State v. Foucha

Decision Date14 June 1990
Docket NumberNo. 89-KK-1352,89-KK-1352
Citation563 So.2d 1138
PartiesSTATE of Louisiana v. Terry FOUCHA. 563 So.2d 1138
CourtLouisiana Supreme Court

Martin E. Regan, Jr., for Terry Foucha defendant-applicant.

Harry F. Connick, Dist. Atty., Jack Peebles, Asst. Dist. Atty., for State of La. plaintiff-respondent.

MARCUS, Justice *.

The issues in this case are whether defendant is dangerous to others or to himself under La.Code Crim.P. art. 657 and, if so, whether it is constitutionally permissible for dangerousness to be the test for the continued detention of a person found not guilty by reason of insanity.

Terry Foucha was charged by bill of information with committing aggravated burglary of an inhabited dwelling while armed with a .357 revolver in violation of La.R.S. 14:60 1 and illegal discharge of firearm in violation of La.R.S. 14:94. 2 Defendant entered a plea of not guilty and filed an oral motion for a sanity commission. The trial court granted the motion and appointed two experts in forensic psychiatry, Dr. Kenneth Ritter and Dr. Ignacio Medina, Jr., to examine defendant. The trial court initially found that defendant lacked mental capacity to proceed, but four months later found that he had mental capacity to proceed. After a hearing, on October 12, 1984, the court found defendant not guilty by reason of insanity. 3 The court found that he "is unable to appreciate the usual, natural and probable consequences of his acts; that he is unable to distinguish right from wrong; that he is a menace to himself and others; and that he was insane at the time of the commission of the ... crimes and that he is presently insane." The court ordered that he be committed to a mental institution pursuant to La.Code Crim.P. art. 654. 4 On April 30, 1985, he was admitted to the Feliciana Forensic Facility at Jackson, Louisiana. On June 11, 1987, the facility informed the trial court that defendant had requested a contradictory hearing to obtain periodic passes with family supervision. The court again appointed Dr. Ritter and Dr. Medina to determine defendant's present mental condition. After a hearing, the court ordered that defendant be returned to the facility for further care, custody, and treatment. Because the superintendent of the facility recommended that defendant be discharged or released, a review panel of three doctors was convened pursuant to La.Code Crim.P. art. 655. 5 On March 21 1988, the panel issued a report pursuant to La.Code Crim.P. art. 656 6 recommending that defendant be conditionally discharged. 7 On November 29, 1988, after a contradictory hearing, the court found that defendant was a danger to others and ordered him recommitted. The court of appeal denied defendant's application for writs, with one judge dissenting. We granted defendant's application to review the correctness of the decision not to release him. 8

When a person has been committed after pleading not guilty by reason of insanity, the burden is upon the committed person to prove that he can be released without danger to others or to himself. La.Code Crim.P. art. 657. 9 "Dangerous to others" means the condition of a person whose behavior or significant threats support a reasonable expectation that there is a substantial risk that he will inflict physical harm upon another person in the near future. La.R.S. 28:2(3). "Dangerous to self" means the condition of a person whose behavior, significant threats or inaction supports a reasonable expectation that there is a substantial risk that he will inflict physical or severe emotional harm upon his own person. La.R.S. 28:2(4).

In a Feliciana Forensic Facility progress note dated August 23, 1985, Dr. Aris Cox, the Forensic Psychiatric Program Administrator at the facility, wrote that defendant "remains combative, agitated, and psychotic." In a facility progress note dated September 24, 1986, Dr. Porfirio Callo, a psychiatrist, wrote that defendant "continues to be a menace to society." The review panel stated in its March 21, 1988 report that defendant's "main diagnosis is Antisocial Personality Disorder," but there was "never any evidence of mental illness or disease since admission." The panel did not discuss whether defendant was dangerous. At the hearing on November 29, 1988, Dr. Ritter also stated that defendant has an antisocial personality. According to Dr. Ritter, at the time of the hearing there was no evidence of psychosis or neurosis and defendant was in "good shape" mentally. However, defendant previously had a drug-induced psychosis. If defendant was released, that psychosis could reassert itself. Dr. Ritter further testified that defendant's record at the facility showed recurrent problems. Defendant has been involved in altercations with other patients. Within the two months before the hearing, he had been sent to the maximum security section because of an altercation with another patient. Defendant's "attitude had been ... extremely paranoid," 10 as well as arrogant and threatening. Dr. Ritter refused to say that defendant would not be a danger to others or to himself. The parties stipulated that if Dr. Medina were to testify, his testimony would be essentially the same. Under the circumstances, we are unable to say that the trial court abused its discretion in finding that defendant did not prove that he could be released without danger to others or to himself under La.Code Crim.P. art. 657.

