Bieber v. People, 92SC220

• Decision Date: 19 July 1993
• Docket Number: No. 92SC220,92SC220
• Citation: 856 P.2d 811
• Parties: Donald W. BIEBER, Petitioner and Cross-Respondent, v. The PEOPLE of The State of Colorado, Respondent and Cross-Petitioner.
• Court: Colorado Supreme Court

Page 811

856 P.2d 811

Donald W. BIEBER, Petitioner and Cross-Respondent, v. The PEOPLE of The State of Colorado, Respondent and Cross-Petitioner.

No. 92SC220.

Supreme Court of Colorado En Banc.

July 19, 1993.

Rehearing Denied Aug. 23, 1993.

Vitek & Doniger, P.C., Anne M. Vitek, Jeffrey D. Doniger, Denver, for petitioner and cross-respondent.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Paul Koehler, Asst. Atty. Gen., Crim. Enforcement Section, Denver, for respondent and cross-petitioner.

Justice MULLARKEY delivered the Opinion of the Court.

Defendant Donald W. Bieber appeals his convictions for first-degree murder, aggravated robbery and second-degree aggravated motor vehicle theft on the grounds that the trial court erred in denying his request for a jury instruction on the defense of settled insanity. The three-member panel of the court of appeals issued three separate opinions in the case--one dispositive, one concurring and one dissenting--revolving around the question of whether settled insanity is a tenable defense under our statutory scheme and case law. People v. Bieber, 835 P.2d 542 (Colo.App.1992). We granted certiorari in order to resolve the evident conflict. Finding that the defense of settled insanity is precluded by our statute, we affirm the dispositive judgment of the court of appeals.

I.

The following facts are undisputed. On September 25, 1986, around 4:30 a.m., Bieber walked up to a truck in which William Ellis was sitting and shot Ellis in the back of his head. After opening the truck's door and allowing Ellis' body to fall onto the ground, Bieber proceeded to get into the truck and drive away. Bieber did not know Ellis.

For several hours prior and subsequent to the murder, Bieber had come into contact with various individuals at different locations. In addition to singing "God Bless America" and the "Marine Hymn," he told these people that he was a prisoner of war and that he was being followed by communists. He also fired shots at some of the people, without injuring anyone, and aimed his gun toward others. After the murder, he told people that he had killed a communist on "War Memorial Highway." Ellis' body was found around 6:00 a.m. and Bieber was arrested at approximately 8:00 a.m. Tests conducted later that day revealed no trace of amphetamines in his body, but did indicate heavy long-term marihuana use. ¹

Bieber has a long history of drug abuse. He began using drugs as a teenager, including amphetamines. As an adult, his heavy drug-use continued, and his primary means of income was through the sale of illegal drugs. Several years before the homicide, Bieber voluntarily sought treatment for mental impairment arising out of his substance abuse. He entered the hospital stating that he was afraid that he might hurt someone. His drug psychosis apparently cleared rapidly, and he was released into a long-term drug treatment program.

As a result of the events of the morning of September 25, Bieber was charged with first-degree murder after deliberation, felony murder, two counts of aggravated robbery and aggravated motor vehicle theft. ² He pled not guilty by reason of insanity. § 16-8-103, 8A C.R.S. (1986). At his sanity trial, pursuant to section 16-8-104, 8A C.R.S. (1986), ³ Bieber argued that due to a variety of causes, particularly his long-term drug use, he was not intoxicated at the time of the murder, but rather legally insane.

Bieber contended that he was suffering from "amphetamine delusional disorder," ("ADD") which was described by his expert witness in the following manner:

A delusional disorder is a mental disorder which is characterized by delusional beliefs. A delusional belief is a belief held by an individual that is out of character for their sociocultural economic background and is held in a very rigid way and the person doesn't change their belief in the face of reasoning.

And it's a false belief. That is what a delusion is. There's a number of causes of delusional thinking. One cause of delusional thinking is what used to be called amphetamine psychosis. It's now called amphetamine delusional disorder.

And what that is from, some people when they use amphetamines on a chronic basis, begin to get very paranoid and delusional. And if that happens, it's associated with the use of amphetamines. It's called an amphetamine delusional disorder.

