STATE оf Utah, Plaintiff and Appellee, v. Tomas R. HERRERA, Defendant and Appellant.
No. 980145.
Supreme Court of Utah.
June 29, 1999.
1999 UT 64
¶ 85 Having reviewed each of Decorso‘s assignments of error, we conclude that each is without merit. We therefore affirm his conviction and sentence.
¶ 86 Associate Chief Justice DURHAM, Justice ZIMMERMAN, and Justice RUSSON concur in Chief Justice HOWE‘S opinion.
¶ 87 Justice STEWART concurs in the result.
Joan C. Watt, Mark R. Moffat, Richard P. Mauro, Salt Lake City, for defendant.
RUSSON, Justice:
¶ 1 This is the second time this case has come before this court. The first time, Tomas Herrera challenged Utah‘s insanity defense statute,
¶ 2 Shortly after midnight on June 6, 1991, Herrera entered the home of his ex-girlfriend Claudia Martinez. Herrera went into Claudia‘s bedroom and, after a brief struggle, shot her twice in the head, killing her. As he left Claudia‘s bedroom, Herrera encountered her mother Rosa in the hallway. Rosa immediately turned and ran into her son‘s bedroom. Herrera pursued and, once inside the room, shot at Rosa, barely missing her. Herrera then turned to her son Reuben, who was in bed, and said, “Now you‘re going to go.” Herrera fired two shots at Reuben at point-blank range, both of which also missed. Herrera tried again to fire the gun, but it was out of bullets.
¶ 3 Police officers arrested Herrera soon after the shootings. After waiving his Miranda rights, Herrera told the officers that while driving around, something “snapped” within him and he decided to go to the Martinez house and shoot Claudia. Herrera admitted to killing Claudia and shooting at Rosa and Reuben. Thе State charged Herrera with one count of murder and two counts of attempted murder. See
¶ 4 In response to these charges, Herrera pleaded not guilty by reason of insanity. In conjunction with his plea, Herrera challenged the constitutionality of
It is a defense to a prosecution under any statute or ordinance that the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged. Mental illness is not otherwise a defense.
¶ 5 The trial court rejected Herrera‘s arguments and upheld revised section 76-2-305, concluding that the statute does not violate due process or equal protection, nor does it relieve the State of its burden of proof. The trial court also ruled that the compelled examination statute does not offend rights against self-incrimination. The trial court, however, did not address Herrera‘s claims of cruel аnd unusual punishment, ruling instead that Herrera lacked standing to make such claims since he had not yet been convicted of any crime, let alone sentenced.
¶ 7 Upon remand, Herrera‘s counsel arranged for Dr. Breck Lebegue, an expert forensic psychiatrist, to evaluate Herrera and assess his mental state at the time of the shootings. Dr. Lebegue had examined Herrera on several occasions immediately following the shootings and agreed to do so again. On the basis of all the examinations and his review of Herrera‘s mental health records, Dr. Lebegue submitted a report concluding that when Herrera killed Claudia, he lacked the mens rea for murder and therefore qualified for the insanity defense under revised section 76-2-305. Specifically, Dr. Lebegue found that Herrera suffered from Capgras Syndrome, a form of paranoid schizophrenia manifested by delusions of substitution and auditory hallucinations. Dr. Lebegue reported that Herrera‘s psychosis and delusional belief system led him to believe that the Mafia had replaced Claudia with a nonhuman double and, therefore, when he shot Claudia, “he believed he was killing a form that was not a human being.” Dr. Lebegue also stated that Herrera probably would require confinement for life because his illness is lifelong and he is dangerous even when medicated.
¶ 8 In light of Dr. Lebegue‘s evaluations, the State stipulated that pursuant to revised section 76-2-305, Herrera was not guilty by reason of insanity of Claudia‘s murder because, when he shot her, he did not knowingly and intentionally cause the death of a human being and, thus, lacked the mens rea for murder. The trial court accepted the stipulated plea and, on October 17, 1996, entered its “Finding of Not Guilty By Reason of Insanity” as to the count of murder. The court ordered Herrera committed to the Utah State Hospital.4
¶ 9 In Dr. Lebegue‘s report, he also concluded that when Herrera shot at Rosa and Reuben, he knew they were human beings and intentionally tried to kill them; as a result, Herrera had the applicable mens rea for attempted murder and did not qualify for the insanity defense under revised section 76-2-305. Dr. Lebegue noted, however, that under the earlier version of section 76-2-305, Herrera would have qualified for an insanity defense with respect to the attempted murders because, although he knew the wrongfulness of killing human beings—which he admittedly believed Rosa and Reuben to be—he lacked the capacity to conform his conduct to the law due to his psychotic thinking at the time.
