State v. Brasel

• Decision Date: 27 January 1981
• Docket Number: No. 4601-II,4601-II
• Citation: 623 P.2d 696,28 Wn.App. 303
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Ray J. BRASEL, Appellant.

Page 303

28 Wn.App. 303

623 P.2d 696

The STATE of Washington, Respondent, v. Ray J. BRASEL, Appellant.

No. 4601-II.

Court of Appeals of Washington, Division 2.

Jan. 27, 1981.

S. Brooke Taylor, Port Angeles, for appellant.

John H. Hertog, Fort Steilacoom, for amicus curiae.

Kenneth L. Cowsert, Port Angeles, for respondent.

REED, Chief Judge.

Defendant Ray J. Brasel appeals an order committing him, as a criminally insane person, to the custody of the Secretary of the Department of Social and Health Services. We reverse.

Defendant was arrested after attempting to cash a $50 check he took from the Sequim Post Office. He was charged with uttering a forged instrument in violation of RCW 9A.60.020(1)(b), a class C felony. After a preliminary hearing at which defendant's trial attorney questioned his competency to stand trial, the court temporarily committed defendant, pursuant to RCW 10.77.060, to Western State Hospital for psychiatric examination. In their report to the court, the hospital staff diagnosed defendant as a schizophrenic, chronic paranoid type. The staff concluded defendant was competent to stand trial but was legally insane at the time of the alleged crime. The staff report recommended:

We suggest that Mr. Brasel be placed in a group home, halfway house or congregate care facility where his psychiatric condition can be monitored on a regular basis. It is obvious that he is unable to care for himself on his own.

The report did not indicate whether defendant

is a substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions,

one of the requirements of RCW 10.77.060(3).

After reviewing this report, the trial court held a hearing at which defendant was present and represented by counsel. During the hearing defense counsel filed notice of an insanity defense, and the prosecutor agreed that defendant was legally insane at the time of the alleged crime. Defense counsel then made a motion, pursuant to RCW 10.77.080, ¹ for a judgment of acquittal by reason of insanity, which the court accepted. At the conclusion of the hearing, the court found defendant committed the act of forgery as charged, was insane at the time of the act, and "is a substantial danger to himself or others and is in need of control by other persons or institutions." The court acquitted defendant by reason of insanity and committed him, as a criminally insane person, to the custody of the Secretary of the Department of Social and Health Services, pursuant to RCW 10.77.110. ² Defendant appeals this commitment order.

As his first assignment of error, defendant contends there was no evidence before the trial court that he is "a substantial danger to other persons" or that he presents "a substantial likelihood of committing felonious acts jeopardizing public safety or security." RCW 10.77.040, .080. The State concedes there is no evidence that defendant is dangerous to others or likely to commit felonious acts, but notes that the second sentence of RCW 10.77.110 directs the court to commit a defendant acquitted by reason of insanity if it finds he "is a substantial danger to himself or others." (Emphasis added.) Thus, the first issue presented is whether defendant can be committed as criminally insane merely on the basis of evidence that he is dangerous to himself.

To resolve this issue, we must examine the history of RCW 10.77. Prior to 1974, RCW 10.77.010(1) defined a "criminally insane" person as

any person who has been acquitted of a crime charged by reason of mental disease or defect excluding responsibility, and thereupon found to be a substantial danger to himself or other persons and in need of further control by the court or other persons or institutions.

(Emphasis added.) Laws of 1973, 1st Ex.Sess. ch. 117, § 1, p. 796. See State v. Jones, 84 Wash.2d 823, 529 P.2d 1040 (1974). In 1974, seeking to distinguish civil commitments from criminal commitments, the legislature significantly amended RCW 10.77 by removing all references to "danger to himself," replacing the above definition of a "criminally insane" person with the present definition:

any person who has been acquitted of a crime charged by reason of insanity, and thereupon found to be a substantial danger to other persons or to present a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions.

House Journal, 43rd Legislature (1973) at 4238-49.

Unfortunately, the bill incorporating these changes contained significant drafting errors when it reached the Governor for his signature. Section 10 of the bill (amending RCW 10.77.110) read in pertinent part:

If it is found that the defendant is a substantial danger to other persons, or does not present a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall order his hospitalization, or any appropriate alternative treatment less restrictive than detention in a state mental hospital, pursuant to the terms of this chapter.

