People v. District Court for County of Jefferson

No. 23302.

People State ex rel Edward N. Colorado Juhan, District, District Attorney, Judicial First State Colorado District Court County George Jefferson the Honorable G. judges

Priest, one of thereof. (439 741) P.2d Rehearing April 29, Decided March 1968. 1968. denied George N. Edward District Attorney, Juhan, C. Au- coin, Deputy, F. for Special Deputy, Richard Hite, petitioner. Stanley

F. E. Dickerson, J. for respondents. Walter, En Banc. the delivered of the

Mr. Chief Justice Moore opinion Court.

The district for attorney the First Judicial District commenced this original to a proceeding secure deter- mination of the of an act of the constitutionality leg- islature dealing the of defense criminal insanity in cases. The facts rise to giving the as controversy are follows:

An information was filed in the district of court Fulmer ac- one Calvin in which county

Jefferson He entered first murder. degree the crime of cused of at the time of insanity reason a of guilty by plea motion was of the A commission crime. alleged order of court of an entry seeking filed by attorney sanity to establish the the prosecution directing a of beyond the jury, the satisfaction defendant of the provision doubt, notwithstanding reasonable 163, Session amended by Chapter 39-8-1 as C.R.S. defendant a require Laws which purports of insanity reason a of not plea guilty by who enters fact of evidence, establish, preponderance reads as follows: part The statute pertinent insanity. making by (3) (a). Upon “Plea insanity.'— at the time the plea be im- commission of the shall crime, jury alleged the issue criminal proceedings paneled such shall be decided defendant’s The burden shall in accordance with 39-8-3. jury section on the DEFENDANT prove by preponderance INSANE time of evidence that HE was at the crime.” commission alleged sustained motion of counsel The trial court above statute violated Fulmer, holding quoted Thereupon constitution of the Colorado. State was commenced and we issued a original proceeding for in The rule to show cause as prayed petition. briefs filed, have have been appeared, respondents been oral heard. arguments urge answer and brief filed respondents for three reasons follows: discharged the rule 39-8-1, Laws, as 1963, “I. 1967 Session amended, C.R.S. III VI, of Article and Article Section is in violation 39-8-1, in that as Constitution C.R.S. Colorado Laws, is an and in- amended, 1967 usurpation Session vested in the Court judicial Supreme vasion of power and to rules promulgate governing practice of Colorado in criminal cases. procedure 1963, 39-8-1, Laws, “II. 1967 Session amended, C.R.S. process II, of violates clause Article Section of Colorado Constitution and the XIV Amendment in that it shifts the the United States Constitution proof of burden a criminal case to the defendant. 39-8-1, amended, “III. C.R.S. 1967Session Since constitutionally presently is no there is Laws, deficient, existing statutory procedures to the with reference proof of burden therefore follows cases: it applies the common law Colorado in this case and common under the law the burden attorney prove the district the defendant’s beyond a reasonable doubt.” points

We consider but one of the relied disposes counsel Our Fulmer. determination of it controversy. For reasons hereinafter stated we provisions hold that the of the statute which “The state: prove by pre shall be on ponderance evidence that he was insane at the alleged time commission of crime,” violates II, Article section the constitution of Colorado provides: person deprived “No life, shall be liberty, property, process without due of law.” principles

There number of fundamental applicable to criminal cases which been so universally accepted applied country in this as to component parts understanding have become of our Among the term “due of law.” such basic con cepts we find the that, doctrine at the outset person presumed trial, an accused to be innocent of charged against the offense him; that the state must satisfy jury guilt beyond of of the defendant upon any reasonable doubt; material issue guilt jury of fact essential has a reasonable doubt, the defendant is entitled to the benefit that reasonable guilty. doubt and a verdict of not Numerous cases de cided this court have imbedded these basic funda mentals the main stream of the criminal law. 258 find Ingles People, 1109, 22 we 518, P.2d 92 v. Colo.

In language: following pertinent prohibited an act he commits who is insane when “One pro- guilty A statute of a cannot be held crime. viding criminal a shall be no defense to that Strasburg, charge v. be unconstitutional. State would crime is question One accused 106, Wash. 110 1020. Pac. pass upon jury to raise and a entitled of insane when he committed sane or whether he was stage charged. he is At some act with which opportunity raise proceedings given an must be he question question. could 1927, Before the act of that general guilty. order plea In of not raised a under believed avoid or certain abuses were lessen Legislature, practice, the act exist under that question changed raising question, the method insanity, substantial but left to the defendant all the formerly enjoyed. formerly, rights he can Now, he as question question insanity, raise the and have that formerly, upon by jury passed Now, a twelve men. question properly burden is raised, when beyond upon people prove doubt a reasonable charged, act defendant, that the when he committed the formerly, Now, if the evidence raises was sane. jury de- the minds of the a reasonable doubt they the de- fendant’s at that must find time, * * *” charged. guilty not of the crime fendant People, 87, In Graham v. P.2d 544, 95 Colo. insanity plea: said, an court reference to * “* * proving has the burden of The defendant never insanity. evidence, a consideration of all the If, jury have a reasonable doubt whether committing sane or at the act insane the time *” * * they guilty. must the defendant not find case, Graham earlier decisions are cited Other supra, inescapably conclusion all of lead to the if that criminal cases and defense in in the doubt is offered and leaves reasonable defense jury, was sane the accused minds as to whether guilty returned. must be insane, then verdict Mundy 100 P.2d 105 Colo. legislative recognized prior act court to the entry special plea of “not required of which first guilty by a insanity insanity,” of of the defense reason general plea of was under a available to defendant guilty. not This court said in that case that: “* * * By procedure only has been the 1927 act the changed constitu- and the substance the defendant’s of right insanity jury question tional of ato trial on the preserved.” added.) (Emphasis has been People, In Carter 119 Colo. 204 P.2d 147, court said, inter alia: “* * * Upon insanity, the issue if a of doubt reasonable jury existed in the minds of as de- to whether the or a was, sane, he was to entitled not, guilty by insanity.” of verdict of not reason In Becksted v. 72, 292 133 Colo. P.2d question presented 189, the for determination was: prosecution charge degree “In the of a of first murder guilty plea which the accused has entered a of not by insanity guilty, reason of as well that of and not separate upon insanity; a where trial is of had the issue is that trial to be conducted as a ‘civil’ action”? opinion disposes