¶ 10 Relying on Dr. Lebegue‘s report, Herrera renewed his motions before the trial court challenging the constitutionality of revised section 76-2-305, but this time he challenged the statute as it had been applied to him with respect to the attempted murders. Herrera asserted that the statute is unconstitutional because it deprives him of an insanity defense for acts committed when, due to mental disease, he lacked the capacity to conform his conduct to the law or, in other words, was subject to an irresistible impulse. The trial court denied Herrera‘s motions, ruling that his arguments were essentially the same as those rejected in Herrera I.
¶ 11 Subsequently, on October 17, 1996, pursuant to
¶ 13 The State contested both arguments. The State maintained that the attempted murders must be analyzed separately from the murder, notwithstanding the fact that they occurred only moments afterwards; in so analyzing them, it is undisputed that when Herrera shot at Rosa and Reuben, he knew they were human beings, intended to shoot them, and understood the wrongfulness of his conduct. Given this, the State argued, imposing criminal punishment on Herrera for the attempted murders is not cruel and unusual. The State also asserted that in light of Dr. Lebegue‘s determination that Herrera understood the wrongfulness of attempting to kill Rosa and Reuben, Herrera would be ineligible for an insanity defense even under the more encompassing M‘Naghten standard followed by a majority of states.6 The State emphasized that no court has ruled it cruel and unusual to criminally punish a defendant who is sane under that test. The State also posited that Herrera lacked standing to challenge Utah‘s statutory scheme on the basis that it unconstitutionally punishes individuals who did not know their acts were wrong.
¶ 14 On July 18, 1997, Herrera‘s motion was heard by the trial court. At that time, Herrera‘s counsel requested an evidentiary hearing concerning alleged inadequacies in the Utah State Prison‘s treatment of mentally ill inmates. Herrera‘s counsel described the evidence he would offer, if allowed, in support of the allegations about the prison.7 The trial court, however, denied the request for an evidentiary hearing and rejected Herrera‘s motion, ruling that it is not cruel and unusual to impоse criminal punishment on Herrera for the attempted murders.
¶ 16 Having denied Herrera‘s claims, the trial court, on September 15, 1997, entered its judgment and sentenced Herrera for the two counts of attempted murder. Herrera received two concurrent terms of imprisonment of one to fifteen years, with credit for his nearly five and a half years of pretrial incarceration. Additionally, in accordance with its determination that Herrera was guilty and mentally ill, the court ordered Herrera committed to the Utah State Hospital pursuant to
¶ 17 On appeal, Herrera challenges his conviction and sentence for the two counts of attempted murder. Herrera contends that the Utah statutory scheme limiting the insanity defense solely to negating the pertinent mens rea and allowing for the conviction and imprisonment of all mentally ill offenders who do not qualify for that narrow defense is unconstitutional. Herrera claims the statutory scheme, on its face and as applied, violates (1) federal due process, (2) federal equal protection, and (3) federal and state guarantees against cruel and unusual punishment. Herrera further challenges as violative of the Fifth Amendment right against self-incrimination the statutory requirement that a defendant asserting a defense of insanity submit to examination by State experts.8
STANDARD OF REVIEW
¶ 18 This case presents questions of law, namely, whether the Utah statutory scheme governing the insanity defense and the treatment of mentally ill offenders conforms with various constitutional provisions, both state and federal. As such, we accord no deference to the trial court‘s rulings, but review them for correctness. See State v. Gardner, 947 P.2d 630, 632 (Utah 1997). In testing the constitutionality of legislation, however, we construe the legislation, to the extent possible, as being in compliance with the federal and state constitutions. See State v. Mohi, 901 P.2d 991, 995 (Utah 1995). Given the importance of not intruding into the legislative prerogative, we do not strike down legislation unless it clearly violates a constitutional provision. See Herrera I, 895 P.2d at 363. We resolve any reasonable doubts concerning legislation in favor of constitutionality. See Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993).
