Petition — Colorado v. Hendershott

us)

Oifice - Supreme Court, U.S.

82-1009; FILED

No. DEC 1% 1982

ALEXANDER L. STEVAS,

In The CLERK

Supreme Court of the Unite és

October Term, 1982

fy.

Vv

THE STATE OF COLORADO,

Petitioner,

Vs.

LEE ROY HENDERSHOTT,

Respondent.

fy.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF COLORADO

re

ee

PETITION FOR WRIT OF CERTIORARI

ry.

Vw

J. D. MacFARLANE

Attorney General

CHARLES B. HOWE

Deputy Attorney General

JOEL W. CANTRICK

Solicitor General

DAVID K. REES

Appellate Litigation Coordinator

Office of Attorney General

Counsel of Record

JOHN DANIEL DAILEY

Chief, Criminal Appeals

Enforcement Section

Attorneys for Petitioner

1525 Sherman Street, 3d Floor

Denver, Coloradv 80203

Telephone: (303) 866-3611

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

QUESTIONS PRESENTED FOR REVIEW

1. May a state constitutionally limit the admissibil-

ity of evidence of mental defect to specific-intent crimes

without infringing on the presumption of innocence and

without abridging the defendant’s right to have every

element of a criminal offense proved beyond a reasonable

doubt?

2. Where the defendant is charged with a general-

intent crime, may a state require that evidence of mental

defect affecting his ability to form a general intent be

introduced, if at all, only at a sanity trial?

TABLE OF CONTENTS

Pages

Questions Presented For Review 00000000000

Table of Authorities 0. cnnnnmnnnnnnnnen iii

NS: TE ccicsiscisccssessinsstiantteininisiteisitiiinitciinmmnianiwianicanuin f

Jurisdiction . “ Senna: le

Statutory and Constitutional Provisions Involved... 2

Statement of the Case oe suteisoninionine 3

vu

Reasons for Granting the Petition 00

1. The decision below involves an important

question of federal law not yet determined

by this Court: May a state constitutionally

prohibit the introduction of defense evidence

of mental defect to disprove the mens rea

element of a general-intent crime? ........................ 8

2. The decision below involves a second impor-

tant question of federal law not yet deter-

mined by this Court: Does the Federal Con-

stitution prohibit a state from requiring that

evidence of mental defect affecting an ac-

cused’s ability to form a general intent be in-

troduced, if at all, only at a sanity trial... 11

Conclusion. hated Ta nineidscnactidtaisi tg we

iii

TABLE OF CONTENTS—Continued

Pages

Appendix A (Opinion of the Colorado Supreme

Court) A-1

Appendix B (Order denying petition for rehearing) ....A-26

Appendix C (Motion in limine) A-27

Appendix D (Opinion of the district court) A-30

Appendix E (Colorado statutes) A-37

TABLE OF AUTHORITIES

Cases

Bates v. © tate, 386 A. 2d 1139 (Del. 1978) 7

Bethea v. Unite? States, 365 A. 2d 64 (D.C. App,

1976), cert. denied, 433 U.S. 911 (1977) 7

Bradshaw v. State, 353 So. 2d 188 (Fla. App. 1977) —. 7

Castro v. People, 140 Colo. 493, 346 P. 2d 1020

(1959) 12

Chambers v. Mississippi, 410 U.S. 284 (1973) 7, 14

Commonwealth v. Murphy, 493 Pa. 35, 425 A. 2d

352 (1981) 11

Cowles v. State, 510 S. W. 2d 608 (Tex. Crim. App.