The of the issue as follows: question negative. “This is answered in the In a criminal many case the defendant can assert defenses as can supported by evidence. If affirmative defenses such presented as self-defense or alibi are the issues thereon part are tried as of the criminal case, and if such jury defense raises in the mind a a reasonable doubt guilt toas acquitted. the defendant’s he should be The footing. defense stands the same The separated fact ques- issue has been from other purpose tions for the of trial does not make a civil case out that which is tendered as a defense to an accu- * * *” sation of crime. a form over cases has taken such

The of these language and as to become many part parcel years period As of law.” “due our constitutional process concept the years over by judiciary thus interpreted includes state constitution clause beyond must prove guilt the state doctrine re- cannot be the accused doubt, reasonable or legislative enactment by prove quired of the evidence. other defense preponderance provisions constitutional Interpretations given legis change by subject the judiciary to the the courts given lature. interpretation itself instrument constitution are incorporated branch of the legislative and are beyond power is not true of course This government change. misinterpret acts. If the courts misconstrue legislative there statute, legislature concerning intent the error correcting from nothing prevent clear that which was intended. making in to comments contained ourselves now Addressing the fortify have elected to dissenting we opinions, long of a more analysis with detailed foregoing in this state. established law “due We are this decision what determining by process sovereign of the of means in the territorial limits law” our con- under of own of Colorado, provisions State least concerned with what We are not stitution. or year it of in the Oregon meant the State concerned at time Neither we thereafter. men- or not mean in other state may may what in the dissenting tioned opinion. we to show that in the State Colorado

We propose a to a “fundamental” doctrine stature given thereto, brought has adherence which long continued of the due coverage process that within concept constitution, which means that clause the state Assembly. changed by doctrine cannot be General not There is the slightest requirement meaning process of “due of law” shall be the same fifty Supreme in each states. The Court interpretation of United has an States never nullified process by might supreme due a state court which given by construing a federal court the Constitution yet required the United No state has been States. accept as all-inclusive or all-exclusive the federal court determination of what activities the state fall within process or lie without the ambit due under the United States What the United States Constitution. authority says Constitution does to state is It this: deny right impose liability the state cannot a or a which contrary concept process to the federal due of law. say right, It does that a no state has its state under process protections clause, due to create for its citizens might required concept. not be under the federal long deny right protected So state action does not concept process, impose under the federal liability prohibited thereby, power the federal will not nullify rights protections which, within the recognized part parcel state, are of due exactly under the state constitution; and that what happened Oregon, in Leland v. 790, 72 Ct. U.S. S. Snyder 1002, 96 L.Ed. 1302. See v. Massachusetts, 291 97, U.S. S. Ct. 7 L.Ed. 674. Oregon

Under the old 1864 statute an accused ground who defended had the burden establishing insanity beyond This a reasonable doubt. procedure always followed In 1948 state. Oregon court held that the statute did not violate process. Obviously either federal or state due at developed body state level there had not of law cre ating “principle justice a of so in rooted the traditions people and conscience of our as to be ranked funda Mississippi, Brown mental.” 297 U.S. Ct. S. Exactly opposite 461, 80 L.Ed. 682. has occurred in of State The Colorado. effect of the decision of the Supreme say: United States Court was to “If that is due under state wants of Oregon the State what not violate it does that, because exactly have it can the Supreme if Certainly of due process.” federal concept concept a deep-rooted developed of had Oregon Court done has been as in this particular, justice of criminal in the statute said that had Oregon Colorado, in of pro- due concept a “fundamental” offended question States would of the United Court the Supreme cess, is there we Again, say affirm. to obligated been shall of operate law that due process no requirement state sovereign forcing every “straightjacket” a as than that no more, less, protection as well no give federal at the level. recognized would dissenting a in the statement is directed Attention in time that court “This is the first that, opinions rule statute or held has ever decision reported on the defendant which places court is answer violates process.” proving Never Colorado concerned. as far simple has the legislature in the Colorado history before in firmly drastic very change to make this purported law, of criminal that a reasonable concept established defense entitles concerning validity doubt Because to a verdict not guilty. an accused person no statute has ever been heretofore passed such test of constitutional “due has process” Colorado the Nevertheless, every bring been effort applied. means about other the result contemplated has statute been nullified this court countless decisions, all of which have held that such result established contrary long fundamental principles in this justice criminal state. There has been no need to mention “due heretofore because the process” long line decisions established a of justice so “principle rooted the traditions and conscience of our people as to ranked fundamental.” rule Application decisis stare controlled.