¶ 19 Our prior decision in this matter, Herrera I, disposes of many of Herrera‘s current arguments. In that opinion, we rejected Herrera‘s contentions that revised section 76-2-305, on its face, violates federal due process and equal protection. See 895 P.2d at 363-69. We also held that the Fifth Amendment right against self-incrimination is not contravened by the statutory requirement that a defendant asserting an insanity defense be examined by State experts.9 See id. at 369-71. We see no reason to alter our analysis of these issues; the trial court correctly denied these claims.
¶ 20 Herrera I also assists in disposing of Herrera‘s “as applied” due process and equal protection challenges. To succeed on these claims, Herrera must demonstrate that rights secured to him by the federal Due Process and Equal Protection Clauses have been violated by his conviction and sentence for the attempted murders. Cf. In re Criminal Investigation, 754 P.2d 633, 658-59 (Utah 1988); see also 1 Sutherland‘s Statutory Construction § 2.06 (5th ed.1994) (explaining that “as-applied” challenge is limited to statute‘s application to facts of case at hand). As shown below, however, in attempting to so demonstrate, Herrera largely relies on the same arguments rejected in Herrera I, and the new points Herrera does raise are without merit.
I. DUE PROCESS
¶ 21 The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due рrocess of law.”
¶ 22 In his “as applied” due process challenge, Herrera contends it is implicit in the concept of ordered liberty that criminal responsibility not be imposed on him for the attempted murders when, as a result of his mental illness at the time, he could not control his conduct. In other words, Herrera argues that it violates due process to convict and sentence him for conduct resulting from an irresistible impulse. This is the same argument presented in Herrera I, and our conclusion in that decision controls: there is no federal due process right to any particular insanity defense. See 895 P.2d at 364. In fact, the United States Supreme Court specifically has held that “adoption of the irresistible impulse test is not ‘implicit in the concept of ordered liberty.‘” Leland v. Oregon, 343 U.S. 790, 801 (1952) (quoting Palko, 302 U.S. at 325). Herrera fails to identify any constitutionally recognized liberty interest or other due process protection that secures to him the right to be found not guilty by reason of insanity when he knew Rosa and Reuben were humans and, nonetheless, intentionally tried to kill them.
¶ 23 Indeed, at least twenty-seven states employ an insanity standard—the M‘Naghten test—which does not include the irresistible impulse defense but, rather, focuses on whether the offender knew the wrongful nature of his conduct.10 See Herrera I, 895 P.2d at 363 n. 1
¶ 24 Herrera nevertheless argues that it offends due process to treat him as legally insane in committing one act and legally sane in committing other acts seconds later. This argument is unpersuasive. Herrera again identifies no due process protection implicated by such a compartmentalization, nor does he show in any way how the concept of ordered liberty is breached by the determination that he was legally insane for one act and legally sane shortly thereafter for other acts. In fact, as discussed below in reference to Herrera‘s equal protection concerns, such lines must be drawn for purposes of determining criminal responsibility. In short, federal due process does not entitle Herrera to a judgment of not guilty by reason of insanity for the attempted murders simply because he was unable to control himself when he shot at Rosa and Reuben.
II. EQUAL PROTECTION
¶ 25 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
¶ 26 In contending that his rights of equal protection have been violated, Herrera raises the identical argument addressed in Herrera I, namely, that the statutory scheme improperly differentiates the criminality of equally mentally ill offenders based on the content of their delusions: whereas one offender, due to mental illness, may not perceive his or her victim to be human, another offender, equally “insane,” may. See Herrera I, 895 P.2d at 368-69. Herrera asserts that there is no rational basis for exculpating the former but not the latter. Under the facts of this case, Herrera argues, it is improper to classify him as insane in killing Claudia and sane just moments later in attempting to kill Rosa and Reuben where, although he knew Rosa and Reuben were human, all of these acts were part of the same delusional episode. In so arguing, Herrera identifies no fundamental right or suspect classification; therefore, the statutes Herrera challenges need only be rationally related to a valid public purpose. See Greenwood v. City of N. Salt Lake, 817 P.2d 816, 820-21 (Utah 1991).
The offenders in the first group do not know that they arе hurting or killing another person, while those in the second group do know. The first group makes no moral judgment, while the second group realizes that they are actually killing someone and therefore their actions come closer to the realm of criminality.
. . . .
