State v. Hotz
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V. CONCLUSION
Although for different reasons, we agree with the district
court’s determination that as a matter of law, Nickel had
no liability to Riggs under theories of premises liability or
common-law negligence. We affirm the judgment of the district court.
Affirmed.
Wright, J., not participating.
State of Nebraska, appellee, v.
Joseph D. Hotz, appellant.
___ N.W.2d ___
Filed April 1, 2011. No. S-10-105.
1. Rules of Evidence. In proceedings in which the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the rules; judicial discretion
is involved only when the rules make such discretion a factor in determining
a
dmissibility.
2. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
3. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s refusal to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
4. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
5. Insanity: Proof. The two requirements for the insanity defense are that (1) the
defendant had a mental disease or defect at the time of the crime and (2) the
defendant did not know or understand the nature and consequences of his or her
actions or that he or she did not know the difference between right and wrong.
6. Criminal Law: Intoxication: Intent. Intoxication has never been considered a
justification or excuse for a crime, although intoxication may be considered to
negate specific intent.
7. Criminal Law: Intoxication: Jury Instructions. Intoxication is no justification
or excuse for crime; but evidence of excessive intoxication by which the party
is wholly deprived of reason, if the intoxication was not indulged in to commit
crime, may be submitted to the jury for it to consider whether in fact a crime
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had been committed or to determine the degree where the offense consists of
several degrees.
8. Criminal Law: Intoxication: Mental Competency. As a matter of law, voluntary intoxication is not a complete defense to a crime, even when it produces
psychosis or delirium.
9. Constitutional Law: Criminal Law: Due Process. Under the Due Process
Clause of the 14th Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. The U.S. Supreme Court has long interpreted
this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.
10. Constitutional Law: Due Process. The determination of whether procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
Appeal from the District Court for Dawes County: Brian
C. Silverman, Judge. Reversed and remanded for a new trial.
James R. Mowbray and Jeffery A. Pickens, of Nebraska
Commission on Public Advocacy, and Paul Wess, Dawes
County Public Defender, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
Heavican, C.J.
I. INTRODUCTION
Joseph D. Hotz appeals from his convictions of second
degree murder, attempted second degree murder, terroristic
threats, and three counts of use of a deadly weapon to commit a felony. Hotz filed a petition to bypass, alleging that his
case presented a new or novel issue of law, and we granted
his petition. The underlying issue in this case is whether the
voluntary use of drugs may give rise to a defense of insanity
rather than voluntary intoxication. We find that the insanity defense instruction may not be given and that the proper
jury instruction is the voluntary intoxication instruction. But
because we find that Hotz was deprived of a fair trial due to
irregularities in the proceedings, we reverse, and remand for
a new trial.
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II. FACTS
1. Events of December 5, 2008
The facts of this case are largely undisputed. Hotz and
the victim, Kenneth Pfeiffer, were roommates in Chadron,
Nebraska. On December 5, 2008, at approximately 4 p.m.,
both Hotz and Pfeiffer consumed psilocybin mushrooms and
smoked marijuana.
At approximately 6 p.m., the Chadron Police Department
received the first of several 911 emergency dispatch calls from
Susan Jensen. Jensen testified that she called 911 after she
thought someone was trying to break into her house located on
King Street. Jensen stated that she saw Hotz through a window,
that he did not appear to be in his right mind, and that he was
yelling, “‘Oh, my God, please help me.’” Jensen testified that
after Hotz left, there was a crack in the door and red smears on
the door that had not been there before.
A second 911 call was made from the home of Rolland Sayer
and his wife, which home was also located on King Street.
Sayer’s wife was watching television in her living room when
Hotz came through the front door holding two knives. Hotz had
entered the home by breaking the glass of a small window near
the door. Sayer was in the shower at the time Hotz entered the
home. Sayer’s wife testified that Hotz walked past her, went
into the kitchen, and turned on the light. She stated that she
exited the house and that Hotz did not follow her out. Sayer’s
wife then got inside the car parked in the driveway and locked
the door. When Hotz came out of the house a short time later,
she hid in the car until she thought he was gone.
Sayer testified that he was in the bathroom shaving when he
heard an unusual noise, but when he called out to his wife, she
did not respond. Sayer opened the door to find Hotz blocking
his way. At that point, Hotz said, “‘I want all your weapons,’”
and Sayer responded, “‘I do not have any weapons.’” Hotz
then asked for all Sayer’s possessions, and when Sayer said
he did not have any possessions, Hotz stated, “‘I’m going
to kill you.’” Hotz dropped a cordless telephone in front of
Sayer, who grabbed the telephone, barricaded himself in the
bathroom, and dialed 911. Hotz began battering the door with
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the knives, stabbing through the door. Sayer stated that Hotz’
knives came within 6 or 8 inches of his hand. Sayer further
testified that when the noise outside the bathroom door ceased,
he exited the bathroom to check on his wife.