1974) 6

Delaware v. Prouse, 440 U.S. 648 (1979) 2,6

Fisher v. United States, 328 U.S. 463 (1945) 7, 8, 9, 10, 11

Garrett v. State, 320 A. 2d 745 (Del. 1974) 000i

In re Winship, 397 U.S. 358 (1970) nwwndy 4, 7, 10

iv

TABLE OF AUTHORITIES—Continued

Pages

Johnson v. State, 439 A. 2d 542 (Md. App. 1982) 0... =7

Leland v. Oregon, 343 U.S. 790 (1952) 7, 9, 10, 11

McElroy v. Holloway, 451 U.S. 1028 (1981) 200000. «611

Mill v. State, 585 P. 2d 546 (Alaska 1978), cert. de-

nied, 444 U.S. 827 (1979) “ TL IRR Oe

Muench v. Israel, 514 F. Supp. 1194 (1981) 00. 6

Mullaney v. Wilbur, 421 U.S. 684 (1975) ......... 2, 4, 7, 10, 14

Nielsen v. State, 623 P. 2d 304 (Alaska 1981) 200000. «=

Oregon v. Kennedy, 102 8. Ct. 2083 (1982) 00000. 2

Patterson v. New York, 432 U.S. 197 (1977) ...........2, 4, 7,

10, 11, 14

People v. Chavez, 629 P. 2d 1040 (Colo. 1981) 000.0... ee

People v. Donaldson, 65 Mich. App. 588, 237 N. W.

2d 570 (1975) ed eo. ae

People v. Gauze, 15 Cal. 3d 709, 125 Cal. Rptr.

pt a oh By, | Se 6

Sandstrom v. Montana, 442 U.S. 510 (1979) 00 4

State v. Barney, 244 N. W. 2d 316 (Iowa 1976) ............. 6

State v. Bragg, 235 S. E. 2d 466 (W. Va. 1977) .0000. «11

State v. Doyon, 416 A. 2d 130 (R. I. 1980) 06

State v. Ferrick, 81 Wash. 2d 942, 506 P. 2d 860,

cert. denied, 414 U.S. 1094 (1973) nee «= 6

TABLE OF AUTHORITIES—Continued

Pages

State v. Khan, 175 N. J. Super. 72, 417 A. 2d 585

(1980) 11

State v. Novosel, 115 N. H. 302, 339 A. 2d 16 (1975) —.. 11

State v. Sikora, 44 N. J. 453, 210 A. 2d 193 (1965) WW. = 7

State v. Steele, 97 Wis. 2d 72, 294 N. W. 2d 2 (1980) .. 6

State v. Wade, 375 So. 2d 97 (La. 1979), cert. de-

nied, 445 U.S. 911 (1980) 6

State v. Wilcox, 70 Ohio St. 2d 182, 436 N. EB. 2a

523 (1982) ....... 7

United States v. Bishop, 412 U.S. 346 (1973) 00. 6

United States v. Brawner, 471 F. 2d 969 (D.C.

Cir. 1972) 6

United States v. Busic, 592 F. 2d 13 (2d Cir. 1978) .... 6

United States v. Haseltine, 419 F. 2d 579 (9th Cir.

1969) 6

United States v. Nobles, 422 U.S. 225 (1975) 7, 12, 14

Wardius v. Oregon, 412 U.S. 470 (1973) 13

Washington v. Texas, 388 U.S. 14 (1967) 7, 12, 14

Williams v. Florida, 399 U.S. 78 (1970) 7, 13,14

Zacchini v. Scripps-Howard Broadcasting Co., 433

U.S. 572 (1977) 2,6

vi

TABLE OF AUTHORITIES—Continued

Pages

STaruTes

Cal. Penal Code sec. 1026 (West Supp. 1982) 00. 11

Colo. Rev. Stat. sec. 16-8-101 through 105 (1978) ..3, 12,13

Colo. Rev. Stat. sec. 18-1-501 (1978) 2. cccnntdy 4, 12

Colo. Rev. Stat. sec. 18-1-502 (1978) nn ceccecccccccsnnn

Colo. Rev. Stat. sees. 18-1-801 to 18-1-804 0. 3, 4,5, 11

Colo. Rev. Stat. sec. 18-1-802 (1978) ee «= OB

Colo. Rev. Stat. sec. 18-1-803 (1978) 3, 4, 5, 11

Colo. Rev. Stat. sec. 18-1-805 (1978) 0B, 12

Colo. Rev. Stat. sec. 18-3-204 (1978) 3

Or. Comp. Laws 23-122 (1940) i)

28 U.S.C. sec. 1257 (3) " iene est

6S, |

ConstituTION

U.S. Const. amend XTV, see. (1) nce. 9

OTHER AUTHORITIES

Criminal Justice Reform Act of 1982, S. 2903, H. R.

