State v. Sexton
Annotate this Case
State v. Sexton (2003-331); 180 Vt. 25; 904 A.2d 1133
2006 VT 55
[Filed 09-June-2006]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2006 VT 55
No. 2003-331
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Jacob A. Sexton June Term, 2004
James R. Crucitti, J.
Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellant.
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender
General, Montpelier, and William A. Nelson (On the Brief), Middlebury, for
Defendant-Appellee.
PRESENT: Amestoy, C.J.,(FN1) Dooley, Johnson, Skoglund and Reiber, JJ.
¶ 1. REIBER, J. We accepted this interlocutory appeal to
consider whether a defendant charged with murder may assert either the
defense of diminished capacity to reduce the offense to manslaughter, or
insanity to excuse the offense entirely, where the voluntary use of illegal
drugs was an essential causal factor in the defendant's psychotic state at
the time of the offense. Consistent with the law of this and other states,
we conclude that a defendant in these circumstances may argue for a
reduction of the offense based upon an inability to form the requisite
intent to commit murder, but may not be relieved entirely of responsibility
for his or her criminal acts. Accordingly, as explained more fully below,
we affirm in part, reverse in part, and remand for further proceedings.
¶ 2. Although this appeal is from a pretrial ruling, the material
facts are largely undisputed. On the night of September 27, 2000, police
found a Japanese exchange student, Atsuko Ikeda, lying in the street in
Winooski. Ikeda had suffered serious injuries, and died shortly after
transport to the hospital. During the ensuing investigation, defendant
walked onto the crime scene and lay down on the street in front of a police
cruiser. Upon questioning by the police, defendant reportedly said, "Just
cuff me, I know I did something bad, I just don't know what." Defendant
was charged with Ikeda's murder.
¶ 3. While in custody, defendant informed the police that, on the
day in question, he had killed his cat and then gone outside intending to
kill a person. He recalled lunging at a woman passing on a bicycle (later
identified as Ikeda) and then beating her repeatedly until she stopped
moving. Defendant later told psychiatrists that he had taken a variety of
illegal drugs during the six months preceding the incident. Defendant
recounted that for about two months, in July and August 2000, he took many
"hits" of LSD, and that his last reported use of LSD was two to three weeks
before the September killing. Defendant explained that on the night of the
incident he felt that he needed to kill people and "gather their souls."
¶ 4. At defendant's arraignment on a charge of second-degree murder,
the court ordered a psychiatric evaluation of defendant's competency and
sanity. (FN2) In December 2000, Dr. Robert Linder, the court-appointed
psychiatrist, filed a lengthy report with the court, ultimately concluding
that defendant was insane at the time of the offense. The conclusion was
based on a series of interviews with defendant and others, defendant's
psychiatric and family history, and a battery of psychological tests from
which Dr. Linder inferred that defendant was in a florid psychotic state at
the time of the crime that prevented him from appreciating the wrongfulness
of his conduct or conforming his conduct to the requirements of law. Dr.
Linder's preliminary diagnosis was that defendant suffered from either a
previously undiagnosed mental disease involving a schizophrenic disorder,
or a substance-induced psychosis. At a later deposition in 2002, Dr.
Linder noted that defendant's psychotic thoughts had largely resolved and
that he had returned to his "usual self," suggesting a primary diagnosis of
schizophrenoform disorder, in which psychotic symptoms last between one to
six months.
¶ 5. In his December 2000 report, Dr. Linder indicated that
defendant's mental state had improved over the course of their interviews
and that he appeared to be competent to stand trial. Based on the report,
the parties stipulated to defendant's competency, and the court scheduled a
hospitalization hearing. Following the hearing, the court found that
defendant was a person in need of treatment and ordered him committed to
the Vermont State Hospital.
¶ 6. In February 2001, defendant notified the State that he intended
to present expert testimony in support of an insanity defense, and the
court granted the State's motion for an independent psychiatric evaluation.
In April, the State's psychiatrist, Dr. Albert Drukteinis, filed a report
concurring in Dr. Linder's opinion that defendant was psychotic at the time
of the offense, but concluding that it was caused solely by defendant's
voluntary use of illegal drugs. Although Dr. Drukteinis observed signs of
a personality disorder with narcissistic features, he found no evidence
that defendant suffered from a major thought disorder such as
schizophrenia. At a subsequent hearing on the State's motion to amend
defendant's conditions of release, defendant's treating psychiatrist, Dr.
Margaret Bolton, also diagnosed defendant as having a personality disorder,
and agreed that defendant did not suffer from any major mental illness such
as schizophrenia, as reported by Dr. Linder, or borderline personality, as
suggested in an earlier report by Dr. Bertold Francke. In June 2002, the
court transferred custody of defendant to the Department of Corrections
after concluding that his continued hospitalization was no longer
justified.
¶ 7. In July 2002, the State filed a motion in limine seeking to
prevent defendant from presenting an insanity defense at trial, arguing
that Vermont law does not recognize temporary insanity caused by the
voluntary use of drugs. The State also moved to preclude a diminished
capacity defense, asserting that second-degree murder based on wanton
disregard for the likelihood that one's actions would naturally cause death
or great bodily harm is a general intent crime to which the defense has no
application. After the parties submitted supplemental briefing, the court
requested that defendant provide a concise statement of his theory as to
the insanity defense. Defendant, in response, submitted a supplemental
letter from Dr. Linder, reaffirming his earlier opinion that defendant was
in the midst of a severe psychotic episode at the time of the offense,
resulting from either a substance-induced psychosis or an underlying mental
illness, such as schizophrenoform disorder, caused by the ingestion of
illegal drugs in combination with an underlying psychological vulnerability
that predisposed him to such a reaction.
¶ 8. In March 2003, the court issued a written decision, concluding
that second-degree murder based on wanton disregard of the likelihood that
one's conduct would naturally cause death or great bodily harm is a
specific intent crime in Vermont. Therefore, it held that defendant was
entitled to rely on the defense of diminished capacity due to voluntary
intoxication. The following June, the court issued a second decision,
concluding that defendant was also entitled to argue that he was legally
insane at the time of the killing. Although the court ruled that "an
individual whose mental state is altered solely because of the consumption
and abuse of illegal drugs" may not assert an insanity defense, it found
that one whose consumption of illegal drugs activates a latent mental
disease or defect resulting in a psychotic reaction is entitled to a
complete defense to the crime charged, unless the defendant knew or had
reason to know that the drugs would elicit such a reaction.
¶ 9. The State moved for permission to pursue an interlocutory
appeal of both orders. The trial court granted the motions, certifying the
following three questions, which we accepted for review:
(1) Does the issue of diminished capacity caused by voluntary
intoxication by means of illegal drugs apply to a charge of second
degree murder based upon wanton disregard of the likelihood that
one's conduct would naturally cause death or great bodily harm, so
as to reduce the offense to voluntary manslaughter?
(2) Does the issue of diminished capacity caused by a combination
of pre-existing mental condition and the effects of voluntary
consumption of illegal drugs apply to a charge of second degree
murder based upon wanton disregard of the likelihood that one's
conduct would naturally cause death or great bodily harm, so as to
reduce the offense to voluntary manslaughter?
(3) Is the following a correct statement of Vermont law:
The term "mental disease or defect" as used in 13 V.S.A. § 4801
includes a mental condition caused by the voluntary consumption of
illegal drugs if the drugs activate a latent mental disease or
defect, and as a result of that mental disease or defect the
individual has lost the capacity to appreciate the criminality of
his conduct, or has lost the capacity to conform his conduct to
the requirements of the law, unless the individual knew or had
reason to know that the drug would activate the illness. The
resulting disease or defect must be recognized medically and must
exist at the time of the offense, independent of any temporary
intoxication or high that the drugs caused. It does not matter
that the mental disease or defect was not permanent, if the
condition lasted for a substantial time after the intoxicating
effects of the illegal drugs had worn off. A mental disease or
defect cannot be caused solely by the consumption of an illegal
drug.
I.
¶ 10. This interlocutory appeal presents questions of law, and our
review is therefore nondeferential and plenary. State v. Koch, 169 Vt.
109, 112, 730 A.2d 577, 580 (1999).
¶ 11. The first two certified questions ask us to reexamine the
common law of diminished capacity. The State suggests that our recent
decisions have made such a defense unavailable to a defendant charged with
second-degree murder based on a wanton disregard of the likelihood that the
defendant's conduct would naturally cause death or great bodily harm. We
disagree, and affirm the district court's ruling.
¶ 12. Title 13 V.S.A. § 2301 defines the degrees of murder as
follows:
Murder committed by means of poison, or by lying in wait, or by
wilful, deliberate and premeditated killing, or committed in
perpetrating or attempting to perpetrate arson, sexual assault,
aggravated sexual assault, robbery or burglary, shall be murder in
the first degree. All other kinds of murder shall be murder in
the second degree.
This skeletal statutory definition has existed largely unchanged since
1869, and the Legislature has left it to this Court to flesh out the
elements of second-degree murder. State v. Johnson, 158 Vt. 508, 517, 615 A.2d 132, 137 (1992). We have distinguished between first- and
second-degree murder based on the presence or absence of "willfulness,
deliberation and premeditation," State v. Hatcher, 167 Vt. 338, 343, 706 A.2d 429, 432 (1997), but have traditionally held that a person must act
with "malice" to be guilty of either degree of murder. State v. Long, 95
Vt. 485, 496, 115 A. 734, 739 (1922). Our more recent decisions have
concluded that the term "malice" is overly confusing, however, and we have
directed the trial courts to instruct jurors on the specific mental states
requisite to a particular charge. See, e.g., Johnson, 158 Vt. at 519, 615 A.2d at 138. To this end, we have reiterated that the crime of
second-degree murder requires " 'an intention to kill, an intention to do
great bodily harm, or a wanton disregard of the likelihood that one's
behavior may naturally cause death or great bodily harm.' " Hatcher, 167
Vt. at 344, 706 A.2d at 433 (quoting State v. Doucette, 143 Vt. 573, 582,
470 A.2d 676, 682 (1983)).
¶ 13. We have long held that diminished capacity due either to
voluntary intoxication, In re Plante, 171 Vt. 310, 317, 762 A.2d 873, 878
(2000), or to a mental disability, State v. Wheelock, 158 Vt. 302, 311, 609 A.2d 972, 978 (1992), can mitigate murder to voluntary manslaughter. The
traditional rationale supporting a diminished capacity defense posits that
a defendant's decreased faculties or awareness may preclude the specific
intent to commit murder, thus reducing the crime to voluntary manslaughter.
State v. Pelican, 160 Vt. 536, 539, 632 A.2d 24, 26 (1993). In State v.
Blish, 172 Vt. 265, 272, 776 A.2d 380, 386 (2001), however, we announced
that "the intent component of voluntary manslaughter is the same as that
required for second degree murder." We went on to state that the "critical
factor distinguishing second degree murder from voluntary manslaughter is
not the mental state of the actor, but the existence of mitigating
circumstances." Id. Thus, we adopted the position that " 'the correct way
of explaining [diminished capacity] is as a defense mitigating the degree
of homicide from murder to voluntary manslaughter.' " Id. at 270, 776 A.2d
at 385 (quoting Pelican, 160 Vt. at 543, 632 A.2d at 29 (Morse, J.,
concurring)).
¶ 14. The State argues that our efforts to modernize the language of
homicide have actually created two distinct classifications of
second-degree murder: the first applicable to a defendant who intended to
kill his victim, and the second applicable to a defendant who acted with
wanton disregard for the consequences of his or her actions. The State
contends that second-degree murder based on "wanton disregard" is actually
a general intent crime, to which the diminished capacity defense has no
application. We are not persuaded. As discussed above, second-degree
murder requires either an intent to kill or do great bodily harm, or "a
wanton disregard of the likelihood that one's behavior may naturally cause
death or great bodily harm." Hatcher, 167 Vt. at 344, 706 A.2d at 433
(quotations omitted). Although we originally presented this tripartite
definition as an explication of the elusive term "malice," which has long
been the distinct mens rea-the specific intent-separating murder from
manslaughter, Doucette, 143 Vt. at 582, 470 A.2d at 682, the State now
contends that "wanton disregard" actually denotes a subset of recklessness,
or general intent. Despite the historical connection between the term
"wanton" and the term "malice," (FN3) the State contends that a combined
reading of several recent decisions indicates that we now consider "wanton
disregard" a species of general intent.
¶ 15. The first step in the State's argument relies on our recent
observation that the phrase "wanton disregard" describes a mental state
equivalent to "extreme indifference." Blish, 172 Vt. at 272-73, 776 A.2d
at 386. The State next points out that we have held that diminished
capacity due to voluntary intoxication is no defense to a charge of
aggravated assault when the defendant is accused of acting recklessly
"under circumstances manifesting extreme indifference to the value of human
life." State v. Allen, 169 Vt. 615, 616, 738 A.2d 113, 114 (1999) (mem.)
(citing 13 V.S.A. § 1024(a)(1)) (emphasis added). In these two steps,
then, the State contends that "wanton disregard" is equivalent to "extreme
indifference," which, in turn, is a species of recklessness to which the
diminished capacity defense does not apply. At the very least, the State
argues that Allen creates an unexplained split in the law of "extreme
indifference," whereby diminished capacity due to voluntary intoxication
applies to murder, but not to some types of aggravated assault.
¶ 16. The reason for this split, however, is that the Legislature
has acted to modernize the statutory language defining aggravated assault,
while it has chosen to leave the common-law definition of second-degree
murder undisturbed. Compare 13 V.S.A. § 1024(a)(1) (amended in 1972) with
13 V.S.A. § 2301 (substantially unchanged since 1869). The mental state
defined in § 1024(a)(1)-"purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human
life"-closely reflects the terminology of the Model Penal Code. Model
Penal Code § 2.02(2) (1985); see also State v. Trombley, 174 Vt. 459, 461,
807 A.2d 400, 404 (2002) (mem.) (interpreting § 1024 pursuant to the Model
Penal Code). The Model Code moves away from the old distinction between
specific and general intent, and does not recognize intoxication as a
defense to crimes that require only a showing of recklessness. Model Penal
Code § 2.08(2). Because the assault language in our statute closely
mirrors the Code, we essentially adopted the Code's position on diminished
capacity. Acknowledging the three separate mental states delineated in the
statute, we concluded that diminished capacity would apply to assaults
committed purposely or knowingly, but held that the defense of voluntary
intoxication is not available when a defendant acts recklessly. Allen, 169
Vt. at 616, 738 A.2d. at 114.