Patty Howard, the 911 dispatcher, also testified. She stated
that the first 911 call came through at 6:08 p.m. from Jensen.
Sgt. Shawn Banzhaf was present with Howard when the first
call came in, so she immediately passed the information along
to him. The second 911 call came in at 6:11 p.m. from Sayer.
Howard stated that in the background of Sayer’s call, she could
hear a man shouting, “‘Now give me the keys to your car. Give
me the fucking keys.’”
Banzhaf, Sgt. Mike Loutzenhiser, and Lt. Richard Hickstein,
all with the Chadron Police Department, responded to the
911 calls. Upon arrival at the intersection of Eighth and King
Streets, Loutzenhiser saw Hotz come through a gate at the
house on the southwest corner of the intersection. Loutzenhiser
testified that Hotz’ shirt was covered in blood and that he held
a knife. Loutzenhiser identified himself as a police officer and
ordered Hotz to stop. Hotz ran away, and Loutzenhiser pursued
him on foot.
Hotz was apprehended shortly thereafter. Hotz was able to
follow Loutzenhiser’s instructions to put his hands behind his
head and lie down on the ground. Loutzenhiser asked Hotz if
he needed medical attention, and Hotz said that he did not.
Because Hotz appeared to be covered in blood, Loutzenhiser
asked Hotz where the blood had come from, and Hotz stated
that it had come from his roommate and possibly “this old
gentleman in this house.” Loutzenhiser asked Hotz where his
roommate was, and Hotz said “935 Shelton.” Loutzenhiser then
put Hotz in the back of the patrol car. The camera recording
from the patrol car, offered as an exhibit, was played for the
jury. In the recording, Hotz calls for his parents, demands his
rights, screams obscenities, and pleads for God to save him, but
he is also able to answer some questions.
After leaving Hotz with Banzhaf, Loutzenhiser went to
935 Shelton Street to check on Pfeiffer. When Loutzenhiser
approached, he observed a broken sliding glass door and
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b
roken glass on the porch. Loutzenhiser and Hickstein entered
the house through the broken door and saw Pfeiffer’s body
lying in the hallway and blood all over the walls. One of the
first floor bedrooms, later identified as Hotz’, showed signs of
forced entry on the door and latch.
2. Police Interviews With Hotz
Sgt. Monica Bartling of the Nebraska State Patrol interviewed Hotz beginning late in the evening on December
5, 2008, and continuing into the early morning hours of
December 6. During the interview, Bartling asked Hotz to tell
her what had happened. Hotz stated that he had taken mushrooms and that he had begun to have a horrible feeling of “not
existing.” Hotz also stated that he believed he had been tricked
into behaving in a certain way. Hotz stated that this occasion
marked the third time he had consumed mushrooms. He stated
that on one prior occasion, he had experienced anxiety and the
belief that “the CIA was after him.” Hotz stated that on this
occasion, he felt as though Pfeiffer was “mocking” him and all
his intellectual pursuits. Hotz also said that he felt it was “kill
or be killed.”
Hotz stated that Pfeiffer would not leave him alone. Hotz
brandished a knife to get Pfeiffer to back off, and they scuffled.
Hotz dropped the knife and ran downstairs to the basement.
When Hotz came upstairs again, Pfeiffer still would not leave
him alone, and Hotz said that he had the feeling that Pfeiffer
was going to kill him. Hotz stabbed Pfeiffer in the arm, and
Pfeiffer yelled at him, saying, “Joey, this is real! This is real!”
Hotz stated that they struggled in the hallway. Hotz stated that
he did not remember much about stabbing Pfeiffer.
Trooper Mark Van Horn, a drug recognition expert with the
Nebraska State Patrol, interviewed Hotz around midnight on
December 5, 2008. Van Horn stated that at the time he conducted his interview, Hotz was no longer psychotic or hallucinating. Van Horn also testified that the amount of mushrooms
Hotz ingested, one-eighth of an ounce, would be considered a
heavy dose.
Dr. Peter Schilke performed Pfeiffer’s autopsy. Schilke testified that Pfeiffer had marijuana and “psilocin” in his system at the time of his death. Psilocin is the metabolite of
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silocybin, which is the active ingredient in hallucinogenic
mushrooms. Schilke documented 51 “sharp force” type injuries on Pfeiffer’s body. Most of those wounds were superficial,
but four wounds were potentially lethal: a stab wound to the
right chest that punctured Pfeiffer’s lung, a stab wound to the
posterior left neck that cut the left carotid artery, a wound on
the back of the head between the base of the brain and the
upper spinal cord that caused a hemorrhage around the cerebellum, and an L-shaped wound in the right chest that also
punctured the lung.