7117, 97th Cong. 2d Sess. (1982) nec cccccccccsecsnsmnnr sven

or

Dershowitz, The Insanity Defense—Under Fire

Again, Washington Post, June 27, 1982 oO

vii

TABLE OF AUTHORITIES—Continued

Pages

Kaufman, The Insanity Plea on Trial, New York

Times, August 8, 1982, sec. 6 (Magazine) 200000... = 5

R. Perkins, Criminal Law (2d ed. 1969) 12

Reforming the Insanity Defense, State Legisla-

tures, Oct. 1982 5

No. ...

fy.

Vw

In The

Supreme Court of the United States

October Term, 1982

sy,

Ww

THE STATE OF COLORADO,

Petitioner,

vs.

LEE ROY HENDERSHOTT,

Respondent.

LY

Vv

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF COLORADO

ty.

PETITION FOR WRIT OF CERTIORARI

ra

_>-..

OPINIONS BELOW

The opinion of the Colorado Supreme Court is not yet

reported, but is included as appendix A. The opinion of

the district court is not reported, but is included as appen-

dix D.

a

JURISDICTION

The judgment of the Colorado Supreme Court was is-

sued on September 27, 1982 (A-1). The state’s timely

petition for rehearing was denied on October 18, 1982

(A-26). The jurisdiction of this Court is invoked pur-

suant to 28 U.S.C. see. 1257 (3).

1

No adequate and independent state ground exists for

the decision of the Colorado Supreme Court which would

deprive this Court of jurisdiction. The Colorado Supreme

Court cited both the federal and state constitutions. The

analysis, however, is based on the United States Constitu-

tion and the decisions of this Court, especially Jn re Win-

ship, 397 U.S. 358 (1970), Mullaney v. Wilbur, 421 U.S.

684 (1975), and Patterson v. New York, 482 U.S, 197

(1977). The Colorado court made no independent analysis

under the Colorado constitution. Consequently, the mere

citing of the Colorado constitution in the opinion does not

constitute an adequate and independent state groand which

would preclude this Court’s review by writ of certiorari.

See Oregon v. Kennedy, 102 8, Ct. 2083, 2087 (1982),

“(T )he fact that the state court relied to the extent that

it did on the federal grounds requires us to reach the

merits.” See also Delaware v. Prouse, 440 U.S. 648 (1979) ;

Zacchini v. Scripps-Hwward Broadcasting Co., 433 U.S.

572 (1977).

—

Vv

CONSTITUTIONAL PROVISIONS AND STATUTES

WHICH THE CASE INVOLVES

U.S. Const. amend. XIV, sec. (1), which states in

relevant part:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty or property without due process of law,

nor deny to any person within its jurisdiction the equa!

protection of the laws.

3

Colo, Rev. Stat. sec, 18-1-803 (1978), which states:

Evidence of an impaired mental condition though not

legal insanity may be offered in a proper case as

bearing upon the capacity of the accused to form the

specific intent if such an intent is an element of the

offense charged.

Colo. Rev. Stat. seo, 18-1-805 (1978), which states:

The issue of responsibility under sections 18-1-801 to

18-1-804 is an affirmative defense,

The following Colorado statutes, which appear in ap-

pendix E to this brief (A-37):

Colo. Rev. Stat. sec. 16-8-101 through 105 (1978) ;

Colo. Rev. Stat. sec, 18-1-501 (1978) ;

Colo. Rev. Stat. sec, 18-1-502 (1978) ;

Colo. Rev. Stat. sec, 18-1-802 (1978) ;

Colo. Rev. Stat. sec, 18-3-204 (1978).