It can be reasonably concluded that those who understand and appreciate the fact that they are killing another are more “culpable” than those whose delusions carry them even further away from reality.... [T]he legal standard of mental illness for purposes of criminal culpability is not constitutionally required to embrace all medical definitions of mental illness.
Herrera, 895 P.2d at 369 (citations and quotations omitted).
¶ 28 The process of assessing criminal responsibility inevitably draws lines dividing the legally sane from the legally insane:
When a crime has been committed and the accused‘s insanity is in issue, a court must determine, by way of the pertinent legal yardstick, whether or not the accused had enough capacity to be deemed criminally responsible. A dеcision one way or the other must be made: The accused is criminally responsible or he is not criminally responsible; the accused is bad or he is sick; the accused should be punished or he should be hospitalized. In short, the accused is sane or he is insane; there is no in-between.
Charles E. Torcia, 2 Wharton‘s Criminal Law § 100, at 4 (15th ed.1994). In this sense, the orientation of the medical field differs entirely from the legal arena in that categorical judgments of a subject‘s moral blameworthiness need not be made. See id.
¶ 29 Here, the flaw in Herrera‘s argument is that it presupposes he was as mentally deranged when he attempted to kill Rosa and Reuben as when he killed Claudia. However, Dr. Lebegue—Herrera‘s own expert—determined that Herrera did not suffer from the same delusion or cognitive impairment in shooting at Rosa and Reuben, despite the close proximity in time to when he killed Claudia. In fact, Dr. Lebegue explained that making this distinction is not illogical:
I conclude that because [Hеrrera] was apparently not delusional about the other two victims [Rosa and Reuben], he fails to qualify as so cognitively impaired by his psychotic thinking that he was unable to know the wrongfulness of attempted murder of human beings. However, control of [his] volitional behavior was substantially impaired by his psychotic behavior which flowed from psychotic thinking. Thus, it is not a logical contradiction to fail to meet the “negation of intent” [standard of Utah‘s revised insanity statute] and meet the “impaired volitional control” standard set by the ALI definition in place in Utah before 1983.
¶ 30 Under the facts of this case, therefore, classifying Herrera as legally insane one moment and legally sane moments later does not violate federal guarantees of equal protection. The trial court correctly upheld Herrera‘s conviction and sentence on equal protection grounds.
III. CRUEL AND UNUSUAL PUNISHMENT
¶ 31 We now address Herrera‘s claims that the statutory scheme at issue, both on its face and as aрplied, violates federal and state guarantees against cruel and unusual punishment. Unlike the issues discussed above, Herrera I did not address any of Herrera‘s claims of cruel and unusual punishment. See 895 P.2d at 371.
¶ 33 Under the Eighth Amendment,13 “[a] criminal punishment may be cruel and unusual when it is barbaric, excessive, or disproportional to the offense committed.” State v. Mace, 921 P.2d 1372, 1377 (Utah 1996) (footnote omitted). Similarly, under article I, section 9 of the Utah Constitution, a criminal punishment is cruel and unusual if the punishment is so disproportionate to the offense committed that it “shock[s] the moral sense of all reasonаble men as to what is right and proper under the circumstances.” State v. Gardner, 947 P.2d 630, 633 (Utah 1997) (quotes omitted); see also State v. Copeland, 765 P.2d 1266, 1270 (Utah 1988) (same standard).
¶ 34 Herrera challenges the statutory scheme at issue both facially and as applied to him under the Eighth Amendment and article I, section 9. Consistent with our approach in prior cases, we first address Herrera‘s as-applied contentions. See, e.g., Mace, 921 P.2d at 1376-77. In so doing, we will address Herrera‘s arguments under the state constitution before proceeding to the federal analysis.
A. As-Applied Challenge under Article I, Section 9 of the Utah Constitution
¶ 35 Herrera claims that the sentence he received for the attempted murders under the statutory scheme at issue is cruel and unusual. Under revised section 76-2-305(1), Herrera did not qualify as legally insane for the two counts of attempted murder because it is undisputed that he possessed the applicable criminal mens rea when he attempted to kill Rosa and Reuben. Under
¶ 36 Herrera asserts that under article I, section 9 of the Utah Constitution, it is cruel and unusual and constitutes unnecessary rigor to impose any criminal punishment on him for the attempted murders. Herrera contends that this issue must be determined in light of evolving notions of decency and human dignity. In view of such notions, Herrera maintains he should not be sentenced to prison because (1) he “was so profoundly ill at the time” of the attempts, (2) imprisoning him serves no legitimate penological goals, and (3) imprisonment is disproportionate to his acts.