263 recently legislative The enacted act now con presents sidered time, the court for the first under question the due clause our constitution, power legislature destroy of the of the all the nu merous decisions this court on fundamental legislature attempted doctrine. The has to do statute years that which almost for one has hundred this court violating held could not be done without fundamental principles justice. process” of criminal Thus “due necessity becomes for the first time the basis of decision. Where process” stare decisis controls a situation “due rarely ground upon is which decision It rests. play, legislative drawn into however, act which recognize fails to legis constitutional limitations power. lative dissenting opinion contains the statement: “Inas- sanity then, as

much, trial is not one to determine guilt presumption accused, the so-called example, innocence, for particular ap- I submit has no plicability.” authority proposition No for such a is cited. We confident that there none. In event this exactly contrary. court has separate held In the guilt trial the the defendant, as to an essential ingredient being finally of the crime is determined. Leick v. Colo. P.2d there separate insanity trial on the issue of and this court said: “* * * procedural change provided Under the by permitting disposition statute, issue guilty, before the issue of not the trial is conducted in sections jury. either before the same or a different To- gether these sections (Citing cases.) constitute one trial. single.

“The action is Leick was confronted with one charge. To it he directed two both defenses, culpability. raised the issue Success on the issue guilt; would have exonerated him of failure prevail on that issue guilty left the issue of not determination, and on the latter issue he suffered an only judgment single charge one verdict. On the

adverse * *”* added.) (Emphasis could be entered. following from Becksted effect is the To similar People, supra: “* * * separated from has been The fact that this issue not make questions purpose does of trial other for the as a defense is tendered a civil case out that which *” * * crime. an accusation of argument even case, that in a criminal The is made though insanity complete defense, where is a full and separately by no de- must be tried that issue statute guilty, “due for that reason can be and fendant found very require material does not that law” beyond guilt ingredient a reason- be must established separate By procedurally requiring trial a able doubt. any capacity crime on this issue of mental to commit — any admittedly necessary ingredient of is a — argued mystical way, is in some offense ingredient apart separate trial thus set material wholly governed by inapplicable to all rules shall be necessary ingredients completed offense other urged adjudicated; is notwith- to standing thereafter and this be every firmly doctrine that as to established ingredient necessary be of the crime there must total beyond In a num- a reasonable substantial doubt. only is the defense relied of cases ber deprived practical be matter the accused would as a safeguards would time honored of essential and preponder- required establish his innocence a be upheld. if the statute is to be evidence, ance of the argument effect, result, for such a separate on to be that because trial seems ingredients only sanity question perhaps one-half the guilt as to half of total will be determined, total required prove guilt be his innocence the accused can — capacity- -by preponderance lack mental — prove by preponder- If the defendant fails to evidence. he defense well founded ance of evidence fifty per been, notwithstand- least, convicted, has at cent ing that not one of can countless Colorado decisions any degree prosecutors from found which in relieves the every every proving material element the burden charge (100% crime) criminal total evidence All sufficient to remove all reasonable doubt. Colorado days beginning decisions from present of territorial to the guilt require application of rule that total beyond must be established a reasonable doubt. Mental capacity part commit a crime is a material total guilt for can no there crime without the mens rea. only belaboring point,

At the risk of we will cite many every a few of the of this court decisions generation present day, since statehood to the and will quote briefly pertinent language directly therefrom dispel point. This will be done in order to doubt may that jury exist as to whether the that, doctrine

has a reasonable doubt to whether defense offered must founded, an accused well the accused guilty, gained not found has a stature which comes concept process within our of due of law.

It is certain that the “law” which we expression process refer in “due of law” does process provided by legisla mean that whatever government tive arm of shall be the measure of the protection provided by process” the “due As clause. by People Max, stated this court in v. 70 Colo. 198 100, P.150:

“Such construction would render the constitutional guaranty mere nonsense for no it would then mean deprive liberty, person property, state shall of life, or unless the choose to state shall do so.” opinion process In that this court held that due of principles liberty “must be tested those of civil protection constitutional which have become established system legislature our laws.” The hand process restrained the due clause of our con- state 266 “established principles from overturning

stitution The established justice.” and distributive rights private justice” and “distributive accused an right private require decisions following as announced of crime not guilty must be found accused person matters material in all is established unless his guilt clause of a reasonable doubt. beyond from legislature forbids the of this state constitution fundamental of these or in part any whole destroying concepts. attention and direct to the decisions

We turn now from which 563, 9 P. 852, Kent v. 8 Colo. People, first following: we quote “* * * the state to rests upon prove a reasonable of the jury, beyond to the satisfaction elements neces- of all the material doubt, the existence (Emphasis murder.” constitute the crime of sary added.) that mental to commit capacity one has contended yet

No is not a “material element” the crime crime other offense. murder, Babcock People, We next consider Colo. v. a case in which an which was instruction to the P. “to to establish a defense jury required a fair of the jury by preponderance the satisfaction evidence.” This court said: “* * * of criminal evidence, familiar principles to create a reasonable sufficiently strong showing the accused as guilt any grade doubt in the the offense included the accused is indictment, benefit entitled to the thereof.” Brooke P.502, From 23 Colo. we quote: defendant, by

“The made point viz., in whether introduced his own behalf testimony, in in the or he succeeds prosecution, raising essential of the reasonable doubt as to jury minds * * * they element in the not case, find him should * * guilty, added.) good; (Emphasis In McNamara v. 48 P. Colo. jury

issue arose out a defense of alibi and the was instructed the effect that the accused had the establishing reversing judgment an alibi. said, court “* * * inter alia: evidently misapprehended

The Court the nature treating of this defense; and instead it as a traverse upon prosecution of a fact that it was incumbent presence to wit, the time establish; defendant at the place regarded occurrence, and affirma- it as an independent imposed tive and defense, that the law * * * proving upon burden of the accused. clearly “This was erroneous. In order to avail himself of the defense of alibi, it is not incumbent present accused establish that he was at commission of the crime, that he other some place. If the evidence is sufficient to raise a reasonable jury doubt the minds as to whether he was present or was not at the commission of the he crime, acquittal.” to an entitled opinion quotes People, supra, then from Kent v. rule, reference as follows: relating gestae, “The rule to the res we considering, applies been to all defenses which traverse go averments the indictment and to the essence * * *” charged guilt against (Em- the accused. phasis added.)