STATEMENT OF THE CASE

On April 28, 1979, the respondent, Lee Roy Hender-

shott, was living with Patricia Styskal. Problems devel-

oped between them and Ms, Styskal told the respondent

to move out. That evening, Ms. Styskal found the re-

spondent waiting for her in her bedroom, He accused

her of having been with another man, struck, kicked, and

beat her. As a result, the respondent was charged in

the Boulder County Court with knowingly or recklessly

causing bodily injury to Ms, Styskal, in violation of Colo.

Rev. Stat. 18-3-204 (1978), third-degree assault. Although

4

the respondent did not enter a plea of not guilty by rea-

son of insanity, in the course of his jury trial on the

merits, he attempted to introduce expert psychiatric testi-

mony to show that he suffered from ‘‘adult minimal

brain dysfunction” which could cause him to be ‘‘uneon-

scious’’ or ‘completely out of control.’ The prosecu-

tion, upon learning of the proposed defense, filed a mo-

tion in limine, arguing that as under Colorado law evi-

dence of impaired mental ability short of insanity is only

a defense to specific-intent crimes, Colo. Rev, Stat. 18-

1-803 (1978), such evidence is irrelevant to a prosecution

for third-degree assault, which, under Colorado law, is

a general-intent crime (A-27).2. The court granted this mo-

tion and refused to permit the respondent from introducing

the offered testimony. The respondent was convicted and

sentenced to 6 months in jail with credit for time served.

The respondent appealed to the Boulder District

Court, which affirmed the conviction (A-30). The Colo-

rado Supreme Court then granted the respondent's peti-

tion for writ of certiorari and reversed his conviction on

the grounds that the trial court erred in not admitting

the psychiatric testimony. The court held that the de-

cisions in In re Winship, 397 U.S. 3858 (1970), Sandstrom

v. Montana, 442 U.S. 510 (1979), Patterson v. New York,

432 U.S. 197 (1977), and Mullaney v. Wilbur, 421 U.S.

'‘A complete description of the offered defense is con-

meer - burs two of the Colorado Supreme Court's opin-

on -5).

*Under Colorado law specific-intent crimes are those with

a mens rer of “intentionally” or with “intent.” Crimes with a

lesser mens rea (knowingly, willfully, recklessly, criminal negli-

; pony are general-intent crimes. Colo, Rev, Stat. 18-1-501

5

684 (1975), required that as a matter of due process, a

criminal defendant be allowed to introduce evidence of

impaired mental condition at the trial of a general-intent

crime, even though his sanity was not at issue. Otherwise,

the court held, the state’s burden of proof on an element of

a crime would be lessened, and the defendant’s presumption

of innocence undermined (A-8-10).

r

ww

REASONS FOR GRANTING THE WRIT

Since John Hinckley was found not guilty by reason

of insanity in the shooting of President Reagan, the ques-

tion of to what extent the legislative branch may limit

evidence of mental defect as a defense to criminal respon-

sibility has been hotly debated.’ The Hendershott case

exemplifies the issues which underlie that debate.

The Colorado legislature has allowed a criminal de-

fendant to raise the issue of impaired mental condition

as an affirmative defense to specific-intent crimes. Colo.

Rev. Stat. 18-1-803 (1978). It has not, however, allowed

evidence of impaired mental condition to constitute a de-

fense to general-intent crimes. Jd.“ In limiting the

§See, e. g., Kaufman, The Insanity Plea on Trial, New York

Times, August 8, 1982, sec. 6 (Magazine), at 16; Dershowitz, The

Insanity Defense—Under Fire Again, Washington Post, June 27,

1982; Reforming the Insanity Defense, State Legislatures, Oct.

1982, at 21. The Reagan administration’s response is contained

in ogy title | of the Criminal Justice Reform Act of 1982,

§. 2903, H. R. 7117, 97th Cong, 2d Sess. (1982).