Next, we consider defendant's contention that the dangerousness test of La.Code Crim.P. arts. 654-657 violates due process and equal protection. 11 Similar laws have been held constitutional. Hickey v. Morris, 722 F.2d 543 (9th Cir.1983) (upholding Washington law permitting insanity acquittee to be released only if there would be no substantial danger to other persons or no substantial likelihood of committing felonious acts jeopardizing public safety or security); Harris v. Ballone, 681 F.2d 225 (4th Cir.1982) (upholding Virginia law permitting insanity acquittee to be released only if the acquittee is not insane and his release would not be dangerous to the public peace and safety or to himself); State v. Mahone, 379 N.W.2d 878 (Wis.App.1985) (upholding Wisconsin law permitting insanity acquittee to be released only if there would be no danger to himself or others).

In Hickey, a class of insanity acquittees challenged Washington's criminal commitment and release procedures. They contended that the disparity between civil and criminal procedures denied them equal protection. The Ninth Circuit acknowledged differences in the civil and criminal procedures and held that the differences did not violate equal protection. The court reasoned:

The differences in review procedure reflect justifiable distinctions regarding the treatment of each class.

... The state has a substantial interest in avoiding premature release of insanity acquittees, who have committed acts constituting felonies and have been declared dangerous to society. Because "the insanity acquittal supports an inference of continuing mental illness," Jones v. United States, [463 U.S. 354, 366, 103 S.Ct. 3043, 3050, 77 L.Ed.2d 694 (1983) ], the state's interest in protecting society and the acquittee himself justifies placing the burden on insanity acquittees to show that they no longer present a danger. See Powell v. Florida, 579 F.2d 324, 333 (5th Cir.1978).

Hickey, 722 F.2d at 548. The court also rejected the insanity acquittees' due process challenge based on the United States Supreme Court's opinion in Jones:

In Jones v. United States, the Court rejected a due process challenge to a District of Columbia statute that calls for automatic commitment of criminal defendants who successfully invoke the insanity defense. Jones however, precludes a due process challenge to the Washington commitment procedures. Jones does not directly address procedures for review and release of insanity acquittees. Nevertheless, the rationale of Jones compels us to reject this due process attack.

Id. (citations omitted). Similarly, the Fourth Circuit in Harris rejected an insanity acquittee's due process and equal protection claims:

[W]e face the ... question of whether a person may be incarcerated solely because he is dangerous. We hold that it is not a denial of due process for a person who has committed a criminal act to be incarcerated as long as he is considered dangerous. Nor do we think that this aspect of Virginia's scheme denies equal protection because a different standard (i.e., insane and dangerous) is used for persons other than insanity acquittees. Again, we think that the fact that an insanity acquittee has already been shown beyond a reasonable doubt to have committed at least one dangerous act justifies the distinction Virginia has drawn. See United States v. Ecker, 543 F.2d 178 (D.C.Cir.1976), cert. denied, 429 U.S. 1063 [97 S.Ct. 788, 50 L.Ed.2d 779] ... (1977) (upholding the use of a different standard for determining if insanity acquittees should remain committed than is used for other committed persons).

Harris, 681 F.2d at 228.

In Louisiana, a defendant found not guilty by reason of insanity in a non-capital felony case is committed to a mental institution only if the trial court determines that the defendant cannot be released without danger to others or to himself. La.Code Crim.P. art. 654. The medical staff of the mental institution shall review the defendant's record sixty days and one hundred twenty days after commitment and every one hundred eighty days thereafter to determine his present mental condition and whether he is presently capable of being discharged, conditionally or unconditionally, without being a danger to others or himself. La.R.S. 15:211. When the superintendent of the mental institution is of the opinion that a person committed pursuant to art. 654 can be released without danger to others or to himself, he shall recommend the discharge to a review panel. If the review panel recommends to the...

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6 cases
  • State v. Post
    • United States
    • Wisconsin Supreme Court
    • 8 Diciembre 1995
    ...The disorders incorporated within DSM-IV include the antisocial personality disorder with which both the acquittee in State v. Foucha, 563 So.2d 1138, 1141 n. 2 (La.1990), as well as three of the four prospective chapter 980 committees whose cases we now review were diagnosed.30 DSM-IV, 213......
  • Foucha v. Louisiana
    • United States
    • U.S. Supreme Court
    • 18 Mayo 1992
    ...statutory provision permitting confinement of an insanity acquittee based on dangerousness alone. Held: The judgment is reversed. 563 So.2d 1138 (La.1990), Justice WHITE delivered the opinion of the Court with respect to Parts I and II, concluding that the Louisiana statute violates the Due......
  • State v. Edwards
    • United States
    • Court of Appeal of Louisiana — District of US
    • 25 Mayo 2022
    ...acquittees," which justifies placing the burden on insanity acquittees to show that they no longer present a danger. State v. Foucha, 563 So.2d 1138, 1142, citing Powell v. Florida, 579 F.2d 324, 333 (5th Cir.1978). To that end, the court concluded that the dangerousness test of La. C.Cr.P.......
  • State v. Edwards
    • United States
    • Court of Appeal of Louisiana — District of US
    • 25 Mayo 2022
    ...acquittees," which justifies placing the burden on insanity acquittees to show that they no longer present a danger. State v. Foucha, 563 So.2d 1138, 1142, citing Powell v. Florida, 579 F.2d 324, 333 (5th Cir.1978). To that end, the court concluded that the dangerousness test of La. C.Cr.P.......
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