State v. Alto

• Citation: 589 P.2d 402
• Decision Date: 12 January 1979
• Docket Number: No. 3748,3748
• Parties: STATE of Alaska, Petitioner, v. Frank Augie ALTO, Respondent.
• Court: Supreme Court of Alaska (US)

Page 402

589 P.2d 402

STATE of Alaska, Petitioner, v. Frank Augie ALTO, Respondent.

No. 3748.

Supreme Court of Alaska.

Jan. 12, 1979.

Timothy Petumenos, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for petitioner.

John M. Murtagh, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for respondent.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

OPINION

MATTHEWS, Justice.

In a prior opinion in this case, we reversed defendant's murder and grand larceny convictions because the state had failed to sustain its burden of proving defendant's sanity beyond a reasonable doubt after defendant had presented testimony raising the issue. Alto v. State, 565 P.2d 492 (Alaska 1977). We remanded the case to the superior court for further proceedings pursuant to AS 12.45.090 which provides:

Commitment after judgment of not guilty. If the jury finds the defendant not guilty on the ground of mental disease or defect and the court considers his being at large dangerous to the public peace or safety, the court shall order him to be committed to an institution authorized by the commissioner of health and social services to receive that person, and held in custody until the disease is cured or the defect corrected or he is otherwise discharged from the institution by authority of law.

We ordered that the defendant should remain in custody for sixty days unless a proceeding under the foregoing section was initiated by the state within that period. The state did commence such a proceeding, and the hearing was scheduled. The superior court ordered that at the hearing the state would have the burden of proving by a standard of clear and convincing evidence that the defendant is presently suffering from a mental disease or defect which renders him a danger to society. The state has petitioned for review from this order. The defendant has taken a cross-petition, contending that the state should have to prove that he is presently dangerously insane beyond a reasonable doubt. We granted review. ¹

We hold that the defendant, to obtain his release, must prove by a preponderance of the evidence that he is not presently suffering from a mental disease or defect which causes him to be a danger to the public peace or safety. In part I of this opinion we discuss the meaning of the statute and what we take to be the sound policy indicating this result; in part II we discuss constitutional considerations and conclude that they are consistent with this result.

I

Under Alaska law, a plea of insanity in a criminal case is an affirmative defense. ² When evidence is introduced supporting the defense, the prosecution must prove beyond a reasonable doubt ³ that the defendant was not insane when he committed the act charged. A verdict of not guilty by reason of insanity contains within it the finding that, beyond a reasonable doubt, the defendant committed the act charged. ⁴ These statutory provisions were adopted by the legislature in 1972 based on sections contained in article IV of the Model Penal Code of the American Law Institute. ⁵

The Model Penal Code provision concerning post-acquittal by reason of insanity procedures has not been adopted in Alaska. It requires the automatic commitment of a defendant who is acquitted by reason of insanity and gives him a release hearing as a matter of right, after a period of confinement for determination of his mental condition. At the hearing, the defendant has the burden of proving that he may be safely released. ⁶ Our statute on the subject, AS 12.45.090, has its origin in the statutes of Oregon which were adopted wholesale for the Territory of Alaska in 1884. ⁷ In our prior decision in this case, we interpreted AS 12.45.090, consistently with the Model Penal Code, as authorizing Alto's immediate commitment and requiring a prompt hearing as to what further disposition was appropriate. Alto, supra at 503. The statute does not, unlike the Model Penal Code, state who has the burden of proof or what the standard of proof shall be.

Referring solely to the structure of the statute, the question to be determined at the hearing is whether "the disease is cured or the defect corrected." The defendant is seeking to show the affirmative of that question. Since the hearing is held while he is in custody, he is attempting to bring about a change in the existing status. Thus the statute appears to contemplate that the burden of proof shall be placed on the defendant. ⁸ The Oregon Supreme Court, construing the statute from which AS 12.45.090 is taken, has reached that conclusion. Newton v. Brooks, 426 P.2d 446, 450 (Or.1967).