‘Despite the plain language of the statute, in Hendershott

the Colorado Supreme Court held that it would be unconstitu-

(Continued on next page)

6

defense of impaired mental condition to specific-intent

crimes, the Colorado legislature has followed the federal

rule, and the rule of many other states.’ Despite the

wide acceptance of this approach, the Colorado Supreme

Court held in Hendershott that the restriction on evi-

dence of impaired mental condition to specific-intent

crimes violates the Constitution (A-2). This holding is

in direet conflict with the decision of the highest court in

at least one other state’ and necessarily in conflict with

other jurisdictions which find no constitutional infirmity in

prohibiting the admission of impaired mental condition evi-

dence to negate any mens rea element.’

(Continued from previous page)

ional to construe the statute in such a manner as to prohibit the

introduction of evidence of impaired mental ability in the pros-

ecution of a general intent crime (A-16), Because the Colorado

Supreme Court's construction was compelled by an erroneous

interpretation of the United States Constitution, this case is ap-

ty yet for review by this Court. Delaware v. Prouse, 440

. 8. 648 (1979); Zacchini v. Scripps-Howard Broadcasting Co.,

433 U.S. 572 (1977).

5See, e.g., United States v. Busic, 592 F.2d 13 (2d Cir.

1978); United States v. Brawner, 471 F. 2d 969 (D. C. Cir. 1972);

United States v. Haseltine, 419 F.2d 579 (9th Cir. 1969), over-

ruled on other eee United States v. Bishop, 412 U.S. 346,

351 (1973); Mill v. State, 585 P.2d 546 (Alaska 1978), cert.

denied, 444 U.S. 827 (1979); People v. Gauze, 15 Cal. 3d 709,

125 Cal. Rptr. 773, 542 P. 2d 1565 (1975); State v. Barney, 244

N. W. 2d 316 (lowa 1976); State v. Doyon, 416 A. 2d 130 (R. I.

1980); Cowles v. State, 510 S. W. 2d (Tex. Crim. App. 1974);

State v. Ferrick, 81 Wash. 2d 942, 506 P. 2d 860, cert. denied,

414 U.S. 1094 (1973).

Mill v. State, 585 P. 2d 546 (Alaska 1978), cert. denied, 444

U. S. 827 (1979).

7Muench v. Israel, 514 F. Supp. 1194 (1981); State v. Steele,

97 Wis. 2d 72, 294 N. W. 2d 2 (1980); State v. Wade, 375 So. 22

(Continued on next page)

7

The questions at issue here are of vital importance

to the development of the law with respect to a state’s

right to define the limits of criminal responsibility due

to mental defect, a state’s burden of proof on the ele-

ments of a crime, a defendant’s right to present evidence

in his behalf, and a state’s right to limit the presentation

of defense evidence in appropriate circumstances. The

Hendershott decision tests the continuing viability of de-

cisions such as Fisher v. United States, 328 U.S. 463

(1945) and Leland v. Oregon, 343 U.S. 790 (1952), in

light of In Re Winship, 397 U.S. 358 (1970), Mullaney

v. Wilbur, 421 U.S. 684 (1975) and Patterson v. New

York, 432 U.S. 197 (1977). It presents another perspec-

tive on the question of the state’s ability to limit the pre-

sentation of defense evidence, see United States v.

Nobles, 422 U.S. 225 (1975); Chambers v. Mississippi,

410 U.S, 284 (1973); Washington v. Texas, 388 U.S. 14

(1967); and it presents the question unanswered in Wil-

liams v. Florida, 399 U.S. 78, 83 n. 14 (1970), whether

the state may exclude defense evidence where the de-

fendant has not complied with the procedure providing

for its admission.

sy

7

(Continued from previous page)

97 (La. 1979), cert. denied, 445 U.S. 911 (1980). Other author-

ities refusing to admit evidence of impaired mental condition to

disprove any mens rea element, even that of specific intent, in-

clude, e. g., Bethea v. United States, 365 A. 2d 64 (D.C. (oe.

