State v. Robinson, 399 N.W.2d 324

State v. Robinson

399 N.W.2d 324

S.D.

1987

Check Treatment

*1 that, proof have stated above We faith, an Dakota, must be absence bad there STATE of South Plaintiff policy for denial of

a reasonable basis Appellee, knowledge or reckless benefits basis deni- disregard of a reasonable ROBINSON, Defendant Kendall al, implicit that test is conclusion Appellant. lack rea- knowledge of a imput- basis inferred and sonable No. 15202. cоmpany there to an insurance where ed Dakota. Supreme Court South of a disregard a reckless lack for denial or reckless reasonable basis Argued Sept. 1986. proofs to facts or to sub- indifference Decided Jan. mitted the insured. these tests of tort of bad Under however,

faith, company, an insurance fairly

may challenge claims which and will be found liable

debatable (or intentionally it has denied

where pay) a claim

failed to without

a reasonable basis.”

Savio, (quoting P.2d at 1275 Anderson Co., 85 Wis.2d

v. Continental Insurance (1978) (em- original)). adopt

phasis in the Savio alleged

two-prong test in faith cases bad compensation pay by a workers’

failure

carrier. ques answer the

Accordingly, we posed the Honorable Andrew W.

tion

Bogue in the affirmative reflected

above.

All the concur. Justices

FOSHEIM, Justice, Retired

participating.

MILLER, Justice, having time

member of the Court, did

action was submitted participate.

activities thereafter drеw the close atten- tion of local law enforcement. May On trial, before Robinson and another inmate at the Hughes County jail overpowered deputy a escaped. and apprehended Robinson was a week later charged and escape with aggravated assault. pled Robinson guilty not and not guilty by reason of insanity. Psychiatric provided examinations were by the Court. psychiatrists Two testified at trial. The jury found Robinson but (GBMI). on both counts appeals the verdict and conviction. Robinson’s first appeal is that the trial court erred in giving pro- not a posed jury concerning instruction the man- datory commitment of defendants found guilty by not reason insanity (NGBRI). of legislature approved In a “Guilty Mentally verdict, but Ill” while re taining insanity the traditional defense. Harmon, Gen., Thomаs Atty. Asst. The earlier “mentally ill,” definition of for Pierre, plaintiff appellee; Mark V. 22-1-2(22), merly SDCL was transferred to Gen., Pierre, Meierhenry, Atty. on brief. “insanity” 22-l-2(18A). under SDCL In Adam, Meyers May, Patricia A. of people legally sane incapable of com Pierre, Thompson, Gerdes <& for defendant crimes, mitting people but those who are appellant. merely “mentally ill” be held criminal ly responsible. aсquitted a defendant is WUEST, Chief Justice. insanity, reason of the court shall enter its order that the defendant be committed appeal This is an judgment from a of to the Human Services Center until such following conviction a verdict of eligible time as he pursuant for release charges ill rendered on escape to SDCL 23A-26-12.5. aggravated assault. We affirm. In early part proposed Sometime in the this case the defendant Ken- (Robinson) provided dall Robinson instruction which was taken into custody should the find a defendant connection with a series of bur- insanity glaries Pierre, mandatory that had reason of it was occurred in South defendant preliminary Dakota. After a be committed to the Human Ser hearing he vices Center. The was bound court refused this in over trial on two counts of third-degrеe struction which he claims as burglary possession and on error. a firearm a convicted felon. Robinson Huth, (S.D. 334 N.W.2d State insisted that he burgla- was innocent of the 1983) requested the defendant a similar ry charges acquired and had the firearm instruction. This held: from his being brother after threat- This statute indicates that commitment ened directly who resided be- hospital upon a verdict of not apartment. low his guilty by reason of mental illness is not age At the mandatory. Robinson had served Whenever the verdict prior burglary illness,” sentences for escape guilty by “not of mental reason Penitentiary. South Dakota State His the trial court must find that it would be danger public safety refusing dis- to instruct the jury dispo- on the charge the defendant. “In South Dako- sition of the defendant in the event the ta, mandatory; commitment is not jury were to find him guilty by rea- ‘danger- court must find the defendant son of a lack criminal responsibility. public peace safety ous to the if left reaffirming their decision in State v. large’.” preju- We hold that it is not *3 Park, (1963), 159 Me. 193 A.2d 1 dicial error to fail to instruct on what is Supreme Court of Maine stated that if it possible jury’s effect of the ver- proper jury were to inform the that com Feather, dict. v. Black State mitment institution results (S.D.1976) (Citations from a verdict of equal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ NGBRI it would be omitted). Accordingly, the trial court did ly appropriate jury that the be instructed not prejudicial failing commit error in concerning the statutory circumstances un jury appellant proposed. instruct the der which the defendant’s future tenure 334 N.W.2d at 487. the institution could be terminated. Such decision, Since the Huth the law has instruction would substitute unaccept onе changed to make commitment manda- speculation ed area of for another. State However, defendant, tory. so committed (Me.1977), v. Dyer, 371 A.2d 1079 citing immediately. be released almost See State, (Del. Garrett v. 320 A.2d SDCL 23A-26-12.5 for conditions of re- 1974). Many decisions on subject this are Although lease. the commitment is now Annot., (1967 collected in 11 A.L.R.3d 737 mandatory, length of the defendant’s Supp.). and 1986 speculative confinement is still under the