3. Trial Proceedings
Hotz timely filed a notice of intent to rely on the insanity defense as is required under Neb. Rev. Stat. § 29-2203
(Reissue 2008). Hotz claimed that he was temporarily insane
when he killed Pfeiffer and that the crime was a direct result of
his ingestion of the mushrooms. The State then filed a motion
in limine to prohibit Hotz’ expert witness from expressing an
opinion concerning the insanity defense, because the evaluation
of Hotz “did not show he was suffering from a mental disease,
defect, or disorder as those terms are used in the context of an
insanity defense.” The State’s position was that Hotz had taken
psilocybin mushrooms in the past and so was aware of the possible negative effects the mushrooms would have on him. Hotz
admitted that he had previously experienced anxiety and hallucinations after taking mushrooms, including the belief that “the
CIA was after him.” The record does not indicate how the trial
court ruled on the motion in limine, although Hotz claimed that
the trial court overruled it.
At the beginning of the trial, the district court gave the jury
some preliminary instructions. Included in those instructions
was the statement: “[Hotz] has also given notice of his intent
to rely on the defense of not responsible by reason of insanity.
[Hotz] has the burden of proving by the greater weight of evidence that he was insane at the time of the acts charged.”
4. Testimony at Trial
At trial, Hotz presented testimony from an expert witness,
Dr. Daniel Wilson, as to Hotz’ mental state at the time of
the crime. Wilson is board certified in forensic and general
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sychiatry. Wilson testified that he reviewed the police reports,
the toxicology results, the crime laboratory and interview
reports, the camera recording from Banzhaf’s patrol car, the
police interviews, and the autopsy reports and photographs.
Wilson also reviewed a medical report from the hospital in
Chadron where Hotz had been transported.
Wilson testified that mushrooms are almost never associated
with violent behavior. Wilson also stated that while most people have a significant change in their perception while using
mushrooms, whether those effects are positive or negative is
unpredictable. When asked about the definition of a psychosis, Wilson defined psychosis as “any derangement of reality
whether it’s perceptual with all these, you know, visions and
hearing . . . . Or it can be quite complex . . . and develop into
a delirium which is more chaotic and disturbing.”
Wilson stated that he believed Hotz was developing a paranoid delusion that he was being threatened by his roommate,
and was therefore misinterpreting cues in his environment.
Hotz told Wilson that his memories of the altercation were
indistinct, but that he remembered stabbing Pfeiffer several
times. Hotz also told Wilson he believed there was a conspiracy to kill Hotz. Wilson stated that Hotz’ calm responses to
Sayer’s wife and his violent behavior toward Sayer were indicative of a continuing psychosis. Wilson gave his expert opinion
that Hotz had suffered from hallucinogen-induced psychosis
and hallucinogen-induced delirium, both “DSM-IV” disorders. Wilson stated that those disorders are generally accepted
within the psychiatric community. Wilson called the video of
Hotz in Banzhaf’s cruiser a very rare and dramatic documentation of hallucinogen-induced psychosis and delirium.
Hotz’ counsel asked Wilson if he had
an opinion within a reasonable degree of psychiatric certainty whether the drug-induced psychosis and the druginduced delirium impaired . . . Hotz’s mental capacity at
the time that he killed . . . Pfeiffer and committed these
subsequent acts at the Sayer house to such an extent that
See American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders (4th ed. text rev. 2000).
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he did not understand the nature and consequences of
his actions?
At this point, the State objected on lack of foundation and rele
vancy, and argued that Wilson’s opinion invaded the province
of the jury. The district court sustained the objection. Hotz
then made an offer of proof. In the offer, Wilson stated that
Hotz’ psychiatric illnesses at the time of Pfeiffer’s death “so
grossly impaired his awareness of reality that it’s medically
. . . all but impossible to attribute willful behavior to a man
who is psychotic and delirious as was . . . Hotz.” Wilson also
stated that Hotz’ illnesses “obliterated his ability to know right
from wrong.”
At the conclusion of evidence, Hotz asked the district court
to instruct the jury on insanity, but the district court declined to
do so. The jury was instructed on first degree murder, second
degree murder, and manslaughter. The district court also gave
the jury the following instruction on intoxication:
There has been evidence that Hotz was intoxicated
by drugs at the time the crimes charged were committed. Voluntary intoxication is a defense only when a
person’s mental abilities were so far overcome by the use
of drugs that he could not have had the required intent.
You may consider the evidence of drug use along with
the other evidence in deciding whether [Hotz] had the
required intent.