No distinction can be drawn between a defense insanity. alibi defense of Each of them is a necessary traverse “averment of the indictment go guilt charged against to the essence of the point crystal accused.” This is made clear the opinion People, supra, fifty- of this court in Becksted v. written years opinion during nine McNamara, after the all uninterrupted, of which time there has been an con- very frequent sistent, and adherence to the doctrine People, supra, court McNamara. Becksted v. of In said: * “* * can assert In a criminal case the defendant supported by many If evidence. as can defenses or alibi self-defense affirmative such as defenses part presented are tried as the issues thereon any in the raises criminal if defense case, and such jury of a as to the defendant’s mind a reasonable doubt guilt acquitted. he The should be defense of * * *” footing. added.) upon (Emphasis stands the same People, 905, P. In Van Straaten 26 Colo. v. the a case in which court was concerned with larceny charged crime of accused was with the erroneously lead the court in a instructed manner jury guilt is a of accused to believe that “the requires presumption made shall be which law * * possession being from the fact his found of treating the instruction said: This court reversed and in “* * * imposing upon plaintiffs It also erroneous they satisfying jury of in error the burden honestly. possession property came into The imposes in a criminal no such defendant ** * explanation reasonable case. If their created a jury fact, doubt the minds to that it would presumption guilt” (which be sufficient to rebut the might possession). an inference of from arise as fact in the at bar the evidence So case offered as to that the defendant created a doubt reasonable presumption” “it sufficient to rebut the fact, would be prior plea raising attends the issue. Zipperian 33 Colo. we 79 P. find: “* * * upon It is not incumbent in a by criminal either own evidence or that case, prove people, anything combined, or both to the jury.” satisfaction “* ** court ruled if the defendant, raising case, in the succeeds in a reasonable evidence jury doubt in the minds of the truth charge against him,” essential element he made acquitted. (Emphasis added.) should be held The court comparable that posed by an im- instruction to the burden being

the statute upon tested, now “A burden was put thus does not defendant which the law sanction.” People,

In Shank 576, 559, 79 Colo. P. v. 247 question insanity, court held that the if a rea- regard sonable doubt with evi- thereto arose from the acquitted. dence, the defendant should be instruction An following quoted language which contained the was approved as a correct statement of the law:

“It is not defendant, incumbent on the in order to acquittal ground insanity, entitle him to an on the prove your satisfaction that he was insane when upon you the act was If committed. the whole case the believe that if time, was insane at that or upon you the whole case have a reasonable doubt you as to or whether not he was at that time, sane guilty.” should find him not

Shortly after the decision in the above case the 1927 adopted required entry plea Act was the of a guilty by insanity prior reason of to trial, but as already conclusively has been in established the fore- part opinion, rights of this no substantive were involved only “procedure” by and which is raised issue changed. was People,

In McRae v. 101 155, 71 P.2d Colo. 1042, language quoted Zipperian People, supra, from v. set forth and reaffirmed as a correct statement of the People, again Russell law. v. 290, Colo. 242 P.2d 610 applies People, rule, as does Ciccarelli v. 147 Colo. 413, in 364 P.2d which it is referred to a “funda- People, mental rule.” In Leonard v. 149 Colo. following:

P.2d we find “* * * upon prove It is not incumbent the defendant to anything jury; to the satisfaction of rather, succeeds in case, if evidence he,

sufficient by any of the jury minds in the reasonable doubt raising charge essential element the truth him.” against to Becksted last, we return conclusion, at long in that case holding supra, emphasize

that: “* * * such as self-defense affirmative defenses as part issues thereon are tried alibi are presented raises case, such defense of the criminal defen- doubt as to the the mind of a a reasonable jury The insan- he dant’s should be guilt acquitted. defense footing. stands same ity fact issue has been other separated questions for from out trial does not make a civil case purpose which is to an accusation tendered as a defense * * *” added.) crime. (Empsasis accomplish That tried to exactly legislature what in this It by the act discussion case. purported under instruction do that was the very thing attempted or by Becksted. either instruction It cannot be done of for reason act legislature very simple in this of of prohibits state our due concept process In the instant case the trial court ruled properly. it. The rule to show cause discharged. Kelley and Mr. Justice

Mr. Justice McWilliams dissent. dissenting.