¶ 37 Herrera, however, presents no compelling reason for us to depart from our holding in Mace, 921 P.2d at 1378. In Mace, the defendant faced charges of rape and aggravated robbery. Like Herrera, Mace did not qualify for the insanity defense because the expert who evaluated him determined that he had the mens rea for the crimes. Seе id. at 1374-75. The expert concluded that Mace knew his conduct was wrong but, as a result of his mental disorder, was unable to conform his conduct to the law. See id. Mace entered a conditional plea of guilty and mentally ill and, on appeal, argued “that imposing any punishment on mentally ill but not legally insane offenders like himself is cruel and unusual.” id. at 1377 (emphasis in original). In response, we stated:
This court has already held that a defendant who does not qualify as legally insane under the Utah statutory scheme may be charged, tried, and convicted without offending state or federal due process and equal protection guarantees. It would be anomalous, if not irrational, for this court to hold . . . that the legislature can constitutionally hold such defendants accounta-
ble for their criminal conduct but cannot constitutionally impose any punishment on such defendants.
Id. (citation omitted). We then concluded that “absent a showing that a particular punishment is ‘cruelly inhumane or disproportionate,’ we are not apt to substitutе our judgment for that of the legislature regarding the wisdom of a particular punishment or of an entire sentencing scheme.” Id. at 1377-78 (citations omitted). Because Mace failed to show that his sentence was cruelly inhumane or disproportionate, we held that the punishment in that case was not cruel and unusual. See id. at 1378-79.
¶ 38 Although Mace was decided under the Cruel and Unusual Punishment Clause of the United States Constitution, the principles announced in Mace apply with equal force to our consideration of Herrera‘s claims under the cruel and unusual punishment clause of the Utah Constitution. In response to Herrera‘s due process and equal protection challenges, we have already held that the legislature acted within federal and state constitutional bounds in distinguishing offenders’ criminality on the basis of whether they had the applicable mens rea in committing their crimes. See Herrera I, 895 P.2d at 361-69; see also supra ¶¶ 21 through 29. From this distinction, it follows that an offender who acted with the applicable mens rea and was thus lеgally sane at the time of the crime may be punished criminally unless it is shown that the sentence itself is cruel and unusual. See Mace, 921 P.2d at 1377-78.
¶ 39 Like the defendant in Mace, Herrera fails to demonstrate that the punishment imposed on him is cruelly inhumane or disproportionate to the crimes committed. The undisputed evidence is that Herrera chased Rosa into her son‘s bedroom, took aim, and repeatedly fired his gun at both Rosa and Reuben at close range with the announced intention of killing them. Nothing in the record contradicts Dr. Lebegue‘s conclusions that when Herrera attempted to kill Rosa and Reuben, he knew they were human beings—and thus did not suffer from the same cognitive impairment as when he killed Claudia—and he knew the wrongfulness of his actions. In light of this evidence, imposing two concurrent sentences of one to fifteen years, with credit for five and a half years of pretrial incarceration, is not cruelly inhumane or disproportionate to the crimes Herrera committed; the sentences, comparеd to the offenses, simply do not “shock the moral sense of all reasonable [people] as to what is right and proper under the circumstances.”14 Copeland, 765 P.2d at 1270 (quotes omitted). We therefore reject Herrera‘s claim that the sentences he received for the attempted murders of Rosa and Reuben are cruel and unusual under article I, section 9 of the Utah Constitution.
¶ 40 Herrera nevertheless contends that it is cruel and unusual to incarcerate him in prison, where, he alleges, receipt of treatment for his mental illness is not guaranteed, the treatment that is rendered is oftentimes substandard, he is “likely to deteriorate” and not receive proper medication, and he is “likely to be victimized and abused by other prisoners” as a result of his mental illness. In making this argument, Herrera predominantly relies on the “unnecessary rigor” provision of the Utah Constitution: “Persons arrested or imprisoned shall not be treated with unnecessary rigor.”15
¶ 41 Herrera has no standing to raise these claims; he is not yet imprisoned and may not be for some time. In challenging the conditions and treatment of mentally ill offenders at prison, Herrera relies on the proposed testimony of witnesses he claims would have supported his contentions if he had been allowed an evidentiary hearing on the matter. See supra note 7. The State, however, did not stipulate to or otherwise agree with the proposed testimony, and the trial judge denied Herrera‘s motion for an evidentiary hearing as follows:
The issue of the prison‘s current policies governing the treatment and medication of schizoрhrenic inmates is not ripe for adjudication in the context of this case. The prison is undergoing various changes in its mental health policies and is subject to a federal consent decree. Defendant is not currently housed at the prison and may not be for eighteen months. Defendant, therefore, lacks standing to challenge the current prison policy or the treatment of prisoners other than himself.
