People v. Serravo, 89CA0318

• Decision Date: 12 April 1990
• Docket Number: No. 89CA0318,89CA0318
• Citation: 797 P.2d 782
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Pasqual SERRAVO, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 782

797 P.2d 782

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Pasqual SERRAVO, Defendant-Appellee.

No. 89CA0318.

Colorado Court of Appeals Div. I.

April 12, 1990.

Rehearing Denied May 3, 1990.

Certiorari Granted Oct. 9, 1990.

Robert R. Gallagher, Jr., Dist. Atty., James C. Sell, Chief Deputy Dist. Atty., Englewood, for plaintiff-appellant.

Fogel, Keating & Wagner, P.C., Steven R. Polidori, Anthony D. Hall, Denver, for defendant-appellee.

Jane S. Hazen, Fairplay, for amicus curiae, Colorado Crim. Defense Bar.

Opinion by Judge PIERCE.

A jury verdict found defendant, Robert Pasqual Serravo, not guilty by reason of insanity of attempt to commit first degree murder. The People appeal on a question of law concerning an instruction given the jury. We approve the trial court ruling.

The record shows that defendant had become preoccupied with delusions that he was on a mission from God to establish a community for evangelizing his religious ideals. However, he felt his wife was not supportive of his plans and that it was God's will that he kill her to prevent her from being an obstacle in his way.

Defendant stabbed his wife in the back while she was sleeping. The wound, however, was not fatal. Seeing his wife stir, defendant felt compassion towards her and he became of the belief that her survival meant that she had passed a divine test and would no longer be uncooperative. He, therefore, sought to save her life and, accordingly called the police. Experts explained this behavior as being the result of some reality testing which remained intact and set in after the stabbing.

At trial, it was undisputed that defendant was mentally ill when he committed the crime. However, the People objected to the following instruction:

"As used in the context of the [statutory] definition of insanity [as a criminal defense], the phrase 'incapable of distinguishing right from wrong' includes within its meaning the case where a person appreciates that his conduct is criminal, but, because of a mental disease or defect, believes it to be morally right."

The People contend that the trial court erred in giving that instruction because it applies a subjective moral standard to the determination of whether defendant understood right from wrong. We disagree under the circumstances of this case.

Section 16-8-101, C.R.S. (1986 Repl.Vol. 8A) provides that:

"(1) The applicable test of insanity shall be, and the jury shall be so instructed: 'A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.'

"(2) The term diseased or defective in mind, as used in subsection (1) of this section, does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct." (emphasis added)

Section 18-6-101 is a legislative codification of the commonlaw M'Naghten rule of insanity. People v. Low, 732 P.2d 622 (Colo.1987). The focus of the M'Naghten rule is on the cognitive aspect of a person's personality and that person's ability to distinguish right from wrong. W. LaFave & A. Scott, Substantive Criminal Law § 4.2 (1986).

The M'Naghten case itself does not answer the question of whether "wrong" means legal or moral wrong, and there is a split of authority on the issue in the state courts which apply the M'Naghten rule. W. LaFave & A. Scott, Substantive Criminal...