provisions 23A-26-12.5, although of SDCL uphold the decision of the trial court proof he now sustains the burden to be refusing requested instruction. released. SDCL 23A-26-12.5 and SDCL Nevertheless, 23A-26-12.3. we believe the Robinson’s appeal final claim on is reasoning applicable in Huth is to the that the GBMI verdict violates a defend Further, purpose case. ant's rights subjects jury is to find the facts and detеrmine a GBMI defendant pun to cruel and unusual guilt defendant’s or innocence. Our sister arguments presented ishment. The by the recently passed state North Dakota has specific defendant persuasive. are not nor Huber, this same issue. In State v. He exposes claims a GBMI verdict a de (N.D.1985), 361 N.W.2d 236 the court said: liberty deprivations greater fendant to than consequences The of a verdict оf not those faced merely a offender who is guilty by reason of a lack of criminal pro found because SDCL 23A-27-38 responsibility bearing any have no vides that: jury issue which the must decide. An If ‘guilty a defendant is found but men- requested instruction of the kind would tally plea plea ill’ or enters that and the speculate invite the about a de- court, accepted by the court shall disposition fendant’s ultimatе and invite impose any sentence which could im- be it to render a on the verdict basis of posed upon pleading a defendant something other than the evidence before charge. found of the same If the Garrett, it. See State v. 391 S.W.2d 235 peni- defendant is sentenced to the state (Mo.1965). “Punishment, or whatever tentiary, he shall further exami- verdict, may transpire after the is not the given natiоn and the treatment Park, concern jury.” State v. psychiatrically indicated for his (1963). short, Me. 193 A.2d mental illness. is avail- simply “it is no business of the what able, may provided through happens facili- to the if acquitted accused he is ground Annot., jurisdiction on the ties under insanity.” of the Board of A.L.R.3d (Emphasis We therefore Charities and Correction.... hold added.) that the trial court did not err in addition, upon discharge of а does not constitute cruel and pun- unusual treating ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ill inmate from a ishment. prior expiration of an in- facility judgment is affirmed. sentence, report facility mate’s must the Board of Pardons and Paroles on the MORGAN, J., POSHEIM, Retired the inmate. condition of SDCL 23A-27-39. Justice, concur. further, provides 24-15-25 And SDCL SABERS, JJ., HENDERSON and continued treatment can also be a condition concur in part. and dissent in parole and failure to continue said treat- subject appellant pos- ment to a would MILLER, J., having been a parole violation. sible member the Court at the time this arguments Court, action We believe Robinson’s was submitted to the did possibilities pro- participate. premature. None of the *4 him, in the vided statutes have occurred HENDERSON, (concurring Justice except he has or will examination dissenting part). penitentiary pursuant to SDCL 23A- I concur on the first issue and dissent on 27-38. At this there is no determina- the second issue. treatment, tion he needs further that it is available, upon and that treatment will be a con- This dissent focuses Robinson’s as- parole. speculate of his cannot mentally dition sertion that the but (GBMI) appellant’s the future course of process about verdict violates his due treatment, any. if rights. The examination