¶ 17. The Legislature has not modernized the statutory definition
of second-degree murder, however, which remains a creature of the common
law, and therefore is subject to the traditional distinction between
specific and general intent. The common law allows the defense of
diminished capacity-due either to intoxication or mental defect-to specific
intent crimes, and we have consistently made the defense available to
negate the specific intent necessary to commit second-degree murder.
State v. Shaw, 168 Vt. 412, 416, 721 A.2d 486, 490 (1998). All three
prongs of the mens rea required for second-degree murder-intent to kill,
intent to cause great bodily harm, or wanton disregard of the likelihood
that one's conduct would naturally cause death or great bodily harm-simply
define the term "malice," Doucette, 143 Vt. at 582, 470 A.2d at 682, which
has always been a species of specific intent. The State's arguments are
therefore unavailing, and defendant is entitled to present evidence that
his diminished capacity, due either to voluntary intoxication or mental
disability, prevented him from forming the specific intent to commit
second-degree murder. (FN4)
II.
¶ 18. The final certified question asks us to determine whether
defendant can present an insanity defense based on his claim that the
ingestion of illegal drugs activated a latent mental disease or defect
resulting in a psychotic reaction that rendered him unable to appreciate
the criminality of his conduct or conform his conduct to the requirements
of law.
¶ 19. Unlike diminished capacity, which mitigates a defendant's
culpability, legal insanity is a complete defense to any crime. State v.
Messier, 145 Vt. 622, 628, 497 A.2d 740, 743 (1985). The insanity defense
has a long history at common law. See B. Elkins, Idaho's Repeal of the
Insanity Defense: What Are We Trying to Prove?, 31 Idaho L. Rev. 151, 161
(1994) (discussing the historical roots of the insanity defense). The
modern standard dates to the early nineteenth-century House of Lords'
decision in M'Naghten's Case, 8 Eng. Rep. 718, 722 (H.L. 1843), which
looked to whether the defendant knew the nature or quality of his actions,
or understood that they were wrong. The standard has since evolved through
a variety of permutations, including the so-called Durham test, from Durham
v. United States, 214 F.2d 862 (D.C. Cir. 1954), which asked whether the
defendant's crime "was the product of mental disease or mental defect,"
id. at 874, which in turn influenced the insanity standard set forth in the
Model Penal Code § 4.01. The latter forms the governing standard in most
of the federal circuits and roughly half the states, including Vermont.
Id. § 4.01, cmt. at 175-76. Our definition is set forth in 13 V.S.A. §
4801(a)(1), as follows:
A person is not responsible for criminal conduct if at the time of
such conduct as a result of mental disease or defect he lacks
adequate capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law.
¶ 20. Although a separate section of the Model Penal Code provides
that "[i]ntoxication does not, in itself, constitute mental disease within
the meaning of Section 4.01 [the insanity section]," Model Penal Code §
2.08(3), we have not adopted this provision in Vermont, and our insanity
statute does not define "mental disease or defect" other than to exclude
"an abnormality manifested only by repeated criminal or otherwise
anti-social conduct," and to include "congenital and traumatic mental
conditions as well as disease." 13 V.S.A. § 4801(a)(2). Nevertheless, we
have long held that, while voluntary intoxication may mitigate the crime
charged, it will not operate as a total bar to criminal responsibility.
Wheelock, 158 Vt. at 309, 609 A.2d at 976. This is the rule nationally as
well. See P. Hassman, Annotation, Effect of Voluntary Drug Intoxication
Upon Criminal Responsibility, 73 A.L.R.3d 98, 121 (1976) ("[I]t is
generally accepted that voluntary drug intoxication may not be used to
completely excuse one from criminal responsibility.").
¶ 21. While the mental state resulting from extreme intoxication may
in some cases be "tantamount to insanity," L. Tiffany, The Drunk, the
Insane, and the Criminal Courts: Deciding What to Make of Self-Induced
Insanity, 69 Wash. U. L.Q. 221, 222 (1991), 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. See J.
Dressler, Understanding Criminal Law § 24.05[A], at 328-29 (3d ed. 2001).
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. See W. LaFave,
Criminal Law § 9.5(h), at 481-82 (4th ed. 2003).
¶ 22. The only generally recognized exception to this rule is the
doctrine known as "fixed" or "settled" insanity. (FN5) 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. See, e.g., A. Levine, Note, Denying the
Settled Insanity Defense: Another Necessary Step in Dealing with Drug and
Alcohol Abuse, 78 B.U. L. Rev. 75, 78 (1998) ("The long-term, consistent
abuse of drugs or alcohol may result in permanent mental disorders that are
symptomatically and organically similar to mental disorders caused by brain
disease. Courts have labeled this condition as 'fixed' or 'settled'
insanity, because the disorder remains even though the defendant is not
under the influence of the intoxicants."); Tiffany, supra, at 225 ("the
courts will recognize even a 'voluntarily contracted madness' as insanity
if it has become permanent as in the case of 'fixed' or 'settled' insanity,
even though it has its origins in alcohol or other drug abuse"); J.
Dressler, supra, § 24.05[b], at 329 ("Habitual use of intoxicants can
result in permanent brain damage, resulting in a substance-induced mental
disorder that persists, i.e., the disorder remains even when the actor is
not under the influence of intoxicants."); People v. Whitehead, 525 N.E.2d 1084, 1087 (Ill. App. Ct. 1988) (insanity defense resulting from drug use
is not available "absent a mental disease or defect traceable to chronic or
habitual drug use and resulting in a permanent kind of insanity"); see
generally R.W. Gascoyne, Annotation, Modern Status of the Rules as to
Voluntary Intoxication as Defense to Criminal Charge, 8 A.L.R.3d 1236
(1966) (collecting cases).
¶ 23. Scholars have traced the origins of the settled insanity
defense in this country to the mid-nineteenth century when courts first
considered the culpability of chronic alcoholics for crimes committed in
the throes of acute alcohol-induced psychoses, typically marked by
hallucinations and paranoid delusions. See generally Levine, supra, at 87
(noting that "[a] Tennessee state court first recognized the rarely invoked
doctrine of settled insanity in 1850"); Note, Intoxication as a Criminal
Defense, 55 Colum. L. Rev. 1210, 1219 n.66 (1955) (citing early decisions
that recognized settled insanity defense in cases of "delirium tremens . .
. a phenomenon brought about by alcoholic abuse over many years-6 to 10
years of heavy drinking"); Am. Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 153 (4th ed. 1994) (observing that
"Substance-Induced Persisting Dementia" generally originates from "a
pattern of prolonged and heavy substance use" with symptoms that "persist
long after use of the substance has stopped," and is generally
characterized by "an insidious onset and slow progression" so that it is
"rarely" seen in persons under 20). (FN6)
¶ 24. From its inception to the present, the settled insanity
doctrine has been consistently characterized as a state of mind resulting
from "long-continued," "habitual," "prolonged," or "chronic" alcohol or
drug abuse leading to a more or less permanent or "fixed" state of
insanity. For an illustrative sample of older decisions, see, e.g.,
People v. Travers, 26 P. 88, 91 (Cal. 1891) ("[S]ettled insanity produced
by long-continued intoxication, affects responsibility in the same way as
insanity produced by any other cause"); Fisher v. State, 64 Ind. 435, 440
(1878) (recognizing settled insanity defense "where the habit of
intoxication, though voluntary, has been long continued, and has produced
disease, which has perverted or destroyed the mental faculties of the
accused"); State v. Riley, 13 S.W. 1063, 1064 (Mo. 1890) (holding that
"long-continued habits of intemperance, producing permanent mental disease
amounting to insanity" may relieve defendant of criminal responsibility);
Cheadle v. State, 149 P. 919, 922 (Okla. Crim. App. 1915) (recognizing
settled insanity due to "excessive and long-continued indulgence in
alcoholic liquors, technically called, 'delirium tremens' "); State v.
Kidwell, 9 S.E. 494, 495 (W. Va. 1907) (recognizing defense of settled
insanity "superinduced by habitual and long continued intoxication" ). For
more recent cases illustrating the same principle, see, e.g., Evans v.
State, 645 P.2d 155, 158 (Alaska 1982) (recognizing insanity defense for
"alcoholic psychosis, such as delirium tremens, resulting from
long-continued habits of excessive drinking"); Kiley v. State, 860 So. 2d 509, 510 n.3 (Fla. Dist. Ct. App. 2003) ("[T]he defendant must show that
his long term and continued use of intoxicants produced a fixed and settled
frenzy or insanity either permanent or intermittent.") (quotation omitted);
State v. Clokey, 364 P.2d 159, 164 (Idaho 1961) (upholding instruction
defining settled insanity as "produced by long continued intoxication");
State v. Smith, 490 P.2d 1262, 1264 (Or. 1971) (recognizing insanity
defense where "excessive and long-continued use of intoxicants produces a
mental condition of insanity, permanent or intermittent") (quotations
omitted); Herbin v. Commonwealth, 503 S.E.2d 226, 231 (Va. Ct. App. 1998)
(recognizing settled insanity resulting from "long-term and severe drug
abuse").
¶ 25. The underlying rationale for the settled insanity doctrine is
generally explained as an acknowledgment of "the futility of punishment,
since the defective mental state is permanent," Tiffany, supra, at 225
n.16, 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. Dressler, supra, §
24.05[B], at 330; see also Note, Settled Insanity is Not a Defense: Has
the Colorado Supreme Court Gone Crazy? Bieber v. People, 43 U. Kan. L. Rev.
259, 270 (1994) ("Proponents of a settled insanity defense believe the
initial choice to use drugs to be too remote in time to hold a person
accountable for it once that person eventually suffers a drug-induced brain
disorder."). As the celebrated American jurist and scholar Joseph Story,
in one of the earliest reported cases on the subject, observed: "[T]he
question made at the bar is, whether insanity, whose remote cause is
habitual drunkenness, is, or is not, an excuse in a court of law for a
homicide committed by the party, while so insane, but not at the time
intoxicated or under the influence of liquor." United States v. Drew, 25 F. Cas. 913 (D. Mass. 1828) (No. 14,993) (emphasis added); see also State
v. Stark, 32 S. C. L. (1 Strob.) 479 (S.C. Ct. App. 1847) (acknowledging
that insanity defense may lie where defendant's alcoholic psychosis was "a
remote consequence superinduced by the antecedent exhaustion of the party
arising from gross and habitual drunkenness"). (FN7)
¶ 26. Although, with one exception, every state court to consider
the issue has recognized the doctrine of settled insanity, many
states-including Vermont-have simply not addressed it. See Levine, supra,
at 87-88 (noting that twenty-nine states have recognized settled insanity
while twenty have not addressed it); cf. Bieber, 856 P.2d at 817 (rejecting
settled insanity as an unprincipled departure from the general rule
precluding the insanity defense where defendant's psychotic state results
from voluntary intoxication). (FN8) Defendant tenders this as an
appropriate case in which to recognize the doctrine, noting its general
acceptance in other states, longevity under the common law, and recognition
by the drafters of the Model Penal Code. (FN9)
¶ 27. We are not persuaded, however, that this appeal presents a
suitable factual setting for resolution of the issue. The many cases and
articles that consistently require a showing that defendant's mental
illness resulted from "long-term," "habitual," or "chronic" drug or
alcohol abuse do not, of course, establish any specific time frames
relative to the offense, nor is it possible to do so. Yet, by any measure,
the circumstances here do not begin to approach the prolonged abuse leading
to a fixed insanity that the common law recognized as sufficiently
attenuated to excuse the crime. Whatever its merits, the doctrine of
settled insanity was developed to address mental illness resulting from
long-term substance abuse over many years, gradually leading to organic
brain damage, and its justification is based on the humane recognition
"that at some point a person's earlier voluntary decisions become morally
remote." J. Dressler, supra, § 24.05[B], at 330.
¶ 28. By his own admission, defendant's LSD use here began in July
2000, lasted about two months, and ended two to three weeks before the
offense in late September 2000. He took the drugs precisely to experience
the perceptual distortions that may result from such hallucinogens, and
fully expected that the drugs would alter his state of mind. (FN10)
Although he continued to have bizarre thoughts weeks and months after the
offense, he was found to have returned to mental competence to speak with
the police and stand trial for his offenses within weeks, if not days,
after the murder. (FN11)
¶ 29. In these circumstances, the claim that defendant was operating
under a "fixed or settled" insanity at the time of the offense is contrary
to the very meaning of the doctrine and its altruistic origins. To retain
any moral or legal salience, the doctrine must-if it is ever justified-be
limited to those cases where the initial choice to abuse alcohol or drugs
has become so attenuated over time that it serves little or no purpose to
hold the defendant accountable for that choice once a permanent mental
illness has taken hold through years of chronic substance abuse. To apply
the doctrine here, to a crime committed while defendant was either directly
under the influence or in the immediate aftermath of a discrete two-month
period of using hallucinogenic drugs, would defeat the doctrine's meaning
and underlying purposes. See Allen v. State, 539 So. 2d 1124, 1126 (Ala.
Crim. App. 1988) (although defendant had been treated for alcohol abuse on
two occasions prior to offense, court held that defendant had "produced no
evidence that his long-continued alcohol indulgence had resulted in a
mental disease or defect"); State v. Valenzuela, 559 P.2d 201, 204 (Ariz.
Ct. App. 1977) (upholding trial court's refusal to instruct on settled
insanity where there was "no evidence to support a finding that the
appellant was suffering from an existing state of mental illness caused by
prolonged use of liquor"); People v. Free, 447 N.E.2d 218, 232 (Ill. 1983)
(upholding court's refusal to instruct on settled insanity where there was
"no evidence in the record that this defendant was a habitual or chronic
user of drugs or alcohol, or that the claimed disease or defect was
'settled' or 'fixed' "). While there may indeed be cases that raise a
genuine factual issue as to whether a defendant's prior, long-term drug or
alcohol abuse has resulted in a fixed insanity, this is not such a case.
