People v. District Court for County of Jefferson

Mr. Justice Kelley

dissenting:

I wish to be recorded as joining in Mr. Justice McWilliams’ dissenting opinion. Also, because of the public importance of the step being taken by the majority of this court, I feel compelled to briefly supplement the views expressed in the dissenting opinion.

In his dissenting opinion Mr. Justice McWilliams noted that:

“* * * my attention has not been directed to any reported decision of any jurisdiction where a statute of the type with which we are here concerned has been held to be violative of due process. And on the contrary *280 there are decisions which hold that such statutes are not violative of ‘due process.’ ”

People Ex Rel. Attorney General v. Barksdale, 104 Colo. 1 , 87 P.2d 755 , reminds us:

“* * * that a presumption of constitutionality attaches to the act in question, as it does to all legislation passed by the General Assembly * *

This court, in Police Protective Association of Colorado v. Warren, 101 Colo. 586 , 76 P.2d 94 , sets forth a principle long adhered to, which, it seems to me, is being overlooked by the majority, when it states:

“* * * Our purpose is not to search for reasons why a law should be held unconstitutional, but rather to accept it as constitutional, unless its repugnancy to the fundamental law clearly appears *. *

Although I am not sure that the majority will concede that this is a case of first impression, because of its position that the burden of proof has always been on the people to establish sanity when made an issue in a criminal case,. I submit that it is a case of first impression. As pointed out by Mr. Justice McWilliams, “this is the first time that any court in a reported decision has ever held that a statute or rule of court which places on the defendant the burden of proving insanity violates due process.”

After this preface, I would like to remind my colleagues of the majority that there is another rule of this court which they have overlooked or ignored. It is “* * * ruje cour^ as jias p,een announced, is, on questions of first impression, to follow the rulings of the supreme court of the United States * * Post Printing Co. v. Denver, 68 Colo. 50 , 189 P. 39 ; Denver Local Union No. 13 v. Perry Truck Lines, 106 Colo. 25 , 101 P.2d 436 .

Adherence to this policy would require us to follow Leland v. Oregon, 343 U.S. 790 , 72 S. Ct. 1002 , 96 L.Ed. 1302 , which is thoroughly discussed in the dissent of Mr. Justice McWilliams.

*281 The majority opinion implies that had the legislature at sometime in the past put the burden of establishing insanity on the defendant it would have been valid. However, the rule that because initially the courts and then the legislature placed the burden of establishing the sanity of the defendant upon the People, when made an issue, it has become a part of due process. The majority is in effect admitting the authority was in the legislature, but that by virtue of at one time having taken one course it has now lost the right to change its course. This position has not always prevailed, for we note that in Wilmore v. Annear, 100 Colo. 106 , 65 P.2d 1433 , the court held that:

“* * * If constitutional power to do an act is nonexistent it cannot be acquired by legislative assertion or attempted exercise of such power; if it is existent it is not lost by a failure, for however long a time, to exercise it.” (Emphasis added.)

My differences with the majority relate to the question of whether the rule as to burden of proof laid down in the decisions relied upon in its opinion, under the circumstances of the court procedures then being followed and the then legislation, actually created a constitutional right which cannot now - be changed by the legislature.

Basically, due process contemplates a fair and just hearing and a full and adequate opportunity for a defense. Powell, v. Alabama, 287 U. S. 45 . Mr. Justice Cardozo, in Snyder v. Massachusetts, 291 U.S. 97 , stated it in this language:

“* * * Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results. ‘The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall.’ Ownbey v. *282 Morgan, supra, p. 110. What is fair in one set of circumstances may be an act of tyranny in others * *

In the Snyder case the court was reviewing a conviction for murder under the laws of Massachusetts. Upon motion of the district attorney the court permitted the jury, in the company of the lawyers and the judge, to view the scene of the crime. The trial judge, however, denied the defendant the right to accompany the jury in alleged violation of his right to be present at every step of the trial. It is interesting to note that the United States Supreme Court held that it was not a denial of due process, but noted:

“* * * Qne thing to say that the prevailing practice is to permit the accused to accompany the jury, if he expresses such a wish. It is another thing to say that the practice may not he changed without a denial of his privileges under the Constitution of the United States * * (Emphasis added.)

I think the practice which has prevailed in this state for many years by virtue of both court decision and legislation in reference to the burden of proof in criminal cases, where the defendant pleads not guilty by reason of insanity, is one that can be changed by the legislature without a denial of due process.

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

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

Under earlier statutes it was within the discretion of the trial court to try the sanity issue and the substantive offense at the same time, ’35 C.S.A., c. 48, § 509, as amended Laws 1951; C.R.S. ’53, 39-8-3 and (1), Supp.; Castro v. People, 140 Colo. 493 , 346 P.2d 1020 ; Martinez v. People, 124 Colo. 170 , 235 P.2d 810 .