Mr. Justice McWilliams 1963, hold that 1965 Perm. Supp., The majority C.R.S. 39-8-1, as amended Session Laws by Chapter 163, II, it violates Article 1967, is unconstitutional because this conclusion the Colorado With constitution. §25 I am in definite as the statute very disagreement, not offend view the matter does my question due process. II,

Article the Colorado constitution provides §25 liberty deprived person or that “no shall be life, provision property, process of without law.” This due parallels portion Amendment of course of the XIV prohibits a to the United States Constitution which liberty, depriving any “person life, state from or property process of . In this without due law. . .” regard, though majority of it, as I this understand court offends hold that the statute under consideration constitution, the due they clause of our Colorado repugnant do not hold the statute to be to so-called Oregon, process. In view of Leland v. federal due majority of 1002, 1302, the U.S. 72 S. Ct. 96 L.Ed. 790, very course could not declare the statute to violate well process. federal due And it is still a bit difficult just tome understand how the statute with which we process, are here does not concerned violate due federal process. but at the same time does state violate applicable Prior statute in this state stemming entry provided that in a trial in a from proceeding plea guilty by criminal of a of not reason insanity prosecution “the burden shall be on the prove by preponderance of the evidence that alleged defendant was sane at the time of com- Supp., mission the crime.” See Perm. 39-8-1(3). Assembly however, General particular so amended section read as follows: prove by “[t]he burden shall be preponderance of the evidence he at was insane alleged time commission of the crime.” Ac- cordingly, question amendment, is whether pleads guilty which casts a defendant who establishing reason of the burden of his preponderance deprives of the evidence, the de- liberty, property life, fendant either without process I does, law. do not believe that it and I attempt why shall now to demonstrate this statute does not violate the due state or federal constitution. clauses of either our carefully rather At the outset it is well to examine results from which nature precise proceeding of insanity. of a of not reason the entry plea guilty is somewhat A of not reason of guilty plea in the sense in the nature of a confession and avoidance concerned, the defendant insofar as the itself is plea to avoid the conse- who elects to seeks plea enter contending of his otherwise criminal actions by quences he is insane not therefor. By and accountable statement I do not mean to be understood as saying that a cannot a of not join guilty defendant general plea of not may, with a reason of He p.ea guilty by insanity. trial however, of course. I am is that What saying, reason which is a of not guilty by precipitated plea is not guilt concerned with the defendant’s innocence, as such, but is concerned with only status, mental is insane? Further- i.e., more, the statute set forth in C.R.S. 1965 Perm. Supp., of insanity 38-9-3 that where the issue provides is in a criminal raised the matter should proceeding and determined in a trial is completely separate from in the the trial the so-called main issue apart case, the fact that namely guilt And accused. a sane case to be given may adjudged does not mean he is of the crime certainly guilty which he That is another issue to be charged. separately litigated determined.

Inasmuch, then, as the trial one to deter- mine the guilt the so-called accused, presumption of innocence, I submit has no example, particular This sois inasmuch as the issue as to applicability. guilt, or not, is to be in a different resolved separate where the of innocence would proceeding presumption of course come into of a at the outset play. Although trial to determine of the defendant there is guilt innocence, there never has been presumption innocence As presumption by reason insanity. matter of fact, concerns the issue of sanity, pre- namely sumption always contrary, has to the that been though pled innocence defendant even he has presumed be reason of is nonetheless still my presumption majority This sane. is the which opinion recognize properly playing an im- failed to portant present controversy. role in the reason And the presumption for of I belief, is majority people trust of indeed that correct, sane. thought only

Lest it be is the state to Colorado place proving insanity, on the defendant the burden of pointed among it should be out that the several states very presently long there is, and for a time has been, pronounced People split authority of as to whether the proving sanity or, have the burden of the accused’s conversely, establishing the defendant has the burden insanity. his In Weihofen, Mental Disorder as a Criminal (1954) Defense 212-272 au- learned author and thority almost indicates that the American courts are evenly question People divided on the as to whether the proof or the defendant has the on issue burden insanity. jurisdictions Professor Weihofen lists those placed judicial which either statute decision have this burden of Ala- the defendant as follows: Georgia, Arkansas, Iowa, bama, California, Delaware, Kentucky, Maine, Mon- Louisiana, Minnesota, Missouri, Jersey, Oregon, tana, New Nevada, Carolina, North Ohio, Pennsylvania, Rhode Island, Texas, South Vir- Carolina, ginia, Washington Virginia. and West indicated,

And, as the rule that the defendant has the proving insanity plead when he elects to certainly origin. such a defense most not one of recent By way example, Oregon in 1864 a statute enacted providing prove insanity beyond that the defendant must responsibility a reasonable doubt if he would avoid appear very acts. would rule Indeed, be the McNaghten of the famous case, wherein it was stated: jurors ought every “[T]he to be told all cases that a suf- sane, and to man is to be to be possess presumed crimes, for his to be responsible ficient reason degree their satisfaction; until contrary proved insanity, on the ground .... to establish defense com- that, at the time clearly proved must under accused was act, party laboring mitting reason, such a from disease the mind, defect not of the act he was to know the nature and quality . . .” doing added.) (Emphasis .