(FN12)
¶ 30. Our conclusion applies with equal force to the alternative
settled-insanity theory advanced by the trial court in the proposed
instruction at issue here. As noted, Dr. Linder offered two possible
diagnoses of defendant's psychosis at the time of the offense. The first
posited that it was a straight substance-induced psychosis, based on his
testimony that LSD may continue to affect the user weeks after its last
ingestion. The second was that the LSD triggered a latent mental disease
or defect, causing the psychotic episode. (FN13) The latter diagnosis
differs somewhat from the classic etiology of settled insanity because the
theory is not that the illegal drugs caused the illness and resulting
psychosis, but rather that they exacerbated or activated a preexisting
latent illness.
¶ 31. Accepting this theory as a plausible basis for the
insanity defense, the trial court crafted an instruction that attempted to
articulate its essential elements. Borrowing from a Massachusetts
decision, Commonwealth v. Herd, 604 N.E.2d 1294, 1298 (Mass. 1992), the
proposed instruction provides that an insanity defense may be predicated
upon a mental condition "caused by the voluntary consumption of illegal
drugs if the drugs activate a latent mental disease or defect," provided
that the defendant did not know or have reason to know the drug would
activate the illness; that the resulting disease is recognized medically
and existed at the time of the offense "independent of any temporary
intoxication or high that the drugs caused;" and that the mental disease
"lasted for a substantial time after the drugs had worn off." The
instruction went on to reject settled insanity in its traditional form,
stating that "[a] mental disease or defect cannot be caused solely by the
consumption of an illegal drug."
¶ 32. Although the Herd case actually involved facts closer to a
true settled-insanity claim (the evidence showed that the "mental disease
or defect [was] caused solely by the consumption of a drug," id. at 1299),
it relied on two earlier decisions, Commonwealth v. Shelley, 409 N.E.2d 732, 738-39 (Mass. 1980), and Commonwealth v. Brennan, 504 N.E.2d 612, 616
(Mass. 1987), which held that a defendant may be entitled to show a lack of
criminal responsibility where illegal drugs or alcohol activate a latent
disease or defect, resulting in a psychotic episode. Defendant has not
shown, nor have we discovered, any significant movement by jurisdictions
outside of Massachusetts to apply the Herd formula.
¶ 33. The proposed instruction essentially posits that when the
voluntary use of illegal drugs activates a "latent" mental illness
resulting in psychosis, we should ignore the fact that illegal drugs were
the precipitating cause. This conclusion runs counter to the fundamental
principle that a defendant is not excused from criminal liability for acts
which result from a mental state that is self-induced through the voluntary
ingestion of illegal drugs or alcohol. If defendant here suffered, as Dr.
Linder asserts, from a latent mental illness, it does not alter the fact
that, as Dr. Linder also explained, defendant would not have been in a
psychotic state at the time of the offense had he not chosen to use illegal
consciousness-altering drugs. (FN14) Thus, the very evidence on which
defendant relies defeats his claim, for it demonstrates that his recent,
voluntary use of illegal drugs was an essential causal element of the
mental illness and psychotic episode that followed. On these facts,
defendant was not entitled to assert an insanity defense. See, e.g.,
Commonwealth v. Henry, 569 A.2d 929, 935 (Pa. 1990) (rejecting defendant's
claim that the trial court erred in precluding an insanity defense based on
his theory that he suffered from "an inherent pathologic illness triggered
by the voluntary ingestion of alcohol"); Evilsizer v. State, 487 S.W.2d 113, 115 (Tex. Crim. App. 1972) (rejecting proposed instruction that would
have allowed finding of insanity where "the accused is in any degree
mentally impaired or infirm, and such impairment or infirm condition of his
mind was stimulated or aggravated by the use of intoxicants to such an
extent as to cause the accused to become temporarily insane").
¶ 34. Our conclusion is not altered by the instruction's additional
requirement that defendant neither "knew nor had reason to know that the
drug would activate the illness." 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. See, e.g., State v. Sette, 611 A.2d 1129, 1136 (N.J. Super. Ct. App. Div. 1992) (rejecting defendant's claim
that he lacked criminal responsibility where his drug use interacted with
the unknown presence in his system of agricultural pesticides, resulting in
a psychotic reaction "wholly out of line with his reasonable
expectations"). Indeed, many courts have held that a defendant can not
reasonably assume the use of illegal drugs will have any predictable
effect. See, e.g., People v. Velez, 221 Cal. Rptr. 631, 638 (Cal. Ct. App.
1985) (rejecting claim that defendant was not responsible for his actions
after smoking marijuana cigarette unaware that it was laced with PCP since
he could not "assume" that the marijuana would "produce any predictable
intoxicating effect"); State v. Hall, 214 N.W.2d 205, 208 (Iowa 1974)
(holding that defendant could not avail himself of involuntary intoxication
defense where he claimed ignorance that the pill he took was LSD but
otherwise "knew it was a mind-affecting drug"); Commonwealth v. Campbell,
284 A.2d 798, 801 (Pa. 1971) (observing that the "nonpredictability" of
hallucinogenic drugs such as LSD militates against recognizing a defense
based on the psychotic state of mind which they induce). (FN15)
¶ 35. In response to the third question, therefore, we hold that
the proposed instruction did not set forth a correct of statement of the
insanity defense under 13 V.S.A. § 4801. We recognize that mental disease
and the abuse of illegal drugs often coexist, and emphasize that nothing in
our holding bars an insanity defense where the prior use of drugs is not an
essential causal element of defendant's mental state. Indeed, nothing that
we have said would preclude this or any other defendant from attempting to
prove at trial that the alleged insanity at the time of the offense was
caused by a mental disease or defect that rendered them incapable of
appreciating the criminality of their acts or of conforming their conduct
to the requirements of law. Upon such a showing, however, the State may
offer evidence to prove that the voluntary ingestion of intoxicants was an
essential causal element of the insanity so as to refute the claim that the
insanity absolves the defendant of criminal responsibility. See State v.
Hanson, 529 A.2d 720, 724 (Conn. App. Ct. 1987) (where defendant has
claimed affirmative defense of insanity, "[t]he state may offer evidence
that intoxicating liquor was voluntarily ingested so as to cause the
disease or defect, to refute the evidence that insanity absolves the
defendant of criminal responsibility").
¶ 36. Finally, we note that defendant has not asserted a
constitutional right to an insanity defense based on the theory that we
have rejected today, and we are reluctant to delve at length into a subject
that was not raised below or briefed and argued on appeal. As there is
little point, however, to issuing a decision of doubtful constitutional
validity, we pause long enough to note the following: The United States
Supreme Court has held that there is no due process right to assert a
defense of voluntary intoxication so as to mitigate or excuse a charge of
murder, Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (Scalia, J., plurality
opinion), and we are confident, in light of this holding, that the Court
would not find a fundamental right to assert a complete defense based on
the voluntary consumption of illegal drugs. Indeed, the high court has
traditionally reserved to the states the task of balancing the "constantly
shifting . . . religious, moral, philosophical, and medical views" that
underlie the insanity defense, Powell v. Texas, 392 U.S. 514, 536 (1968),
and has expressly "not said that the Constitution requires the States to
recognize the insanity defense." Medina v. California, 505 U.S. 437, 449
(1992). Four state courts have thus upheld legislation virtually
abolishing insanity as a defense and allowing evidence of mental disease or
defect solely to rebut the mens rea element of the charge. See State v.
Searcy, 798 P.2d 914, 919 (Idaho 1990); State v. Bethel, 66 P.3d 840,
851-52 (Kan. 2003); State v. Korell, 690 P.2d 992, 998-1000 (Mont. 1984);
State v. Herrera, 895 P.2d 359, 366 (Utah 1995). Therefore, while we need
not consider the constitutional dimensions-if any-of our decision, we issue
it secure in the understanding that it violates no fundamental rights of
defendant.
¶ 37. Our dissenting colleague rather strenuously asserts six
purported deficiencies in today's decision. We address them in order.
First, it is asserted that we improperly characterize the case as turning
on "intoxication" rather than "accept the reality" that it involves
insanity. Post, ¶ 47. On the contrary, the reality here is that defendant
has asserted a defense premised on the proposition that his voluntary use
of hallucinogenic drugs within weeks of the offense may entirely excuse his
actions. While defendant may not have been in the immediate throes of an
hallucinogenic "high," the proximity and short-term nature of his drug use
certainly bars any legitimate claim to a settled insanity defense.
¶ 38. Next, the dissent claims that the Court's decision fails to
answer the actual question posed, and instead holds that "defendant should
not be able to raise an insanity defense under any circumstances." Post,
¶ 49. We do not believe that anyone reading today's decision will be left
uncertain as to the Court's answer to the specific question certified for
review. As stated earlier, in response to that question, we hold that
defendant may not assert an insanity defense premised on the voluntary use
of illegal drugs that triggers a latent mental disease or defect.
¶ 39. As to the dissent's charge that today's decision precludes
defendant from raising an insanity defense "under any circumstances," even
a cursory review of the opinion demonstrates otherwise. The argument
appears to be premised on dissatisfaction with the rule barring a claim of
insanity if it would not have occurred "but for" the defendant's voluntary
use of illegal drugs. The dissent claims that this will unfairly prevent
many mentally ill persons from presenting a legitimate insanity defense.
We discern no basis for such a claim, however, and the dissent offers none.
"But for" causation is a familiar legal standard that other jurisdictions
have utilized in this context. See, e.g., United States v. Henderson, 680 F.2d 659, 662 (9th Cir. 1982) (noting that insanity defense resulting from
combination of mental defect and alcohol is unavailable where "absent the
alcohol [the] mental defect would not have rendered [the defendant]
insane"); Hanson, 529 A.2d at 723 (upholding trial court's rejection of
insanity defense where evidence did not establish "that it was the
defendant's mental condition, absent the ingestion of alcohol, which was
the cause of his criminal behavior"); State v. Flagg, No. 9804019233, 1999
WL 167775, at *2 (Del. Super. Ct. March 10, 1999) (interpreting state
statute to hold that where alleged insanity "would not have occurred but
for such [drug] consumption, . . . defendant could not present an insanity
defense"); see also Conn. Gen. Stat. § 53a-13(b) (2001) ("It shall not be a
defense under this section if such mental disease or defect was proximately
caused by the voluntary ingestion, inhalation or injection of intoxicating
liquor or any drug or substance."); Del. Code Ann., tit. 11, § 401(c)
(2001) ("It shall not be a defense . . . if the alleged insanity or mental
illness was proximately caused by the voluntary ingestion, inhalation or
injection of intoxicating liquor, any drug or other mentally debilitating
substance."); Wash. Rev. Code § 10.77.030(3) (2002) ("no condition of mind
proximately induced by the voluntary act of a person charged with a crime
shall constitute insanity"). The "but for" standard most effectively
advances the underlying principle that a person who would not have been
insane at the time of the offense but for the use of illegal drugs should
not be excused of responsibility for the crime. As we have emphasized,
however, nothing in our decision forecloses defendants from claiming or
demonstrating that, apart from any incidental drug use, they suffered from
a mental disease or defect that rendered them incapable of appreciating the
criminality of their acts or conforming their conduct to the requirements
of the law.
¶ 40. Next, the dissent claims that the Court has "ignored" the
relevant standard of review and "selectively" found facts to support its
decision. Post, ¶ 51. On the contrary, the material facts underlying
today's decision are virtually undisputed, and consist entirely of the
evidence advanced by defendant (not the State or this Court) in support of
his claim. Defendant claims, without dispute, that he consumed large
quantities of LSD for about two months during the summer preceding the
offense, and stopped about two to three weeks before the attack in
September 2000. Assuming these facts to be true, we hold plainly and
simply that they are legally insufficient to support a claim of insanity.
See State v. Cram, 157 Vt. 466, 469, 600 A.2d 733, 734 (1991) (where the
facts asserted by defendant, taken as true, are insufficient to sustain the
purported defense, the trial court should deny use of the defense).
¶ 41. The dissent's recurring claim that the Court ignores or
prejudges the record evidence is unfounded. We are well aware of the
record evidence of defendant's troubled family history, of the possibility
that defendant suffered from some mental illness prior to the assault of
the victim in this case, and of the potential that he may experience
cyclical periods of mental illness in the future. As we have stated,
defendant is not barred from asserting an insanity defense on this basis.
He is barred, however, from claiming a mental illness triggered by the use
of illegal drugs. (FN16)
¶ 42. Next, the dissent claims that our holding is unprecedented
in its restrictions on the insanity defense, contrary to the common law,
and constitutes an unwarranted intrusion on the prerogatives of the
Legislature. Nothing could be further from the truth. Indeed, as we have
seen, to recognize a settled insanity defense in this case would represent
a distinct departure from the basic common-law doctrine requiring a fixed
mental infirmity resulting from chronic substance abuse over the course of
many years. As for the variant set forth in the trial court's proposed
instruction, which the dissent has aptly labeled the "Massachusetts
defense," post, ¶ 87, we are aware of no widespread endorsement of this
approach. With respect to the dissent's claim that our holding
impermissibly amends the insanity statute, which contains no express
exception for insanity caused by drugs or alcohol, we would point out that
the argument is fundamentally self-defeating; it acknowledges that in the
absence of an express statutory provision, the common law controls. See
State v. Francis, 151 Vt. 296, 305, 561 A.2d 392, 397 (1989) ("[T]he common
law controls unless modified by statute or case law.") (quotations
omitted). 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.