¶ 42 We agree with the trial court‘s reasoning. We have long held that one “may not allege jeopardy or injury to others in order to confer standing upon his own claims.” York v. Unqualified Washington County Elected Officials, 714 P.2d 679, 680 (Utah 1986). Here, the “evidence” proposed by Herrera concerning treatment of mentally ill offenders at prison in the past does not confer upon him standing to speculatively challenge treatment he may or may not receive in the future when he eventually is imprisoned.
¶ 43 At this time, it is unknown when Herrera will actually be transferred to the state prison. Pursuant to his judgment of guilty and mentally ill, Herrera will spend the first part оf his sentence for the attempted murders at the state hospital. See
¶ 44 Our refusal to address Herrera‘s allegations concerning the conditions and treatment of mentally ill offenders at prison is consistent with our previously expressed reluctance to delve into problems arising out of internal рrison administration, see Wickham v. Fisher, 629 P.2d 896, 901 (Utah 1981), and is particularly appropriate when, as the trial court noted, the state prison is undergoing changes in its treatment of mentally ill inmates and is subject to a federal consent decree requiring reform of its mental health facilities. Moreover, holding otherwise, and simply allowing Herrera to remain at the state hospital, would undermine the legislative determination that legally sane offenders should not avoid criminal responsibility for their acts.16
¶ 45 In sum, under article I, section 9 of the Utah Constitution, Herrera‘s sentence for the attempted murders is not cruel and unusual, and Herrera has no standing to challenge the prison‘s treatment of mentally ill offenders as unnecessarily rigorous. The trial court was correct in so ruling.
B. As-Applied Challenge Under the Eighth Amendment to the United States Constitution
¶ 46 We now turn to Herrera‘s claim that his punishment for the attempted murders is cruel and unusual under the Eighth Amendment. We note at the outset that the
¶ 47 Under the Eighth Amendment, Herrera‘s sentence for the attеmpted murders is not cruel and unusual. First, the reasons already expressed for upholding Herrera‘s sentence under article I, section 9 of the Utah Constitution support the same conclusion under the Eighth Amendment ban on cruel and unusual punishments: Herrera‘s sentence is not cruelly inhumane, excessive, or disproportionate in any manner to the crimes he committed, and Herrera lacks standing to challenge the conditions and treatment of mentally ill offenders at the state prison.
¶ 48 Moreover, we believe that Utah‘s “guilty and mentally ill” statutory scheme, which prescribes that a qualifying offender such as Herrera serve the beginning of his sentence at the state hospital, see
¶ 49 Furthermore, as explained earlier, because it is uncontroverted that Herrera knew the wrongfulness of his actions when he attempted to kill Rosa and Reuben, he would not qualify as insane even under the M‘Naghten standard, which is followed by at least twenty-seven states and all federal courts. See supra notes 10-12 and accompanying text. As we stated in Mace, “[N]o court has ever ruled that punishing someone who fails to meet the M‘Naghten test constitutes cruel and unusual punishment.” 921 P.2d at 1378 (citations omitted). This continues to hold true today. We conclude, therefore, that Herrera‘s sentence for the attempted murders does not violate the Eighth Amendment guarantee against cruel and unusual punishment.
C. Herrera‘s Facial Challenges to the Statutory Scheme at Issue
¶ 50 Herrera‘s final contention is that the statutory scheme at issue facially violates the Eighth Amendment to the United States Constitution and article I, section 9 of the Utah Constitution. Facial challenges succeed, however, only if the statutes at issue are incapable of any valid application. See Greenwood v. City of N. Salt Lake, 817 P.2d 816, 819 (Utah 1991). Here, we have already upheld the challenged statutes as applied to Herrera; thus, his facial challenge fails a fortiori.
