State v. Baker

• Court: South Dakota Supreme Court
• Writing for the Court: MORGAN; WUEST, C.J., and MILLER; HENDERSON; SABERS
• Citation: State v. Baker, 440 NW2d 284 (S.D. 1989)
• Decision Date: 26 April 1989
• Docket Number: No. 15570,15570
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William J. BAKER, Defendant and Appellant.

Page 284

440 N.W.2d 284

STATE of South Dakota, Plaintiff and Appellee, v. William J. BAKER, Defendant and Appellant.

No. 15570.

Supreme Court of South Dakota.

Argued Sept. 1, 1987.

Decided April 26, 1989.

Janine Kern, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Donna L. Hallberg and Michael J. Butler, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

William J. Baker (Baker) appeals his convictions of guilty but mentally ill (GBMI) following jury trial on two counts of aggravated assault (SDCL 22-18-1.1(2) and (4)). He was also adjudged guilty on a Part II Information charging him with being an habitual offender. Baker was sentenced to eight years in the penitentiary on the first count and twelve years on the second count. We affirm in part and reverse and remand in part.

Baker, who admitted to being an abuser of alcohol and drugs, attempted to quit "cold turkey" the use of all chemical substances. Soon thereafter he began experiencing behavioral changes and sought help by entering a widely advertised private treatment facility in Sioux Falls. He was forced to leave the facility when disciplinary problems arose.

Baker next voluntarily checked himself into the acute psychiatric ward at McKennan Hospital in Sioux Falls. After a few hours, he asked a nurse if he could leave. The nurse informed Baker that he could leave voluntarily, but that she would have to get a doctor's "okay" first. There was a delay of over two hours during which time Baker began pacing up and down the hallway with a blanket wrapped around his shoulders. As time passed, and no release was forthcoming, Baker became increasingly agitated. He made comments about his mother and his family being dead. He tore a woman's picture off a bulletin board because he believed it was his mother's picture. After observing these incidents and his increasing agitation, the nurse called security for assistance.

Larry Gullickson (Gullickson), an off-duty policeman working security, responded to the call. Upon being advised of the situation, including Baker's voluntary status, Gullickson, for some unknown reason, placed a call to the county jail to determine if Baker had been placed on a 24-hour involuntary hold. In the meantime, Baker, who had been standing at the nurse's station since Gullickson's arrival, stated that he was not going to wait for a doctor, pounded his fist on the counter, ran over to Gullickson and attacked him, first by beating him with his fists and then by taking the phone receiver from Gullickson and striking him in the face with it. Baker was finally subdued, placed in seclusion, and transported to the county jail.

Throughout the proceedings below and before this court, Baker has been represented by court-appointed counsel from the staff of the Minnehaha County Public Defender's Office. Baker, on appeal, raises seven issues, which we amalgamate into the following four:

1. Sufficiency of the evidence to sustain the verdict of "guilty but mentally ill" under statutory requirements.

2. Constitutionality of SDCL 23A-26-14 as a violation of Baker's due process rights, equal protection rights and right to freedom from cruel and unusual punishment under both the federal constitutional amendments and the state constitution.

3. Failure to dismiss the Part II habitual offender information.

4. The propriety of the trial court's jury instruction on the burden of proof in an insanity defense; or, stated another way, absent having raised an instruction issue by proper objection at the trial level, does such issue rise to the level of plain error to make it reviewable on appeal?

In the discussion of the issues in this appeal, several recent legislative enactments will come into play. For the purpose of clarity, we will begin with a summary of the pertinent portions thereof with identifiers that will be used thereafter.

Chapter 174 of the 1983 South Dakota Session Laws first introduced the verdict of "guilty but mentally ill" (hereafter GBMI) into South Dakota law. That enactment rewrote the laws on mental illness defense, both substantively and procedurally. What had been previously defined as "mental illness" was redefined as "insanity" and a new definition was created for "mental illness." A plea of GBMI was added to the list of permissible pleas: guilty, not guilty, not guilty by reason of insanity and nolo contendere. One provision, now codified as SDCL 23A-26-14 (hereafter the GBMI verdict statute), provided that if a defendant raised an insanity plea he could be found GBMI if the jury found (1) that he was guilty of the offense; (2) that he was mentally ill when he committed the offense; and (3) that he was not insane at the time when he committed the offense. Another provision, now codified as SDCL 23A-25-13 (hereafter the GBMI instruction statute), mandated instructions to the jury that to return a GBMI verdict they shall find that defendant committed the offense and that at the time of the offense he was not insane but was mentally ill. The enactment also provided that upon a GBMI verdict or plea, the court could impose any sentence which could be imposed upon a plea or verdict of guilty to the same charge (now codified as SDCL 23A-27-38).