1976), cert. denied, 433 U.S. 911 (1977); Bates v. State,

A. 2d 1139 (Del. 1978); Bradshaw v. State, 353 So. 2d 188 (Fla.

App. 1977); Johnson v. State, 439 A. 2d 542 (Md. App. 1982);

State v. Sikora, 44 N. J. 453, 210 A. 2d 193 (1965); State v. Wil-

cox, 70 Ohio St. 2d 182, 436 N., E. 2d 523 (1982).

ARGUMENT

The decision below involves an important

question of federal law not yet determined by

this Court: May a state constitutionally prohibit

the introduction of defense evidence of mental

defect to disprove the mens rea element of a gen-

eral-intent crime?

In Fisher ». United States, this Court rejected a bid

to have a jury instructed that evidence of mental de-

ficiency short of insanity could be considered in deter-

mining the aeccused’s capacity for premeditation and de-

liberation. In doing so, this Court stated:

No one doubts that there are more possible classifi-

cations of mentality than the sane and the insane

. . » Criminologists and psychologists have weighed

the advantages and disadvantages of the adoption of

the theory of partial responsibility as a basis of the

jury’s determination of the degree of crime of which

a mentally deficient defendant may be guilty... .

It may be that psychiatry has now reached a posi-

tion of certainty in its diagnosis and prognosis which

will induce Congress to enact the rule of responsi-

bility for crime for which petitioner contends. For

this Court to force the District of Columbia to adopt

such a requirement for criminal trials would involve

a fundamental change in the common law theory of

responsibility.

Such a radical departure from common law concepts

is more properly a subject for the exercise of legis-

lative power or at least for the discretion of the

courts of the District. The administration of erim-

9

inal law in matters not affected by Constitutional

limitations ... is a matter peculiarly of local concern.

328 U.S, at 475-76.

In Leland v. Oregon, the defendant was charged with

first-degree murder. A jury rejected his insanity defense

and found him guilty, a conviction which this Court

affirmed. In so ruling, the Court held that it was not

unconstitutional to place the burden of proof on the de-

fendant to prove his sanity beyond a reasonable doubt.

343 U.S. at 800. Further, this Court upheld the consti-

tutionality of an Oregon statute which provided that

‘*morbid propensity to commit prohibited acts, existing

in the mind of a person who is not shown to have been

incapable of knowing the wrongfulness of such acts,

forms no defense to a prosecution therefor.” 343 U.S.

at 800, quoting Or. Comp. Laws sec, 23-122 (1940). Al-

though the language of the Oregon statute upheld in Le-

land is perhaps archaic, the implication of the decision

is clear: If a defendant is not insane, the federal Consti-

tution does not mandate that lesser mental defect consti-

tutes a defense to the charge. If a state may pass a statute

which provides that evidence of impaired mental condition

is not a defense to any crime (thereby making such evi-

dence irrelevant), it may certainly pass a less severe

statute which provides that impaired condition is only

relevant to specific-intent crimes.

On the basis of Fisher and Leland, it would appear

that the Colorado Supreme Court erred in determining

that the Constitution requires evidence of impaired

mental condition be admissible to negate a general-intent

element of a crime. An exposition on this point is neces-

sary, however, because of the challenge to the viability

10

of Fisher and Leland based on subsequent decisions re-

quiring the prosecution to prove all elements of a crime

beyond a reasonable doubt, In Re Winship, and prohibit-

ing a state from placing the burden on a defendant

charged with murder to prove he acted in a heat of pas-

sion, Mullaney v. Wilbur.

In Hencershott, the Colorado Supreme Court neither

cited nor discussed Fisher and Leland, but relied instead

on Winship and Mullaney in concluding that evidence of

impaired mental condition must be admissible to contest

the prosecution’s proof of the mens rea element of a crime

(A-8-9). In doing so, the Colorado court failed to recog-

nize the significance of Patterson v. New York in reaffirm.

ing the Fisher-Leland principle that mental-defect evi-

dence is distinct from evidence of mens rea.

