Brown v. Com.

• Decision Date: 26 September 1996
• Docket Number: No. 94-SC-804-MR,94-SC-804-MR
• Citation: 934 S.W.2d 242
• Court: United States State Supreme Court — District of Kentucky
• Parties: Bobby Chester BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 242

934 S.W.2d 242

Bobby Chester BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 94-SC-804-MR.

Supreme Court of Kentucky.

Sept. 26, 1996.

As Modified on Denial of Rehearing Dec. 19, 1996.

Daniel T. Goyette, Jefferson District Public Defender, of counsel, Frank W. Heft, Jr., Chief Appellate Defender, Leo G. Smith, Assistant District Defender, Jefferson District Public Defender, Louisville, for appellant.

A.B. Chandler, III, Attorney General, Ian G. Sonego, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee.

STUMBO, Justice.

Appellant, Bobby Chester Brown, was found guilty but mentally ill of the murders of his father and brother, and guilty but mentally ill of the first-degree assaults of his mother and sister. On or about July 5, 1985, Appellant attacked members of his family in their home with a hatchet. Appellant was sentenced to a total of 48 years' imprisonment, and now appeals to this Court as a matter of right.

Appellant presents nine arguments on appeal, two of which raise rather troublesome issues for this Court.

The first of these arguments involves the statutory provisions which authorize a guilty but mentally ill verdict ("GBMI")--KRS 504.120, KRS 504.130, KRS 504.140, and KRS 504.150. It is Appellant's contention that the language of this statute, which he asserts violates both the state and federal guarantees of a fair trial and due process, is vague and not rationally designed to advance any legitimate state interest. Appellant also maintains that the GBMI statute prevents a defendant from presenting an insanity defense--a right, which, Appellant asserts, is so well established that it rises to the level of a constitutional guarantee under Sections 2 and 11 of Kentucky's Constitution. Finally, Appellant asserts that a GBMI verdict amounts to cruel and unusual punishment, in contravention of Section 17 of the Kentucky Constitution and the Eighth and Fourteenth Amendments of the U.S. Constitution, in that it holds a person criminally responsible if he or she is insane at the time of the commission of the crime.

In support of his argument, Appellant first relies upon the dissent in Mitchell v. Commonwealth, Ky., 781 S.W.2d 510, 513-514 (1990), in which Justices Leibson wrote, with Justice Lambert joining, that the GBMI statute is "essentially meaningless and inherently confusing," Id. at 514, and that a GBMI "finding is, for all practical purposes, empty of legal consequences...." Id. at 513. While the constitutionality of the GBMI statute was not at issue in Mitchell--in fact, the case at bar presents the first time it has been at issue before this Court--Appellant cites to that opinion for historical and background purposes. In addition, Appellant makes reference to scholarly works and newspaper articles which have documented the deleterious impact of the GBMI verdict on the rights of defendants who assert an insanity defense. Appellant also relies upon a note written by a juror in this case which disclosed that a factor inherent in the jury's deliberations was the belief that the defendant would be afforded special treatment in prison if found GBMI and which questioned whether such a belief was misguided. Appellant maintains that a GBMI verdict confuses the jury so that it does not return a not guilty by reason of insanity ("NGRI") verdict. Appellant adds that the promise of treatment lures the jury into returning a GBMI verdict over a NGRI verdict, but contends that, and contrary to the expectations of proponents of the GBMI statute, such a verdict does not necessarily guarantee that a defendant will receive treatment while in prison. See, e.g., Mitchell, supra, at 513 (Leibson, J., dissenting) (emphasis added) ("[D]uring incarceration treatment will be provided if needed and if available.").

Granted, that while this Court, albeit with a different composition than that which sits today, recommended that the General Assembly enact a GBMI statute, Gall v. Commonwealth, Ky., 607 S.W.2d 97, 113 (1980) ("It may be too much to ask of any set of men or women to make a dispassionate assessment of a criminal defendant's mental condition, especially in the setting of a revolting offense he has committed."), it appears that the time may have arrived for this Court to evaluate that statute. Neither are we intimidated by the fact that "[t]o date no case has been found in which an appellate court has held a guilty but mentally ill statute to be unconstitutional." Debra T. Landis, Annotation, "Guilty But Mentally Ill" Statutes: Validity and Construction, 71 A.L.R.4th 702, 707 (1989). "[T]he judiciary not only has the authority but is charged with the duty of determining whether a legislative act does conflict with the constitution, and if it does, to declare it ineffective." Jefferson County v. Jefferson County Fiscal Court, 273 Ky. 674, 676-677, 117 S.W.2d 918 (1938). Unfortunately, however, this is not the case to determine either the constitutionality of the GBMI statute or the effectiveness of its provisions, as the record in this matter is essentially devoid of any evidence with which to consider such issues.