According to the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (3rd Rev.Ed.1987) ("DSM-III"), one of the criteria for diagnosing ADD is the recent use of amphetamines during a period of long-term use of moderate to high doses of amphetamines or like drugs. The disorder abates over time, usually within a few days or weeks. Because Bieber allegedly was suffering from ADD at the time of the homicide, he argued that he was unable to distinguish right from wrong at the time of the homicide. ⁴

The prosecution's psychiatric expert conceded that it was possible that Bieber could have been suffering from ADD at the time. His opinion, however, was that Bieber actually suffered from an anti-social personality disorder, which did not prevent him from knowing right from wrong at the time that he shot Ellis.

Based on his plea of insanity and its alleged cause of prolonged drug use, Bieber proffered the following jury instruction:

Insanity produced by long-continued use of amphetamines affects responsibility in the same way as insanity produced by any other cause if the mental disease or defect causing the insanity is "settled".

"Settled" does not mean permanent or incurable, but means that the mental disease or defect resulting in insanity exists independently of the contemporaneous use of the drug. One who is actually insane does not lose the defense of insanity simply because, at the time he committed the act in question, he may also have been intoxicated. It is immaterial that the use of amphetamines may have caused the insanity, as long as the insanity was of a settled nature and qualifies as insanity as defined in Instruction No. __.

This instruction was rejected by the trial court. Instead, the trial court instructed the jury in accordance with the legal test for insanity set forth in section 16-8-101, 8A C.R.S. (1986), which states in relevant part:

A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.

The trial court also instructed the jury that, "Intoxication does not, in itself, constitute a mental disease or defect within the meaning of a plea of not guilty by reason of insanity." The jury found Bieber to be sane.

In the guilt phase of the proceedings against Bieber, the jury found him guilty of felony murder, aggravated robbery and aggravated motor vehicle theft. Bieber was sentenced to life imprisonment on the felony murder and aggravated robbery convictions, and sentenced to six months, to be served concurrently, for the aggravated motor vehicle theft conviction. Bieber appealed to the court of appeals, contending that the trial court wrongly refused to give an instruction on "settled insanity." The court of appeals affirmed his convictions in a three-way opinion, and we agree with the dispositive judgment of that court, finding that our statutory scheme does not recognize "settled insanity" as a defense.

II.

Before reaching the merits of the "settled insanity" issue, we first address a preliminary matter. The prosecution, as one of its arguments, contends that Bieber abandoned his jury instruction claim at trial. Although the trial court informed defense counsel that it could argue settled insanity to the jury and present a theory of the defense instruction on that point, defense counsel did neither. In addition, defense counsel did not object to the prosecution's statement that Bieber could not claim that he was insane due to his drug abuse. These actions, or lack thereof, argues the prosecution, evidence Bieber's abandonment of the "settled insanity" defense.

Upon examination of the record, we do not agree with the prosecution's abandonment theory. The trial court ruled that it would not give an instruction on "settled insanity" per se, but would allow argument that Bieber's use of amphetamines may have contributed to his mental condition at the time of the homicide. Defense counsel stated on the record that he would not be arguing settled insanity in closing because of the trial court's ruling, and the trial court did not make any correction of defense counsel's belief, if indeed it were needed. Having made that statement on the record, defense counsel preserved the "settled insanity" issue for appeal, and we find the prosecution's abandonment argument to be without basis. Thus, we now turn to the merits of the "settled insanity" issue.

III.

The doctrine of "settled insanity" has not been addressed previously in this state. However, this doctrine is one that may be traced back to English law of the early 19th century. Hale, Pleas of the Crown, Ch. IV. It was first recognized in federal court in the United States in United States v. McGlue, 26 Fed.Cas. 1093 (C.C.Mass.1851). It was accepted in state courts even earlier. See, e.g., Haile v. State, 30 Tenn. 154 (1850). We note, however, that these cases are not part of our common law. The General Assembly adopted the common law of England as of A.D. 1607 as the common law of our state. § 2-4-211, 1B C.R.S. (1980). Thus, subsequent action...