In Patterson, a case decided subsequent to Winship

and Mullaney, this Court upheld a New York statute which

placed the burden on the defendant to prove that he

acted while under ‘‘severe emotional distress,’’ a miti-

gating factor to murder in New York. Over a vigorous

dissent, this Court held that evidence of mental infirmity

not rising to the level of insanity did “not serve to negative

any facts of the crime which the State is to prove in order

to convict of murder.” Such mental infirmity ‘‘consti-

tutes a separate issue on which the defendant is required

to carry the burden of persuasion.’’ 432 U.S. at 206-07,

Since impaired mental condition is an affirmative defense

and under Patterson distinct from the elements of the

offense, the Colorado Supreme Court’s analysis is incor-

rect. As the Colorado Supreme Court’s opinion shows,

Winship and Mullaney have created confusion in the lower

11

courts as to the application of Fisher and Leland. This

confusion has not been eliminated by Patterson v. New

York. See McElroy v. Holloway, 451 U.S. 1028 (1981),

(Rehnquist, J., dissenting from the denial of certiorari).

The Court should grant this petition to end this confusion,

II.

The decision below involves a second im-

portant federal question: Does the Federal Con-

stitution prohibit a state from requiring that evi-

dence of mental defect affecting an accused’s abil-

ity to form a general intent be introduced, if at all,

only at a sanity trial.

This case also raises the question of whether a state

may restrict the manner of presentation of defense evi-

dence. The Colorado Supreme Court viewed the eviden-

tiary proscription on the admissibility of impaired-mental-

condition evidence to be tantamount to the preclusion of

relevant, reliable evidence, the effect of which was to

undermine a defendant’s presumption of innocence and

lessen the state’s burden of proof (A-10). Colorado, like

many other states,’ has developed a bifurcated proceeding

in which a sanity trial is conducted separately from a

trial on the merits. Colo. Rev. Stat. 16-8-103, 104, 18-1-

802 (1978). The state’s burden at the sanity proceeding

‘By statute: Cal. Penal Code sec. 1026 (West Supp. 1982);

Wis. Stat. Ann. sec. 971.175; by case law; e. g. Nielsen v. State,

623 P. 2d 304 (Alaska 1981); Garrett v. State, 320 A. 2d 745 (Del.

1974); People v. Donaldson, 65 Mich. hg 588, 237 N. W. 2d

570 (1975); State v. Novosel, 115 N. H. 302, 339 A. 2d 16 (1975);

State v. Khan, 175 N. J. Super. 72, 417 A. 2d 585 (1980); Com-

monwealth v. Murphy, 493 Pa. 35, 425 A. 2d 352 (1981); State

v. Bragg, 235 S. E. 2d 466 (W. Va. 1977).

12

is to prove the individual sane beyond a reasonable doubt.

Colo, Rev, Stat. 16-8-105(2) (1978). The sanity standard

in Colorado encompasses whether an individual could be

aware of the nature and consequences of his acts, Colo.

Rev. Stat. 16-8-101,? precisely that which is involved in

the notion of general intent envisioned by the Colorado

statutory scheme. Colo. Rev. Stat. 18-1-501. An accused,

therefore, is not precluded from introducing evidence of

mental defect or condition affecting his ability to form

a general intent; he is merely restricted to presenting it

at the sanity hearing, if at all.

As United States v. Nobles, Chambers v. Mississippi,

and Washington v. Texas point out, the defendant’s right

to introduce evidence is not absolute. A state may limit

the presentation of defense evidence provided the limita-

tions imposed are not arbitrary. Washington v. Texas,

388 U.S. at 24-25 (Harlan, J., concurring). Here, the

state has limited a defendant’s right to present evidence

of mental defect affecting his ability to form a general

intent only insofar as it requires that the evidence be

presented at a sanity hearing. The state’s burden of proof

on the issue is not lessened below that of beyond a rea-

sonable doubt. Because the issue normally generates a

battle of experts testifying to disputable theories or appli-

cations of theories, it is proper to require that this evi-

dence be raised in a separate proceeding at which the

°Colorado follows the M’Naghten rule as modified by the

irresistible impulse test. Colo, Rev. Stat. 16-8-101 (1978); Castro

v. People, 140 Colo. 493, 346 P. 2d 1020 (1959). The M’Naghten

part of the insanity standard involves the inability to know the

nature and consequences of one’s act. R. Perkins, Criminal

Law (2d ed. 1969) at 860.

