People v. Sommers, No. 06CA1335.

Docket NºNo. 06CA1335.
Citation200 P.3d 1089
Case DateSeptember 04, 2008
CourtCourt of Appeals of Colorado
200 P.3d 1089
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Rodney V. SOMMERS, Defendant-Appellant.
No. 06CA1335.
Colorado Court of Appeals, Div. II.
September 4, 2008.

[200 P.3d 1091]

John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Springer & Steinberg, P.C., Harvey Steinberg, Michael P. Zwiebel, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD.


Defendant, Rodney V. Sommers, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree burglary, third degree assault, stalking, obstructing a police officer, and second degree trespass. We affirm.

I. Background

Defendant and the victim were involved in a romantic relationship. In separate events occurring in February and April 2004, defendant entered the victim's home against her wishes and assaulted her. Upon being confronted

200 P.3d 1092

by police outside the victim's home after the second incident, defendant fled before being captured and arrested. Defendant was originally charged in two cases, but the trial court granted the prosecution's motion to consolidate them.

At his jury trial in March 2006, defendant asserted a defense of involuntary intoxication and presented evidence of his bipolar disorder. Defendant was acquitted of second degree kidnapping, convicted of all the other charges, and sentenced to a prison term.

II. Involuntary Intoxication

Defendant asserts that the trial court erroneously instructed the jury concerning the defense of involuntary intoxication. He contends that, because medication he ingested triggered adverse effects of his bipolar disorder, the trial court erroneously limited his defense by instructing the jury that "[a]ny mental illness suffered by the defendant is not a defense in this case." We are not persuaded.

Defendant now contends that he objected to this instruction. However, at trial, defendant's counsel stated he "can't object" to it. Although counsel immediately afterward asked the court to allow him to argue to the jury that defendant's mental condition was the "bread" that wrapped around the "poison" of the medication, this request does not serve as a specific, clear, and contemporaneous objection to the court's instruction. See People v. Miller, 113 P.3d 743, 749 (Colo. 2005) ("constitutional harmless error analysis is reserved for those cases in which the defendant preserved his claim for review by raising a contemporaneous objection"). We will, therefore, review this instruction for plain error to determine whether defendant has shown "not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction." Id. at 750 (quoting People v. Garcia, 28 P.3d 340, 344 (Colo.2001)).

A. Introduction

To resolve this issue, we must determine whether the evidence of defendant's bipolar condition supported the defense of involuntary intoxication. If it did, the trial court's instruction was error, because it prevented the jury from evaluating the defense in light of relevant evidence.

We conclude, however, that the evidence of defendant's mental illness did not support that defense. Rather, under Colorado law, the evidence, based upon the nature of defendant's bipolar condition and the reason for which it was offered—to show that defendant could not conform his conduct to the requirements of the law—was some evidence of insanity. Because Colorado's law requires that evidence of insanity may only be offered if a defendant enters a special plea before trial, and because no such plea was entered in this case, the trial court correctly instructed the jury that defendant's mental illness was not a defense.

To reach our conclusion, we must first address the components of the defenses of involuntary intoxication and insanity, explain other circumstances in which evidence of a defendant's mental condition may be admissible, and then analyze the facts of this case under the controlling law. Last, we explain why the trial court's instruction did not deny defendant the ability to present an involuntary intoxication defense.

B. What is Involuntary Intoxication?

Intoxication is defined as "a disturbance of mental or physical capacities resulting from the introduction of any substance into the body." § 18-1-804(4), C.R.S.2007. Involuntary intoxication is distinguished from self-induced intoxication. Intoxication is self-induced when a person knowingly introduces a substance into his or her body which "the defendant knows or ought to know [has] the tendency to cause intoxication." § 18-1-804(5), C.R.S.2007. Self-induced intoxication serves only as a defense to specific intent crimes. People v. Low, 732 P.2d 622, 628 (Colo.1987).

