People v. Herrera, 01CA1511.

• Decision Date: 31 December 2003
• Docket Number: No. 01CA1511.,01CA1511.
• Citation: 87 P.3d 240
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Manuel HERRERA, Jr., Defendant-Appellant.
• Court: Colorado Court of Appeals

87 P.3d 240

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Manuel HERRERA, Jr., Defendant-Appellant.

No. 01CA1511.

Colorado Court of Appeals, Div. V.

December 31, 2003.

Rehearing Denied February 26, 2004.

Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Manuel Herrera, Jr., appeals the judgment of conviction entered upon a jury verdict rejecting his insanity defense and finding him guilty of first degree murder. We reverse and remand for a new trial.

Some hours after defendant's father told him he needed to get a job or move out of the family home, defendant retrieved a knife from the garage, walked to his parent's bedroom, awakened his father, and stabbed him repeatedly. Defendant's brother stopped the attack and defendant fled. His father died from the injuries, and upon his arrest several days later, defendant admitted the killing. Defendant had been previously treated for a number of mental health issues. Because he asserted that he suffered from a condition of mind caused by mental disease or defect that prevented him from forming a culpable mental state, defendant pleaded not guilty by reason of insanity. The trial court ordered him to submit to a sanity examination at the Colorado Mental Health Institute in Pueblo (CMHIP).

Before trial, defendant filed motions challenging the constitutionality of several provisions of the insanity statutes, including the unitary trial procedure, and requesting a bifurcated trial on the issues of sanity and guilt. Defendant also moved to suppress his statements to the CMHIP psychiatrist, alleging that they were involuntary. The trial court denied the motions.

At trial, defendant's expert opined that defendant was probably psychotic at the time of the offense and lacked the capacity to form the requisite culpable mental states of intent and deliberation. However, the CMHIP psychiatrist opined that defendant was not suffering from a mental condition that rendered him unable to form the requisite mental state at the time of the offense. Despite defendant's motion in limine that sought to prohibit such testimony, this expert also opined that defendant acted with intent and after deliberation during the killing.

I.

Defendant contends the trial court erroneously denied his challenge to the constitutionality of four provisions in the insanity statute, § 16-8-101, et seq., C.R.S.2003. He asserts that the current statutory scheme violates his privilege against self-incrimination and his right to effective assistance of counsel. We disagree.

The interpretation of statutes is a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231 (Colo.2000).

Our task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To determine that intent, we look first to the plain and ordinary meaning of the statutory language. People v. Dist. Court, 713 P.2d 918 (Colo.1986). When the language is clear and unambiguous, the statute must be construed as written, without resort to interpretive rules of statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994).

If, however, the statutory language lends itself to alternative constructions, and its intended scope is unclear, a court may apply other rules of statutory construction to determine which alternative construction is in accordance with the objective sought to be achieved by the legislation. People v. Terry, 791 P.2d 374 (Colo.1990).

When reviewing a statute upon a constitutional challenge, we must presume the statute is constitutional, People v. Baer, 973 P.2d 1225 (Colo.1999) and we must interpret the statute to avoid constitutional defects. People v. Torres, 848 P.2d 911 (Colo. 1993). Additionally, to overcome the presumption that a statute is constitutional, the challenger bears the burden of proving that it is unconstitutional beyond a reasonable doubt. See People v. Buckallew, 848 P.2d 904 (Colo.1993)

.

A.

Subsections (1)(a) and (1.5)(a) of § 16-8-107, C.R.S.2003, deal with introduction of evidence in cases involving insanity pleas. Defendant contends, and the People agree, that both subsections apply to him. Those subsections provide, in pertinent part:

(1)(a) [N]o evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination ... is admissible against the defendant on the issues raised by a plea of not guilty, if the defendant is put to trial on those issues, except to rebut evidence of his or her mental condition introduced by the defendant to show incapacity to form a culpable mental state; and, in such case, that evidence may be considered by the trier of fact only as bearing upon the question of capacity to form a culpable mental state, and the jury, at the request of either party, shall be so instructed.