. I in Colorado that recognize, however, prior of was the burden in a so-called trial insanity proof on the This rule was admittedly placed prosecution. decision, of then later judicial result initially of historical to note It interest perhaps statute. adopted that when this court decision by judicial of in this rule that had the burden People it not on basis that “due re- process” was regard on such a contrary, simply On quired rule. “the the basis that such rule was then believed be least, of time, represented better doctrine” and as that at of authority.” See, the so-called “weight example, then, Pribble v. Initially, 49 Colo. P. 220. court, I General could contend that Assembly, on as to whether gone way” question “either or the defendant had the burden of proof the People insanity. when the defendant Such pleads being then As- case, the fact that the court and the General on decided to the burden does sembly People place of not view the matter mean that such deter- my mination is so onto due that the rule engrafted process could never thereafter constitu- changed except by tional amendment. attention has not been directed to

Furthermore, my decision from where a any jurisdiction reported statute of the with which we are here concerned type has to be violative of due And on the process. been held that such sta- there are decisions which hold contrary process.” us examine Let not “due tutes are violative some them. Oregon, made to Leland first be

Reference should Supreme Court supra. In that case the United States a statute whether was called to determine pleads Oregon, placed upon not a defendant who which proving guilty by the burden reason beyond the due doubt, violated a reasonable holding that Amendment. In clause the XIV incidentally there under consideration, statute subject, goes on the a bit further than does our statute Supreme process, the United States did violate due flatly casting on the Court declared “gener- not violate the issue did justice” ally accepted concepts of basic standards justice principle so did not offend “some rooted people as to and conscience our traditions appraisal agree I ranked fundamental.” recognize matter. I there was a dissent two justices suggest the ma- in the Leland and I case, definitely jority most of this court the instant case are harmony majority case, of out with the in the Leland contrary adopting and on the the rationale I dissent as voiced Mr. Justice Frankfurter. This choose not to do. Oregon noted,

As above the state of in enacted of a statute which thrust on the defendant the burden establishing insanity beyond his a reasonable doubt. constitutionality upholding the of this statute de- and claring process, that the statute did violate due the Oregon Supreme of Court in State 184 Ore. Grieco, 253, 195 P.2d 183 declared as follows: question The sole here is whether it was “. . . involved . legislature place upon power of within the the to a de- establishing of of fendant accused a crime the burden beyond insanity a reasonable Does the statute doubt. presump- deprive the of may benefit so defendant of of that it has been tion innocence be said that he

convicted without due It is not this court process? to of invade and to deter- province legislature mine which of the various theories supported by judges or law writers is the most logical and reasonable. of counsel for on strong argument defendant this phase of the case would be more addressed to the appropriately is not in the of legislature.....It the courts province or to question that the rule policy say established such cases is inhuman, or that the state should, be to establish the contingency, required fact of like other sanity, beyond a reasonable fact, doubt.”

In United v. Naples, States 192 F. Supp. (1961) District Judge Alexander Holtzoff made the following comment:

“Ineluctable logic, therefore, leads to conclusion that when Congress directed that any person acquitted on the of should ground com- forthwith mitted to a mental it institution, necessary intended by that an implication provide on ground acquittal should an include affirmative in- finding It sanity. inevitably follows thereby Congress shifted the burden of from the proof Government the defendant to establish the defense in- of insanity, stead of requiring Government, to dis- effect, prove it. Necessarily, on behalf of proof issue would not have to be beyond a reasonable but doubt, proof by preponderance evidence would There is no sufficient. it is within question purview legislative branch the Government regulate burden proof, is not violative due process law to cast on the on the issue insanity(Emphasis added.) Without unduly burdening dissent by citing from quoting decisions of other courts, I would again observe that this is the first time in a that court any decision has reported ever held that a statute or rule places burden of of court on the defendant the which process. proving connection violates due In this majority prior it is to be noted that the cite no decisions any support or con- from this other court which their type process precludes clusion that due a statute contrary, the we are here concerned. To the which majority opinion cases cases Colorado cited in the are simply recognize give effect to a rule which judicial promulgated by later decision, was first by places People to on the statute, which the burden judicially prove sanity. Being only the defendant’s changed rule, then, announced the rule could have been legis- court, if it had been so inclined, my as it in in neces- lature, fact did This view 1967. sarily announcing a rule follows, unless our act of encompass thereby expanded v/e have to very rule to such itself. And I do not subscribe reasoning. line of argument appear perhaps

It would that same was recognizing made in the event, Leland In after case. prevailing historically speaking, rule, place insanity, prove the burden on the defendant to presumed most men since are the United States sane, Supreme Court in the Leland on case then went to state: casting [i.e. the burden of “This prove insanity] English today. remains the view nineteenth-century also,

most of the cases, American required ‘clearly’ prove insanity, the defendant was probably and that was the rule most followed in states 1895, when Davis v. United States was decided. In that speaking through Court, case this Harlan, Justice Mr. prosecutions announced the rule for federal an accused is ‘entitled to an specific acquittal charged crime all of the evidence there is capable reasonable doubt whether he was committing reaching crime.’ In conclusion, Court observed: expressed many supported by

‘The views we have 278 If such to high that entitled

adjudications respect. accept not felt fact, obliged were the we might in of the above doctrine announced some general rule for cases; it is desirable that there be uniformity in in the administration of the criminal govern- funda- ments whose constitutions recognize equally mental that are deemed essential principles protection and life, liberty.’ “The decision obviously Davis v. United [i.e. States] establishes no the rule doctrine, constitutional but only is not such, in As the rule courts. followed federal in here.” question (Emphasis added.)

In words, other insofar as federal criminal procedure was States concerned, United Court Supreme Davis v. States, United 40 U.S. Ct. S. L.Ed. 499 the burden on the placed prosecution prove sane beyond reasonable But doubt. did the fact that the United States laid Court Supreme down such a rule to trials in the regulate sanity federal mean the rule courts itself thereafter became a part due I that in process? suggest the Leland case the United case, States Court held that such Supreme is not when it tersely commented that the “decision obviously establishes no constitutional but rule doctrine, only to be followed federal courts.”