On November 6, 2009, during its deliberations, the jury
submitted the following question: “From the beginning the jury
was under the impression that we were to determine insanity or
not. Why was the change made for our decision?” The district
court referred the jury to instruction No. 1, paragraph 3, citing
the district court’s “duty to tell you what the law is.” The jury
then returned guilty verdicts on the charges of second degree
murder, attempted second degree murder, terroristic threats,
and three counts of use of a weapon to commit a felony.
Hotz made a timely motion for new trial, based in part on
the district court’s refusal to instruct on the insanity defense.
Hotz also argued that he had relied on the district court’s decision to overrule the State’s motion in limine and claimed that
he was deprived of a fair trial as a result. As part of his motion
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for new trial, Hotz attempted to introduce several exhibits,
including an affidavit from Hotz’ trial counsel regarding the
district court’s decision on the motion in limine. The district
court refused to accept the affidavit, finding that the grounds
for a motion for new trial could not be proved by extraneous
evidence outside the record.
The district court overruled Hotz’ motion for new trial and
sentenced Hotz to 20 to 50 years’ imprisonment for second
degree murder, 5 to 20 years’ imprisonment on the corresponding use of a weapon to commit a felony, 10 to 20 years’ imprisonment on attempted second degree murder, 5 to 20 years’
imprisonment on the corresponding use of a weapon to commit a felony, 1 to 5 years’ imprisonment on terroristic threats,
and 5 to 20 years’ imprisonment on the corresponding use of
a weapon to commit a felony convictions. All sentences were
ordered to run consecutively.
III. ASSIGNMENTS OF ERROR
Hotz assigns that the district court erred when it (1) excluded
expert witness testimony concerning whether Hotz was legally
insane at the time of the acts charged, (2) refused to give an
insanity instruction, (3) refused to admit into evidence trial
counsel’s affidavit in support of Hotz’ motion for new trial, (4)
denied Hotz’ motion for new trial, and (5) imposed consecutive
sentences for Hotz’ convictions for attempted second degree
murder and terroristic threats.
IV. STANDARD OF REVIEW
[1] In proceedings in which the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the rules;
judicial discretion is involved only when the rules make such
discretion a factor in determining admissibility.
[2] Whether jury instructions given by a trial court are correct is a question of law.
[3] To establish reversible error from a court’s refusal to give
a requested instruction, an appellant has the burden to show
See State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).
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that (1) the tendered instruction is a correct statement of the
law, (2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
[4] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not be
disturbed.
V. ANALYSIS
1. Trial Court Did Not Err in R efusing to Instruct Jury
on I nsanity Defense or in Excluding Expert
Witness Testimony on Insanity
Hotz first argues that the district court erred when it refused
to allow his expert witness to give an ultimate opinion on
whether Hotz met the legal definition of insanity at the time of
the crime and when it refused to instruct the jury on insanity.
We address these two assignments of error together. The underlying issue in this case is whether the voluntary use of drugs,
rather than voluntary intoxication, may give rise to a defense
of insanity. We have previously addressed whether voluntary
alcohol intoxication can be used as a defense, but we have
never addressed the use of drugs in this context. And, although
we are remanding Hotz’ cause for a new trial, we address these
assignments of error first, because Hotz’ motion for new trial
rests on the assumption that he was entitled to an instruction on
the insanity defense as a matter of law.
(a) Insanity and Intoxication in Nebraska Law
The insanity defense developed early at common law, and
the M’Naghten rule is one of the most common definitions
of insanity. A number of states have adopted some version
of the M’Naghten rule under common law, while other states
have codified some version of the insanity defense by statute.
Id.
State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
See Annot., 9 A.L.R.4th 526 (1981).
Id.
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Generally speaking, the M’Naghten rule requires that a defend
ant not know the nature and quality of his or her actions, as well
as not knowing that what he or she was doing was wrong.
Nebraska adopted by common law a modified M’Naghten
rule for the first time in 1876, stating that “where an individual
lacks the mental capacity to distinguish right from wrong, in
reference to the particular act complained of, the law will not
hold him responsible.” Although the M’Naghten rule places
the burden on the defendant to prove insanity, in 1876, this
court shifted the burden to the prosecution to disprove it.10
[5] Under our current common-law definition, the two
requirements for the insanity defense are that (1) the defend
ant had a mental disease or defect at the time of the crime
and (2) the defendant did not know or understand the nature
and consequences of his or her actions or that he or she did
not know the difference between right and wrong.11 While the
insanity defense itself is a product of common law, the procedural aspects of the insanity defense are set out in § 29-2203.
That statute also places the burden for proving insanity back on
the defendant.
[6] In Nebraska, the intoxication defense has been available
to a defendant under common law almost as long as the insanity defense.12 However, intoxication has never been considered
a justification or excuse for a crime, although intoxication may
be considered to negate specific intent.13 We first addressed
the juxtaposition of intoxication and insanity in Schlencker v.