very any. show that he does not need well The legislative GBMI statute is a new Legislature provided anyone The has com- designed persons, vehicle to act on those (GBMI mitted under SDCL 23A-26-12 ill, although mentally possess who still NGBRI) may corpus test habeas requisite ability mental to be held criminal- illegality of his detention. SDCL 23A-46- ly responsible. A defendant can either If, appellant the future can shоw GBMI, plead or have the statute forced applies some unlawful detention him virtue of his assertion of an corpus, writ of habeas we can address the insanity plea. SDCL 23A-27-38 §§ ripe issue at that time when it is for deter- 23A-26-14. mination. claimed that he was insane1 Robinson during escape. Utilizing the assault and any Nor do we find cruel and un 23A-26-14, judge the trial court in- SDCL punishment. usual It is difficult for us to structed the that it could find Robin- equate treatment for a mental condition to mentally son ill.2 was but Robinson punishment suggest cruel and unusual as found on both ed the defendant. hu We believe counts. provide mane to mental treatment to in penitentiary, required mates at the if it is Robinson advocates that the GBMI ver- protections process and available the same as treatment dict aborts due which any opinion, neсessarily application In the statute’s other illness. treat render illness, otherwise, agree unconstitutional. I ment for an mental or this case 22-l-2(18A) "insanity” psychiatric thought, of 1. SDCL defines a substantial disorder person behavior which affects a mood or person temporarily par- the condition of a or reason, tially deprived upon proof the time of the commission of the оffense that at committing charged judgment, impairs person’s but not to the time of the act which him, against incapable knowing incapable knowing he was its the extent that he is wrongfulness, including but not an abnormal- wrongfulness of his act. Mental illness does ity only by repeated manifested unlawful or only by manifested not include abnormalities antisocial behavior[.] repeated or otherwise antisocial con- criminal duct!.] 22-1-2(22) 2. SDCL illness” as defines "mental that Robinson should have re- would an individual so affected as the extent hearing prior sen- process a due insane ceived to be found the time of the men- tencing subject of his current crime’s commission. tal status. my opinion, type compelled pleaded insanity. If psychiatric triggered by a GBMI he was insane when he assault- determined statutе, process hearing, absent a due escaped, deputy ed the Robinson would unconstitutional. How can we force a guilty by have found not reason of into a program oner without immediately insanity and committed to the according opportunity first him the Human Services Center. SDCL 23A- §§ regarding evidence his current However, 26-5 and 23A-26-12. as the ma- mental status? The is: We cannot. answer out, points jоrity opinion Robinson would consider, hearing, we not Should via hearing entitled to a at which he have been ill- possibility that the defendant’s mental represented may present evidence and be ness, present during his crime’s commis- SDCL 23A-26-12.2 and counsel. §§ sion, dissipated? has since is: answer sufficient 23A-46-3. Robinson showed Indeed, we should. (in recovery from his deficiencies Both our state and federal constitutiоns existence at time assault and guarantee shall be de “[n]o escape), he would be released. See SDCL life, prived liberty property without 23A-26-12.5, through 23A-26-12.3 in- §§ Const, VI, of law.” S.D. art. words, clusive. other individual’s *5 XIV, 2. See U.S. Const. amend. key § §