In like I then, manner, suggest that the fact that court initially promulgated a similar mean rule did not the rule thus promulgated became due part of process. Paraphrasing language case, the Leland our decision obviously established no doc- constitutional trine, but only rule to be followed in our state courts. I submit the summary, following: 1. traditionally historically due most cer- did not tainly the enactment of preclude a statute plac- the burden of on ing proof to establish his insanity;

2. the fact this court by decision rule adopted placed prosecution prove the rule itself not mean did integral part of thereby injected into, became an process, announced the rule as the decision and doctrine; not a constitutional therein establish did promulgated this court thus the rule which therefore 3. can changed legislature, changed fact it was and in thus enacted does and the statute process, be it state or violate due federal. say saying, though goes that we I shall

It it, without statute “wisdom” of the are not here concerned with the policy it a matter of under consideration. Whether as preferable proof on the rest is prosecution that the burden of my matter view only by legislature. The to be debated and resolved by our issue to be resolved Assembly the courts whether General power lawfully to enact into law had the casting proof statute on the the burden insanity. prove As- it, to sembly possessed As I see the 1967 General power, reasons

such is for the and it I dissent. which have elaborated that I now above, my opinion and the the rule should be made absolute respondent judge directed to follow the statute. Kelley

Mr. Justice has authorized me to state he me in this joins dissent. Kelley

Mr. Justice dissenting: joining I wish to be recorded as Justice McWil- Mr. dissenting public opinion. Also, liams’ because of the importance step being by majority of taken briefly compelled supplement I court, feel expressed dissenting opinion. views in the dissenting opinion In his Justice McWilliams noted Mr. that: * * “* my has re- attention not been directed ported any jurisdiction decision of where a statute of type are has been which we here concerned contrary process. to be violative of due on the held And there decisions which hold that such statutes are ” process.’ violative of ‘due People Attorney Ex Rel. General v. Barksdale, 1, Colo. P.2d reminds us: “* * * presumption constitutionality that a attaches question, legislation passed to the act in as it does to all * * Assembly the General court, This in Police Protective Association Colo- Warren, rado v. 101 Colo. 76 P.2d forth a sets long principle to, which, adhered it isme, seems to being majority, overlooked when it states: “* * * purpose why Our is not to search for reasons a law should be unconstitutional, held but rather accept repugnancy it as unless its constitutional, * clearly *. appears the fundamental

Although majority I am not sure will con- impression, cede that this is a case of first because position its always that the burden of has been people on the to establish when made an issue in a criminal I submit case,. ais case of first impression. pointed As out McWilliams, Mr. Justice “this is reported the first time that court in a decision has ever held that a statute or rule court places which on proving the the burden of process.” violates due preface, After my I would like to remind col leagues majority of is there another rule of this they ignored. court have overlooked or is It * “* * ruje jias p,een announced, cour^ questions impression, is, on rulings first to follow the * * supreme court of the United States Post Printing Denver, Co. v. 68 189 50, 39; Colo. P. Denver Perry Local Union No. 13 v. Truck Lines, 25, 106 Colo. 101 P.2d 436. policy require

Adherence to this would to follow us Oregon, Leland v. 790, 343 U.S. 72 Ct. 1002, S. thoroughly L.Ed. which is discussed in the dissent Justice McWilliams. Mr. legislature implies majority opinion The that had establishing past put in the the burden at sometime been valid. the defendant it would initially the courts and the rule that because However, establishing legislature placed then the upon People, when made process. part an it has become a due issue, authority majority admitting in in effect having legislature, but that virtue of at one time change right taken one course it has lost the now always prevailed, position for its This has not course. 106, 65 Annear, we note that in Wilmore v. 100 Colo. P.2d the court held that: “* * * power If constitutional an is non- to do act legislative acquired by existent cannot be assertion attempted power; or exercise of it is existent it such long time, is not lost however failure, for (Emphasis added.) exercise it.”

My majority ques- differences with the relate to the tion of whether the rule as to burden of laid opinion, in down the decisions under relied its procedures being circumstances the court then legislation, actually followed and then created - right changed constitutional which cannot now legislature. Basically, process contemplates just a fair and hearing adequate opportunity and a full and for a Powell, Alabama, defense. v. Mr. Justice S. 45. U. Snyder Cardozo, Massachusetts, 291 U.S. language: stated it “* * * process requires proceed- Due of that the ings shall fair, relative, but fairness is a an not concept. par- absolute It fairness with reference to particular ticular conditions results. ‘The due impose upon duty clause does the States a to estab- systems justice, lish ideal the administration of every against improvement provision modern and with every possible hardship may Ownbey that befall.’

282 is in one set of cir-

Morgan, supra, 110. What fair p. ** in cumstances be an act of others may tyranny In the case the court a con- Snyder reviewing for viction murder under the laws of Massachusetts. motion the district the court Upon attorney permitted in the the and the jury, lawyers judge, company however, to view the scene of the crime. The trial judge, denied the the jury defendant to right accompany in violation of his every to be at alleged right present United trial. It is to note that step interesting States Court held that it was not a denial Supreme but noted: process, “* * * Qne thing say prevailing is to practice the accused to permit jury, accompany if he such a It wish. is another expresses thing say not he practice without denial may changed his privileges under the United Constitution * * States (Emphasis added.) I think the which has practice in this state prevailed many years by virtue both court decision and legislation reference to the burden of crim- cases, inal where the not guilty pleads reason of one that can insanity, changed by legislature without a denial due process.

I would further go say has been practice the law of state, but like most laws it is subject one change by legislature.

To me an examination of the procedure heretofore followed and that the statute invali- contemplated dated these proceedings clearly shows that there no undue hardship placed upon defendant by shifting the burden of proof.

