State v. Drej, 2010 UT 35 (Utah 5/14/2010)
| Decision Date | 14 May 2010 |
| Docket Number | No. 20080003.,20080003. |
| Parties | State of Utah, Plaintiff and Appellee, v. Eryk Drej, Defendant and Appellant. |
| Court | Utah Supreme Court |
Mark L. Shurtleff, Att'y Gen., Christine F. Soltis, Asst. Att'y Gen., for plaintiff.
Thomas H. Means, Margaret P. Lindsay, Douglas J. Thompson, Provo, for defendant.
INTRODUCTION
¶ 1 In response to a divided opinion by this court in which we questioned but ultimately upheld the constitutionality of the state's limited insanity defense,1 the Utah Legislature enacted a new method of mitigating criminal culpability based on a defendant's mental illness called "special mitigation." In a narrow set of circumstances, special mitigation allows mentally-ill defendants who acted under the influence of a delusion, to reduce their criminal convictions by one degree. Unlike a traditional insanity defense, special mitigation cannot be used to eliminate criminal liability entirely. In the decade since the Legislature's adoption of special mitigation, the defendant in this case, Eryk Drej, appears to be the first to address special mitigation; he has challenged the constitutionality of the special mitigation statute. He argues the statute is unconstitutional because it places the burden of proving special mitigation on the defendant, in violation of the due process clauses of the state and federal constitutions. He also argues the statute was enacted contrary to the state's separation of powers provision and that it violated equal protection under both the state and federal constitutions.
¶ 2 Mr. Drej urges this court to hold the statute unconstitutional but at the same time to preserve special mitigation as an affirmative defense available to mentally-ill defendants. He argues that we ought to preserve special mitigation by severing the unconstitutional language concerning the burden of proof from the statute. What would be left, under Mr. Drej's theory of severability, is a statute that permits a defendant to raise special mitigation but requires the prosecution to disprove special mitigation beyond a reasonable doubt.
¶ 3 Since this case reaches us on an interlocutory appeal, the facts of Mr. Drej's alleged crime have yet to be adjudicated. Mr. Drej is charged with the murder of his brother, Lucasz Drej. Mr. Drej allegedly shot his brother twenty-two times while Lucasz sat in his truck talking on a cell phone. After emptying his weapon, Mr. Drej allegedly pulled Lucasz from his vehicle and attempted to smash his skull with the butt of a rifle. After two strikes with the weapon, Mr. Drej threw his brother's body down an outside stairwell of the family home. In the days that followed the killing, Utah County prosecutors filed a single murder charge against Mr. Drej. In addition to the single charge, prosecutors filed a notice that they intended to seek an enhanced sentence based on Mr. Drej's use of a dangerous weapon during the commission of a felony.
¶ 4 Within a month of the filing of the murder charge, Mr. Drej's defense attorney called into question Mr. Drej's mental health and competency to stand trial. Mr. Drej's confessed reason for the killing, coupled with his bizarre conduct while in jail, gave rise to the defense's inquiry into Mr. Drej's competency. Mr. Drej reportedly told police that Lucasz was "pimping" girls and then having them killed to sell their "organs on the black market." Lucasz, according to Mr. Drej's confession, was the primary organizer of the prostitution ring and associated killings and organ sales. The following facts formed the basis for Mr. Drej's beliefs: Lucasz had two cell phones, which he didn't always answer; Mr. Drej observed women enter a nearby apartment but didn't see them leave; and Mr. Drej had a "vision" that Lucasz intended to harm him. Mr. Drej had also placed a number of drawings throughout the family home that he believed would protect family members. One picture was designed to be a warning to Lucasz. Mr. Drej also engaged in extremely bizarre conduct while held in the Utah County Jail.
¶ 5 The Fourth District Court found Mr. Drej incompetent to stand trial. After five months at the Utah State Hospital, the district court determined Mr. Drej had regained his competency and was eligible to stand trial. As the parties prepared for trial, Mr. Drej announced he intended to assert three alternative defenses: (1) not guilty by reason of insanity; (2) diminished mental capacity; and (3) special mitigation.
