People v. Bieber, 87CA1863

• Citation: 835 P.2d 542
• Decision Date: 30 January 1992
• Docket Number: No. 87CA1863,87CA1863
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald W. BIEBER, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 542

835 P.2d 542

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald W. BIEBER, Defendant-Appellant.

No. 87CA1863.

Colorado Court of Appeals Div. I.

Jan. 30, 1992.

Rehearing Denied March 12, 1992.

Certiorari Granted Aug. 31, 1992.

Gale Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Timothy R. Twining, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Vitek and Doniger, P.C., Anne M. Vitek, Jeffrey D. Doniger, Denver, for defendant-appellant.

Opinion by Judge RULAND.

Defendant, Donald W. Bieber, appeals from judgments entered upon jury verdicts finding him legally sane and convicting him of first degree murder (felony murder), aggravated robbery, and second degree aggravated motor vehicle theft. We affirm.

Between the hours of 3:00 a.m. and 7:00 a.m. on the date of the victim's death, defendant came in contact with various individuals at a truck stop, a convenience store, and a nearby park. To these persons, he indicated a concern about "communists," "cops or commies," and stated that he had "killed a communist on war memorial highway." Also, he sang "God Bless America" and the "Marine Hymn" on several occasions.

Defendant was armed with rifles and a meat cleaver. He was seen initially driving a bus and then later the victim's pickup truck. Police were contacted when the defendant backed the pickup truck into a fence at one of the convenience stores and then left the scene.

The victim's body was located at approximately 6:00 a.m. and defendant was arrested at approximately 8:00 a.m. The victim and defendant were not acquainted, and the prosecution's evidence indicates that defendant shot the victim at close range for no apparent reason.

Based upon a post-arrest interrogation recorded on videotape, defendant was diagnosed as demonstrating atypical psychotic disorder. The cause of the disorder was described as possibly paranoid schizophrenia or an amphetamine delusional disorder.

An amphetamine delusional disorder is described as consisting of paranoid delusional thinking caused by long-term use of amphetamines which persist beyond the intoxication phase of the amphetamine use. Such a disorder can extend anywhere from two weeks to a year after the date this type of drug is ingested. A psychologist testified at the insanity trial that, because of such disorder, defendant's ability to distinguish right from wrong could have been impaired on the date of the homicide.

The psychiatrist called by the prosecution at the sanity trial conceded that defendant could have suffered from an amphetamine delusional disorder on the date of the homicide and that this disorder could have affected his ability to distinguish right from wrong. This psychiatrist's diagnosis was, however, that defendant suffered from an anti-social personality disorder which excluded the possibility that defendant was suffering from paranoid schizophrenia. In the psychiatrist's opinion, defendant had the ability at the time he shot the victim to distinguish right from wrong.

A urinalysis performed on defendant on the day of the homicide tested positive for long-term excessive marijuana use, but the sample revealed no other controlled substance. A psychiatrist testified that amphetamines can be detected two to five days after ingestion depending upon the dosage. The prosecution and defense counsel stipulated that defendant had not ingested amphetamines for at least two days prior to the homicide.

The record reflects that defendant was a long-time drug user, ingesting numerous illegal substances including amphetamines. Defendant's drug abuse started at age 13. As an adult, his principal source of funds was generated from the sale of illegal drugs.

The record further reflects that defendant had voluntarily entered a hospital several years before this homicide to obtain treatment for mental impairment arising from the effects of substance abuse. At that time, he expressed fear that he might hurt someone. However, apparently his drug psychosis "cleared very rapidly," and he was released with a referral to a long-term drug treatment program.

Following his transfer to the state hospital for evaluation in this case, the psychiatrist noted that defendant's condition improved rapidly even when he was confined in maximum security.

As pertinent here, and consistent with the statutory definition of insanity, the jury was instructed that defendant was not accountable for commission of a crime if he was so diseased or defective in mind at the time the crime was committed that he was incapable of distinguishing right from wrong. The jury was also instructed that: "care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity ... or other motives, and kindred evil conditions."

With reference to intoxication, the jury was instructed that this term refers to a disturbance of mental or physical capacities resulting from the introduction of any substance into the body and that "intoxication does not, in itself, constitute a mental disease or defect."

