State v. Blubaugh, 41677--78

• Decision Date: 09 December 1971
• Docket Number: No. 41677--78,41677--78
• Citation: 491 P.2d 646,80 Wn.2d 28
• Parties: The STATE of Washington, Respondent, v. William E. BLUBAUGH, Appellant. The STATE of Washington, Appellant, v. Beverly Ann RATHBUN, Respondent.
• Court: Washington Supreme Court

Page 28

80 Wn.2d 28

491 P.2d 646

The STATE of Washington, Respondent, v. William E. BLUBAUGH, Appellant.

The STATE of Washington, Appellant, v. Beverly Ann RATHBUN, Respondent.

No. 41677--78.

Supreme Court of Washington, En Banc.

Dec. 9, 1971.

Christopher T. Bayley, King County Pros. Atty., Byron H. Ward, Deputy Pros. Atty., Seattle, for appellant.

Webster, Kroum, McCann, Granberg, Bass & Mack, Gary F. Bass, Seattle, for respondent.

SHARP, Associate Justice.

These two cases were consolidated for hearing before this court. The sole issue involved in each of the cases, concerns the burden of proof on one seeking discharge from confinement as a criminally insane person. Each of the defendants was institutionalized pursuant to jury determination that he committed the act charged, was insane at time of trial, and was an unsafe person to be at large. The issue is best understood in context of the two cases before us.

State v. Blubaugh: Defendant Blubaugh had a history of mental illness, having been civilly committed to Western State Hospital in 1965 after threatening two police officers with a knife while he held his young daughter. His mental illness was diagnosed at that time as schizophrenic reaction, paranoid type. He was discharged in December, 1966. In March of 1968, one week after defendant's wife and informed him that she had secured a default divorce, defendant went to the wife's home and, in the presence of two of his children, killed a man who was living with the wife by shooting him six times. Defendant was arrested and charged with first-degree murder. He pleaded a defense of insanity, and on June 10, 1968, a jury made special findings that the defendant did commit the crime charged but that he was insane at the time of the crime, and that he continued to be insane at the time of trial. Defendant was then confined as a criminally insane person who was unsafe to be at large. In April, 1970, defendant, pursuant to RCW 10.76.070, petitioned the superior court for release, and a jury trial was held. The jury was instructed that defendant must prove 'beyond a reasonable doubt' the elements for his release: I.e., (1) that he had become sane since his commitment, (2) that he was not liable to a recurrence or a relapse of mental unsoundness, and (3) that he was safe to be at large. Defendant contended that the burden of proof should be by a 'preponderance of the evidence.' The jury found defendant sane at that time but subject to recurrence or relapse, and not safe to be at large. Defendant appeals.

State v. Rathbun: Defendant Rathbun also had a history of mental illness, and beginning in 1956 had been hospitalized as a paranoid schizophrenic on four separate occasions. In March, 1968, she killed a woman for whom she was working as a housekeeper, by beating and slashing her with a butcher knife. The apparent reason for the attack was that the woman had said something concerning defendant's children. Defendant was charged with second-degree murder and the trial court, sitting without a jury (defendant had waived a jury trial), found that she had committed the crime as charged, was insane at the time the crime was committed and at the time of trial, and that she was an unsafe person to be at large. Accordingly, she was confined as criminally insane. In January, 1970, defendant petitioned for release pursuant to RCW 10.76.070, and a jury trial was held in April, 1970. The jury was given instructions which stated that defendant had the burden of proving the elements for release by a preponderance of the evidence. In addition, the jury was given an instruction No. 5 which reads in part:

(Y)ou are further instructed that, even where the preponderance of the evidence favors the petitioner, a reasonable doubt about the danger to the public or to the patient cannot be resolved so as to risk danger to the public or to the individual. A patient may have improved materially and appear to be a good prospect for restoration as a useful member of society; but, if an abnormal mental condition renders him potentially dangerous, reasonable doubts are to be resolved in favor of the public and in favor of the subject's safety.

The jury answered the special interrogatories relating to present and future sanity in the affirmative, and defendant was released. The state appeals.

