732 P.2d 622 (Colo. 1987), 85SA28, People v. Low

Docket Nº:85SA28.
Citation:732 P.2d 622
Opinion Judge:ERICKSON, Justice.
Party Name:The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Eugene LOW, Defendant-Appellee.
Attorney:Doug Primavera, Dist. Atty., Cathy Mullens, Deputy Dist. Atty., Alamosa, for plaintiff-appellant., Miller & Leher, Michael P. Miller, J. Matthew DePetro, Littleton, for defendant-appellee. Doug Primavera, Dist. Atty., Cathy Mullens, Deputy Dist. Atty., Alamosa, for plaintiff-appellant.
Case Date:February 17, 1987
Court:Supreme Court of Colorado

Page 622

732 P.2d 622 (Colo. 1987)

The PEOPLE of the State of Colorado, Plaintiff-Appellant,


Robert Eugene LOW, Defendant-Appellee.

No. 85SA28.

Supreme Court of Colorado, En Banc

February 17, 1987

Page 623

Doug Primavera, Dist. Atty., Cathy Mullens, Deputy Dist. Atty., Alamosa, for plaintiff-appellant.

Miller & Leher, Michael P. Miller, J. Matthew DePetro, Littleton, for defendant-appellee.

ERICKSON, Justice.

This is an appeal by the prosecution on a point of law following the acquittal of defendant Robert Eugene Low in a trial to the court on a charge of assault in the first degree and all lesser included offenses. The trial court found the defendant not guilty because the prosecution did not establish that the defendant had the required specific or general intent necessary to commit assault in the first, second, or third degrees. 1 See § 18-3-202 to -204, 8B C.R.S. (1986). The trial court acquitted the defendant because he had consumed an excessive amount of "HOLD" cough drops which caused him to become "temporarily insane" and incapable of formulating either a specific or a general criminal intent.

The prosecution asserts that the trial court erred as a matter of law in considering evidence of the defendant's chemically induced insanity because the defendant did not specially plead at arraignment the defense of insanity as required by section 16-8-103(1), 8A C.R.S. (1986), or the defense of impaired mental condition as required by section 16-8-103.5(1), 8A C.R.S. (1986). It is undisputed that the defendant did not follow the statutory procedure for pleading insanity or the defense of impaired mental condition. We disapprove of

Page 624

the trial court's entry of a judgment of acquittal for the reasons set forth in this opinion. 2


Defendant Robert Eugene Low was president and general manager of Prime, Inc., a trucking company in Springfield, Missouri. Low and his fourteen-year old stepson Shane Low (Shane), together with several friends from Springfield, Missouri, arranged a hunting trip to Creede, Colorado.

The hunters planned to meet in Creede on Friday, October 14, 1983. On October 13, 1983, Low worked at his trucking company all day, and then he and Shane attended a hunter's safety class that evening so that they could obtain Colorado hunting licenses. After the hunter's safety class, Low drove all night to be in Creede at the agreed time. Low and Shane arrived in Creede at approximately 3:00 p.m. on October 14, and after some delay, located Kim McCowan (Kim), the brother of the victim in this case, and Jerry Roller (Roller), both of whom were friends from Missouri. Kim and Roller led the way up the canyon to the campsite in a four-wheel-drive vehicle, followed by Low and Shane in Low's pickup truck.

On the trip up the mountain road, the defendant became increasingly anxious and apprehensive, and had feelings of unreality. He began to notice that the trees surrounding the road had a particular type of bark that was "soft and unnatural." He was paranoid and questioned his stepson about what was occurring and why he was being "tricked." At approximately the halfway point to the camp, the defendant stopped his pickup truck. When Kim and Roller stopped their truck to make sure everything was all right, Low demanded that all of the individuals kneel in prayer with him. Kim testified that he had never known Low to be "a religious person," but imagined that the beauty of the wilderness inspired Low to demand the prayer session. Upon concluding the prayer, Low insisted that Roller drive Shane to the campsite in Kim's truck, and that Kim drive Low's truck with Low as a passenger. Kim complied because Low appeared to be tired from his trip from Missouri. During the remainder of the ride to the campsite, the defendant speculated on whether he was alive or dead.

When the parties arrived at the campsite, the defendant, according to the testimony, was convinced that he was dead and had gone to hell. Kim, still believing that the defendant was exhausted, suggested that Low rest in the small cabin at the campsite while the others unload his truck and erect his tent. Low went to the cabin and rested for five or ten minutes. While in the cabin, the defendant concluded that he was a corpse in a mausoleum and that it was necessary to redeem himself in order to get to heaven. He then walked out of the cabin and up a small knoll and, referring to his tent, said, "we're going to bring it up here. We're going to raise the temple here." The other members of the hunting party took Low's tent up the knoll and began to set it up. Low approached A.D. McCowan (Duane or A.D.), who was helping with the tent, and said, "You're the devil, Duane." A.D. made a response relating to Low's ingratitude and Low said, "If you're not the devil, stand up and look me in the eye." A.D. did so, and the confrontation seemingly ended.

