Fulcher v. State

• Decision Date: 26 August 1981
• Docket Number: No. 5466,5466
• Citation: 633 P.2d 142
• Parties: Robert Brian FULCHER, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 142

633 P.2d 142

Robert Brian FULCHER, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 5466.

Supreme Court of Wyoming.

Aug. 26, 1981.

Rehearing Denied Sept. 16, 1981.

Robert T. Moxley, Wheatland, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Senior Asst. Atty. Gen., and Randal R. Arp, Asst. Atty. Gen. (argued), for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

Appellant-defendant was found guilty of aggravated assault without dangerous weapon in violation of § 6-4-506(a), W.S.1977, ¹ by the district court sitting without a jury. While appellant characterizes the issues on appeal differently, we believe the issues to be:

1) Is it necessary for a defendant to plead "not guilty by reason of mental illness or deficiency" before evidence of unconsciousness can be presented?

2) Was there sufficient evidence to sustain appellant's conviction?

We will affirm.

On November 17, 1979, the appellant consumed seven or eight shots of whiskey over a period of four hours in a Torrington bar, and had previously had a drink at home.

Appellant claims he got in a fight in the bar restroom, then left the bar to find a friend. According to his testimony, the last thing he remembers until awakening in jail, is going out of the door at the bar.

Appellant and his friend were found lying in the alley behind the bar by a police officer who noted abrasions on their fists and faces. Appellant and his friend swore, were uncooperative, and combative. They were subsequently booked for public intoxication and disturbing the peace. During booking appellant continued to swear, and said he and his friend were jumped by a "bunch of Mexicans." Although his speech was slurred, he was able to verbally count his money, roughly $500 to $600 in increments of $20, and was able to walk to his cell without assistance.

Appellant was placed in a cell with one Martin Hernandez who was lying unconscious on the floor of the cell. After the jailer left the cell, he heard something that sounded like someone being kicked. He ran back to the cell and saw appellant standing by Hernandez. When the jailer started to leave again, the kicking sound resumed, and he observed appellant kicking and stomping on Hernandez's head. Appellant told the officer Hernandez had fallen out of bed. Hernandez was bleeding profusely and was taken to the hospital for some 52 stitches in his head and mouth. He had lost two or three teeth as a result of the kicking.

Appellant was released later in the day, November 18, 1979, and went home. He went back to Torrington on November 22, 1979, to see a doctor. Appellant testified that the doctor diagnosed he had a concussion, although there is no evidence in the record of medical treatment.

At his arraignment in district court, appellant first entered a plea of "not guilty by reason of temporary mental illness." Upon being advised by the trial judge that he would have to be committed for examination pursuant to § 7-11-304, W.S.1977, he withdrew that plea and entered a plea of not guilty.

In preparation for trial, appellant was examined by Dr. Breck LeBegue, a forensic At the trial Dr. LeBegue testified that in his expert medical opinion appellant suffered brain injury and was in a state of traumatic automatism at the time of his attack on Hernandez. Dr. LeBegue defined traumatic automatism as the state of mind in which a person does not have conscious and willful control over his actions, and lacks the ability to be aware of and to perceive his external environment. Dr. LeBegue further testified that another possible symptom is an inability to remember what occurred while in a state of traumatic automatism.

psychiatrist. The doctor reviewed the police report and conducted a number of tests.

Dr. LeBegue was unable to state positively whether or not appellant had the requisite mental state for aggravated assault and battery, but thought appellant did not because of his altered state of mind. He could not state, however, that the character of an act is devoid of criminal intent because of mind alteration.

After the record on appeal had been filed in this court, defense counsel and the prosecuting attorney for Goshen County attempted to supplement the record by entering into a stipulation. ² We hold that the stipulation was an improper attempt to supplement the record.

The Attorney General refused to approve the stipulation prior to its execution. He may not be bypassed, for once a case is in this court the Attorney General has complete charge of the State's case. Section 9-2-205(a), W.S.1977. ³ The county and prosecuting attorney is not the attorney of record for the State in this appeal. The stipulation, therefore, will not be considered by this Court. See also, Hayes v. State, Wyo., 599 P.2d 569 (1979) and Tobin v. Purcel, Wyo., 539 P.2d 361 (1975).

