State v. Jones

• Decision Date: 23 October 1986
• Docket Number: No. 15243,15243
• Citation: 406 N.W.2d 366
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Tracey JONES, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 366

406 N.W.2d 366

STATE of South Dakota, Plaintiff and Appellee, v. Tracey JONES, Defendant and Appellant.

No. 15243.

Supreme Court of South Dakota.

Considered on Briefs Oct. 23, 1986.

Decided May 27, 1987.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Cynthia A. Howard, Northern Hills Public Defender's Office, Deadwood, for defendant and appellant.

FOSHEIM, Retired Justice.

A Butte County Grand Jury indicted Tracey Jones (Jones) on Count I, third-degree burglary; Count II, grand theft; Count III, aggravated assault; and Count IV, commission of a felony while armed with other than a machine gun or short shotgun. Jones appeals the petit jury conviction on all four counts. We reverse on the grounds the trial court's application of SDCL 23A-10A-6.1 deprived Jones of his due process rights and a fair trial.

At approximately 1:00 a.m. on March 25, 1985, Jones broke into a sporting goods store in Belle Fourche, South Dakota, where he stole a handgun. The Belle Fourche Police Department quickly identified Jones as a suspect. Knowing that Jones sometimes lived in a leanto near the Belle Fourche River, a Belle Fourche police officer walked along the river's bank looking for the suspect. He found Jones napping next to his leanto. Upon noticing the policeman, Jones jumped up, pointed the stolen gun at the officer, and fled. He was apprehended two days later.

After his arrest, Jones was examined by two psychiatrists and a psychologist. The reports indicated he suffered various mental problems. Most notable was the delusion he had a highly contagious incurable skin disease. Jones avoided contact with other persons for fear they would catch his imagined affliction. He therefore blamed the "disease" for preventing him from holding a job, marrying, and having sexual relations. His despair over this isolation apparently prompted Jones to steal the gun, in order to have a means of killing himself.

After the psychological examinations were completed Jones' counsel moved for, and was granted, a hearing to determine his client's competency to stand trial. A jury impaneled to determine triability found Jones competent to proceed.

At his arraignment, Jones attempted to plead no contest to all four charges, against the advice of his counsel. The court refused to accept this plea because the psychologist's and psychiatrists' reports demonstrated Jones possessed, in the court's words, "some rather bizarre thought patterns." The court continued the arraignment hearing to give Jones time to reconsider his pleas. At the ensuing arraignment, Jones apparently wished to enter no-contest pleas to the first two charges and not guilty pleas to the third and fourth charges. Defense counsel requested that the court reject his client's desires and enter not guilty and not guilty by reason of insanity pleas on all four counts. The court granted this request.

After the competency hearing and arraignments, a bifurcated trial was held in which separate proceedings were conducted to determine guilt and sanity at the time of the offense. Jones was found "guilty" on all four counts in the guilt/innocence phase, and "guilty and sane" on all four counts in the sanity phase held the following day. The jury was instructed to place the burden of proving sanity upon the state. Jones was sentenced to four years in the penitentiary on each of the first three counts, and to one year on the fourth count. The four-year sentences were to be served concurrently, and the one-year sentence consecutively.

Two issues are urged on appeal. First, whether there was sufficient evidence to support the jury's finding that Jones was sane and not mentally ill at the time he committed the alleged acts; and second, whether he can be convicted and sentenced on the offenses of aggravated assault with a deadly weapon and commission of a felony while armed with other than a machine gun or short shotgun for acts which took place during the same incident.

Before advancing to the issues raised, we feel obliged to examine a troublesome element imbedded in this case. Under SDCL 23A-10A-6.1 "[t]he party asserting that a defendant is mentally incompetent to proceed has the burden of proving it by a preponderance of the evidence." Since the competency hearing was held on Jones' motion, the jury hearing the fitness to proceed issue was instructed that the defendant had the burden of proving his own incompetency. ¹ Although Jones does not challenge the constitutionality of that burden of proof allocation, we regard it to be of such importance as to warrant our consideration sua sponte.