Until the adoption of the Model Penal Code insanity provisions, the burden of proving insanity during a criminal trial was on the defendant by a preponderance of the evidence. Chase v. State, 369 P.2d 997, 1003 (Alaska 1962). The fact that the burden of proving insanity is now placed on the state beyond a reasonable doubt makes it important to require that one who is acquitted by reason of insanity prove that he is not a danger to the public peace and safety because of his mental condition. To require the state, as the superior court's order does, to prove present insanity and dangerousness by clear and convincing evidence, would create a broad range of offenders beyond the reach of the law. They would be those who are neither sane beyond a reasonable doubt, and who therefore cannot be convicted, nor clearly insane, and therefore cannot be committed. The discipline of psychiatry is not so exact that we can with any degree of confidence suppose that the number of offenders who fall within this category will be inconsequential.

In Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), the Court of Appeals for the District of Columbia held that a defendant acquitted on grounds of insanity was entitled to be released unless the government could prove by a preponderance of the evidence a present mental illness. At the time Bolton was decided, the government had the burden of proving sanity beyond a reasonable doubt at the criminal trial. Congress promptly overturned Bolton and placed on the insanity acquittee the burden of proving that he was no longer mentally ill. ⁹ The house committee report detailed the reason for dissatisfaction with Bolton :

This ruling permits dangerous criminals, particularly psychopaths, to win acquittals of serious criminal charges on grounds of insanity by raising a mere reasonable doubt as to their sanity and then to escape hospital commitment because the government is unable to prove their insanity following acquittal by a preponderance of the evidence. The result is a revolving door which, as now Chief Justice Burger explained in rejecting such an outcome in Overholser v. O'Beirne, 112 U.S.App.D.C. 267 at 276, 302 F.2d 852 at 861 (1962) allows defendants to "have it both ways" to escape both conviction and commitment to a hospital.

The Committee considers this result intolerable. It neither protects the public safety nor provides treatment for a defendant acquitted of a crime on grounds of insanity.

H.R.Rep.No.907, 91st Cong., 2d Sess. 73-5 (1970).

We conclude, based on the foregoing that the burden of proof should be on the defendant at a post-acquittal hearing. The state does not urge that a defendant must carry this burden by a standard of proof more strict than by a preponderance of the evidence, and we agree that is the appropriate standard. ¹⁰

II

The defendant argues that the due process and equal protection clauses of the Alaska and United States Constitutions prohibit placing the burden of proof on him at the post-insanity acquittal hearing.

The due process argument is plainly wrong. It is not a violation of the due process clause to place the burden of proving insanity on a defendant during prosecution of the case-in-chief. ¹¹ A fortiori, due process does not preclude allocation of the burden of proof to the defendant at the post-acquittal commitment hearing.

The equal protection argument has more weight. Equal protection has been interpreted to require that an insanity acquittee receive essentially the same protection afforded to a person who is civilly committed by reason of insanity, except where there are good reasons for different treatment. ¹² Alaska's civil commitment statutes, AS 47.30.060-.070, are silent on burden and standard of proof. However, we assume for the purposes of this opinion that in involuntary civil commitments by reason of insanity, the burden of proof is on the state ¹³ and that the standard of proof is higher than a preponderance of the evidence. ¹⁴ Making that assumption, the question is whether equal protection requires the same standard of proof and the same burden of proof in cases where there has been an acquittal by reason of insanity.

We believe there are legitimate reasons for a different result. The acquittee by reason of insanity has, by his affirmative defense, admitted that he was insane at the time of the act in question and he has presented evidentiary support for his admission. Such an admission distinguishes the acquittee by reason of insanity from one whose involuntary commitment is civilly sought and has consistently maintained that he is not mentally ill. Moreover, the acquittee by reason of insanity has committed a criminal act. He therefore differs from the civil committee who is confined because of his potential to commit dangerous acts, not because he has committed them.

The importance of the voluntary plea of insanity is underscored by Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962). The defendant there had never interposed an insanity defense or claimed a mental illness, but he was found not guilty by reason of insanity based on evidence adduced by the prosecution. Thereupon he was committed under mandatory commitment provisions then existing in the District of Columbia. ¹⁵ The Supreme Court interpreted...