¶ 43. Finally, the dissent claims that the "moral blameworthiness"
rationale for barring an insanity defense based upon the recent, voluntary
use of illegal drugs is "suspect" here because the taking of drugs may not
have been "entirely voluntary." Post, ¶¶ 66-67. In fact, however,
defendant did not claim below, and does not argue here, that his
consumption of illegal psychoactive drugs was involuntary. Rather,
defendant has consistently maintained that the insanity defense should be
available notwithstanding his voluntary use of illegal drugs if the drugs
resulted in a settled insanity or interacted with a preexisting mental
condition to cause insanity. Defendant's implicit concession is
consistent with Dr. Linder's report, based on interviews with defendant and
others, which indicates that defendant had been consciously experimenting
with the mind-altering effects of illegal drugs out of "intellectual
curiosity." Accordingly, the dissent's argument is simply irrelevant to
this case. Furthermore, although the dissent cites articles suggesting a
causal connection between mental illness and compulsive drug or alcohol
use, most courts have rejected the proposition that mental illness that
predisposes a defendant to drug or alcohol abuse may justify a finding of
involuntary intoxication. See, e.g., Evans, 645 P.2d at 159-60 (rejecting
claim that an internal compulsion to drink may support involuntary
intoxication or insanity defense); See v. State, 757 S.W.2d 947, 950 (Ark.
1988) (noting that "most jurisdictions have held that an irresistible
compulsion to consume intoxicants caused by a physiological or
psychological disability does not render the ensuing intoxication
involuntary"); State v. Palacio, 559 P.2d 804, 806 (Kan. 1977) (rejecting
claim that compulsion to drink rendered defendant's intoxication
involuntary); State v. Bishop, 632 S.W.2d 255, 259-60 (Mo. 1982) (rejecting
argument that drugged condition of defendant was involuntarily produced
where it was caused by defendant's addiction); see generally Dressler,
supra, § 24.02[A][2], at 321-22.
III.
¶ 44. The fundamental principle underlying the insanity defense is
that one should not be punished for criminal acts for which one is not
responsible. Consistent with this principle, it is universally recognized
that a defendant who intentionally consumes drugs or alcohol resulting in a
psychotic state will not be relieved of responsibility for his or her
criminal acts. The question presented by this case is whether we are
willing to relieve a defendant of criminal responsibility whose psychosis
allegedly emerged from a mental illness triggered by the defendant's
voluntary use of illegal hallucinogenic drugs for a period of two months
preceding the crime. As explained above, we conclude that the law may
reduce an individual's culpability in such circumstances, but will not
excuse it. Like any other individual asserting an insanity defense,
however, defendant remains free to prove that he was not responsible for
his conduct as the result of an independently preexisting mental disease or
defect that rendered him unable to appreciate the criminality of his acts
or to conform his conduct to the requirements of law.
The trial court order denying the State's motion to preclude evidence
at trial regarding defendant's diminished capacity due to voluntary use of
illegal drugs is affirmed. The trial court order allowing defendant to
present an insanity defense based on the voluntary consumption of illegal
drugs that activate a latent mental disease or defect is reversed. The
case is remanded for further proceedings consistent with the views
expressed herein.
FOR THE COURT:
_______________________________________
Chief Justice
------------------------------------------------------------------------------
Dissenting
¶ 45. DOOLEY, J., dissenting. Although I concur with Part I of the
majority opinion and join it, I respectfully dissent from Part II. There,
the majority holds that a statutory insanity defense is not available to a
defendant who is insane at the time of the charged offense as the result of
a latent mental illness activated by the defendant's prior ingestion of
illegal drugs-even if the defendant's mental condition prevented him from
conforming his conduct to the requirements of the law, and even if he did
not know, and could not have known, that his drug use would trigger the
underlying mental illness. In my view, the holding is inconsistent with
our insanity defense statute, the Model Penal Code from which our statute
is derived, and the established common law. Further, the majority's
holding fails to answer the certified question before us and is based on
appellate fact-finding with no recognition of the limited standard of
review applicable here.
¶ 46. I recognize that this is a complex and confusing case, in part
because of the complicated expert testimony and in part because of the way
the majority has chosen to analyze the case. My goal in this dissent is to
provide clarity where it does not exist in the majority opinion. I attempt
to do so by expressing up front my six main differences with the majority
opinion in general terms in Part I. Then I will review the facts in detail
and discuss how I would decide this case, interrelating why I believe the
majority's analysis is wrong.
I.
A. This Case is Not About Intoxication.
¶ 47. This is a recurring theme in my dissent because it is a
recurring theme in the majority opinion and the authority on which it
relies. Apparently, the majority has succumbed to the State's refrain that
defendant is trying to make an insanity defense out of being high on drugs.
I emphasize that everyone in this case, including the defendant, agrees
that the mental state of intoxication alone cannot be a complete defense to
a criminal charge. By intoxication, I mean the mind alteration or "high"
that directly follows the ingestion of an intoxicant. At best,
intoxication can demonstrate diminished capacity, as Part I of the majority
opinion holds. The trial court acknowledged as much and more, stating in
its proposed summary of Vermont law that the mental disease "must exist at
the time of the offense, independent of any temporary intoxication or high
that the drugs caused." But faced with expert opinion that defendant's
conduct resulted from a preexisting mental illness activated by long-term
drug use, the court decided that the causative presence of both the
preexisting mental illness and the drug-induced psychotic condition,
independent of any intoxication, could be found by the jury to be insanity
under our statute. Our opinion should accept the reality of the trial
court's decision and its support in the evidence, rather than characterize
this as an intoxication case. (FN17)
B. The Majority Opinion Answers the Wrong Question.
¶ 48. As noted in ¶ 9 of the majority opinion, the trial court asked
this Court in its third certified question if the following is a correct
statement of the law as it relates to the term "mental disease or defect"
contained in 13 V.S.A. § 4801:
The term "mental disease or defect" as used in 13 V.S.A. § 4801
includes a mental condition caused by the voluntary consumption of
illegal drugs if the drugs activate a latent mental disease or
defect, and as a result of that mental disease or defect the
individual has lost capacity to appreciate the criminality of his
conduct, or has lost the capacity to conform his conduct to the
requirements of the law, unless the individual knew or had reason
to know that the drug would activate the illness. The resulting
disease or defect must be recognized medically and must exist at
the time of the offense, independent of any temporary intoxication
or high that the drugs caused. It does not matter that the mental
disease or defect was not permanent, if the condition lasted for a
substantial time after the intoxicating effects of the illegal
drugs had worn off. A mental disease or defect cannot be caused
solely by the consumption of an illegal drug.
¶ 49. Instead of directly addressing this question, the majority
leads off Part II of its opinion by saying "[t]he final certified question
asks us to determine whether defendant can present an insanity defense . .
. ." Ante, ¶ 18. In the end, the majority never fully answers the
question posed but instead delves into the facts to show that defendant
should not be able to raise an insanity defense under any circumstances.
According to the majority, "the claim that defendant was operating under a
'fixed or settled' insanity at the time of the offense is contrary to the
very meaning of the doctrine and its altruistic origins," and applying "the
doctrine here, to a crime committed while defendant was either directly
under the influence or in the immediate aftermath of a discrete two-month
period of using hallucinogenic drugs would defeat its meaning and
underlying purpose." Ante, ¶ 29.
¶ 50. I recognize that we have "on occasion, deviated from the
general rule and decided issues on interlocutory appeal where the trial
court had not properly certified the question but where the question is
capable of resolution and has been fully briefed and argued." White
Current Corp. v. Vt. Elec. Coop., 158 Vt. 216, 222, 609 A.2d 222, 225
(1992). But there is nothing improper about the certified question here.
Except for making modifications to accurately state its legal position, the
trial court simply posed the question proposed by the prosecution.
Nevertheless, the majority ventures into issues that the parties,
particularly defendant, have not even briefed. Further, the majority does
so without even acknowledging that it has deviated from the certified
question.
C. The Majority Has Ignored the Standard of Review and Selectively
Found Facts to Support Its Conclusion.
¶ 51. The question in this case is not whether defendant will be
found insane--indeed, insanity defenses are notoriously difficult to
sustain-but whether the jury will even be allowed to consider an insanity
defense. Nowhere in the majority opinion is there an acknowledgment that
the standard of review with respect to this question, and particularly with
respect to facts surrounding this question, is very limited. The issue is
whether defendant made a sufficient offer of proof to reach the jury on
whether he was insane at the time of the offense, and the standard we must
apply is whether "taking the facts in defendant's offer as true, no
reasonable juror could find that the requirements of the [insanity] . . .
defense were satisfied." State v. Cram, 157 Vt. 466, 469, 600 A.2d 733,
734 (1991) (applying necessity defense); see also State v. Bush, 595 S.E.2d 715, 722 (N.C. Ct. App. 2004) (holding that "[i]n determining whether the
evidence supports an instruction on any affirmative defense, the evidence
should be viewed in the light most favorable to the defendant").
¶ 52. The problem is not the majority's failure to recognize that
it is bound by this limiting standard, but rather that it never applies the
standard at all. For the most part, the majority opinion is based on its
own fact-finding. In some places it relies upon the prosecution's evidence
for its facts, ignoring the detailed offer of proof from defendant upon
which the trial court ruled and from which we are required to draw the
relevant facts. Thus, the majority portrays a defendant who did drugs for
a very short period of time, went crazy, killed someone, and then returned
to a normal state shortly after the killing.
¶ 53. The majority ignores the ample evidence that is inconsistent
with its characterization of the facts. Representative of the majority's
approach is the language I quoted above: "defendant was either directly
under the influence or in the immediate aftermath of a discrete two-month
period of using hallucinogenic drugs." Ante, ¶ 29. And in response to
this dissent, the majority says, "[w]hile defendant may not have been in
the immediate throes of an hallucinogenic 'high,' the proximity and
short-term nature of his drug use certainly bars any legitimate claim to a
settled insanity defense." Ante, ¶ 37.
¶ 54. Compare the majority's description of the evidence to the
description of defendant's mental condition contained in Dr. Linder's
report in defendant's offer of proof:
Mr. Sexton was experiencing significant dysfunction in his life
characterized in part by the loss of a girlfriend relationship,
being confronted at gunpoint, nuclear family dysfunction, curfew
mandated isolation, unemployment, legal difficulties and substance
use. It was under the cumulative strain of these circumstances
that he decompensated into a florid psychotic condition. His
substance use contributed to this destabilization. He had been
using cannabis, LSD, some cocaine, some psilocybin mushrooms, some
Ketamine, some ecstacy and some nitrous oxide.
Under the majority's analysis of the offer of proof, the only relevant word
in the above paragraph is LSD; it is as if the remainder of the words were
not there.
¶ 55. Up until the opinion in this case, there has been only one
independent judicial analysis of defendant's condition, done by Judge Toor
to determine whether a hospitalization hearing was required for defendant.
In reaching her decision, she found: (1) defendant's mental condition had
been developing for many years; (2) a mental illness such as defendant's is
usually a lifelong condition that often requires cyclical hospitalization;
(3) defendant is likely to have more overt psychotic conditions at
different times in his life; and (4) his condition will wax and wane over
time. It is difficult te reconcile Judge Toor's analysis of defendant's
condition with that of the majority.
¶ 56. The majority's language in describing defendant's condition
and his defense was not chosen to put defendant's circumstances in the best
light from his perspective. Indeed, the description is exactly the
prosecution's characterization of the evidence when viewed in the light
most favorable to the State.
D. The Majority Has Rejected as Too Liberal a Proposed Instruction
that Would Restrict the Availability of an Insanity Defense in Drug Cases
to a Greater Extent Than Any Jurisdiction in the United States, Except for
a Few States that Have Enacted a Specific Restrictive Statute.
¶ 57. As discussed in detail below, there are two recognized
instances where a defendant who has taken drugs can nevertheless be insane
at the time of the criminal act. The first is when the defendant suffers
from "fixed" or "settled" insanity as a result of drug usage. The second
is when the defendant has a preexisting mental illness and the drug usage
activates that mental illness under circumstances where the defendant is
unaware that the activation would occur. Uniquely, the trial court
required that both instances be present in the same case, a requirement
imposed by no other court in the United States. Thus, this defendant was
required under the trial court's instruction to prove both that he suffered
from fixed or settled insanity as a result of drug use and that he had a
preexisting separate mental illness that was activated unforeseeably by the
drugs. I doubt that more than a small percentage of defendants who had
ever taken drugs could fit themselves within the very narrow confines of
the insanity defense allowed by the trial court. Indeed, defendant may be
in a small class of one in his ability to provide evidence on all the
elements.
¶ 58. One would think from the rhetoric of the majority opinion,
some of which I quoted above, that the trial court had adopted a very
liberal standard out of touch with the vast majority of decisions around
the country. It is hard to imagine a characterization further from the
truth. The concerns that caused the trial court to create its restrictive
standard were much the same as those professed by the majority today, even
if its method of addressing them was different. Nowhere is this reflected
in the majority opinion.
¶ 59. I return to the point made above that the majority has failed
to fully address the certified question. The trial judge believed that a
combination of an underlying mental illness, conditions that created fixed
and settled insanity, and an unawareness of the effect of the drugs was
sufficient to get to the jury with an insanity defense. He apparently
agreed with the majority on the weakness of each of the elements of the
defense in isolation-for example, he rejected the doctrine of fixed and
settled insanity-but believed that a carefully-constructed combination of
the elements met all the concerns. The majority has not addressed why his
analysis is wrong, instead considering the elements separate from each
other. Moreover, it has not addressed why his instruction on the element
taken from fixed and settled insanity is wrong, instead choosing to evade
the question and hold without briefing that defendant could not meet any
test of fixed and settled insanity.
¶ 60. The majority's holding is that if defendant's drug use was
one of the factors leading to the charged offense, he cannot present an
insanity defense to the jury even if he can demonstrate overwhelmingly that
the criminal conduct was caused by an independent mental illness. No court
has adopted such a restrictive standard, except when construing statutes
that explicitly foreclosed an insanity defense where drugs were a causal
factor. In essence, the majority has reduced to zero the very few possible
defenses allowed by the trial court's restrictive legal standard.
¶ 61. I recognize that this is a strong statement, but I believe
that it is fully supported by the record in this case. Defendant's expert
witness gave his opinion that defendant's behavior was caused either by
"Schizophreniform Disorder or Substance Induced Psychotic Disorder," either
of which is "a severe psychotic condition . . . capable of qualifying as a
mental disease." The reality is that while he can identify mental illness
when he sees it, the expert cannot exclude every possible cause. The
burden placed on defendant by the majority is virtually impossible to
satisfy because in the complex area of human behavior, defendant cannot
prove a negative.