The legislature has given this court discretion to inquire into "[p]lain errors or defects affecting substantial rights ... although they were not brought to the attention of a court." SDCL 23A-44-15. See also SDCL 19-9-6. ² This rule was adopted from Federal Rule of Criminal Procedure 52(b) and does not significantly deviate from the language of its federal counterpart. A sua sponte application of the plain error rule, however, is not the usual manner in which the statute is invoked. Ordinarily, plain error is urged on appeal by counsel who discovers what appears to have been a substantial error committed below, but to which no objection was made. 3A C. Wright, Federal Practice and Procedure (Criminal) Sec. 856 (2d ed. 1982). Application of the rule is not so limited however, and under Rule 52(b) an appellate court may take notice of an error on its own counsel. United States v. Adams, 634 F.2d 830 (5th Cir.1981); United States v. Brown, 508 F.2d 427 (8th Cir.1974), overruled on other grounds, United States v. Flum, 518 F.2d 39 (8th Cir.1975); C. Wright, supra. See also Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). Additionally, this court has held it may decide a constitutional question sua sponte. State v. Bonrud, 393 N.W.2d 785 (S.D.1986); Bayer v. Johnson, 349 N.W.2d 447 (S.D.1984).

We believe the constitutional issue raised by the enactment of SDCL 23A-10A-6.1, and the instruction of the court premised thereon, presents a special scenario involving the deprivation of a substantial right adequate to justify invoking the plain error and Bayer rules. Furthermore, our failure to address the issue presently would likely but defer its reappearance via habeas corpus proceedings under SDCL ch. 21-27. See Tibbetts v. State, 336 N.W.2d 658 (S.D.1983) (deprivation of constitutional rights may constitute grounds for habeas corpus relief).

The United States Supreme Court has not decided whether placing the burden upon the accused to prove his incompetency to stand trial violates his due process rights under the United States Constitution. The High Court has, however, recognized that

[i]t has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial.

Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103, 112-13 (1975). In Drope, the Court observed this "prohibition is fundamental to an adversary system of justice." 420 U.S. at 172, 95 S.Ct. at 904, 43 L.Ed.2d at 113. The Court has also recognized that failure to observe procedures designed to protect a defendant's rights not to stand trial when incompetent is a deprivation of his due process right to a fair trial. Drope, (citing Tate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)).

While the Supreme Court has recognized the sanctity of a defendant's right not to stand trial while incompetent, some jurists and scholars read the Court's decision in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), to infer that it is permissible under our federal constitution for a state to place the burden of proving incompetency upon the defendant. Leland held it was permissible for a state to place the burden of proving insanity upon the defendant. Much of the rationale of the holding was that the United States Constitution requires that the government prove beyond a reasonable doubt only those facts encompassing the elements of the crime charged. The Court held that because sanity was not an element of the crime charged, it consequently was constitutionally permissible to place the burden of proof on that issue upon the defendant. See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (Rehnquist, J., concurring). The High Court recently expressly affirmed Leland in Martin v. Ohio, --- U.S. ----, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987).

Incompetency to stand trial and incapacity to commit a crime because of insanity are, of course, distinct and separate issues. Nevertheless, since competency to stand trial is no more an element of a crime than is sanity, the evidentiary allocation applied by the trial court in this case arguably passes United States constitutional muster according to Leland. Some federal courts have nonetheless declined to apply the Leland rationale to incompetency proceedings, reasoning that placing the burden of proving incompetency upon the accused violates his due process rights under the United States Constitution. Phillips v. Lane, 787 F.2d 208 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986); United States ex rel. Bilyew v. Franzen, 686 F.2d 1238 (7th Cir.1982); Brown v. Warden, Great Meadow Correctional Facility, 682 F.2d 348 (2d Cir.1982), cert. denied, 459 U.S. 991, 103 S.Ct. 349, 74 L.Ed.2d 388 (1982); United States v. Hollis, 569 F.2d 199 (3d Cir.1977); United States v. DiGilio, 538 F.2d 972 (3d Cir.1976), cert. denied sub nom., Lupo v. United States, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). At least one state court has also so held....