I

We hold that the trial court properly received and considered evidence of unconsciousness absent a plea of "not guilty by reason of mental illness or deficiency." ⁴ The defense of unconsciousness perhaps should be more precisely denominated as the defense of automatism. Automatism is the state of a person who, though capable of action, is not conscious of what he is doing. While in an automatistic state, an individual performs complex actions without an exercise of will. Because these actions are performed in a state of unconsciousness, they are involuntary. Automatistic behavior may be followed by complete or partial inability to recall the actions performed while unconscious. Thus, a person who acts automatically does so without intent, exercise of free will, or knowledge of the act.

Automatism may be caused by an abnormal condition of the mind capable of being designated a mental illness or deficiency. Automatism may also be manifest in a person with a perfectly healthy mind. In this opinion we are only concerned with the defense of automatism occurring in a person with a healthy mind. To further narrow the issue to be decided in this case, we are concerned with alleged automatism caused by concussion.

The defense of automatism, while not an entirely new development in the criminal law, has been discussed in relatively few decisions by American appellate courts, most of these being in California where the defense is statutory. Some courts have held that insanity and automatism are separate and distinct defenses, and that evidence of automatism may be presented under a plea of not guilty. Some states have made this distinction by statute. In other states the distinction is made by case law. People v. Hardy, 33 Cal.2d 52, 198 P.2d 865 (1948); People v. Martin, 87 Cal.App.2d 581, 197 P.2d 379 (1948); People v. Taylor, 31 Cal.App.2d 723, 88 P.2d 942 (1939); People v. Grant, 46 Ill.App.3d 125, 4 Ill.Dec. 696, 360 N.E.2d 809 (1977); Carter v. State, Okl.Cr., 376 P.2d 351 (1962); 21 Am.Jur.2d § 29, Criminal Law, p. 115 (1965).

"A defense related to but different from the defense of insanity is that of unconsciousness, often referred to as automatism: one who engages in what would otherwise be criminal conduct is not guilty of a crime if he does so in a state of unconsciousness or semi-consciousness. * * * " LaFave & Scott, Criminal Law, § 44, p. 337 (1972).

"The defenses of insanity and unconsciousness are not the same in nature, for unconsciousness at the time of the alleged criminal act need not be the result of a disease or defect of the mind. As a consequence, the two defenses are not the same in effect, for a defendant found not guilty by reason of unconsciousness, as distinct from insanity, is not subject to commitment to a hospital for the mentally ill." State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 360 (1975).

The principal reason for making a distinction between the defense of unconsciousness and insanity is that the consequences which follow an acquittal, will differ. The defense of unconsciousness is usually a complete defense. ⁵ State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 334 (1969). State v. Caddell, supra; 21 Am.Jur.2d, Criminal Law, § 29, p. 115 (1965). That is, there are no follow-up consequences after an acquittal; all action against a defendant is concluded.

However, in the case of a finding of not guilty by reason of insanity, the defendant is ordinarily committed to a mental institution. " * * * (O)ne of the purposes served by the insanity defense is that it makes possible the commitment of some persons, not as an alternative to conviction and imprisonment, but rather as an alternative to outright acquittal. That is, if the defendant did not commit the acts with the mental state required for conviction of the crime charged, but this is because he was suffering from a mental disease or defect, the result is likely to be a finding of not guilty by reason of insanity followed by commitment rather than a mere finding of not guilty followed by release * * * ." LaFave and Scott, supra, at 338.

In some states the commitment is automatic after a finding of not guilty by reason of insanity. In Wyoming the trial judge may commit a defendant based on evidence produced at trial or the commitment may be by separate proceedings. ⁶

The mental illness or deficiency plea does not adequately cover automatic behavior. Unless the plea of automatism, separate and apart from the plea of mental illness or deficiency is allowed, certain anomalies will result. For example, if the court determines that the automatistic defendant is sane, but refuses to recognize automatism, the defendant has no defense to the crime with which he is charged. If found guilty, he faces a prison term. The rehabilitative value of imprisonment for the automatistic offender who has committed the offense unconsciously is nonexistent. The cause of the act was an uncontrollable physical disorder that may never recur and is not a moral deficiency.

If, however,...