People v. Riggs, 00CA0398.
| Decision Date | 20 June 2002 |
| Docket Number | No. 00CA0398.,00CA0398. |
| Citation | 68 P.3d 478 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randy D. RIGGS, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Mark G. Walta, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge NEY.
Defendant, Randy D. Riggs, appeals the trial court's order denying authorization, pursuant to § 16-8-118, C.R.S.2001, for temporary physical removal from state hospital grounds for the purpose of treatment. We reverse and remand for further proceedings.
In 1982, defendant was found not guilty by reason of insanity of first degree murder after he strangled a woman and then sexually assaulted her corpse.
After several attempts, the Colorado Mental Health Institute in Pueblo (CMHIP) gave notice to the committing court that it intended to authorize temporary physical removal of defendant from the hospital for treatment and rehabilitation activities. CMHIP sought permission for supervised leave and, when defendant's doctors thought it was appropriate, for unsupervised leave. The district attorney filed an objection. After an evidentiary hearing, the court denied the request for temporary physical removal in a lengthy written order.
Defendant contends that the applicable burden of proof should be on the objecting party. We agree.
We are not convinced by the People's argument that the burden should always be on the defendant because courts have indicated "it is reasonable to assume that, until the contrary is shown, the committed defendant poses a danger to the public by reason of his mental condition." People v. Gilliland, 769 P.2d 477 (Colo.1989)(citing People v. Chavez, 629 P.2d 1040 (Colo.1981)).
Here, the issue is not a matter of involuntary commitment as was addressed in People v. Chavez, supra,
or of involuntary administration of antipsychotic medication as in People v. Gilliland, supra. A § 16-8-118 determination is, at its essence, a matter of treatment as opposed to a curtailment of a liberty interest. Furthermore, the plain language of the statute indicates that the court holds a "hearing upon the objections," and thus the burden should rest with the objecting party. See § 16-8-118(1)(c).
Thus, we conclude that the burden of proof under § 16-8-118 is on the objecting party, as opposed to the committed defendant. Additionally, the party with the burden of proof must meet that burden by a preponderance of the evidence. See People v. Garlotte, 958 P.2d 469 (Colo.App.1997)
(applying preponderance of the evidence standard to revocation of defendant's conditional release); People v. McCoy, 821 P.2d 873 (Colo.App.1991).
Defendant next contends that § 16-8-118 violates his constitutional rights of due process and equal protection because the statute lacks sufficient procedures and standards. We decline to reach this constitutional argument. Defendant did not adequately preserve it because he raises it for the first time on appeal. See People v. Boyd, 30 P.3d 819 (Colo.App.2001)
.
Defendant next contends that the trial court's order does not reflect that it considered the petition under the correct nonconstitutional standards as set forth in prior decisions of Colorado courts. We agree.
Section 16-8-118 authorizes the temporary physical removal of a committed defendant from an institution for treatment and rehabilitation activities. The statute requires that the institution give written notice to the committing court of its intention to allow temporary leave for a committed defendant. Section 16-8-118(1)(a), C.R.S.2001. Thirty days from the date of mailing of the notice, the temporary physical removal request is authorized unless the district attorney or the attorney of record for the defendant files an objection with the committing court. Section 16-8-118(1)(b), C.R.S.2001 ().
If an objection is filed, "the committing court shall fix a time for a hearing upon the objections, and no removal of the defendant from the institution in which he is held shall be authorized unless and until approval thereof is given by the committing court following such hearing." Section 16-8-118(1)(c), C.R.S.2001.
A request for temporary removal in supervised and unsupervised settings does not implicate the same liberty interests as involuntary commitment or nonconsensual administration of medication. See People v. Gilliland, supra; People v. Chavez, supra. However, the request implicates lesser considerations related to safety—both for the community and the committed defendant— than release or conditional release. See § 16-8-120, C.R.S.2001 (); People v. Fetty, 650 P.2d 541, 543 (Colo. 1982)("[t]he state's interest at stake in automatically committing one found not guilty by reason of insanity is to insure the public's safety as well as the safety of the accused himself").
Thus, when ruling on a contested request for temporary removal under § 16-8-118, a trial court should assess on the totality of the evidence, whether public safety can be ensured while achieving the therapeutic purpose of the release. Cf. People v. Gilliland, supra, 769 P.2d at 480
; Marshall v. Kort, 690 P.2d 219 (Colo.1984)(recognizing that a committed defendant may have a right to treatment).
Additionally, the court should weigh the rehabilitative potential of the temporary removal activities related to the committed defendant's course of treatment against the potential danger to the community based on the defendant's contact with the public. See People v. Garlotte, supra, 958 P.2d at 477
(). Furthermore, the trial court must give due consideration to the decisions of health care professionals made in the exercise of their professional judgment. See Kort v. Carlson, 723 P.2d 143, 150 (Colo.1986)("defendant's right to treatment ... consists ... of the right to have decisions about the appropriate treatment developed and offered by competent decisionmakers after the exercise of their professional judgment"). In giving such consideration, the trial court must indicate and evaluate such decisions in its findings of fact. See Kort v. Carlson, supra.
Here, the record indicates that the trial court and the parties adhered to the procedural requirements set forth in § 16-8-118. However, the record does not indicate whether the trial court applied the proper legal standards in ruling on the issue before it. Thus, we remand the case to the trial court to apply the standards we have set forth in this opinion. On remand, the court may also take further evidence if it deems necessary. See People v. Garlotte, supra.
Additionally, on remand, defendant should be provided the opportunity to rectify any factual errors that he contends were made by the court in denying his request for temporary physical removal. Finally, with regard to defendant's claim that the trial court improperly admitted letters from the victim's family, we direct that on remand the court consider only evidence relevant under the standards set forth in this opinion.
Order reversed and case remanded for further proceedings consistent with this opinion.
For the first time on appeal defendant asserts violations of the Due Process and Equal Protection Clauses of both the United States and Colorado Constitutions. These constitutional challenges were not raised in the trial court and should not be addressed in this appeal. See Colgan v. State, 623 P.2d 871 (Colo.1981)
.
The majority states that the trial court did not consider the petition under the correct standards and Colorado case law. However, the issue of statutory interpretation is raised for the first time on appeal. Defendant's argument about the procedures set forth in § 16-8-118, C.R.S.2001, was not made in the trial court and is supported only by defendant's appellate brief. Therefore, that argument should not be considered here.
Further, the procedures and burden of proof set forth in the majority opinion expand and materially change the statute enacted by the General Assembly and thus constitute judicial legislation. The procedures to be followed are specified in § 16-8-118. It is not our function to invade the province of the General Assembly with directives that change the burden of proof and the discretion afforded to the trial court in ruling on removal and treatment outside the institution under § 16-8-118.
The prosecution's response to defendant's request for off-grounds privileges and treatment was that there has been an insufficient showing of adequate rehabilitation to warrant his temporary physical removal from the Colorado Mental Health Institute in Pueblo. I agree with the order entered by the trial court, which appears as Appendix A to this dissent. Thus, the trial court was acting within its discretion when it made these findings and entered its order and denied the request for temporary removal for treatment and rehabilitation on a supervised or unsupervised program. Colorado's criminal commitment statutes give the trial court the ultimate responsibility for these decisions relating to commitment and release. People v. Gilliland, 769 P.2d 477, 481 (Colo.1989).
Accordingly, I would affirm the order entered by the trial court.
APPENDIX A
The defendant, Randy Dean Riggs, comes before this Court for authorization for temporary removal from the State hospital for treatment and rehabilitation pursuant to Section 16-8-118, C.R.S. v. 6....
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