13

issue is isolated for the jury’s sole attention. The focus-

ing of an issue requiring specialized testimony at a sep-

arate hearing can hardly be deemed an arbitrary restric-

tion on the presentation of evidence.

The question then becomes whether a defendant may

be precluded from subsequently introducing this type of

evidence at the trial on the merits, either because he in-

troduced it once at the appropriate time, or because he

bypassed the opportunity to do so. Nothing in the Con-

stitution guarantees an individual the right to introduce

evidence twice; and where, as here, legitimate policies

underlie a decision to have the issue separated for con-

sideration, an individual ought not be able to bypass the

appropriate procedures for its admission.

This case presents a question left unanswered in

Williams v. Florida, 399 U.S. 78 (1970). In Williams,

this Court upheld, as legitimate, a reciproca! notice-of-

alibi statute but reserved ruling on whether and to what

extent a state could enforce its discovery rules by pre-

cluding relevant, probative defense evidence. 399 U.S.

at 83 n. 14. See also Wardius v. Oregon, 412 U.S. 470,

472 n. 4 (1973). Here, if the respondent had wished to

contest his ability to form a general intent or wished to

argue that his mental defect left him “completely out of

control,” he could have done so by pleading not guilty by

reason of insanity. Colo. Rev. Stat. 16-8-104 (1978). This

method of confession and avoidance, however, from a de-

fendant’s point of view has a serious defect. Since by

entering such a plea, he is admitting his dangerousness,

if a jury finds him to be not guilty by reason of insanity,

he will be committed to the Colorado Department of In-

stitutions (the state hospital) for treatment. Colo. Rev.

14

Stat. 16-8-105(4) (1978). This is a rational system, one

which is necessary for the preservation of the public

safety. People v. Chavez, 629 P. 2d 1040 (Colo. 1981).

The effect of the Hendershott decision, however, is

to make the not-guilty-by-reason of-insanity plea superflu-

ous. Under this decision a criminal defendant may now

introduce exactly the same evidence he would have intro-

duced at a sanity trial, but if he prevails, he leaves the

courtroom a free man. The Colorado legislature never

intended such a result, and the Constitution does not re-

quire it.

ry

.

CONCLUSION

Hendershott provides a logical sequel to the Mullaney-

Patterson and Washington -Chambers - Nobles - Williams

lines of cases. In Mullaney and Patterson the Court con-

sidered whether the state could shift the burden of proof

in dealing with mental ability as it affects criminal lia-

bility; in Washington, Chambers, and Nobles the Court

considered when a state could appropriately limit the

presentation of defense evidence; and in Williams the

Court left open the question of the propriety of exclud-

ing defense evidence where a defendant has failed to com-

ply with the procedures for its admission. The questions

presented by Hendershott, (1) whether a state may re-

quire that evidence of mental ability be limited to a sep-

arate sanity trial, and (2) whether a state may bar the

admission of such evidence if the defendant fails to enter

a plea of not guilty by reason of insanity, follow this

15

sequence of cases. Because these are important Consti-

tutional questions, Colorado asks this Court to issue a

writ of certiorari.

Respectfully submitted,

J. D. MacFARLANE

Attorney General

/s/ David K. Rees

DAVID K. REES

Appellate Litigation Coordinator

Office of Attorney General

Counsel of Record

/8/ John Daniel Dailey

JOHN DANIEL DAILEY

Chief, Criminal Appeals

Enforcement Section

Attorneys for Petitioner

1525 Sherman Street, 3d Floor

Denver, Colorado 80203

Telephone: (303) 866-3611