The State.14 In that case, the defendant had been charged with
murder. Several witnesses testified to the defendant’s strange
conduct shortly before the crime. The jury was instructed
10
11
12
13
14
M’Naghten’s Case, (1843) 8 Eng. Rep. 718, 10 Cl. & Fin. 200.
Wright v. The People, 4 Neb. 407, 409 (1876).
Id.
See State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
O’Grady v. State, 36 Neb. 320, 54 N.W. 556 (1893).
See Tvrz v. State, 154 Neb. 641, 48 N.W.2d 761 (1951).
Schlencker v. The State, 9 Neb. 241, 1 N.W. 857 (1879), reversed on
rehearing on other grounds 9 Neb. 300, 2 N.W. 710.
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that “‘settled insanity produced by intoxication affects the
responsibility in the same way as insanity produced by any
other cause. But insanity immediately produced by intoxication does not destroy responsibility when the patient, when
sane and responsible, made himself voluntarily intoxicated.’”15
We affirmed.
[7] We also addressed this issue generally in Tvrz v. State.16
There, the defendant presented evidence that he had been very
intoxicated at the time of the murder, that he did not remember anything that had occurred, and that there was evidence of
mental instability in his family. We concluded that the defend
ant had not presented any evidence of a mental disease or
defect, but also noted:
“Intoxication is no justification or excuse for crime; but
evidence of excessive intoxication by which the party
is wholly deprived of reason, if the intoxication was not
indulged in to commit crime, may be submitted to the
jury for it to consider whether in fact a crime had been
committed, or to determine the degree where the offense
consists of several degrees.”17
Hence, the law in Nebraska is clear regarding the use of the
insanity defense where a defendant is voluntarily intoxicated
through the use of alcohol.18 In contrast, we have never specifically addressed its application to voluntary drug use. Hotz
argues that he was rendered temporarily insane as a result of
his use of hallucinogenic mushrooms and marijuana. We read
Hotz’ argument as asking us to repudiate our previous position on intoxication and on whether a defendant can claim
intoxication as a complete defense. Other states have addressed
whether a defendant may assert the defense of insanity where
he or she is voluntarily intoxicated through the use of drugs,
however. We next turn to case law from those jurisdictions.
15
16
17
18
Id. at 252, 1 N.W. at 861 (emphasis in original).
Tvrz, supra note 13.
Id. at 651, 48 N.W.2d at 767.
State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990), disapproved on
other grounds, State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991);
State v. Prim, 201 Neb. 279, 267 N.W.2d 193 (1978).
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(b) Insanity and Intoxication in Other Jurisdictions
The general rule in other jurisdictions is that voluntary intoxi
cation through the use of drugs will not give rise to an insanity
defense.19 The State cites two of those cases in its brief: one
from Iowa and the other from Vermont.20 Even though Iowa
follows a modified common-law M’Naghten rule and Vermont
has codified its insanity defense by statute, the reasoning and
conclusions are generally the same in both cases.21
The general rule can be summarized as follows:
Insanity combined with, or resulting from, intoxication
is a defense to homicide if it is of a permanent nature and
meets the test of insanity generally, but a mere temporary
frenzy induced by intoxication is not a defense.
. . . Insanity resulting from intoxication, in order to free
a person from responsibility for a homicide, must be of
such degree as would render a person irresponsible if the
insanity were due to any other cause. Intoxication alone,
however, is not insanity.22
In an Iowa Supreme Court decision, the defendant claimed
that he had taken a pill causing him to believe that the victim
was a dog and was about to kill him. He argued that as a result
of this drug, he was temporarily insane at the time of the murder and that consequently, the jury should have been instructed
on the insanity defense.23 The trial court disagreed and instead
instructed the jury on intoxication. On appeal, the Iowa Supreme
Court stated, “This court has held that a temporary mental condition caused by voluntary intoxication from alcohol does not
constitute a complete defense. . . . Is the rule the same when
the mental condition results from voluntary ingestion of other
drugs? We think so, and the cases so hold.”24
19
See Annot., 8 A.L.R.3d 1236 (1966).
State v. Sexton, 180 Vt. 34, 904 A.2d 1092 (2006); State v. Hall, 214
N.W.2d 205 (Iowa 1974).
21
Id. See, State v. Harkness, 160 N.W.2d 324 (Iowa 1968); Vt. Stat. Ann.
tit. 13, § 4801(a)(1) (2009).
22
40 C.J.S. Homicide § 23 at 386-87 (2006).
23
Hall, supra note 20.
24
Id. at 207 (citations omitted).