The statutes controlling the treatment of the criminally insane are set forth in RCW 10.76. The procedure for release is found in RCW 10.76.070, which, in brief, provided for the following steps at the time these petitions for release were submitted:

(a) Application to the director of institutions for an examination of his or her mental condition and fitness to be at large;

(b) If the director of institutions certifies that there is reasonable cause to believe that the person is sane and is safe to be at large, the superintendent shall permit the committed person to petition the court that committed him for discharge;

(c) The petition is served on the prosecuting attorney and the prosecuting attorney is required to resist the application;

(d) The trial shall be to a jury and the trial shall proceed as in other cases, with the sole issue being whether the person has become a safe person to be at large since his commitment;

(e) The burden of proof is on the petitioner to prove that he is safe to be at large.

Washington has seen fit to distinguish between the mentally ill, who are provided for under RCW 71.02, and the criminally insane, provided for under RCW 10.76, as noted above. This distinction dates as far back as 1854, when the Territory of Washington adopted both Bal.Code § 2660, which provided for the examination and commitment of insane persons, and Bal.Code § 6959, which provided for commitment of individuals acquitted of a crime because of insanity and who were also 'manifestly dangerous to the peace and safety of the community.' Although these statutes have been amended from time to time over the years, most recently in 1967, the distinction has been maintained.

This distinction has been judicially approved in numerous decisions of this court. For example, in Kenstrip v. Cranor, 39 Wash.2d 403, 405, 235 P.2d 467, 468 (1951), we stated:

The doing of criminal acts makes an insane person criminally insane. The safety to society requires that the law distinguish the insane from the criminally insane in its disposition of them.

See also, State ex rel. Thompson v. Snell, 46 Wash. 327, 89 P. 931 (1907); State v. Saffron, 146 Wash. 202, 262 P. 970 (1927); Brown v. Urquhart, 139 F. 846 (C.C.W.D.Wash.1905).

Thus, in Washington regardless of the procedure or burden of proof for the discharge of those civilly committed, a different procedure and burden of proof can be prescribed for the discharge of those criminally insane. Unfortunately, the question presented here (I.e., what is the burden of proof on one seeking release) is not expressly answered by the discharge procedure statute, RCW 10.76.070, which merely provides that the cause shall be set down 'for trial before a jury, and the trial shall proceed as in other cases.'

The District of Columbia has had an abundance of litigation dealing with the criminally insane. In a habeas corpus proceeding brought by a defendant adjudged and institutionalized as criminally insane, the then Circuit Judge Warren E. Burger speaking for the court analyzed the burden of proof question as follows:

The primary purpose of the statute--protection for the public and for the subject--suggests at once that the burden on the petitioner was intended by Congress to be heavy. . . .

Would the standard of a preponderance of the evidence satisfy the purposes and objectives of Congress? We think not. A person so committed has made himself one of 'an exceptional class.' In a 'close' case even where the preponderance of the evidence favors the petitioner, the doubt, if reasonable doubt exists about danger to the public or the patient, cannot be resolved so as to risk danger to the public or the individual. A patient may have improved materially and appear to be a good prospect for restoration as a useful member of society; but if an 'abnormal mental condition' renders him potentially dangerous, reasonable medical doubts or reasonable judicial doubts are to be resolved in favor of the public and in favor of the subject's safety.

Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943, 947 (D.C. Cir. 1960).

Later, in another habeas corpus proceeding, Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 1968), the same court examined the District of Columbia commitment procedure provided for the criminally insane, concluding that automatic commitment without a judicial hearing for one successfully asserting he defense of insanity, violated the equal protection provision of the federal constitution. As an acquittal by reason of insanity does not constitute a finding of present insanity, automatic commitment is a denial of equal protection because it treats criminal defendant differently from other mentally ill persons without reasonable justification. Although not necessary for the decision, the court reexamined the District's release procedure. It reason that since the criminally insane are entitled to a commitment hearing similar to that given the mentally ill, they should be governed by a similar release procedure. The court concluded that the burden of proof on one seeking release should be by a preponderance of the evidence, which is the District's burden of proof standard in habeas corpus proceedings challenging civil commitment.

However, our statutes governing commitment and release of the criminally insane are more explicit, and are clearly distinguishable from the Washington, D.C. statutes. Thus, in our state, whenever an insanity plea is entered and the jury finds the defendant not guilty by reason of insanity or mental irresponsibility, the jury also makes special findings concerning the defendant's...