*283 Under those circumstances there was justification for placing the burden of proof as to both issues upon the People. Otherwise, the jury could very easily become confused to the prejudice of the defendant.

Under the statutes, following the plea of not guilty by reason of insanity, the defendant is committed to either Colorado Psychopathic Hospital or the State Hospital for observation and examination by physicians who are specialists in mental diseases, for a period not exceeding one month, or the judge may appoint a commission of one to three qualified physicians to examine the defendant at the jail. These physicians may be called by either the People or the defendant or by the court for examination and, of course, cross-examination by the respective parties. C.R.S. 1963, 39-8-2(3) (a):

“It shall be permissible in any such observation and examination for said physicians to use confessions and admissions of the defendant, and any other evidence as to the facts and circumstances surrounding the commission of the crime, for the purpose of questioning the defendant thereto to aid them in forming an opinion as to the sanity or insanity of the defendant; and it shall also be permissible for them to administer or cause to be administered to the defendant sodium amytal, sodium pentothal, metrazol and like drugs, and to use or cause to be used on the defendant the polygraph, as an aid to them in forming an opinion as to the insanity or sanity of the defendant; and it shall be permissible for such physicians, provided the same entered into the formation of such an opinion, to testify as to the result of such administration or use and as to statements and reactions of the defendant in the course of such administration and use.”

The present statute makes separate trials mandatory. The legislature as the basis for the change may have adopted the reasons advanced by this court in Trujillo *284 v. People, 150 Colo. 235 , 372 P.2d 86 , where it is said: “* * * much wider area of conduct on the part of a defendant can be made the subject of inquiry in a trial relating to his sanity, than would be permissible in a trial upon a plea of not guilty. Any abnormal conduct, whether related to the act forming the basis of the accusation or not, may be relevant and important on the issue of his mental condition. Conversely, evidence of normal conduct, and actions reflecting the usual and ordinary under the circumstances, may be shown to prove sanity. The separate trial is provided in order to protect the accused from prejudice which might arise in the minds of a jury trying both the issue of guilt and of mental condition. Separate trials of these issues are provided to safeguard, as far as possible, against the prejudice likely to arise by reason of the wide variety of evidence which might be competent on the issue of insanity and which would not be admissible upon trial of the not guilty plea.”

Also, it could well be that the legislature by the now invalid amendment was attempting to eliminate an abuse which came to light in French v. District Court, 153 Colo. 10 , 384 P.2d 268 . French was an original proceeding to compel the trial court to reinstate a plea of not guilty by reason of insanity. Upon the entry of the plea French was committed for observation, but refused to talk to the psychiatrists. This court observed that, “If the case is to be tried on all issues at the same time, any statements made to the psychiatrists would necessarily be admitted as bearing upon the issue of mental condition” and, in effect, said the court, he did not have to cooperate.

By providing one trial to determine guilt, the legislature corrected two problem areas by:

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

*285 2. Eliminating any advantage to the defendant from the intentional refusal to cooperate with the psychiatrists.

Such incarceration and examination does not offend against the self-incrimination provision of the constitution. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 .

In Bishop v. Salida Hospital District, 158 Colo. 315 , 406 P.2d 329 , this court recognized that the legislature has the^ power to declare that the existence of one fact shall be presumptive evidence of another, citing criminal cases in support of the statement. See: Garcia v. People, 121 Colo. 130 , 213 P.2d 387 ; Roberts v. People, 78 Colo. 555, 243 , P. 544; Robertson v. People, 20 Colo. 279 , 38 P. 326 .

The majority recognize the rule that all of us are presumed to be sane, and that where the insanity plea is interposed that the defendant must “go forward” with some evidence of his insanity to overcome the presumption, at which point the burden shifts to the People to establish sanity beyond a reasonable doubt.

Now, if the legislature can say that the sanity of the defendant is a prima facie fact, it certainly is a very short step indeed to say that the defendant’s proof of insanity must preponderate. The legislature took that step. To me it does not place upon the defendant an unfair burden.

In Boyd v. People, 108 Colo. 289 , 116 P.2d 193 , this court held that the plea of not guilty by reason of insanity is in the nature of confession and avoidance. How, then, can a defendant claim he has been deprived of due process when he is given first a trial which will completely absolve him from responsibility for his acts if he convinces the jury of his insanity, and will give him a second trial, if he is found sane, where he can again introduce any evidence bearing on his mental condition as it affects or is material to the specific elements of the offense.

There is nothing so unfair in the procedure provided *286 in the statute this day declared to be invalid as to shock my conscience. To close, I would like to adopt the statement of Mr. Justice Cardozo, in Snyder v. Massachusetts, supra:

“The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”

I would make the rule absolute.

ADDENDUM

On petition for rehearing it is suggested that our opinion should indicate whether the Act of 1965, which refers to the same subject, is also unconstitutional. We hold that it, too, cannot be sustained over an objection based upon a denial of due process of law.