20
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In State v. Sexton,25 a Vermont Supreme Court case, the
defendant had been using the drug LSD prior to the murder
for which he was convicted. A court-appointed psychiatrist
determined that the defendant had an underlying mental condition that, combined with the drug use, rendered him insane
at the time of the offense. Another psychiatrist concluded the
defendant’s mental condition was due solely to his use of the
drug. The trial court determined that the defendant could pre
sent evidence that his drug use had exacerbated an underlying
mental condition resulting in his being insane at the time of
the murder.
The Vermont Supreme Court held:
[W]e have long held that, while voluntary intoxication
may mitigate the crime charged, it will not operate as a
total bar to criminal responsibility. . . . This is the rule
nationally as well. . . .
While the mental state resulting from extreme intoxication may in some cases be “tantamount to insanity”
. . . its origin as a self-induced impairment fundamentally
distinguishes it for most courts from a naturally occurring
mental disease or defect that leads to insanity. . . . Indeed,
it is universally recognized that a condition of insanity
brought about by an individual’s voluntary use of alcohol
or drugs will not relieve the actor of criminal responsibility for his or her acts. . . .
The only generally recognized exception to this rule
is the doctrine known as “fixed” or “settled” insanity.
Nearly every court and commentator that has addressed
this doctrine has defined it as a permanent or chronic
mental disorder caused by the habitual and long-term
abuse of drugs or alcohol.26
The court further noted:
The underlying rationale for the settled insanity doctrine is generally explained as an acknowledgment of
“the futility of punishment, since the defective mental
25
26
Sexton, supra note 20.
Sexton, supra note 20, 180 Vt. at 44-45, 904 A.2d at 1100-01 (citations
omitted).
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state is permanent,” . . . or, more commonly, as a compassionate concession that at some point a person’s earlier
voluntary decisions become so temporally and “morally
remote” that the cause of the offense can reasonably be
ascribed to the resulting insanity rather than the use of
intoxicants.27
The court noted that the defendant had taken the drug LSD
precisely because he wanted to alter his perceptions and experience hallucinations. The court stated:
As we have seen, it is a fundamental tenet of our criminal
code that a defendant must be held accountable for the
consequences of his or her actions resulting from the voluntary ingestion of illegal drugs or alcohol, and this rule
remains unaffected by the possibility that the substance
will activate an unknown condition leading to an unexpected reaction.28
Therefore, the defendant was barred from asserting an insanity
defense on the basis of voluntary intoxication, but he was not
barred from adducing evidence of his mental disease or defect
aside from that caused by intoxication.
A majority of states abide by the rule that intoxication is
not a defense, except to the extent that it negates intent, and
have particularly noted that temporary insanity brought on by
voluntary intoxication is not an excuse.29 The rationale in these
jurisdictions is, much as the Iowa and Vermont courts noted,
that temporary insanity brought on by voluntary intoxication is
not a “mental disease or defect” as understood under the common law.30
27
Id. at 47, 904 A.2d at 1102.
Id. at 53, 904 A.2d at 1107.
29
See 8 A.L.R.3d, supra note 19.
30
Downing v. Com., 26 Va. App. 717, 496 S.E.2d 164 (1998); State v.
Sette, 259 N.J. Super. 156, 611 A.2d 1129 (1992); People v. Whitehead,
171 Ill. App. 3d 900, 525 N.E.2d 1084, 121 Ill. Dec. 777 (1988); State
v. Stevenson, 198 Conn. 560, 504 A.2d 1029 (1986); Hanks v. State, 542
S.W.2d 413 (Tex. Crim. App. 1976); Parker v. State, 7 Md. App. 167, 254
A.2d 381 (1969); State v. Salmon, 10 Ohio App. 2d 175, 226 N.E.2d 784
(1967).
28
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state v. hotz
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(c) Insanity Defense and Legislature
Hotz argues that not allowing a defense of temporary insanity
due to voluntary intoxication is a decision for the Legislature.
He contends that the Legislature recently refused to pass a proposed law that would have prevented intoxication from being
used as a defense unless the defendant could prove by clear and
convincing evidence that the intoxication was involuntary. Hotz
cites State v. Klein,31 a Washington case, in support of his contention that the Legislature and not the courts ought to define
“mental disease or defect.”
In Klein, the Washington Supreme Court used the dictionary
definition of “mental disease or defect,” noting that there was
no statutory definition. Klein’s reasoning is inapplicable in this
state. Though Washington’s insanity defense closely follows
the M’Naghten rule, it is statutory based and is not a commonlaw construct.32 In this state, however, the basis of our insanity
defense is the common law.