¶ 51 For the foregoing reasons, Herrera‘s judgment and sentence for the two counts of attempted murder are affirmed.
¶ 52 Chief Justice HOWE and Justice ZIMMERMAN concur in Justice RUSSON‘S opinion.
DURHAM, Associate Chief Justice, dissenting:
¶ 53 For the reasons set forth in my dissent in State v. Herrera, 895 P.2d 359 (Utah 1995) (Herrera I), I dissent from the majority opinion herein.
STEWART, Justice, dissenting:
¶ 54 I dissent in today‘s opinion for the same reasons I dissented in State v. Herrera, 895 P.2d 359 (Utah 1995). For centuries the insanity defense has been recognized in Anglo-American law. See id. at 371 (Stewart, J., dissenting, joined by Durham, J.). That defense rests on the fundamental principle that human beings have free will and that society should punish only those capable of acting in a responsible manner—a concept that lies at the core of American civilization and its institutions of freedom. See id. at 372-74. Perhaps my view is provincial, but I submit that it is shocking and astonishing that this state, given its particular history and professed principles, and its Legislature and highest court, should undermine those principles.
¶ 55 Under
¶ 56 Justice Felix Frankfurter of the United States Supreme Court wrote:
Ever since our ancestral common law emerged out of the darkness of its its early barbaric days, it has been a postulate of Western civilization that the taking of life by the hand of an insane person is not murder.
United States v. Baldi, 344 U.S. 561, 570, 73 S.Ct. 391, 396, 97 L.Ed. 549 (1953), quoted in Herrera I, 895 P.2d at 371 (Stewart, J., dissenting, joined by Durham, J.).
¶ 57 I repeat what I said in my Herrera I dissent:
Today‘s majority opinion and the statute it sustains represent a monumental departure from, and rejection of, one of the most fundamental principles of Anglo-American criminal law that has existed for centuries. For the first time in this state‘s history, and, with two exceptions, for the first time in the nation‘s history, this Court now holds that an insane person who commits an act prohibited by the criminal law is as guilty as a sane person and may be imprisoned, and even executed, as if he were a fully responsible sane person. I submit that the Court fails to perceive the extent to which fundamental constitutional principles and values have been violated by its affirmance of
Utah Code Ann. § 76-2-305(1) . The decision flouts centuries-old legal principles of personal responsibility that evolved from Judeo-Christian moral and ethical concepts and from an expanding knowledge of the causes of human behavior. Basic precepts of state and federal due process of law, equal protection of the law, and the cruel and unusual punishment provisions in the state and federal constitutions prohibit legislative action imposing such inhuman treatment on persons whose mental faculties are so deranged that rational, morally responsible conduct is not possible.
Herrera I, 895 P.2d at 371-72 (Stewart, J., dissenting, joined by Durham, J.).
¶ 58 In the instant case, the majority goes to great lengths to show that defendant knew that what he was doing was wrong. Perhaps the Court is correct; however, because of the statute, defendant‘s conduct has been analyzed in an unrealistic manner. In any event, under the statute that this Court has now sustained, a person‘s knowledge of right and wrong and his or her ability to conform their conduct to those standards is irrelevant to a conviction. In essence, Utah law now
¶ 59 In my view, there has never been an instance in the jurisprudential history of this state in which this Court has wandered so far from the moral principles embedded in the fundamental constitutional precepts established by the framers of our federal and state constitutions.
STATE of Utah, Plaintiff and Petitioner, v. Jeffrey Lynn CARRUTH, Defendant and Respondеnt.
No. 970597.
Supreme Court of Utah.
Dec. 10, 1999.
1999 UT 107
Margaret P. Lindsay, Provo, for respondent.
DURHAM, Associate Chief Justice:
¶ 1 This case is before us on writ of certiorari to the Utah Court of Appeals, which vacated a jury verdict convicting Jeffrey Lynn Carruth of felony joyriding and entered a conviction for misdemeanor joyriding. See State v. Carruth, 947 P.2d 690 (Utah Ct.App.1997). The court of appeals held that the trial court erred in giving a State-requested jury instruction on felony joyriding. Under this court’s decision in State v. Baker, 671 P.2d 152 (Utah 1983), the court of appeals concluded that the State’s request for a lesser-included offense instruction should be granted only if the lesser-included offense is