¶ 62. I also stand by my statement about the law in the rest of the
country, notwithstanding the majority's citation to a number of cases in
support of its position. Even a cursory reading of the cases cited by the
majority shows that they involved (1) statutes explicitly foreclosing an
insanity defense when drug use is a causal factor and/or (2) offenses
committed while the defendants were under the immediate influence of
intoxicating drugs or alcohol-precisely what the trial court's instruction
excluded from consideration in this case. I particularly take issue with
the majority's summary of the law: "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." Ante, ¶ 42.
This is not an accurate statement of the common law in situations where the
defendant suffered from an underlying mental illness that was a proximate
cause of his criminal conduct and he was not under the direct influence of
intoxicating drugs at the time of the offense. Nor is it an accurate
description of the fixed or settled insanity doctrine as it has evolved in
the common law. And even if it were an accurate statement of the law,
defendant's offer of proof is sufficient to get to the jury under that
standard.
¶ 63. Although the majority contends that it is just relying on
"basic common-law doctrine," ante, ¶ 42, it refuses to recognize fixed or
settled insanity in any context. Every court that has considered the
question, except for one that relied upon a specific statute distinct from
ours, has adopted the doctrine of fixed or settled insanity as part of the
common law. Yet, the majority strongly indicates that it will never accept
fixed or settled insanity, putting it odds with every other state in the
country without a specific statute on the question.
E. The Majority Has Ignored Vermont's Insanity Statute While Imposing
on Vermont the Statutes of Other States.
¶ 64. Apart from citing it, the majority barely mentions Vermont's
insanity defense statute. Yet, this is fundamentally a statutory
construction case because the Legislature has taken control of the policy
regarding when to allow an insanity defense. A proper analysis of this
case under the statute the Legislature has enacted reaches a very different
conclusion than that reached by the majority, as discussed in detail below.
The majority obviously disagrees, imposing the policy it wants rather than
the policy the Legislature enacted. To support its point of view, the
majority relies on precedents from states with special statutes governing
the interrelationship between drug abuse and insanity. In effect, the
majority imposes these special statutes on Vermont, thereby disregarding
the policy choices of the Vermont Legislature in favor of those made by the
legislatures of Delaware, Washington, and Connecticut.
¶ 65. In my view, the majority's decision goes beyond the proper
role of this Court. This case concerns an area of the law that entails
"significant and far-reaching policy concerns more properly left to the
Legislature, where hearings may be held, data collected, and competing
interests heard before a wise decision is reached." Smith v. Parrott, 2003
VT 64, ¶14, 175 Vt. 375, 833 A.2d 843 (quotations omitted) (holding that
where statute incorporated common law elements of medical malpractice,
decision to follow other states in adopting "loss of chance" doctrine of
causation involves conflicting policy considerations best left to
Legislature); accord Titchenal v. Dexter, 166 Vt. 373, 385, 693 A.2d 682,
689 (1997) (stating that "complex social and practical ramifications" of
recognizing nonparents' right to seek custody or visitation renders
Legislature "better equipped to deal with the problem"). As one leading
commentator has stated, the legal standard for presenting an insanity
defense
must reflect underlying principles of criminal responsibility,
comport with the current scientific understanding of mental
disease, permit mental health experts reasonable opportunity to
provide their insights to the court, and yet also preserve to the
trier of fact the ultimate and full authority to render a verdict
on criminal responsibility.
J. Dressler, Understanding Criminal Law § 25.01, at 336 (3d ed. 2001).
Crafting such a standard is a job for the Legislature, not this Court.
F. The Majority's Underlying Philosophy of Moral Blameworthiness is
Suspect in These Circumstances.
¶ 66. We are dealing here with the special circumstance of a
defendant who, if the court-appointed expert's testimony is accepted, was
mentally ill at the time of the offense and whose mental illness caused the
criminal conduct. Yet, the majority's holding prevents this mentally ill
defendant from even presenting an insanity defense to the jury.
¶ 67. The majority justifies this anomaly by proclaiming that
defendant is morally blameworthy for taking drugs. (FN18) That rationale
might be understandable if the taking of drugs was entirely voluntary and
not affected by defendant's underlying mental illness. Although no expert
addressed this question because it was not relevant to the legal standard,
and the majority has now foreclosed that inquiry by its ruling, it is
unlikely to be true. The literature is clear that there is a relationship
between mental illness and drug abuse. The research indicates "that one's
inherent propensity to use drugs or alcohol can be triggered by mental
illness," including personality disorders or organic brain disorders such
as schizophrenia. M. Sbaiti, Administrative Oversight? Towards a
Meaningful "Materiality" Determination Process for Dual-Diagnosis Claimants
Seeking Disability Benefits under Titles II & XVI of the Social Security
Act, 35 Colum. Hum. Rts. L. Rev. 415, 432 (2004); see also R. Honberg, The
Injustice of Imposing Death Sentences on People with Severe Mental
Illnesses, 54 Cath. U. L. Rev. 1153, 1161 (2005) (noting high rates of
"comorbidity-co-occurring mental illness and substance use or abuse"); E.
Boison, Mental Health Parity for Children and Adolescents: How Private
Insurance Discrimination and ERISA Have Kept American Youth from Getting
the Treatment They Need, 13 Am. U. J. Gender Soc. Pol'y & L. 187, 208 n.154
(2005) (accord).
¶ 68. In view of these research findings, I cannot subscribe to the
majority's view that every mentally ill defendant who takes drugs is
morally blameworthy for any criminal conduct that occurs. (FN19) I agree
with the Supreme Judicial Court of Massachusetts that the moral fault for
using illegal drugs is not equivalent to the moral fault for committing the
charged offense, particularly when that offense is murder. See
Commonwealth v. Herd, 604 N.E.2d 1294, 1299 (Mass. 1992) ("We are
unwilling, in order to justify a homicide conviction, to permit the moral
fault inherent in the unlawful consumption of drugs to substitute for the
moral fault that is absent in one who lacks criminal responsibility."). By
denying defendant an opportunity to present an insanity defense because of
his prior drug use, the majority undermines one of the most basic precepts
of our criminal law, as stated by Justice Frankfurter over fifty years ago:
Ever since our ancestral common law emerged out of the darkness of
its early barbaric days, it has been a postulate of Western
civilization that the taking of life by the hand of an insane
person is not murder.
United States ex rel. Smith v. Baldi, 344 U.S. 561, 570 (1953)
(Frankfurter, J., dissenting).
II.
¶ 69. The majority's selective presentation of certain facts
requires that I provide a fuller rendition of the circumstances surrounding
the charged offense in order to address the question certified by the trial
court. Defendant was eighteen years old when he committed the offense.
His father had a history of recurrent depression, alcohol and substance
abuse, suicide attempts, and a personality disorder requiring years of
mental health treatment. Defendant's mother also suffered from depression.
Other extended family members had had "nervous breakdowns" or had attempted
suicide. Early on, defendant was diagnosed with emotional and behavioral
disabilities that affected his school work. The diagnoses included
adjustment disorder with mixed emotional features, mixed
receptive-expressive language disorder, appositional defiant disorder, and
acute stress disorder.
¶ 70. By the seventh grade, defendant was exhibiting serious
behavioral problems and was smoking marijuana. On separate occasions in
1995, he threatened each of his parents with a knife. Crisis services were
called, and defendant was briefly hospitalized, after which he continued
for some period of time in outpatient psychotherapy. In 1998, he
threatened to kill his father after he was grounded for using the family
car. Based on that incident, he was charged with domestic assault and
placed on probation.
¶ 71. In the spring of 1999, after another confrontation with his
father that resulted in his slitting his own wrist, defendant stopped
attending school regularly, left home, and began working full time. His
drug use escalated after he lost his job in January 2000. In addition to
regular marijuana use, he experimented with other psychoactive drugs such
as ecstacy, hallucinogenic mushrooms, and cocaine. In July 2000, he began
using LSD. Although he claims to have taken up to 300 "hits" in the
ensuing two or three months, at least one of the examining psychiatrists
opined that such numbers were unlikely because that amount would have
prevented defendant from being able to function at any level. Defendant
was arrested twice in August 2000, the month before the killing. The first
incident occurred when he engaged police in a physical confrontation after
they tried to remove him from a private residence. The second incident
occurred a week later when he tried to intervene with police officers who
were confronting his friends because of their use of his skateboards. He
was charged with impeding an officer, disorderly conduct, and resisting
arrest.
¶ 72. By all accounts, defendant last took LSD two to three weeks
before the killing. He continued to smoke marijuana on a daily basis until
three or four days before, and possibly again on the day of, the killing,
but apparently took few, if any, other drugs during that period.
Nevertheless, he began to experience more pronounced feelings of paranoia
in the days leading up to the killing. Witnesses described him as
constantly discussing conspiracy theories and feeling that everyone was
against him. He believed that his friends were trying to pull something
out of him and that there was "a society within a society" that did not
include him. He felt like everyone was "in his face" and wanted to kill
him because they knew what he was thinking, particularly how miserable they
all were. He considered them all to be "robots" who could not control
themselves.
¶ 73. He ate very little, had difficulty sleeping, and stopped going
outside. He believed that he saw blood coming from his cat and that the
cat was in pain and asking him to end its misery. On the evening of the
killing, he strangled and stomped the cat to death after he thought he
heard it say it was suffering. He imagined that, to be reborn, he had to
collect souls and become a new deity. Not wanting to look at the mangled
cat, he decided to start collecting souls immediately. He headed upstairs
to gather the souls of (i.e., kill) his neighbors, but they were not home,
so he went outside and saw the unfortunate victim riding her bike down the
street. Although he had never met or seen the woman before, he attacked
her without provocation and beat her to death.
¶ 74. The toxicology report done the day after the killing showed
residual marijuana metabolites in defendant's blood but no other legal or
illegal drugs in his system, except those attributed to medications he had
been given at the hospital following his arrest. A court-appointed
psychiatrist, Dr. Linder, met with defendant on five occasions at the
Vermont State Hospital between September 29, 2000 and November 16, 2000,
after which he filed a report concluding that defendant was insane at the
time of the killing but competent to stand trial. Dr. Linder noted that
defendant exhibited an abundance of severe psychiatric symptoms strongly
suggesting that he had a major mental illness-either schizophrenia,
schizophreniform disorder, or schizoaffective disorder-at the time of the
killing. Dr. Linder also found limited evidence to suggest an alternative
diagnosis-substance-induced psychosis with hallucinations and
delusions-which he opined could be considered a mental disease "due to the
incipient and unanticipated development of the condition while using
significant substances for the first time." Dr. Linder concluded that
defendant had been latently psychotic for years and that recent
circumstances-including drug use-had set in motion a complete psychotic
breakdown.
¶ 75. While acknowledging that drug use probably played a
significant role in activating defendant's mental illness, Dr. Linder did
not consider defendant's substance abuse to be the primary factor in his
psychosis because of the long period of disordered thinking before
defendant began his relatively brief period of using psychoactive drugs.
Dr. Linder also opined that defendant could not have known or predicted the
magnitude of his psychotic reaction to the drugs he took. Dr. Linder
concluded that, by the time of the alleged offense, defendant had reached
such a delusional and psychotic state of mind that he could not reflect
rationally enough to refrain from killing either his beloved cat or a total
stranger.
¶ 76. Based on Dr. Linder's report, the parties stipulated to
defendant's competency to stand trial. Dr. Linder and Dr. Bertold Francke,
defendant's treating psychiatrist at the state mental hospital, testified
at a hospitalization hearing in the spring of 2001. Following the two-day
hearing, the district court determined that defendant was still in need of
mental health treatment and required continued hospitalization, finding,
based on expert testimony, that (1) defendant's mental condition had been
developing for many years; (2) a mental illness such as defendant's is
usually a lifelong condition that often requires cyclical hospitalization;
(3) defendant is likely to have more overt psychotic conditions at
different times in his life; and (4) his condition will wax and wane over
time. The court explicitly rejected the State's attempt to isolate
defendant's past behavior from his then-current mental state, noting that
his improved behavior did not demonstrate that he was no longer mentally
ill.
¶ 77. Following notification of defendant's intent to rely upon an
insanity defense, the State obtained permission for Dr. Albert Drukteinis
to perform an independent psychiatric evaluation of defendant. In April
2002, Dr. Drukteinis filed a report in which he stated that defendant was
suffering from psychotic thought at the time of the killing and thus was
not able to appreciate the criminality of his conduct. Dr. Drukteinis
concluded, however, that defendant had no prior history of a major thought
disorder such as schizophrenia and that, in his opinion, defendant's
psychotic state arose in the context of heavy drug abuse. According to Dr.
Drukteinis, defendant had acted recklessly by accepting "the loss of
contact with reality that the drugs routinely brought which was not
altogether different than the psychotic state which they precipitated."
Hence, Dr. Drukteinis opined that defendant's voluntary drug use directly
resulted in his psychotic state and the ensuing killing.
¶ 78. In June 2002, the district court transferred custody of
defendant to the Department of Corrections after concluding that his
continued hospitalization was no longer justified. The court based its
decision on the testimony of the only witness-defendant's new treating
psychiatrist at the state hospital, Dr. Margaret Bolton-who stated that
defendant's psychosis had dissipated and that he had not been prescribed
any anti-psychotic drugs since June 2001. Dr. Bolton opined that defendant
did not suffer from either schizophrenia or borderline personality
disorder.
¶ 79. In an ensuing deposition and follow-up letter, Dr. Linder
concluded that defendant had been suffering from either schizophreniform
disorder-a condition resembling schizophrenia, but with symptoms lasting
only between one and six months-or a substance-induced psychotic disorder
at the time of the alleged offense. Dr. Linder stated that defendant's
genetic vulnerability and his long history of mental and emotional
dysfunction predisposed him to develop a severe psychotic reaction to some
of the psychoactive drugs he took in the months preceding the murder.
According to Dr. Linder, however, defendant's sustained psychotic
state-lasting several weeks after he stopped using the drugs-indicated that
the psychosis he experienced was not purely drug-induced. Rather, Dr.
Linder surmised that defendant's predisposition towards mental illness,
activated by some combination of social, occupational, interpersonal, and
substance-use stressors, caused defendant to be insane at the time of the
offense.