present mental status is the area of Connecticut, 371, Boddie v. 401 See U.S. hearings. inquiry at these 780, 91 S.Ct. 28 L.Ed.2d 113 North actuality, the found Robinson not Dale, west S.D. Prod. Credit v. 361 N.W.2d insane, According but GBMI. to our stat- (S.D.1985). 275 The United States Su ute, heаring on the issue of Robinson’s preme involuntary Court has held that statutorily present mental status is not prisoner hospital transfer of a mandated. SDCL 23A-27-38.3 The See infringement upon prisoner’s that is an lib provision permits defendants to new GBMI erty because both his freedom of action is treated, summarily psyehiatrically, ei- be curtailed the he further treatment and prison facility, in or in another at the ther stigmatized by psychiatric pro may be the discretion of the Board of Charities and Jones, 480, gram. v. 445 U.S. 494- Vitek Yet, if Corrections. Robinson was found to 96, 1254, 1263-65, 552, 100 S.Ct. 63 L.Ed.2d he insane at the time committed his be Supreme in 565-67 Court Vi- entitled, crimes, he would have been statu- goes say: on to tek torily, subsequent to assert mental recov- Concededly the interest of the State ery post-verdict hearing and secure his treating mentally pa- segregating and showing if he was successful release strong. is The interest of the tients person seems to me that a with same. It being arbitrarily oner in not classified as arguably degree lesser of mental mal- an (GBMI) subjected likely more to to unwelcome function would be however; powerful, treatment is also ... experience mental rehabilitation than through jurisdic- provides: providеd facilities under the 3. SDCL 23A-27-38 tion of the board of charities and corrections. "guilty is found If a defendant may The board of charities and corrections plea plea accepted ill" or enters that and the is penitentiary to the court, impose any transfer other defendant from the court shall sen- jurisdiction under its and re- imposed upon facilities tence which could be a dеfend- penitentiary turn the defendant after pleading ant charge. or found of the same completion of the of treatment for the balance If the defendant is sentenced to the (Emphasis supplied defendant’s sentence. penitentiary, state he shall further mine.) given examination and be ... passed note: This statute was in 1983 Author’s psyehiatrically that is indicated for his mental Hinckley shortly available, after the verdict furor. illness. is it

329 making the risk of error in the determi- sight offensive. “We must not lose enough nations ... is substantial to war- concept Eighth Amendment, basic appropriate procedural safeguards rant namely, penalty that a must accord with ” against error. dignity Helm, ‘the of man.’ State v. 287 497, (S.D.1980)(Henderson, J., 501 Vitek, 494-95, 445 100 U.S. S.Ct. at dissenting) (quoting Dulles, Trop v. 356 63 L.Ed.2d at 566. South Dakota’s 590, 598, U.S. 2 78 S.Ct. L.Ed.2d “appropriate procedural safeguards” do (1958)). Weiker, 642 High See State v. not exist. The Court identified the (S.D.1985). procedural requirements minimum N.W.2d 823 as fol- See also United Herold, lows: States ex rel. Schuster v. 410 F.2d (2d Cir.), denied, cert. 396 U.S. prisoner A. Written notice to the (1969) (where S.Ct. L.Ed.2d 96 hospital being a transfer to a mental is court considered; person noted that a sane involuntari ly confined with the insane “will ex ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ hearing, sufficiently B. A after the posed рhysical, general to emotional and permit prisoner prepare, notice mental agony. Confined with those who prisoner at which disclosure to the insane, repeatedly told that he being too upon made of the evidence relied insane ... does not take much for a man opportu- for the transfer and at which an nity question sanity his present to be heard and to own the end to documentary given; aberration.”). evidence is succumb to some mental Id. at 1078. opportunity hearing An

