding the assaults. His mother testified that when he mixes pain pills and alcohol, "he just goes berserk." Defendant's brother testified that at the time of the incident, the defendant was "wild-eyed" and "drooling"; his eyes were "glazed"; and he looked "[cjrazy, like he didn't know what was going on."

The record of defendant's repeated hospitalizations from 1963 to 1978 indicates that most frequently the triggering event which necessitated institutional care was an excessive voluntary ingestion of alcohol or drugs. The psychiatrist who testified on behalf of the defense stated that defendant has an underlying condition which the physician called "chronic undifferentiated schizophrenia" and which continues regardless of defendant's use of alcohol or other drugs, but that if defendant "takes speed or alcohol it's probably going to make things worse." This psychiatrist was of the opinion that at the time defendant committed the three assaults he was suffering from a condition called toxic psychosis (that is, a severe mental disorder caused by some toxic substance) which produced such confusion of mind that he did not "really understand" that someone might be frightened by his display and use of the gun. This psychiatrist qualified his testimony by concluding that it was the most recent and massive exposure to alcohol and drugs which produced the toxic psychosis. Cross examination of the physician produced the following testimony:

Q Is it the toxic psychosis then or that term that makes him legally insane in your opinion?

A In my opinion, yes.

Q So without the use of alcohol and drugs, in your opinion, he would not be legally insane or would not have been at that time, is that correct?

A Not at that time. I can't say what might happen some other time.

Q But relating to these specific sets of charges?

A Yes.

Report of Proceedings, at 229-30.

Other evidence in the record does not support defendant's contention that he was insane at the time he committed these assaults. A second psychiatrist dismissed any effect from defendant's preexisting mental illness. He testified defendant's strange behavior simply evidenced "sociopathic symptoms" but did not indicate defendant was unable to understand the nature and quality of his acts. This psychiatrist opined, however, that at the time defendant committed the assaults, "he was insane" in the sense that he "did not understand the nature and quality of his acts." The psychiatrist explained that defendant's consumption of alcohol and other drugs produced "a toxic brain condition which would be something like a severe drunk." A clinical psychologist testified that defendant may have had some brain damage since childhood, but concluded defendant was sane when he committed these assaults.

In sum, the evidence demonstrates defendant suffers from some form of mental illness which is aggravated by the abuse of alcohol and other drugs. In addition, the evidence indicates defendant may have suffered from toxic psychosis caused by the abuse of alcohol and drugs at the time of the incident. Thus, defendant may not avail himself of the insanity defense since his alleged insanity was voluntarily achieved through the abuse of intoxicants such as alcohol and drugs.² Moreover, save for the 2-day spree culminating in the assaults, there is no evidence of permanent impairment of the mind induced by repeated bouts of drunkenness.

The judgment of the Court of Appeals is affirmed.

Williams, C.J., and Rosellini, Brachtenbach, Dolliver, Dimmick, and Pearson, JJ., concur.

1 State v. Bower, 73 Wn.2d 634, 440 P.2d 167 (1968). See also State v. Rio, 38 Wn.2d 446, 230 P.2d 308 (1951); State v. Huey, 14 Wn.2d 387, 128 P.2d 314 (1942); State v. Brantley, 11 Wn. App. 716, 525 P.2d 813 (1974); Hasse, Drug Intoxication and Criminal Responsibility: Old Dilemmas and a New Proposal, 16 Santa Clara L. Rev. 249, 259 (1976).

2 Our decision is consonant with the opinion of the Court of Appeals for the Eighth Circuit in United States v. Jewett, 438 F.2d 495, cert. denied, 402 U.S. 947 (1971), wherein that court rejected defendant's appeal of a trial court's refusal to give an insanity instruction. In Jewett, defendant suffered injuries similar to those of defendant Wicks, including severe head injuries and epileptic seizures. He had been institutionalized for years, released and adjudged sane just prior to the commission of the offense. The testimony of the psychiatrist who testified at trial is noteworthy for it is similar to the testimony of the experts in the instant case.