Some newspaper articles--one nearly seven years old--eliciting denouncements of the GBMI verdict by a few state officials, defense attorneys, and others close to the issue do not add that measure of support requisite in order for one to prevail in arguments to this Court. That the record is so lacking is regrettable, especially when considering that, with a bit more inquiry, Appellant could have strengthened his case with more relevant and credible references, especially with regard to the issue of treatment. For instance, 1996 Kentucky House Concurrent Resolution No. 27, styled "A CONCURRENT RESOLUTION to create a task force to study the involuntary commitment and criminal responsibility laws in Kentucky," directly acknowledges that "a lack of adequate resources exists for persons with mental illness or mental retardation within the criminal justice system...." This Resolution, introduced on January 17, 1996, would have created a task force--albeit, the staff services of which were estimated to cost a scant $30,000--to study, among other issues, the effectiveness of the GBMI verdict; however, this Resolution did not merge from committee. It is evidence of this nature which would lead us to believe that the Legislature, with passage of KRS 504.120--.150, has put into place a system lacking in adequate funding, and has taken no positive measures to correct this deficiency, thus falling clearly in contravention of its own mandate for treatment of individuals found to be GBMI. We are indeed gravely troubled by a method of punishment which appears to be nothing more than a charade, cloaked in a verdict, GBMI, which amounts to nothing more than an oxymoronic term of art. Alas, however, we are bound by the record of this case, Avery v. Davenport, 300 Ky. 865, 190 S.W.2d 663 (1945); Hoenig v. Lemaster's Committee, 268 Ky. 44, 103 S.W.2d 708 (1937), and, as such, the evidence presented herein does not allow us to expound on this issue any further. Therefore, these arguments presented by Appellant, while attracting this Court's attention, do not merit reversal.

A related issue advanced by Appellant concerns an instruction on the disposition of the case if a GBMI verdict were to be returned. At trial, defense counsel objected to instructions on the GBMI verdict and to a related dispositional instruction, and argued that if a dispositional instruction were to be given, it should be that which was tendered by the defense. This objection and tendered instruction were overruled, and the trial court presented the jury with its own dispositional instruction. Procedurally, the trial court's actions herein were not incorrect. Defense counsel's objection at trial and Appellant's argument to this Court center on a misreading of RCr 9.55, as worded at the time of trial. Appellant seeks too narrow an application of that rule in arguing that a defendant has the right to choose for which verdict a dispositional instruction is to be given, and that the trial court cannot give such an instruction for GBMI without the defendant's consent. Rather, RCr 9.55 merely insures that such an instruction will be given if so requested. Port v. Commonwealth, Ky., 906 S.W.2d 327 (1995). Thus, Appellant's argument as to this issue must fail.

However, in light of our concern with the constitutionality and effectiveness of the GBMI verdict, it behooves us to speak to the instructions at issue. Appellant's proffered instruction read:

If you find the defendant guilty but mentally ill, the defendant will be sentenced in the same manner as a defendant found guilty but not mentally ill. Treatment may or may not be provided the defendant while incarcerated depending on (1) whether or not the State makes funds available to the Corrections Cabinet to provide such treatment, and (2) whether or not the correctional mental health professional believes treatment of the defendant is necessary at the time he is evaluated at the prison.

The dispositional instruction actually given to the jury stated, in pertinent part:

If the defendant is found guilty but mentally ill under this Instruction, he will receive a sentence for the offense of which he has been found guilty. However, treatment shall be provided to the defendant until those providing the treatment determine that such treatment is no longer necessary or until the expiration of his sentence, whichever occurs first.

While the rather "bare bones" and vague dispositional instruction tendered to the jury does, in fact, track the language of KRS 504.150, Appellant's proffered instruction appears more accurate. As noted above, it does not seem certain that one found GBMI will actually receive treatment. If this assumption is true, it should be reflected in jury instructions which articulate if treatment...