(Emphasis added.) House Journal, 43rd Legislature (1973) at 4245. The Governor recognized the word "not" was an obvious drafting error that did not reflect the intent of the legislature. ³ Rather than simply striking the offending word, he vetoed the entire sentence in which it appeared, restoring the language of the existing law, due to concerns about constitutional limitations on his item veto power. See e. g., Washington Ass'n of Apartment Ass'ns, Inc. v. Evans, 88 Wash.2d 563, 564 P.2d 788 (1977). The Governor made clear the purpose behind his veto by urging the legislature to correctly amend this portion of RCW 10.77.110 at its next session. Up to now, the legislature regrettably has neglected to do so.

In construing statutes, our primary object is to effectuate legislative intent. Gross v. Lynnwood, 90 Wash.2d 395, 583 P.2d 1197 (1978). When vetoing bills passed by the legislature, the Governor acts in a legislative capacity and as part of the legislative branch of state government. Lynch v. Department of Labor & Indus., 19 Wash.2d 802, 145 P.2d 265 (1944); Shelton Hotel Co. v. Bates, 4 Wash.2d 498, 104 P.2d 478 (1940). Therefore, we cannot consider the intent of the legislature apart from the intent of the Governor. Shelton Hotel Co. v. Bates, supra. Our Supreme Court often has stated that we are not authorized to read into a statute those things which we conceive the legislature may have left out unintentionally. E. g. Jepson v. Department of Labor & Indus., 89 Wash.2d 394, 573 P.2d 10 (1977); Department of Labor & Indus. v. Cook, 44 Wash.2d 671, 269 P.2d 962 (1954). Occasionally, however, the literal expression of legislation may be inconsistent with the obvious objectives or policy behind it, and in such circumstances the spirit or intention of the law must prevail over the letter of the law. Janovich v. Herron, 91 Wash.2d 767, 592 P.2d 1096 (1979); State v. (1972) Dan J. Evans Campaign Comm., 86 Wash.2d 503, 546 P.2d 75 (1976); Murphy v. Campbell Inves. Co., 79 Wash.2d 417, 486 P.2d 1080 (1971). As stated in 2A C. Sands, Statutes and Statutory Construction § 47.38 (4th ed. 1973):

Although some courts have been hesitant to supply or insert words, the better practice requires that a court enforce the legislative intent or evident statutory meaning where it is clearly manifested. The inclusion of words necessary to clear expression of the intent or meaning is in aid of the legislative authority; the denial of the power to insert when the intent or meaning is clear is more nearly a usurpation of legislative power for it results in destruction of the legislative purpose.

It is apparent that neither the legislature nor the Governor intended persons to be committed as criminally insane merely upon a showing of dangerousness to themselves.

Statutory provisions are interpreted in a manner so as to avoid strained or absurd consequences which could result from a literal reading. State v. (1972) Dan J. Evans Campaign Comm., supra; Alderwood Water Dist. v. Pope &amp Talbot, Inc., 62 Wash.2d 319, 382 P.2d 639 (1963). Adopting the literal construction of RCW 10.77.110 urged by the State would lead to the absurd consequence that a defendant could be criminally committed merely upon a showing that he is dangerous to himself, although he immediately would be entitled to final discharge or conditional release under RCW 10.77.200(3). ⁴ Under that section the determinative test is whether he presents a substantial danger to other persons or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security.

Thus, we ignore the literal language of RCW 10.77.110 and construe the second sentence of the statute as if it read:

If it is found that such defendant is a substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall order his hospitalization, or any appropriate alternative treatment less restrictive than detention in a state mental hospital, pursuant to the terms of this chapter.

See State v. Wilcox, 92 Wash.2d 610, 614, 600 P.2d 561 (1979). We hold that defendant should not have been committed under RCW 10.77. The statute, as construed, does not authorize a commitment for one dangerous to himself, and defendant is concededly not dangerous to others or likely to commit felonious acts. The trial court found, however, on the basis of substantial evidence, that defendant is in need of control by other persons or institutions. Accordingly, it should now direct his conditional release...