The court in Sexton, the Vermont case previously cited,
also addressed the argument that the legislature ought to make
this sort of policy decision. The court noted that the insanity
defense was a common-law construct. The court stated:
As we have seen, it is well settled that, absent a fixed
insanity developed over a prolonged period of abuse,
the voluntary use of drugs or alcohol that triggers a psychotic reaction will not absolve a defendant of criminal
responsibility. Our holding, therefore, is consistent with
controlling common law, and does no violence to the
separation of powers doctrine or the prerogatives of the
Legislature.33
Therefore, even though Vermont has codified its insanity
defense, the court in Sexton still relied on the common law,
rather than the legislature.
Generally speaking, other states do not define temporary
insanity as a result of voluntary drug use as a “mental disease
31
32
33
State v. Klein, 156 Wash. 2d 103, 124 P.3d 644 (2005).
See Wash. Rev. Code Ann. § 9A.12.010 (West 2009).
Sexton, supra note 20, 180 Vt. at 58, 904 A.2d at 1110.
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or defect.”34 And some courts have found that a defendant
may not plead insanity where there was voluntary intoxication
because intoxication is a separate, if partial, defense.35
(d) Conclusion
Nebraska case law has consistently held that “‘[v]oluntary
intoxication is no justification or excuse for crime unless the
intoxication is so excessive that the person is wholly deprived
of reason so as to prevent the requisite criminal intent.’”36 As
noted above, other states that utilize the common-law insanity
defense have held the same.
However, Hotz argues that even if we determine this decision is one best left up to the Legislature, two of our prior
cases involve defendants who received the insanity defense
after being voluntarily intoxicated. In State v. Reeves,37 the
defendant pled not guilty by reason of insanity to the murder
of two women. The defendant claimed that he had been drinking alcohol and had consumed peyote prior to the murders. The
defendant’s expert testified that the defendant did not have the
capacity to know what he was doing and that he did not know
right from wrong. The trial court instructed the jury on the
insanity defense, but the jury nevertheless found the defendant
guilty on both counts.
Hotz claims that because the jury in Reeves was given
the insanity instruction, he, Hotz, should have received that
instruction as well. We disagree. In Reeves, although we did
generally find that the jury had been properly instructed, we
did not rule on the legitimacy of receiving the insanity instruction. The parties never raised the issue of whether a defendant
may plead temporary insanity brought about by the voluntary
use of drugs.
34
See, id.; Downing, supra note 30; Sette, supra note 30.
See People v. Free, 94 Ill. 2d 378, 447 N.E.2d 218, 69 Ill. Dec. 1 (1983).
36
Reynolds, supra note 18, 235 Neb. at 692, 457 N.W.2d at 423 (quoting
Prim, supra note 18).
37
State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).
35
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State v. Nielsen,38 the second case Hotz cites, gives no
more direction. In that case, the defendant presented evidence
that he was very drunk when he killed his father-in-law and
mother-in-law. The defendant relied upon the insanity defense
even though no expert could testify that the defendant had met
the legal standard of insanity at the time of the offense. In his
motion for postconviction relief, the defendant alleged that his
trial counsel was ineffective for relying on the insanity defense.
We found that the defendant’s counsel was not ineffective for
choosing that particular trial strategy; but the issue of whether
a defendant may claim temporary insanity through voluntary
intoxication was never addressed.
Based on our past case law and the case law of other states,
we find that the district court did not err when it refused to
instruct the jury on insanity in the present case.
While the mental state resulting from extreme intoxication may in some cases be “tantamount to insanity,”
. . . its origin as a self-induced impairment fundamentally
distinguishes it for most courts from a naturally occurring
mental disease or defect that leads to insanity. . . . Indeed,
it is universally recognized that a condition of insanity
brought about by an individual’s voluntary use of alcohol
or drugs will not relieve the actor of criminal responsibility for his or her acts.39
In this case, Hotz voluntarily ingested hallucinogenic mushrooms and marijuana. He had taken mushrooms in the past and
had experienced anxiety and delusions. Hotz was well aware
of the mind-altering effects the mushrooms might have. While
Hotz may have experienced a state that was “tantamount to
insanity,” that state was temporary. Hotz took the mushrooms
around 4 p.m. on December 5, 2008, and by late that night, he
was lucid and able to respond to questions. Hotz had no history of mental illness, and there is no evidence that he suffered
permanent mental problems from his use of drugs.
38
39
State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993), disapproved on
other grounds, State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005).
Sexton, supra note 20, 180 Vt. at 44, 904 A.2d at 1100 (citations
o
mitted).
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[8] As a matter of law, voluntary intoxication is not a complete defense to a crime, even when it produces the sort of
psychosis or delirium Hotz claims to have suffered. Because
Hotz was not entitled to an insanity instruction, the trial court
also did not err when it excluded testimony from Wilson, Hotz’
expert witness. We find Hotz’ first and second assignments of
error to be without merit.