Under earlier statutes it was within the discretion of the trial court try issue and the sub- stantive offense at time, the same ’35 C.S.A., c. 509, as amended Laws 1951; ’53, § C.R.S. 39-8-3 (1), Castro v. Supp.; P.2d People, Colo. 1020; Martinez v. Colo. 235 P.2d 810. justification Under those circumstances there was upon placing for the as to both issues very easily People. jury the the become could Otherwise, prejudice to the confused defendant. guilty following plea of not statutes,

Under the the by insanity, is committed reason the defendant Psychopathic Hospital Hos- either Colorado or the State pital by physicians for observation and examination period specialists who are in a mental for diseases, appoint exceeding may judge month, one or the physicians qualified a commission one to three may jail. physicians examine the at defendant the These by People or called either the the defendant or course, the court for examination cross-exami- and, 39-8-2(3) respective parties. nation the C.R.S. (a): permissible and

“It shall be such observation physicians examination for and said to use confessions admissions of defendant, the and other evidence surrounding to the facts com- and circumstances purpose questioning crime, mission for the forming opinion defendant thereto to aid them in an sanity as to the or defendant; permissible shall also be for them or cause to administer amytal, to be administered to the defendant sodium pentothal, drugs, sodium metrazol and like to use polygraph, or cause to be used on the defendant forming opinion as an to them in aid an as to the or defendant; and it shall be permissible physicians, provided for such same testify opinion, entered into the formation of such an as to the result of such administration use and as reactions of statements and course such administration and use.” mandatory. present separate statute The makes trials legislature change may basis Trujillo adopted the reasons advanced court in P.2d where it is said: People, 150 Colo. “* * * much area of conduct on the part wider made subject can be inquiry trial to his than sanity, would relating permissible in a trial of not abnormal Any plea guilty. whether related to act the basis conduct, forming of the accusation or be relevant and not, may important on the evi- issue of mental condition. Conversely, dence of normal and actions conduct, reflecting usual and circumstances, under the ordinary may to shown The trial prove sanity. provided separate in order to the accused from which protect prejudice arise in the of a issue might minds both the jury trying and of mental of these guilt condition. trials Separate issues are to far as provided safeguard, possible, the the against to arise reason of prejudice likely wide variety evidence be competent which might on the issue be admis- insanity and would not sible trial of the not guilty plea.”

Also, it could well be that the the legislature now invalid amendment was to eliminate attempting an abuse which came to in French v. District light Court, 153 384 French Colo. P.2d 268. was an original to the trial court to proceeding compel reinstate a plea of not reason of guilty by insanity. Upon entry French was committed but plea observation, refused to talk to the This court observed psychiatrists. “If the case is to that, be tried on all issues at the same time, any statements made to the would psychiatrists necessarily be admitted the issue bearing upon mental condition” in effect, court, he did and, said not have to cooperate.

By one trial to providing determine guilt, legis- lature corrected two areas problem by:

1. the confusion in- Eliminating and the difficulties herent in a trial single from the introduction resulting of evidence relates to properly only sanity insanity,

285 Eliminating any advantage from 2. cooperate psychia- intentional refusal with trists.

Such incarceration examination not offend does against provision of the consti- self-incrimination Ingles People, tution. v. 518, 22 P.2d 1109. 92 Colo. Bishop Hospital District, v. Salida 158 Colo. recognized legislature 406 P.2d this court that the power has one the^ declare that the existence citing presumptive fact shall another, evidence of support criminal cases in See: Garcia statement. People, People, 387; Colo. P.2d Roberts v. 130, 213 555, 243, Colo. 544; Colo. P. Robertson v. P. 279, 38 326. majority recognize all of the rule that us

presumed plea to be sane, and that where the interposed “go the defendant must forward” pre- some evidence to overcome the sumption, point at which shifts People sanity beyond to establish a reasonable doubt. legislature say

Now, can prima certainly is a facie is a fact, it very step say short indeed to that the defendant’s legislature preponderate. must took step. place upon To me it does not an unfair burden. Boyd v. 108 Colo. 116 P.2d plea guilty

court held of not reason of insanity is in the nature of and avoidance. confession deprived How, then, can a defendant claim he has been process given of he is when first a which will trial completely responsibility absolve him acts from for his jury insanity, give he convinces the of and will him a second if he trial, is found can sane, where he again bearing introduce evidence on his mental specific condition as it affects is material elements the offense. nothing procedure provided

There is so unfair in the as to to be invalid declared day in the statute to adopt like close, I would To shock conscience. my Snyder Cardozo, Justice the statement Mr. Massachusetts, supra: seen, maintaining is sedulous law,

“The we forms crime whatever charged for de- of an essence opportunity are of the procedure to be inherent so fundamental Privileges fend. acceptable trial that could be fair every concept inviolate men will be of reasonable kept thought in- be the inviolable, pressure crushing may however ac- due to though But justice, proof. criminating of fairness concept to the accuser also. The is due cused, filament. it is narrowed to a strained till must true.” are to balance keep We the rule absolute. I would make

ADDENDUM that our rehearing On suggested petition Act should indicate whether opinion We to the same also unconstitutional. subject, refers it, too, cannot be over an objection hold that sustained a denial of due of law. based

Case Details

Case Name: People v. District Court for County of Jefferson

Court Name: Supreme Court of Colorado

Date Published: Mar 18, 1968

Citation: 439 P.2d 741

Docket Number: 23302

Court Abbreviation: Colo.