I

SANITY TRIAL

Defendant initially contends that the trial court erred during his sanity trial in refusing to instruct the jury on "settled insanity" as set forth in People v. Kelly, 10 Cal.3d 565, 111 Cal.Rptr. 171, 516 P.2d 875 (1973). Under the circumstances of this case, we disagree.

A

The "settled insanity" doctrine has been recognized in various jurisdictions as a form of mental infirmity which absolves an individual of responsibility for the commission of a crime. See People v. Free, 94 Ill.2d 378, 69 Ill.Dec. 1, 447 N.E.2d 218 (1983). This doctrine is predicated upon the view that an inability to distinguish between right and wrong because of a mental infirmity derived from excessive substance abuse should be recognized as a form of legal insanity when the mental infirmity persists after the effects of the substance itself have dissipated. See Note, Intoxication as a Criminal Defense, 55 Colum.L.Rev. 1210 at 1219 (1955); 2 C. Torcia, Wharton's Criminal Law § 109 (14th ed. 1979). The instruction tendered by defendant at the sanity trial reflected the precepts of the settled insanity doctrine.

Contrary to the prosecution's contention, we conclude that there was sufficient evidence and inferences from evidence here to create a reasonable doubt whether defendant suffered from a form of mental infirmity which qualifies as settled insanity and which would, therefore, warrant giving the tendered instruction.

The first issue then is whether this form of mental infirmity excuses a defendant from responsibility for the commission of crime within the statutory scheme adopted by the General Assembly in this state. In my view, it does not.

In 1984, the General Assembly amended the statute defining legal insanity and adopted a strict M'Naghten test for resolution of that issue. See People v. Low, 732 P.2d 622 (Colo.1987); M. Wesson, Crimes & Defenses in Colorado 117 (1989).

With reference to substance abuse, specific limitations have been adopted relative to defenses predicated upon the voluntary ingestion of any substance. See Cordova v. People, 817 P.2d 66 (Colo.1991); People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1980). Thus, evidence of voluntary intoxication may be offered to negate the existence of a specific intent if that intent is an element of the crime charged; however, that evidence is incompetent as a defense to general intent crimes. People v. Low, supra.

Further, in Hendershott v. People, 653 P.2d 385 (1982), our supreme court had occasion to discuss the concepts underlying the public policy of this state pertinent to mental infirmity. With reference to voluntary intoxication, the court stated:

The concept of self-induced intoxication, by definition, requires that the defendant be aware at the outset that the substance he is about to ingest may affect his mental faculties. It is a matter of common knowledge that the excessive use of liquor or drugs impairs the perceptual, judgmental and volitional faculties of the user. Also, because the intoxication must be 'self-induced,' the defendant necessarily must have had the conscious ability to prevent this temporary incapacity from coming into being at all. Self-induced intoxication, therefore, by its very nature involves a degree of moral culpability. The moral blameworthiness lies in the voluntary impairment of one's mental faculties with knowledge that the resulting condition is a source of potential danger to others. See generally Model Penal Code § 208, Comment 3 (Tent. Draft No. 9, 1959). It is this blameworthiness that serves as the basis for DelGuidice's rule of exclusion. Thus, when a defendant chooses to knowingly introduce intoxicants into his body to the point of becoming temporarily impaired in his powers of perception, judgment and control, the policy enunciated in DelGuidice prohibits him from utilizing his intoxication as a defense to crimes requiring the mens rea of 'knowingly,' 'willfully,' 'recklessly' or 'with criminal negligence.' There is nothing in DelGuidice, however, that is inconsistent with permitting a defendant to contest these culpability elements by evidence of a mental impairment caused by a known mental disease or defect, or by other evidence of an incapacity not directly caused by self-induced intoxication. (emphasis supplied)

Finally, in People v. Low, supra, our supreme court had occasion to address the distinction between impaired mental condition and insanity. In that discussion, the court noted:

Temporary insanity is not part of the statutory framework for resolving a defendant's nonresponsibility for a criminal act, and was not a proper ground for the trial court's entry of a judgment of acquittal.

In view of these considerations, I consider the application of the settled insanity doctrine as not being consistent here with the policy underlying our statutory scheme. Instead,...