¶ 6 As the district court considered jury instructions for the upcoming trial, Mr. Drej called into question the constitutionality of the special mitigation statute. He argued that the federal and state constitutions and the Utah Code required a jury instruction that placed the burden of disproving special mitigation beyond a reasonable doubt on the prosecution. Mr. Drej based his argument primarily on a legal theory that equated special mitigation to an affirmative defense. Under this theory, Mr. Drej argued that the federal and state constitutions and the Utah Code mandated that the prosecution disprove the defense. The state responded by arguing that the legislature intentionally placed the burden of proving special mitigation on the defendant and that it was constitutional to do so. The district court held that special mitigation is not equivalent to an affirmative defense, drawing a distinction between defenses that exculpate and those that merely reduce the severity of punishment on the basis of reduced moral culpability.
¶ 7 Mr. Drej filed a petition for interlocutory appeal with this court, which we granted. He challenges the constitutionality of the state's special mitigation statute under the Utah and United States Constitutions. As he did in the district court, Mr. Drej urges us to strike the purported unconstitutional portions of the statute, leaving special mitigation in place but with the burden of disproving the defense on the prosecution.
¶ 8 We have jurisdiction over this matter pursuant to Utah Code section 78A-3-102(3)(h) (2008).
¶ 9 "`The issue of whether a statute is constitutional is a question of law, which we review for correctness, giving no deference to the trial court.'" State v. Ross, 2007 UT 89, ¶ 17, 174 P.3d 628 (quoting Wood v. Univ. of Utah Med. Ctr., 2000 UT 134, ¶ 7, 67 P.3d 436). "Furthermore, we presume the legislation being challenged is constitutional, and we resolve any reasonable doubts in favor of constitutionality." Wood, 2002 UT 134, ¶ 7.
¶ 10 Mr. Drej attacks the constitutionality of Utah's special mitigation statute on three grounds. First, Mr. Drej argues the statute violates the due process clauses of the Fourteenth Amendment to the United States Constitution and art. I, section 7 of the Utah Constitution. Mr. Drej's due process claim is based on a premise that special mitigation is the legal equivalent of an affirmative defense, which must require the state to disprove the claim for special mitigation beyond a reasonable doubt. Second, Mr. Drej claims the statute violates the separation of powers clause of the Utah Constitution because it constitutes a rule of procedure and was not adopted by a super-majority vote of the Utah Legislature. Finally, Mr. Drej alleges the statute violates the equal protection provisions of the federal and state constitutions. This argument is based on a theory that the special mitigation provision imposes upon mentally-ill defendants a more burdensome procedure to make out special mitigation than that which is imposed upon non-mentally-ill defendants who assert other affirmative defenses.
¶ 11 Mr. Drej's theories all stem from the allocation of the burden of proof in the special mitigation statute. The statute requires:
If the trier of fact finds the elements of an offense as listed in Subsection (5)(b) are proven beyond a reasonable doubt, and also that the existence of special mitigation under this section is established by a preponderance of the evidence, it shall return a verdict on the reduced charge as provided in Subsection 5(b).
Utah Code Ann. § 76-5-205.5(5)(a) (Supp. 2009) (emphasis added). Mr. Drej claims that assigning the burden of proof to the defendant is unconstitutional. We treat his arguments in the order previously noted.
¶ 12 In urging this court to invalidate the special mitigation statute, Mr. Drej argues the statute is unconstitutional under the due process provisions of the Utah and U.S. Constitutions. In so doing, Mr. Drej presents two distinct arguments: first, that special mitigation is an affirmative defense, which must be disproved by the state; and alternatively, that special mitigation violates due process because the statute is a means of finding a defendant guilty of manslaughter, which the state, not the defendant, must have the burden of proving. We are persuaded by neither argument and conclude that special mitigation does not violate federal or state law.
¶ 13 In arguing against the constitutionality of special mitigation, Mr. Drej claims that special mitigation is an affirmative defense and, as such, requires the state to shoulder the associated burden of proof. Mr. Drej's argument is predicated, in part, on a theory that the due process clauses of the Utah and U.S. Constitutions require the state to disprove all affirmative defenses. Because there appears to be some confusion on the interplay between federal and state law on this issue, we briefly discuss the burdens associated with the affirmative defenses under federal and state law before turning our attention to determine if special mitigation is an affirmative defense that must be disproved by the state.
¶ 14 Under federal law, Mr. Drej's argument that ...
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