¶ 80. Dr. Linder also emphasized that the psychotic state defendant
experienced was well beyond the ken of altered states of consciousness
anticipated or desired by drug users. Dr. Linder recognized that, in using
the drugs, defendant anticipated that they might produce odd and unusual
mental experiences but concluded that defendant could not have known the
potential for the magnitude of the reaction that occurred. According to
Dr. Linder, although defendant "may have been aware . . . that to consume
LSD might lead to short-term mental phenomena with perceptual and thinking
distortions, he had no more capacity to predict the dramatic acute florid
psychotic reaction than a nondrinker would be able to know that their first
alcoholic drink would lead to a state of pathological intoxication with
resultant psychosis and aggression."
¶ 81. Thus, Dr. Linder opined that defendant's psychosis on the day
of the killing was not a "psychedelic experience" from LSD, but rather was
a response "seen rarely . . . in individuals vulnerable and genetically
predisposed where the toxic effects of LSD interact with a premorbid
vulnerability to produce a sustained psychotic reaction." (Quotations
omitted.) Dr. Linder surmised that:
Without the predisposing elements of his susceptibility, the drug
use alone would have probably not led to the resulting psychotic
condition. Without the drug use, in an individual susceptible to
decompensation as was Mr. Sexton, the deterioration probably would
not have occurred within the same time frame and it may have been
avoided altogether due to other interceding circumstances.
¶ 82. Defendant also presented an expert opinion from Dr. Scott
Lukas, a clinical professor of psychiatry at Harvard Medical School,
describing research suggesting that persons with a genetic predisposition
to schizophrenia or "premorbid" schizophrenia (i.e., not yet clinically
apparent) are more susceptible to a psychotic response to LSD use. Dr.
Lukas concluded that "drug use can exacerbate an underlying and
subthreshold psychiatric disorder" leading to psychosis, that defendant's
"mental health history clearly puts him in this category," that his
condition was not solely attributable to LSD use, and that defendant "was
not likely aware of the impact that LSD use would have on him, particularly
because he had been using it for such a relatively brief period of time."
In Dr. Lukas's view, defendant's psychiatric condition was chronic, even if
intermittent, and was not dependent on the use of LSD or any other illicit
drug.
¶ 83. In light of the medical evidence presented as of June 24,
2003, the trial court asked defendant to "submit a concise statement of his
theory as to the applicability of the insanity defense." In response,
defendant submitted a letter from Dr. Linder, who opined that defendant had
a mental disease at the time of the killing that could be diagnosed as
either schizophreniform disorder or a substance-induced psychotic disorder.
The letter stressed that even though defendant had ceased most drug use two
to three weeks before the killing, the psychotic state triggered by the
drug use had persisted well beyond the period of intoxication. According
to the expert, defendant could not have predicted that the drugs would
activate his underlying mental illness, thereby triggering the psychotic
reaction.
¶ 84. Based on this proffer and other evidence, the trial court
determined that defendant had presented sufficient evidence in support of
his insanity defense theory to reach the jury but posed the question of
whether a substance-induced psychotic disorder should be recognized as a
mental disease under our insanity-defense statute. The court concluded
that generally it should not unless the defendant was not under the
immediate influence of drugs at the time of the alleged offense and could
not have known that his prior drug consumption would cause insanity by
activating a medically recognized latent mental disease.
¶ 85. Accordingly, the court proposed an instruction allowing the
jury to accept an insanity defense if (1) defendant's drug consumption
activated a medically recognized mental disease that caused him to be
insane at the time of the alleged offense; (2) defendant did not know and
had no reason to know that his drug consumption would activate the mental
disease; (3) the mental disease existed independently of any temporary
intoxication or high caused by drugs; and (4) the mental disease lasted for
a substantial period of time after the intoxicating effects of the drugs
had worn off. The proposed charge also would inform the jury that the
defense could not apply if the mental disease was caused solely by the
consumption of drugs. Thus, the trial court precluded defendant from
raising a defense claiming temporary insanity that resulted from either the
direct intoxicating effects of drugs or solely the long-term use of drugs.
¶ 86. In seeking the instruction on insanity, defendant never
claimed, and the expert witness never stated, that defendant's actions on
the day of the offense were caused by intoxication-that is, an impaired
mental state caused by the immediate effects of drugs or alcohol. Instead,
defendant relied upon a variation of fixed or settled insanity, a branch of
the insanity defense whereby a prolonged, if not permanent, mental disease
or defect is caused by long-term alcohol or drug abuse. The trial court
rejected the notion that settled insanity caused exclusively by drug use
should be recognized as a defense in Vermont but found that this case
involved an additional factor often not present in settled insanity
cases-evidence that defendant had an underlying mental illness before he
started abusing drugs and that his conduct was caused by both the
underlying mental illness and his abuse of drugs.
¶ 87. The jury instruction represents a fusion of legal sources. In
choosing the language, the trial court concluded that, under the
circumstances, a branch of the insanity defense developed by the
Massachusetts Supreme Judicial Court [hereinafter the Massachusetts
defense] applied because it dealt explicitly with a situation where there
was a preexisting mental illness before the drug use. The court relied
particularly on the Massachusetts Supreme Judicial Court's decision in
Herd. There, the court applied the Massachusetts defense, which had been
developed over a long line of cases, in a situation where the defendant
also claimed settled insanity as a result of long-term drug use. Under
that defense, a lack of criminal responsibility is established if the
"voluntary consumption of a drug activated a latent mental disease or
defect and, as a result of that mental disease or defect, the defendant
lost the substantial capacity to understand the wrongfulness of his conduct
or to conform his conduct to the requirements of the law"-unless the
defendant knew or had reason to know that the drug would activate the
illness. Herd, 604 N.E.2d at 1298.
¶ 88. Although the backbone of the district court's language is the
Massachusetts defense, the court added additional elements. It recognized
that the Massachusetts defense had been applied in cases in which the
defendant was allegedly intoxicated at the time of the offense, thereby
allowing the jury to determine whether the intoxication was such a
controlling factor that it replaced the mental illness as the cause of the
conduct. The court rejected this application of the defense, however,
requiring instead that the underlying mental illness be activated by
long-term drug use in the absence of any intoxication. In that sense, the
instruction included aspects of the traditional fixed or settled insanity
defense. The court took its specification of the elements of that defense
from Herd, 604 N.E.2d at 1298-99, which in turn relied upon the leading
case of People v. Kelly, 516 P.2d 875 (Cal. 1973), discussed infra, ¶¶
114-19.
¶ 89. As I said in the opening points of this dissent, the trial
court's instruction requiring elements from both the Massachusetts defense
and the fixed or settled insanity doctrine represents the most restrictive
insanity defense allowed anywhere in the country, apart from a few
jurisdictions in which the issue is addressed by a specific statute.
Absent such a statute, no other court has required all of these elements in
a case involving both drug or alcohol consumption and a mental disease or
defect. By its selective review of the facts, the majority suggests that
defendant's offer of proof does not meet the elements the trial court
developed in its instruction, particularly the elements derived from fixed
or settled insanity. As shown above, however, there were ample facts for a
jury to conclude that (1) defendant had engaged in long-term drug use that
activated an underlying, medically accepted mental illness; (2) the mental
illness was independent of the intoxicating effects of the drugs and lasted
for a substantial period of time after the murder-indeed, defendant's
delusional thinking endured at least until the spring of 2001, several
months after the killing; and (3) defendant did not know, nor could have
known, that the drug use would trigger an underlying mental illness that
would make him insane-in other words, he was incapable of conforming his
actions to the requirements of the law.
III.
¶ 90. Because the trial court's proposed instruction fuses elements
from two sources, it is appropriate to look independently at each source
against the background of our insanity statute and the relevant common law.
I first examine Vermont's insanity statute.
¶ 91. The statutory test for insanity in Vermont, which is derived
from and nearly identical to the Model Penal Code's provision on the
insanity defense, is as follows: "A person is not responsible for criminal
conduct if at the time of such conduct as a result of mental disease or
defect he lacks adequate capacity either to appreciate the criminality of
his conduct or to conform his conduct to the requirements of law." 13
V.S.A. § 4801(a)(1); see State v. Smith, 136 Vt. 520, 523, 396 A.2d 126,
127 (1978) (noting that § 4801 is derived from Model Penal Code § 4.01).
Defendant has the burden to prove insanity "by a preponderance of the
evidence." 13 V.S.A. § 4801(b). Because it is undisputed at this juncture
of the case that defendant was unable to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law at the
time of the killing, the relevant question for purposes of this appeal is
whether defendant's inability to do so was "a result of mental disease or
defect."
¶ 92. As demonstrated above, there is ample evidence for a jury to
conclude that, at the time of the alleged offense, defendant's inability to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law was a result of a latent mental illness triggered
by past drug use. Indeed, the majority acknowledges Dr. Linder's opinion
that but for the underlying mental illness, defendant's drug use would not
have resulted in the psychotic state that led to the killing. Dr. Lukas
added that "Mr. Sexton's psychiatric condition is chronic and is not
dependent on the use of LSD or other illicit drugs." In other words, there
is expert opinion supporting defendant's claim that his preexisting mental
illness, independent of the effects of his drug use, was a cause in fact of
the victim's death and a substantial factor-that is, a proximate cause-of
the death. Even assuming that defendant's psychotic state may not have
occurred absent his drug use, there can be more than one proximate cause of
defendant's insanity. See Mobbs v. Cent. Vt. Ry., 155 Vt. 210, 219, 583 A.2d 566, 572 (1990) (trial court's use of indefinite article "correctly
and unambiguously" informed jurors that more than one proximate cause is
possible). Thus, under the plain meaning of the statute, defendant made a
sufficient showing to enable his insanity defense to go to the jury.
¶ 93. The majority apparently disagrees, holding that defendant may
not present an insanity defense under § 4801 even if he is insane as a
result of a mental disease or defect, as long as the mental disease or
defect would not have occurred absent his voluntary use of illegal drugs.
In support of this test, the majority relies upon decisions from
jurisdictions with statutes-unlike § 4801-that explicitly preclude an
insanity defense when prior drug use is a proximate cause of the
defendant's mental condition. See, e.g., Conn. Gen. Stat. § 53a-13(b)
(2001) ("It shall not be a defense under this section if such mental
disease or defect was proximately caused by the voluntary ingestion,
inhalation or injection of intoxicating liquor or any drug or substance . .
. ."); Del. Code Ann. tit. 11, § 401(c) (2001) (same); Wash. Rev. Code §
10.77.030(3) (2002) ("No condition of mind proximately induced by the
voluntary act of a person charged with a crime shall constitute
insanity."). Thus, in those jurisdictions, if drug use is one of several
proximate causes of the alleged criminal conduct, no insanity defense is
available. See, e.g., State v. Hanson, 529 A.2d 720, 724 (Conn. App. Ct.
1987) (where trial court was presented with conflicting evidence concerning
defendant's mental condition, court's refusal to allow insanity defense was
supported by "the plain language of the statute" disallowing insanity
defense based on claim that mental disease was caused by voluntary
ingestion of drugs); State v. Flagg, No. 9804019233, 1999 WL 167775, at *2
(Del. Super. Ct. Mar. 10, 1999) (where statute forecloses insanity defense
based on mental illness caused or exacerbated by drugs, defense is
unavailable if insanity would not have occurred but for drug consumption
because "[t]there may be more than one proximate cause of mental illness or
insanity").
¶ 94. Obviously, those cases do not support the majority's
construction of a statute that allows an insanity defense when the insanity
is a result of a mental disease or defect-with no restriction on the
etiology of that disease or defect. Although the Legislature has
explicitly foreclosed the insanity defense when a defendant's mental
condition is "manifested only by repeated criminal or otherwise anti-social
conduct," § 4801(a)(2), our statute does not preclude an insanity defense
when a mental disease or defect is activated by voluntary drug use. As I
said in my opening, what the majority has done here is to impose the
statutes of Connecticut, Delaware, and Washington on Vermont law, as if the
Vermont Legislature had adopted them. In fact, each of these statutes was
adopted to change the law imposed by a more general statute and the common
law. If a similar change is to occur in Vermont, it must come from the
Legislature, not this Court.
¶ 95. Hence, basic concepts of proximate cause dictate that the
majority's test conflicts with § 4801. "[C]ourts have generally treated
legal causation in criminal law as in tort law . . . ." 1 W. LaFave,
Substantive Criminal Law § 6.4(c), at 471 (2d ed. 2003); see, e.g., State
v. Bass, 12 P.3d 796, 801 (Ariz. 2000) (setting same standard for
determining superceding cause in criminal and tort cases); State v.
McFadden, 320 N.W.2d 608, 613 (Iowa 1982) (affirming jury instruction that
applied ordinary proximate cause principles to manslaughter statute). As
with tort liability, criminal liability requires both cause in fact and
proximate cause. 1 W. LaFave, supra § 6.4(a), at 466. Further, concurrent
causes may "simultaneously create a condition that no single cause could
have brought about." Black's Law Dictionary 212 (7th ed. 1999); see Mobbs,
155 Vt. at 219, 583 A.2d at 572 (recognizing that there can be multiple
proximate causes of accident).
¶ 96. Generally, the substantial-factor test is applied in multiple
causation cases. State v. McDonald, 953 P.2d 470, 474 (Wash. Ct. App.
1998); see Barry v. Quality Steel Prods., Inc., 820 A.2d 258, 264 (Conn.
2003) (defining proximate cause test as whether conduct is substantial
factor in bringing about result, and defining concurrent cause as
coexistent cause that actively joins other cause to bring about injury).
Under that test, if a certain act or condition was a substantial factor in
bringing about a criminal offense, that act or condition is not prevented
from being a proximate cause by proof of the fact that it alone would not
have resulted in the offense. See R. Perkins, Criminal Law § 9(c)(6), at
610-611 (1957) (discussing multiple causation in context of murder).