2. District Court Erred in Denying Hotz New Trial
Hotz next argues that the trial court erred by overruling his
motion for new trial. Hotz argues that he relied solely on the
insanity defense after the district court overruled the State’s
motion in limine. Hotz claims that the district court’s decision not to instruct the jury on insanity therefore amounted
to an “[i]rregularity in the proceedings” under Neb. Rev. Stat.
§ 29-2101(1) (Reissue 2008) because Hotz was deprived of that
defense. Hotz also claims this deprivation affected his substantial right to due process of law and a fair trial as guaranteed by
the 5th and 14th Amendments.
Although Hotz was not entitled to the insanity defense as a
matter of law, we agree that he was led to believe that he would
receive an insanity instruction. Under § 29-2101,
[a] new trial, after a verdict of conviction, may be
granted, on the application of the defendant, for any of
the following grounds affecting materially his or her substantial rights: (1) Irregularity in the proceedings of the
court, of the prosecuting attorney, or of the witnesses for
the state or in any order of the court or abuse of discretion by which the defendant was prevented from having a
fair trial . . . .
Hotz gave timely notice of his intent to rely on the insanity
defense. The State made a motion in limine to exclude Hotz’
expert testimony as to his insanity at the time of the offense. We
do not have a record of the trial court’s ruling on the motion in
limine, but it is clear that Hotz proceeded under the assumption
that he would be allowed to assert the insanity defense.
During voir dire, the prosecutor informed the jury that Hotz
would be proceeding with a defense of “not responsible by
reason of mental illness of insanity.” Hotz’ attorney also told
prospective jurors that Hotz would be relying on the insanity
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defense. Hotz’ attorney questioned prospective jurors extensively as to their opinions on the use of the insanity defense
when the defendant had been using drugs. At least one prospective juror was excused for cause because he stated that he
could not find a defendant not guilty by reason of insanity if
the person’s mental state was a product of drug use, even if
so instructed.
Both the prosecutor and Hotz’ trial counsel stated during
opening arguments that Hotz would be relying on the insanity
defense. The trial court also informed the jury that Hotz would
be relying on the insanity defense. Hotz’ expert, Wilson, was
allowed to testify regarding his evaluation of Hotz, as well as
give extensive definitions of drug-induced delirium and druginduced psychosis. The State objected to Wilson’s opinion as
to whether Hotz met the legal definition of insanity, and the
trial court sustained this objection. This ruling appears to be
the first indication Hotz had that the trial court was not going
to give an instruction on the insanity defense.
After Hotz had rested his case, the trial court informed Hotz
that it would not instruct the jury on the insanity defense. This
last-minute decision required Hotz’ counsel to try to explain
during his closing argument why the jury would not receive an
insanity instruction. We also note the jury’s question shortly
after deliberations began: “From the beginning the jury was
under the impression that we were to determine insanity or
not. Why was the change made for our decision?” Clearly,
the jury believed that it was to determine the issue of insanity
as well.
[9,10] “Under the Due Process Clause of the Fourteenth
Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted
this standard of fairness to require that criminal defendants
be afforded a meaningful opportunity to present a complete
defense.”40 The determination of whether procedures afforded
an individual comport with constitutional requirements
40
California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d
413 (1984).
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for procedural due process presents a question of law.41 On
questions of law, a reviewing court has an obligation to reach
its own conclusions independent of those reached by the
lower courts.42
Given the circumstances, we find that Hotz’ ability to mount
a defense was severely compromised when he was barred from
asserting the insanity defense at what amounted to the eleventh
hour. Although Hotz is not entitled to an insanity instruction as
a matter of law, he and the jury proceeded through trial with
the assumption that the defense was available. Such amounted
to an irregularity in the proceedings under § 29-2101(1), which
irregularity prevented Hotz from receiving a fair trial and now
entitles him to a new trial. We therefore reverse Hotz’ convictions and remand the cause for a new trial. For that reason, we
need not address Hotz’ remaining assignments of error.
VI. CONCLUSION
In line with our prior case law concerning alcohol and the
case law in a majority of states, we find that a defendant may
not assert an insanity defense when the insanity was temporary
and brought on solely by voluntary intoxication through the use
of drugs. Because Hotz was not entitled to an insanity instruction, the trial court did not err in excluding Hotz’ expert witness’ testimony on insanity. However, Hotz was led to believe
that he would be able to rely on the insanity defense, and this
constituted an irregularity in the proceedings sufficient for a
new trial under § 29-2101(1). We therefore reverse Hotz’ convictions and remand the cause for a new trial consistent with
this opinion.
R eversed and remanded for a new trial.
Wright, J., not participating.
41
42
State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
Id.
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