Chapter 192 of the 1985 South Dakota Session Laws enacted a considerable revision of the criminal procedures in general and had some impact on the insanity defense. SDCL 22-3-1 was amended by deleting subsection (3), "[p]ersons who, at the time of committing the act charged against them, were insane[,]" from the list of persons who were incapable of committing a crime. Section 11, now codified as SDCL 22-5-10, made insanity an affirmative defense to be proven by clear and convincing evidence.

Finally, in 1986, the legislature enacted Chapter 194 which amended the GBMI verdict statute by deleting "(3) The defendant was not insane when he committed the offense[,]" from the requirement for the GBMI verdict statute. It did not, however, remove that same consideration from the requirements of the GBMI instruction statute, which mandated instructing the jury to make such a finding in order to return the GBMI verdict.

We first examine Baker's sufficiency of the evidence issue. He asserts two arguments. First, he contends that there was insufficient evidence to prove the specific intent element of the offense of aggravated assault. Second, he contends that there was insufficient evidence to prove that he was mentally ill, as opposed to insane, at the time of the commission of the crime. Actually, the two are intrinsically interwoven as they both go to Baker's mental capacity at the time that he committed the offense.

It is Baker's position that the evidence of the two psychiatric witnesses and the lay persons negated the possibility of specific intent on his part. He quotes Dr. Bean, the State's psychiatrist, as saying that "Baker was not capable of understanding the wrongfulness of his acts when he committed the two assaults alleged." Also, he quotes Dr. Pesce, his psychiatrist, as testifying that he "was not capable of knowing the wrongfulness of his act." Baker further urges that the testimony of the nurses who were present at various times described his "bizarre" behavior.

State counters with the arguments for sufficiency of the evidence. They would discount the testimony of their expert, Dr. Bean, because he had merely examined Baker for one hour some two and a half months after the incident and because he had based his diagnosis in part upon information given him by Baker. ¹ State further seeks to cast doubt on Dr. Pesce's testimony by pointing out that, in cross-examination, the doctor had admitted he was unsure of his diagnosis and that no psychiatrist could be sure of a diagnosis "if they were not there at the time and didn't conduct an examination at the time." Apparently, State would have us reject the standards of reasonable medical or psychiatric probability to which we have heretofore adhered. Additionally, State further views the testimony of the lay witnesses as entirely different than as viewed by Baker. Lastly, State points to Baker's own testimony as evidence that he knew what he was doing and the wrongfulness of his acts.

This court's standard of review has long been as follows:

In determining the sufficiency of evidence on appeal, the question presented is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making such a determination, this court will accept that evidence, and the most favorable inferences that can be fairly drawn therefrom, which will support the verdict.

State v. Banks, 387 N.W.2d 19, 27 (S.D.1986) (quoting State v. West, 344 N.W.2d 502 (S.D.1984)); State v. Big Head, 363 N.W.2d 556 (S.D.1985). With respect to expert testimony, we have also held that a jury is at liberty to evaluate and weigh an expert's testimony in arriving at its verdict. State v. Shell, 301 N.W.2d 669 (S.D.1981). A jury is not bound to accept the expert's testimony as conclusive and they may disregard it if they so choose. State v. Swallow, 350 N.W.2d 606 (S.D.1984). As a Michigan court of appeals noted in this regard:

Triers of fact are not bound to accept opinion testimony, however expert and authoritative, because opinion testimony is not of the highest order. (Citation omitted.) If, under all the testimony in this case, the jury was compelled to accept questionable opinions of fact then the doctors, not the jury, would have been determining the facts.

People v. English, 29 Mich.App. 36, 48-9, 185 N.W.2d 139, 147 (1970).

This is one of the closest cases on this issue that we have had occasion to review recently. Viewing the evidence without regard to the expert testimony, as the jury obviously did, we find that Baker, in his testimony, gave considerable evidence...