¶ 97. The same principles should apply when we are dealing with an
affirmative defense rather than the initial liability for the charged
crime. Cf. State Farm Mut. Auto. Ins. Co. v. Roberts, 166 Vt. 452, 455-56,
697 A.2d 667, 669 (1997) (noting that under doctrine of concurrent
causation, insurance policy provides coverage when liability of insured
arises from concurrent but separate acts, only one of which is covered by
policy). At best, from the State's perspective, the evidence in this case
indicates that defendant's insanity at the time of the alleged offense
arose from a combination of his latent mental illness and his prior drug
use; neither one of these causes, independently, would have resulted in
defendant's insanity, but they both played a substantial and necessary role
in creating his psychotic state. Moreover, there was undisputed expert
testimony that defendant had no way of anticipating that his drug use would
trigger the psychotic state he was in at the time of the killing. Cf.
Estate of Sumner v. Dep't of Soc. & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) (noting that efficient intervening cause must
be foreseeable).
¶ 98. Given this evidence, a jury could consider defendant's mental
illness and his drug use to be separate, concurrent causes of his insanity
and could conclude that his insanity-his inability to appreciate the
criminality of his conduct or to conform his conduct to the requirements of
the law-was a result of a mental disease or defect. See id. (noting that
proximate cause is ordinarily jury issue unless proof is so clear that
reasonable minds could not reach different conclusions). The Massachusetts
defense, used in part by the trial judge, is simply an application of these
standard principles of causation to the insanity defense so as to allow the
defense to be raised when the evidence would support a jury determination
that the mental illness caused-that is, was a cause in fact and a proximate
cause of-the conduct for which the defendant is charged.
¶ 99. A review of the Massachusetts cases supports this point. In
Commonwealth v. Sheehan, 383 N.E.2d 1115, 1118-19 (Mass. 1978), the court
rejected the notion that either drug addiction alone or the normal
consequences of the ingestion of drugs could qualify as a mental disease or
defect, but acknowledged that "if the consumption of drugs causes a mental
disease or defect, apart from drug addiction itself, normally the defendant
may rely on that mental disease or defect in support of his assertion of
his lack of criminal responsibility, even if the defendant's drug
consumption was voluntary." Later, in Commonwealth v. Brennan, 504 N.E.2d 612, 616 (Mass. 1987), the court formally adopted the instruction that
if the jury finds that the defendant had a latent mental disease
or defect which caused the defendant to lose the capacity to
understand the wrongfulness of his conduct or to conform his
conduct to the requirements of the law, lack of criminal
responsibility is established even if voluntary consumption of
alcohol activated the illness, unless he had reason to know that
the alcohol would activate the illness.
¶ 100. The Brennan court also noted that "the lack of
substantial capacity must arise from the underlying disease or defect
rather than the voluntary consumption of alcohol." Id. Nevertheless, in
recognizing the necessity of a causal connection between the claimed mental
disease and the defendant's inability to appreciate the wrongfulness of his
conduct, the Supreme Judicial Court of Massachusetts has held that a
defendant who was mentally ill at the time of the alleged offense is
precluded from pleading insanity only if the defendant's inability to
conform his conduct to the law is "solely" the result of his voluntary drug
consumption. See, e.g., Sheehan, 383 N.E.2d. at 1119; cf. Commonwealth v.
Shelley, 409 N.E.2d 732, 738-39 (Mass. 1980) (rejecting defendant's
insanity defense because, although experts testified that his consumption
of one to nine beers may have facilitated his dissociative state without
necessarily causing it, there was no evidence that his voluntary use of
alcohol activated latent mental disease).
¶ 101. In contrast, under the majority's standard, a defendant
cannot obtain an insanity defense if his insanity was caused to any
significant degree by drug abuse. As I stated in the opening, this
effectively imposes an insurmountable burden on defendants, as recognized
by the New Jersey Supreme Court in State v. Maik, 287 A.2d 715, 722 (N.J.
1972):
In the case at hand, the medical thesis was somewhat different,
for the underlying illness from which the psychotic episode
emerged was not caused by the use of drugs. Rather the thesis was
that the drugs, acting upon that underlying illness, triggered or
precipitated a psychotic state which continued after the direct or
immediate influence of the drug had dissipated, and that it was
the psychosis, rather than the drug, which rendered defendant
unable to know right from wrong at the time of the killing. In
other words, defendant urges that when a psychosis emerges from a
fixed illness, we should not inquire into the identity of the
precipitating event or action. Indeed, it may be said to be
unlikely that the inquiry would be useful, for when, as here, the
acute psychosis could equally be triggered by some other stress,
known or unknown, which the defendant could not handle, a medical
opinion as to what did in fact precipitate the psychosis is not
apt to rise above a speculation among mere possibilities.
A "speculation among mere possibilities" is essentially the end of the
inquiry under the standard imposed by the majority, particularly because
defendant has the burden of proving insanity. (FN20)
¶ 102. The majority holds that defendant may not present an insanity
defense under § 4801 even if he is insane as a result of a mental disease
or defect, so long as the mental disease or defect would not have occurred
absent his voluntary use of illegal drugs. (FN21) As noted, however, in so
holding, the majority relies exclusively upon decisions from jurisdictions
with statutes-unlike § 4801-that explicitly preclude an insanity defense
when prior drug use is a proximate cause of the defendant's mental
condition. Thus, those decisions offer no support for the majority's
position.
¶ 103. Apart from those decisions, the majority has come up
with one federal case that it says supports its position on proximate
causation-United States v. Henderson, 680 F.2d 659 (9th Cir. 1982). Not
surprisingly, it is an intoxication case where the evidence indicated that
defendant's conduct could have been caused by his intoxication resulting
from the consumption of alcohol immediately before the criminal conduct.
As I stated earlier, everyone agrees-as reflected in the trial court's
proposed charge-that defendant cannot rely upon an insanity defense if his
conduct was caused by the intoxicating effects of the drugs he took.
Ironically, in Henderson, the court concluded that "the Government failed
to introduce sufficient evidence to meet its burden to prove that the
alcohol, and not the mental disease, actually caused the defendant's mental
incapacity when the crime was committed." Id. at 662.
¶ 104. Beyond Henderson, the majority relies upon several
inapplicable intoxication cases involving defendants who committed crimes
while under the direct influence of intoxicating drugs and who did not have
an independent, underlying mental disease or a settled mental condition
brought on by long-term drug use. See, e.g., United States v. Bindley, 157 F.3d 1235, 1241-42 (10th Cir. 1998) (defendant committed armed robbery
while under influence of PCP-laced marijuana cigarette); People v. Velez,
221 Cal. Rptr. 631, 632-33 (Cal. App. 1985) (defendant committed aggravated
assault with deadly weapon while under influence of PCP-laced marijuana
cigarette); State v. Hall, 214 N.W.2d 205, 207-08 (Iowa 1974) (defendant
committed murder while under influence of LSD and did "not contend that
extended use of drugs caused him 'settled or established' insanity"); State
v. Sette, 611 A.2d 1129, 1132 (N.J. Super. Ct. App. Div. 1992) (defendant
committed murder after ingesting large amounts of cocaine); Commonwealth v.
Campbell, 284 A.2d 798, 799 (Pa. 1971) (defendant committed murder while
under influence of LSD and amyl nitrate). In short, those cases all
involved intoxication as a defense, exactly what defendant has not raised
here and what the trial court's instruction precluded.
¶ 105. In summary, the trial court's decision stands in
stark contrast to the majority's refusal to allow an insanity defense
unless the charged conduct would not have occurred but for the drug use.
In my view, we should accept the trial court's statement of the law because
it applies standard principles of causation to defendant's burden under our
insanity defense statute and allows the defense to be raised when the
evidence would support a jury determination that the defendant's insanity
was a result of a mental illness-which is all that is required by the
statute. I would accept the Massachusetts defense even if this were an
intoxication case, but such a holding would be dicta on this record, and I
recognize that the majority has some case law that can be interpreted as
rejecting the Massachusetts defense in intoxication cases. The majority's
rejection of the Massachusetts defense in a non-intoxication case such as
the instant one, however, is unexplained and unsupported.
IV.
¶ 106. I could end this dissent at this point because adoption of
the Massachusetts defense, with the additional element from the doctrine of
fixed and settled insanity, would narrowly answer the certified question
presented to us, and defendant has accepted the trial court's language
without cross-appealing from it. (FN22) But the majority has rejected the
proposed instruction, including the element from the settled insanity
defense, while stating "that this appeal [does not] present[] a suitable
factual setting for resolution of the issue." Ante, ¶ 27. It is this
decision that has created the greatest unfairness for defendant by changing
the question that the district court certified to us. I think it is beyond
argument that defendant's offer of proof met the fixed or settled insanity
elements found in the proposed instruction. He has had no opportunity to
argue that he could meet a more difficult standard. The majority now tells
him that it does not have a standard, but, if it did, he would not meet it.
Thus, not only has defendant been deprived of the opportunity to make an
offer under an ascertainable standard, he faces appellate fact-finding
inconsistent with the offer he did make.
¶ 107. The unwillingness of the majority to address fixed or
settled insanity is particularly curious because it has directly rejected
the philosophical basis for the defense. The trial court added to its jury
instruction that in order to find insanity the jury must find that
defendant neither "knew nor had reason to know that the drug would activate
the illness." The majority rejected that element because it "runs counter
to the fundamental principle that a defendant is not excused from criminal
liability for acts which result from a mental state that is self-induced
through the voluntary ingestion of illegal drugs or alcohol." Ante, ¶
33. The majority would be much more forthcoming by rejecting fixed or
settled insanity as a defense rather than manipulating the facts to avoid
that holding.
¶ 108. In my view, the trial court's and majority's rejection of a
pure settled-insanity defense in this case is unsupportable. In reaching
its decision on settled insanity, the trial court adopted a narrow
definition of mental disease or defect excluding any mental condition that
was solely the result of drug usage. This definition is plainly
inconsistent with the Model Penal Code, and thus 13 V.S.A. § 4801. Like §
4801, § 4.01 of the Code neither defines the term "mental disease or
defect" nor limits application of that term based on the etiology of the
disease or defect; rather, the Code "treats the question of disease as one
of fact, to be determined by the court or jury on the evidence presented in
the cases that arise." Model Penal Code § 4.01 cmt. 4 at 174 (1985); see
also id. § 401 app. C at 212 (stating in model jury charge for
jurisdictions following Code that question of whether mental disease or
defect exists must be determined by triers of fact based on evidence before
them, including testimony of medical experts); cf. State v. Bishop, 128 Vt.
221, 227-28, 260 A.2d 393, 398 (1969) (noting that trial courts give
considerable latitude in admitting evidence of insanity, and it is for jury
to determine whether evidence pointing to defendant's sanity was sufficient
to outweigh evidence of insanity).
¶ 109. Like Vermont, "[m]ost jurisdictions relying on the
Model Code formulation have . . . not provided a definition of mental
disease or defect." Model Penal Code § 401 cmt. 5 at 176. When those
jurisdictions have departed from the Code by making the availability of the
insanity defense dependent on the etiology of the mental disease or
defect-in particular when drug use is a causative factor-they have
generally done so legislatively. Although our Legislature has expressly
defined the term "mental disease or defect" in some ways, it has not chosen
to limit the term in the way the majority has done today. Both our statute
and the Model Penal Code contain the so-called sociopath exception, which
provides that a mental disease or defect does "not include an abnormality
manifested only by repeated criminal or otherwise anti-social conduct." 13
V.S.A. § 4801(a)(2); Model Penal Code § 4.01(2). Further, § 4801(a)(2)
explicitly provides that a mental disease or defect includes "congenital
and traumatic mental conditions as well as disease." 13 V.S.A. §
4801(a)(2). Thus, the Legislature has demonstrated that it will limit or
expand the definition of "mental disease or defect" when it sees fit; yet,
nothing in § 4801 suggests that the Legislature intended to limit the
insanity defense based on the particular etiology of the disease or defect
or to exclude the defense when the mental disease or defect is induced or
exacerbated by alcohol or drug use.
¶ 110. Moreover, the Model Penal Code, upon which our statute is
based, treats the etiology of a "settled" mental disease or defect as
immaterial with respect to the availability of the insanity defense, even
when drugs are a causative factor. As stated in its commentary on
intoxication:
Under the Model Penal Code as under existing law, it is immaterial
that mental disease excluding responsibility was caused by
excessive drinking and in that sense is attributable to the
defendant. This sort of disease, generally delirium tremens, is
said to be "fixed" or "settled." The same treatment is proposed
for those periods of temporary disorientation (in alcoholic
psychosis) that can occur after a long drinking bout. The Model
Code permits such cases to be dealt with under Section 4.01, and
nothing in the formulation here undertakes to influence the
resolution of the issue whether serious temporary disorientation
from reality following intoxication constitutes "mental disease"
within the meaning of that section. The matter will become a
question of the evidence that can be adduced on the occasion, as
well as the development of the concept of "mental disease" in the
general application of the insanity defense.
Model Penal Code § 2.08 cmt. 2 at 362-63 (emphasis added) (footnotes
omitted).
¶ 111. In dismissing the above-quoted comment because it is
contained in a Code section on intoxication not formally adopted by this
Court, the majority misses the point. The question is not whether the
commentary controls, but whether the common law controls. The commentary
merely notes the inescapable fact that settled insanity is widely accepted
under existing common law, and, as this Court has often observed, "the
common law 'controls unless modified by statute or case law.' " State v.
Francis, 151 Vt. 296, 305, 561 A.2d 392, 397 (1989) (quoting State v.
LeBlanc, 149 Vt. 141, 142, 540 A.2d 1037, 1038 (1987)).
¶ 112. That the common law has long recognized settled
insanity as a complete defense to criminal responsibility cannot be
disputed. It has been generally accepted that the existence of a mental
disease or defect caused by the long-term effects of intoxicants warrants
an insanity defense. See J. Dressler, supra, § 24.05[B], at 329 ("The law
distinguishes between mental impairment that does not extend beyond the
period of voluntary intoxication, for which no defense is available, and
insanity resulting from long-term use of drugs or alcohol."); 2 W. LaFave,
supra, § 9.5(h), at 56-57. ("[A] temporary mental condition brought about
by use of alcohol or drugs, as compared to a 'settled' or 'established'
form of insanity, is not sufficient for a defense of insanity."). Although
the subject finds little direct discussion in Vermont, one
nineteenth-century case suggests that while voluntary intoxication may
mitigate but generally does not excuse criminality, an insane person is not
"punishable for his criminal acts" and "in the eye of the law a person in
the paroxysms of delirium tremens was insane." State v. Tatro, 50 Vt. 483,
486 (1878) (summarizing trial court's jury charge).