(1.5)(a) [E]vidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination ... is admissible only as to the issues raised by the defendant's plea of not guilty by reason of insanity, and the jury, at the request of either party, shall be so instructed....

Defendant contends that the use of statements obtained from his sanity examination violates his privilege against self-incrimination because the statute allows the prosecution to employ his own statements to prove his guilt of the charged offense. He argues that § 16-8-107(1.5)(a) does not include the protective language of § 16-8-107(1)(a) that such evidence may be considered by the trier of fact only as bearing upon the question of "capacity to form a culpable mental state." Therefore, he asserts, the phrase in § 16-8-107(1.5)(a), "the issues raised by a defendant's plea of not guilty by reason of insanity," includes the ultimate issue of whether a defendant had in fact formed the requisite culpable mental state and not merely whether he or she had the capacity to do so. The People assert that the proper statutory interpretation makes it clear that the only permissible use of such statements is in determining, as relevant here, whether a defendant was capable of forming the culpable mental state and, so construed, the provisions are constitutional. We agree with the People.

Defendant's assertion of the insanity defense was based solely upon the "impaired mental condition" definition contained in the statute. See § 16-8-101.5(1)(b), C.R.S.2003. Accordingly, our analysis is limited to circumstances involving that assertion.

To preserve the privilege against self-incrimination, evidence derived from court-ordered sanity examinations can only be used to determine a defendant's capacity to form the requisite mental state. See People v. Rosenthal, 617 P.2d 551 (Colo.1980)

(unrestricted use at the guilt trial of the defendant's psychiatric communications is contrary to the privilege against self-incrimination; procedures governing the insanity defense cannot be applied to destroy that privilege); Lewis v. Thulemeyer, 189 Colo. 139, 142, 538 P.2d 441, 443 (1975)("By definition, self-incrimination contemplates the use of the confession or admission to aid in establishing the guilt of the defendant."). Hence, the privilege against self-incrimination is not implicated by a court-ordered mental examination when the information obtained therefrom is admitted only on the issue of mental condition. See People v. Galimanis, 765 P.2d 644 (Colo.App.1988)(defendant's privilege against self-incrimination implicated only when evidence he is compelled to produce is admitted on the issue of guilt); see also People v. Tally, 7 P.3d 172 (Colo.App.1999)(statements made by a defendant in a psychiatric exam may be admitted to prove sanity but not guilt of the charged offense). Therefore, the statutory provisions at issue must be interpreted accordingly.

As the People note, the quoted subsections provide essentially the same protection: evidence first acquired from a defendant during court-ordered examinations may only be used at trial to establish the defendant's capacity to form the mental state at issue. While we acknowledge that § 16-8-107(1.5)(a), unlike § 16-8-107(1)(a), does not contain specific language stating that such evidence may be considered "only as bearing upon the question of capacity to form a culpable mental state," nevertheless, whether the subsection specifically refers to "capacity" is not conclusive. The reference in § 16-8-107(1.5)(a) to issues raised by the insanity plea relates to the defendant's "mental condition," and is, in our view, equivalent to the reference in § 16-8-107(1)(a) to a defendant's "capacity to form a culpable mental state."

To the extent these two subsections could be given an alternative construction, the legislative history supports our interpretation. Section 16-8-107(1)(a) was originally applicable to the former affirmative defense of impaired mental condition. When that defense was incorporated into the insanity defense, see § 16-8-101.3, C.R.S.2003, testimony before the General Assembly noted that § 16-8-107(1.5)(a) simply restated former law providing that any communications were admissible only as to issues raised by an insanity plea. See Hearings on H.B. 96-1145 before the House and Senate Judiciary Committees, 60th General Assembly, Second Session (Jan. 16 & 24, 1996). So construed, those subsections do not infringe upon the privilege against self-incrimination.

Defendant nevertheless asserts that the jury instructions provided for by these subsections are insufficient to protect statements from being used to establish guilt of the charged offense. We disagree.

Both...