Involuntary intoxication is a defense to all crimes. Id. In order to justify instructing the jury about the defense of involuntary intoxication, a defendant must offer some credible evidence that shows (1) a

200 P.3d 1093

substance was introduced into the defendant's body; (2) the substance was not known to be an intoxicant, the defendant did not know it could intoxicate him or her, or it was taken because of medical advice; (3) the substance disturbed the defendant's mental or physical capacities; and (4) the disturbance resulted in the defendant's lack of capacity to conform his or her conduct to the law's requirements. People v. Garcia, 113 P.3d 775, 782-83 (Colo.2005).

Because involuntary intoxication is a disturbance of capacities, it is, by definition, temporary, similar to temporary insanity. Id.; see also Low, 732 P.2d at 627-28 ("involuntary intoxication establishes that the accused's `derangement is without culpability and hence is to be dealt with the same as if it were the result of mental disease or defect'" (quoting R. Perkins & R. Boyce, Criminal Law 1005 (3d ed.1982)); "involuntary intoxication is `a defense if it puts the defendant in such a state of mind, e.g., so that he does not know the nature and quality of his act or know that his act is wrong, in a jurisdiction which has adopted the M'Naghten test for insanity'" (quoting W. LaFave & A. Scott, Handbook on Criminal Law § 45, at 347)).

A special plea is not required to raise the defense of involuntary intoxication. Garcia, 113 P.3d at 783.

C. Is Involuntary Intoxication Different from Insanity?

The defense of involuntary intoxication is distinct from the defense of insanity. In Colorado, there are two forms of insanity, which are defenses to all crimes. The first requires evidence to establish that (1) the defendant was diseased or defective in mind when he or she committed the offense; (2) the defendant's diseased or defective mental status was caused by a severely abnormal mental condition; (3) the mental condition grossly and demonstrably impaired the defendant's perception or understanding of reality; and (4) the impairment rendered the defendant incapable of distinguishing right from wrong with respect to the offense. Id.; § 16-8-101.5(1)(a), C.R.S.2007.

The second form of insanity requires evidence to show that the defendant (1) suffered from a condition of mind (2) caused by mental disease or defect (3) which prevented the person from forming a culpable mental state that is an essential element of the crime. § 16-8-101.5(1)(b), C.R.S.2007.

The defense of insanity requires the existence of a mental disease or defect—"[a] severely abnormal mental condition[] that grossly and demonstrably impair[s] a person's perception or understanding of reality" —that is "not attributable to the voluntary ingestion of alcohol or any other psychoactive substance." §§ 16-8-101.5(1)(a), (2)(b), 16-8-102(4.7), C.R.S.2007. "Intoxication does not, in itself, constitute mental disease or defect ...." § 18-1-804(2), C.R.S.2007; see also Bieber v. People, 856 P.2d 811, 815-17 (Colo. 1993) (settled insanity, or insanity arising from the long-term use of intoxicants, is not a valid insanity defense, and trial court properly denied an instruction on that defense). Because Colorado does not recognize the defense of temporary insanity, "the `mental disease or defect' of insanity cannot be temporary in nature." Garcia, 113 P.3d at 782.

Insanity is an affirmative defense that may only be raised by a special plea entered before trial. §§ 16-8-103, 18-1-802(2)(a), C.R.S.2007. The entry of this special plea triggers a court-ordered mental examination of the defendant. § 16-8-105.5(1), C.R.S.2007. If the special plea is not entered, "evidence of insanity is irrelevant and inadmissible at a trial on the merits." Low, 732 P.2d at 632.

D. For What Other Purposes Can Evidence of a Mental Condition Be Offered?

Evidence of an ongoing mental condition may be offered for reasons other than proving insanity. For example, in People v. Requejo, 919 P.2d 874, 877 (Colo.App.1996), a division of this court indicated that, in order to be found insane under either subsection of our insanity statute, "a person must be so ill as to be unable to recognize reality." There, the defendant offered evidence of his mild mental retardation to show that he did not process information quickly enough to notice

200 P.3d 1094

that his friend had stabbed the victim with a knife.

