People v. Garcia, No. 01CA2514.

• Decision Date: 14 August 2003
• Docket Number: No. 01CA2514.
• Citation: 87 P.3d 159
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steve David GARCIA, Jr., Defendant-Appellant.
• Court: Colorado Court of Appeals

87 P.3d 159

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steve David GARCIA, Jr., Defendant-Appellant.

No. 01CA2514.

Colorado Court of Appeals, Div. IV.

August 14, 2003.

Rehearing Denied September 18, 2003.

Certiorari Granted April 5, 2004.

Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge GRAHAM.

Defendant, Steve David Garcia, Jr., appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted second degree murder and first degree assault. We reverse and remand for a new trial.

On July 8, 1999, defendant's wife told him she wanted to end their marriage, and defendant moved out of the home. Their child's birthday was imminent, and the child invited defendant to her birthday party. Wife gave defendant a ride to the party, and, en route, the couple stopped for party supplies.

In anticipation of indulging in his daughter's birthday party sweets, defendant, a diabetic, had injected himself that morning with an abnormally large amount of insulin. Wife noticed that defendant was quiet, and she inquired whether he felt all right. Defendant responded that he was "fine."

As wife started to back out of a parking lot, defendant struck her on the head with a hammer. Injured, wife ran from the car, but defendant grabbed her and tried to push her back into the vehicle. She escaped and fled. A nearby shopkeeper told defendant to stop and leave the premises. Defendant drove away. Eventually, defendant caught up with his wife and ran over her.

Defendant was charged with first degree assault, domestic violence, attempted first degree murder, and two counts of mandatory sentence for violent crimes.

In pretrial proceedings, defendant sought to assert a defense of involuntary intoxication based upon his injection of insulin and a resulting condition of hypoglycemia, which occurred when defendant failed to eat. Defendant endorsed a proposed expert, an endocrinologist, to testify to the effects of hypoglycemia, to defendant's historic hypoglycemic condition, and to state his opinion that, in a state of hypoglycemia, defendant could not conform his conduct to the law.

The prosecutor moved to exclude the expert's testimony on the ground that it was a "temporary insanity defense." The court ruled that it was admissible only under a theory of impaired mental condition or insanity and that, in accordance with § 16-8-101.5, C.R.S.2002, defendant was required to plead the defense of insanity. Defendant then pleaded insanity. A jury instruction was given on the insanity defense, but no instruction was requested or given concerning involuntary intoxication.

Defendant was convicted and sentenced to twenty years in the Department of Corrections plus five years of mandatory parole.

I.

Defendant contends that the trial court erred in precluding his involuntary intoxication defense and requiring him to plead to insanity. We agree.

A defense based upon mental defect or insanity must be affirmatively pleaded at arraignment, in part because it sets in motion a specific process by which the defendant is professionally evaluated. Section 16-8-103.5(1), (4), C.R.S.2002. However, there may be evidence of diminished capacity caused by intoxication, not based upon a mental defect, which establishes that the defendant was not capable of conforming his conduct to the requirements of the law, thus absolving him of responsibility for the act because he lacked the mens rea element of the crime. People v. Low, 732 P.2d 622 (Colo.1987).

Impairment through intoxication is not necessarily a mental defect or disease. Section 18-1-804(2), C.R.S.2002. Careful distinctions are drawn between self-induced intoxication and involuntary intoxication. Where intoxication is self-induced, the incapacity is avoidable, and based on the moral blame associated with awareness that an ingested substance will likely alter one's faculties, that person is barred from avoiding the mens rea element of a crime. Hendershott v. People, 653 P.2d 385 (Colo.1982). Indeed, the statutory scheme adopted by the General Assembly specifically excludes the use of self-induced intoxication as a defense to general intent crimes, including second degree murder. Sections 18-1-804(1), 18-3-103, C.R.S.2002.

In contrast, no moral culpability attaches to involuntary intoxication. The affirmative defense of involuntary intoxication insulates a person from criminal responsibility where the involuntary intoxication eliminates his capacity to conform his conduct to the law. It requires no special pleading requirements, People v. Low, supra,

and is an affirmative defense protected by the "presumption of innocence and the constitutional requirement of prosecutorial proof of guilt beyond a reasonable doubt." Hendershott v. People, supra, 653 P.2d at 391.

If there is any credible evidence to support the defense, the trial court must instruct the jury on the defense even if the supporting evidence consists of "highly improbable testimony by the defendant." Lybarger v. People, 807 P.2d 570, 579 (Colo.1991)(quoting People v. Fuller, 781 P.2d 647, 651 (Colo.1989)).

The issue of intoxication is for the jury. People v. White, 191 Colo. 353, 553 P.2d 68 (1976). Whether intoxication caused by an overdose of a prescription medicine is considered voluntary or involuntary depends upon whether the individual should have known that intoxication would ensue, which also is a question for the jury. People v. Turner, 680 P.2d 1290 (Colo.App.1983).

Here, defendant sought to introduce a well-regarded expert's testimony about the effects of diabetes and hypoglycemia in support of his defense of involuntary intoxication.

Prior to trial, defendant urged that expert testimony be allowed to show the effects of hypoglycemia on his ability to conform his conduct to the law. In their motion in limine, the People equated this testimony to a mental disease or defect or impaired mental condition. In response, defense counsel argued, "if the Court takes the position of the prosecution that this is really [an impaired mental condition or insanity defense], then anything that the defense ever raises to challenge the prosecution's element of mens rea becomes an insanity defense, and that cannot be." In a pretrial hearing, defense counsel argued "we don't agree that this evidence should fall under [the impaired mental condition] statute." Defense counsel also asserted a due process violation in having to assert a mental defect defense simply to present evidence of the effects of hypoglycemia on defendant's ability to conform his conduct. Nevertheless, the trial court required defendant to assert a mental defect defense pursuant to § 16-8-106, C.R.S.2002, or suffer the disallowance of his expert's testimony.

The People now suggest that by asserting the mental defect defense, in accordance with the court's order, and by not requesting an involuntary intoxication instruction, defendant waived and abandoned the affirmative defense of involuntary intoxication. In light of defense counsel's repeated pretrial requests to assert the defense without use of the mental defect statute, we deem this argument unavailing. Defense counsel merely complied with the court's order while preserving defendant's assertion of error.

Here, the facts tending to support a claim of involuntary intoxication are inconclusive. However, defendant was foreclosed from the possibility of presenting an instruction based upon even slight evidence. The parties should be free to argue evidence to allow the trier of fact to determine whether defendant was suffering from a hypoglycemic condition, whether that condition...