Low went down the knoll to his truck while Kim and A.D. continued to set up the tent. He asked for his rifle and told his stepson to get him some shells for the gun. The other hunters realized by this time that

Page 625

Low was disturbed in some way and took the rifle from him. The defendant then unbuckled his hunting knife, went to his tent, and stabbed A.D. in the upper back. Low was immediately subdued. His friends testified that Low repeatedly called his tent a temple, and that he was acting in an irrational and "crazy" manner. McCowan suffered serious injuries and was taken to Creede, and from there he was transferred by ambulance to a hospital in Del Norte.

Kim and Shane remained at the campsite to look after Low while the others took A.D. to the hospital. Low tried to stab himself when Kim attempted to take the hunting knife away from him, but Kim obtained the knife after a brief struggle. Low then returned to his truck, removed a can of kerosene from the truck bed, and went into the partially erected tent. He poured kerosene on the floor, sat in a folding chair, and ignited the tent while he was still inside of it. Kim unsuccessfully attempted to get Low out of the burning tent. Convinced that Low was "crazy," Kim grabbed a gun and ammunition and took Shane into the woods to avoid a further confrontation until help arrived. Low left the tent shortly before it was burned completely and fell asleep on the ground. After a short nap, he began questioning what had happened, and then returned to the cabin and lay down. He dozed and awakened from time to time and began feeling sensations of being cold and again questioned whether or not he was in fact dead. When the police arrived and arrested the defendant the next day, he told them that the unreal nightmare was finally over.

The uncontradicted testimony was that the defendant, for several months prior to the attack on A.D. McCowan, had ingested forty to fifty "HOLD" cough drops a day. The defendant's use of the cough drops had developed over the course of five to six months. He initially took the cough drops after developing a lingering cough and cold but continued to take them as a partial substitute for chewing tobacco and in an effort to quit smoking. On his trip to Colorado, the defendant did not sleep and consumed approximately one hundred twenty cough drops within a twenty-four-hour period. Prior to his attack on McCowan, the defendant had never felt any adverse or intoxicating effects from the cough drops.

Dr. Frederick A. Lewis, a psychiatrist, examined the defendant in June 1984, and concluded that Low was not mentally ill at the time of the examination. "HOLD" cough drops contain the drug dextromethorphan hydrobromide. Dr. Lewis stated that Low ingested approximately one gram of dextromethorphan when he consumed twelve packages of the cough drops in the twenty-four hours preceding the attack on McCowan. In Dr. Lewis's opinion, there was very little doubt that the dextromethorphan caused a psychotic disorder known as "organic delusional syndrome" or "toxic psychosis." Symptoms of toxic psychosis include a distorted perception of reality, paranoia, auditory hallucinations, and delusions. From his medical research, the accounts of the incident by the other witnesses, and his examination of the defendant, Dr. Lewis concluded that Low was psychotic and delusional at the time he attacked McCowan. Dr. Lewis testified that Low was incapable of distinguishing right from wrong at the time of the alleged assault, and that Low did not have the ability to formulate the specific intent to commit a criminal act. In his written report, which was admitted into evidence, Dr. Lewis stated:

There seems to be no doubt that the patient was legally insane at the time he committed the act. At that point in time, he literally and concretely did not know the difference between right and wrong and was unable to adhere to the right. This case comes as close to duplicating "McNaughten" [sic] as any I have ever seen.

Dr. Robert A. Huffaker, chief of the Department of Psychiatry and Forensic Psychiatry at the Colorado State Hospital, was endorsed as a witness by the prosecution and was called at trial by the defendant. He testified that the defendant was

Page 626

admitted to the State Hospital on October 18, 1983 for a seventy-two-hour evaluation, and that a urinalysis drug test was administered on October 20, 1983. Dr. Huffaker indicated that Low was tested for marijuana, alcohol, cocaine and most other narcotics, and that the test results were negative. 3 He acknowledged that the hospital did not have the facilities to administer specialized tests for dextromethorphan hydrobromide, which at that time was a new drug. Dr. Huffaker reviewed Dr. Lewis's report and said that the "report was excellent and I concur with it wholeheartedly." Dr. Huffaker agreed that Low was suffering from toxic psychosis at the time of the...

To continue reading