The trial court in Requejo concluded that this evidence was not admissible because the defendant had not entered a special plea under a prior version of section 16-8-101.5(1)(b). The division reversed, concluding that the evidence of the defendant's mild mental retardation was admissible without a special plea because the record did not indicate that the defendant's disability was a mental disease or defect; his disability was not severely abnormal; and the disability did not impair his perception of reality, because the evidence showed that he was "competent, sane, and not mentally ill." Requejo, 919 P.2d at 877; see also People v. Vanrees, 125 P.3d 403, 408-09...

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19 practice notes
  • People v. Short, Court of Appeals No. 15CA1175
    • United States
    • Colorado Court of Appeals of Colorado
    • April 5, 2018
    ...testimony. Consequently, reversal 425 P.3d 1214is not warranted in the absence of plain error. See Crim. P. 52(b) ; People v. Sommers , 200 P.3d 1089, 1095 (Colo. App. 2008). ¶ 12 It is improper for a witness to testify to whether another "witness was telling the truth on a specific occasio......
  • People v. Rhea, Court of Appeals No. 12CA1133
    • United States
    • Colorado Court of Appeals of Colorado
    • May 8, 2014
    ...we discern no “substantial likelihood that the comment[s] affected the verdict or deprived defendant of a fair trial.” People v. Sommers, 200 P.3d 1089, 1097–98 (Colo.App.2008). Thus, the comments were not plain error.c. Taxpayer Bias ¶ 72 Next, defendant challenges the prosecution's commen......
  • People v. Marko, Court of Appeals No. 11CA0623
    • United States
    • Colorado Court of Appeals of Colorado
    • October 8, 2015
    ...show that the defendant was incapable of "forming a culpable mental state that is an essential element of the crime." People v. Sommers, 200 P.3d 1089, 1093 (Colo. App. 2008) (citing § 16–8–101.5(1)(a) ).¶ 170 Herrera, 87 P.3d at 251, addressed a defendant's claim that he was insane under t......
  • People v. Ujaama, No. 08CA0128.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 15, 2012
    ...the ex-wife, who testified for the defense, to point out any bias she had in defendant's favor, see generally People v. Sommers, 200 P.3d 1089, 1096 (Colo.App.2008), and, to that end, it could arguably, at least, elicit evidence of her refusal to cooperate with the police until she received......
  • Request a trial to view additional results
19 cases
  • People v. Short, Court of Appeals No. 15CA1175
    • United States
    • Colorado Court of Appeals of Colorado
    • April 5, 2018
    ...testimony. Consequently, reversal 425 P.3d 1214is not warranted in the absence of plain error. See Crim. P. 52(b) ; People v. Sommers , 200 P.3d 1089, 1095 (Colo. App. 2008). ¶ 12 It is improper for a witness to testify to whether another "witness was telling the truth on a specific occasio......
  • People v. Rhea, Court of Appeals No. 12CA1133
    • United States
    • Colorado Court of Appeals of Colorado
    • May 8, 2014
    ...we discern no “substantial likelihood that the comment[s] affected the verdict or deprived defendant of a fair trial.” People v. Sommers, 200 P.3d 1089, 1097–98 (Colo.App.2008). Thus, the comments were not plain error.c. Taxpayer Bias ¶ 72 Next, defendant challenges the prosecution's commen......
  • People v. Marko, Court of Appeals No. 11CA0623
    • United States
    • Colorado Court of Appeals of Colorado
    • October 8, 2015
    ...show that the defendant was incapable of "forming a culpable mental state that is an essential element of the crime." People v. Sommers, 200 P.3d 1089, 1093 (Colo. App. 2008) (citing § 16–8–101.5(1)(a) ).¶ 170 Herrera, 87 P.3d at 251, addressed a defendant's claim that he was insane under t......
  • People v. Ujaama, No. 08CA0128.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 15, 2012
    ...the ex-wife, who testified for the defense, to point out any bias she had in defendant's favor, see generally People v. Sommers, 200 P.3d 1089, 1096 (Colo.App.2008), and, to that end, it could arguably, at least, elicit evidence of her refusal to cooperate with the police until she received......
  • Request a trial to view additional results

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