C. testimony of witnesses Supreme Our United States Court has defense and to confront and cross-exam- championed concept often state, except ine witnesses called Eighth Amendment bars “excessive” and made, finding, arbitrarily punishments. “barbaric” See State good рermitting pre- cause for not such Helm, (Henderson, J., 287 N.W.2d at 500 sentation, confrontation, or cross-exami- dissenting) (citing Georgia, Coker v. nation; U.S. L.Ed.2d S.Ct. decisionmaker; independent D. An *6 (1977); 651, Ingraham Wright, v. 430 U.S. E. A written statement the fact- 1401, 97 S.Ct. 51 L.Ed.2d 711 Fur finder as evidence relied on and 238, Georgia, 408 92 man v. U.S. S.Ct. inmate; transferring the reasons for 2726, (1972); Trop 33 L.Ed.2d 346 v. Availability [competent F. assist- Dulles, 86, 590, 2 356 U.S. 78 S.Ct. L.Ed.2d presentation prison- ance to aid in (1958)). 630 If Kendall is sane case]; er’s and psychiatrically against and if he treated his timely G. Effective and notice all will, this, mind, my constitutes cruel and foregoing rights. punishment. unusual Restraints on the (citation omitted). mind can more cruel than restraints on Id. body. Medical treatment alter procedural safeguards, Surely, these thought processes; it can create tremen adopted by Supreme the United States agony. dоus mental Vitek, apply Court should also to a oner in Kendall Robinson’s situation. Rob- process inquiry necessary A due “ sound, and to may well be inson fully fairly address ‘the and subtleties ” involuntarily subject him to mental treat- psychiatric diagnoses.’ and nuances of accompanying stigma ment and the of such 495, 100 1265, Vitek, 63 445 U.S. at S.Ct. at wrong. process requires treatment is Due (quoting Addington L.Ed.2d at 566 v. Tex decision-making procedurе. a fair Jackson 418, as, 430, 441 U.S. 99 S.Ct. Indiana, 715, 1845, 406 U.S. 92 S.Ct. 323, (1979)). “The medical 60 L.Ed.2d L.Ed.2d 435 justify inquiry nature ... does not dispensing process requirements”; potentially psy- To force a sane man into with due is, me, na- constitutionally precisely chiatric it is the medical fact mankind, inquiry “justifies] ture of the which duty to serve and we must there- requirement adversary hearings.” rights Vi all respect fore the constitutional tek, at liberty, equality, justice. 445 U.S. at S.Ct. men to Tо (quoting Addington v. Tex L.Ed.2d poor dropped souls who have off the those as, 99 S.Ct. at health, U.S. particu- we must cliff of 333). L.Ed.2d at larly vigilant.

South Dakota state statutes should make It is for these reasons that I respectfully post-verdict, presentence, process hear- dissent from majority opinion. persons ings available to GBMI who assert their current mental status has im- I am hereby authorized ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to state that (from they proved the time committed their joins Justice SABERS in this concurrence crimes) psychiatric treat- part. and dissent in longer hear- ment is no warranted. Said ings would insure that those defendants actually

psychiatrically treated are in need

of care.4 GBMI individuals who have men-

tally spared recovered would be

and the State would therefore avoid wast-

ing costly professional delicate and services WOOSTER,

on those who neither need nor want them. Irene R. Petitioner manner, In this the State would be better Appellee, able concentrate its resources on those . v prisoners benefit from who WOOSTER, Respondent R. Grant treatment.5 Appellant. recognized by legal It is scholars that GBMI is a insanity serious erosion on the No. 15282. Sherman, generally Guilty defense. See Supreme of South Dakota. Mentally

But Ill: A Retreat the In from Defense, sanity 7 Am. J.L. & Med. 237 Considered on Briefs Oct. 1986. (Bost. 1981). If, indeed, Univ. Sch. of Law Decided Jan. defense, inwe the law will erode this should recognize preserve it as such we all guarantees

constitutional of due protection Eighth Amend

ment? We must establish commitment

standards. South Dakota has fallen short *7 Upon

of the mark. us rests a fundamental statutory patients placed compels 4. South Dakota’s scheme were in chains or on the this, yet longer praise mental examinations and “may” give state authorities “rack." We no have a more “psychiatrically the treatment that is enlightened people. Memories of the American indicated for his mental things illness.” To make short, however, legislation people are and new worse, statutory South Dakota’s scheme governing responsibili mental illness/criminal available, may recites: then ty X-rayed constitutionality. “If A should be 23A-27-38, provided_” supra, See SDCL aspect of GBMI student interested in this added). (emphasis n. 3 urged following phenomena is to consult the McLeod, People 407 Mich. 663- sources. 680, not, time, I do at this address what I consider J., (1980) (Levin, 919-27 questionable concerning to be a most area Bennett, affirmance); concurring in Britton & (who persons GBMI statute: No!, Guilty Mentally Adopt But 15 U.Tol.L. Ill?— rightfully hospitals) should be in will be con Sherman, supra, 7 Am. J.L. & Rev. 203 prison. fined in This situation raises the dis 237; Comment, Constitutionality Med. turbing spectres prisoners will Verdict, Mentally Michigan's ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Guilty they But III not receive the quire re general and will also be abused J.L. Reform 188 prison population. history, Not far removed