¶ 113. The principle that long-term substance abuse may result in a
settled or fixed mental disease sufficient to excuse criminality may be
traced to early English common law, L. Tiffany, The Drunk, the Insane, and
the Criminal Courts: Deciding What to Make of Self-Induced Insanity, 69
Wash. U. L.Q. 221, 224-25 (1991), and has now been accepted by the vast
majority of state courts (twenty-nine out of thirty at last count) that
have considered the issue. A. Levine, Denying the Settled Insanity
Defense: Another Necessary Step in Dealing with Drug and Alcohol Abuse, 78
B.U. L. Rev. 75, 97 (1998); see also Herd, 604 N.E.2d at 1299 ("The weight
of authority in this country recognizes an insanity defense that is based
on a mental disease or defect produced by long-term substance abuse.").
The only court that has rejected the defense did so primarily because it
was inconsistent with that state's intoxication statute, which expressly
provided that intoxication did not constitute a mental disease. See Bieber
v. People, 856 P.2d 811, 816 (Colo. 1993). There is no equivalent Vermont
statute.
¶ 114. The oft-cited modern case on settled insanity, People
v. Kelly, 516 P.2d at 883, is in all relevant respects identical to our
case and stands for the generally accepted proposition that a mental
illness triggered by drug use need only be settled, and not necessarily
permanent, in nature to provide a complete defense to a crime. The
defendant in that case started taking drugs when she was fifteen years old
and used mescaline and LSD up to 100 times in the months leading up to the
day she attempted to stab her mother to death. Several psychiatrists
testified that the defendant had latent personality defects with a tendency
to withdraw from reality but was not overtly schizophrenic until her
repeated use of LSD triggered a psychotic state in which she was unable to
distinguish right from wrong. The court-appointed psychiatrist testified
that the defendant most likely would have been sane at the time of the
offense if she had not taken the LSD in the months preceding the crime.
Noting that defendant's psychosis extended well beyond the period in which
she was under the direct influence of the LSD, id. at 878 n.9, the
California Supreme Court reversed the trial court's rejection of the
defendant's insanity defense because her psychosis, while not permanent,
had become settled beyond the period of intoxication. Id. at 882-83.
¶ 115. Although other courts have wrestled with the question
of the length of time the psychotic state must last beyond the period of
intoxication to be of a settled nature, see, e.g., People v. Skinner, 228 Cal. Rptr. 652, 660-61 (Cal. App. 1986) (holding that settled must mean
fixed and stable for reasonable period of time and not solely result of
recent ingestion of drugs, and refusing to allow settled insanity defense
to defendant who murdered his wife shortly after free-basing cocaine), they
have nonetheless generally agreed that the defense is available to
defendants whose use of drugs resulted in a mental disease or defect that
prevented them from appreciating the criminality of their conduct, as long
as the resulting illness was settled for a reasonable period of time beyond
the period of direct intoxication from the drugs. See, e.g., Porreca v.
State, 433 A.2d 1204, 1207-08 (Md. Ct. Spec. App. 1981) (reversing trial
court's refusal to allow insanity defense where evidence indicated that
defendant's long-time use of PCP, and possible latent mental disorder,
triggered psychotic state that caused him to kill his wife and that lasted
two to four months after direct intoxicating effects of drug had abated);
People v. Conrad, 385 N.W.2d 277, 280-81 (Mich. Ct. App. 1986) (reversing
trial court's refusal to allow insanity defense where evidence indicated
that defendant's use of PCP triggered settled psychotic state that
persisted for six weeks after his drug use and that resulted in murder of
his brother); Maik, 287 A.2d at 722 (rejecting trial court's instruction
that insanity defense was not available where defendant's psychosis was
triggered by his voluntary use of LSD and holding that defendant is
entitled to insanity defense when drug use triggers settled psychotic state
that prevented defendant from telling right from wrong).
¶ 116. The majority tries to get around Kelly, Porreca, Conrad, and
Maik through appellate fact-finding that is totally inconsistent with the
limited standard of review that it should be applying. According to the
majority, Kelly and Porreca are distinguishable because the defendants in
those cases were long-term abusers of drugs. Ante, ¶ 29 n.12. Yet, the
evidence in this case is very similar-defendant smoked marijuana for years
and did other drugs before he began experimenting with LSD in the months
leading up to the killing. (FN23) The majority says that Maik is
distinguishable because the evidence in that case indicated that the
defendant's mental illness may have resulted from depression or a failed
romantic relationship rather than LSD use. Id. Ironically, the evidence
here is similar-one of the psychiatrists stated that factors like
defendant's break-up with his girlfriend may have triggered his psychotic
reaction.
¶ 117. In short, even though the evidence in this case is
nearly identical to that in Kelly and its progeny, the majority insists
that the Kelly line of cases is distinguishable because there is no
"evidence that defendant here had developed a fixed insanity through
long-term substance abuse." Id. As noted above, the majority's rhetoric
that defendant's claim is "contrary to the very meaning of the doctrine"
and "would defeat its meaning and underlying purposes" is grounded on its
viewing the evidence most favorably to the State. Id. ¶ 29. In the end,
as it ultimately acknowledges, see id. ¶ 29, n.12, the majority is
simply rejecting Kelly, along with the accepted common law in this country.
¶ 118. As noted, there was ample evidence demonstrating that
defendant had abused drugs for years, culminating in his heavy use of LSD
in the months leading up to the killing, and that his mental illness was
chronic and lasted for months after the killing. Moreover, as set out
above, there was expert testimony that defendant's mental state at the time
represented a settled psychosis resulting, at least in part, from his prior
drug use. The expert testimony indicated that the psychosis was not caused
solely by the ingestion of the drugs, but rather was the result of a
preexisting mental illness activated, at least in part, by drug use. In
short, just as the preexisting mental illness was a proximate cause of
defendant's conduct, so was the drug ingestion. The facts clearly support
a settled insanity defense.
¶ 119. The latter sentence requires emphasis. While I believe that
Kelly and its progeny represent the appropriate standard to go to the jury,
there is ample evidence for defendant to reach the jury on the standards
contained in the cases cited by the majority. See Allen v. State, 539 So. 2d 1124, 1126 (Ala. Crim. App. 1988) ("The trial judge properly refused to
charge on mental disease or defect because the only evidence presented at
trial was that defendant was suffering from voluntary intoxication.");
State v. Valenzuela, 559 P.2d 201, 204 (Ariz. Ct. App. 1977) ("In the
instant case, there was simply no evidence to support a finding that the
appellant was suffering from an existing state of mental illness . . . .");
People v. Free, 447 N.E.2d 218, 232 (Ill. 1983) ("There is no evidence in
the record that this defendant was a habitual or chronic user of drugs or
alcohol, or that the claimed disease or defect was 'settled' or 'fixed.'
"). Indeed, Dr. Lukas described defendant's condition as "chronic,"
exactly the term the majority uses to describe a proper fixed or settled
insanity defense. Ante ¶¶ 26, 29 n.12. The problem here is the majority's
appellate fact-finding, not the strength of defendant's evidence.
¶ 120. In sum, only because defendant has not challenged the
proposed instruction, I would answer the certified question in the
affirmative and allow the jury instruction proposed by the district court.
I would add, however, that our acceptance of the instruction would be
because of the posture of the case and not because a defense of fixed and
settled insanity, as it is understood in the common law, falls outside the
scope of 13 V.S.A. § 4801.
V.
¶ 121. Proper adherence to common law doctrine in this case would
require us to uphold the trial court's decision. The majority's opinion is
a pure policy decision imposed without regard to the governing statute and
without regard to defendant's factual showing. Absent legislative
direction, I decline to join a decision that effectively denies defendants
who commit offenses while mentally ill an opportunity to present to the
jury an insanity defense that is not precluded by our insanity defense
statute. Notwithstanding the brutal and senseless nature of the offense
committed in this case, we must not forget that "[i]t is as much the duty
of the state to protect an insane man from conviction, as it is to prevent
a sane man from escaping that result." State v. Warner, 91 Vt. 391, 393,
101 A. 149, 150 (1917). I respectfully dissent.
___________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN 1. Chief Justice Amestoy sat for oral argument but did not
participate in this decision.
FN 2. The court later granted the State's motion to amend the
information to charge Sexton with first-degree murder, but the State was
subsequently granted leave to amend the charge back to second-degree
murder.
FN 3. See, e.g., State v. Shabazz, 169 Vt. 448, 454, 739 A.2d 666, 670
(1999) (defining "wanton" as more than "mere recklessness," and describing
its "long use[] to define malice aforethought for the purposes of criminal
homicide").
FN 4. The district court submitted the second certified question in
response to the State's contention that defendant cannot claim diminished
capacity if his voluntary intoxication exacerbated an underlying mental
defect or disability. A straightforward application of the principles
described above, however, demonstrates that the State's position is without
merit. Simply put, if a defendant can claim diminished capacity based on
the effects of voluntary intoxication, it follows a fortiori that a
mentally disabled defendant is entitled to the same defense.
FN 5. Although, as discussed infra, ¶¶ 30-35, the trial court's proposed
instruction appears to reject the traditional settled insanity doctrine in
favor of a variation adopted in Massachusetts, we consider both doctrines
since they are closely related and have been briefed by the parties.
FN 6. Historians have noted the extraordinary amount of alcohol,
particularly distilled liquors then known as "spirits," that Americans
consumed during the first half of the nineteenth century. See W.
Rorabaugh, The Alcoholic Republic: An American Tradition 7 (1979) (noting
the "consensus" of early nineteenth century observers that Americans drank
"great quantities" of distilled liquors such as whisky, rum, gin, and
brandy, often throughout the day). Rorabaugh concludes that "[d]uring the
first third of the nineteenth century the typical American drank more
distilled liquor than at any other time in our history." Id. It is this
historical context that helps to explain the origins of the settled
insanity doctrine, and the true nature of the condition of the individuals
to which it applied. See, e.g., Beasley v. State, 50 Ala. 149, 151 (1874)
(holding that it was error to fail to instruct on settled insanity where
evidence showed that "for several years before the killing, the accused was
'a great drunkard;' that he was 'generally drunk;' his habits were 'to
drink from a half to one gallon of spirits every night, and large
quantities before breakfast, and before dinner, and before supper each
day;' " that several weeks before the killing "he had an attack of delirium
tremens;" and that shortly before the murder he suffered delusions of
"seeing 'witches and devils.' ").
FN 7. The doctrine is not without its more contemporary critics. The
author of one seminal article has opined that "the moral culpability of
long term alcohol abuse and society's interest in preventing criminal
behavior weigh heavily in favor of denying the settled insanity defense."
Levine, supra, at 101. Another commentator has noted the "injustice" and
social costs of holding an intoxicated defendant responsible for his
conduct while excusing another merely because he used enough drugs long
enough to develop an underlying illness. Note, Settled Insanity is Not a
Defense, supra, at 270. At least one court has rejected the doctrine as
based on an indefensible distinction between the person who drinks or takes
drugs and is "momentarily 'mentally defective' " and the person who drinks
or takes drugs and is " 'mentally defective' as an eventual, long-term
result." Bieber v. People, 856 P.2d at 816.
FN 8. Although it was not at issue, an instruction to the effect that
"in the eye of the law a person in the paroxysms of delirium tremens was
insane" was apparently given by the trial court in the early case of State
v. Tatro, 50 Vt. 483, 486 (1878), based on a claim that the defendant was
"laboring under the effects of the long-continued use of intoxicating
liquor." Id. at 485.
FN 9. The commentary to MPC § 2.08, which deals with intoxication rather
than insanity, and which has not been adopted in Vermont, provides:
Under the Model Code, as under existing law, it is immaterial that
mental disease excluding responsibility was caused by excessive
drinking and in that sense is attributable to the defendant. This
sort of disease, generally delirium tremens, is said to be "fixed"
or "settled." The same treatment is proposed for those periods of
temporary disorientation (in alcoholic psychosis) that can occur
after a long drinking bout. The Model Code permits such cases to
be dealt with under Section 4.01, and nothing in the formulation
here undertakes to influence the resolution of the issue whether
serious temporary disorientation from realty following
intoxication constitutes "mental disease" within the meaning of
that section.
Model Penal Code § 2.08, cmt. 2 at 362.
FN 10. From his interviews with defendant and others, Dr. Linder
observed that defendant was an "experimenter scientist type" who used LSD
out of "an intellectual curiosity" in order to experience changes in his
sensory perceptions. Dr. Linder acknowledged that defendant was aware of,
and expected, that the drug would alter his state of mind; he was allegedly
unaware of the "degree" to which it would affect his perceptions.
FN 11. A mental health evaluation of defendant the day after the crime
conducted by a psychiatrist at the Vermont State Hospital reported "no
abnormalities of thought processes, his thoughts were logical and
coherent." Defendant was responsive to questioning, his recent and
long-term memory were intact, and although he appeared "hypomanic"
(agitated) it was "without psychotic features." Indeed, in ruling on a
motion to suppress defendant's statements made to the police hours after
the incident, the trial court found that defendant was sufficiently in
touch with reality to knowingly and voluntarily waive his Miranda rights.
Further, Dr. Linder conducted a series of interviews with defendant,
beginning on September 29, 2000, two days after the incident, and
continuing through mid-November 2000. Dr. Linder's summary and report of
the interviews indicates that defendant was able to clearly recount the
events leading up to the murder, and to recall many of his school and
social experiences. Although defendant continued to express certain
bizarre thoughts during these interviews, Dr. Linder pronounced him
competent to stand trial as of November 16, 2000. In subsequent
hospitalization proceedings, the court found that defendant remained
competent to stand trial, was able to function adequately most of the time,
and was not taking any anti-psychotic medications.
FN 12. We recognize that the settled-insanity cases are not entirely
uniform in their approach to the required duration of the defendant's
mental illness before or after the offense. The dissent relies, in
particular, on four cases with some similarities to the facts here. In an
often-cited decision, People v. Kelly, 516 P.2d 875, 877 (Cal. 1973), the
California Supreme Court applied the doctrine to a defendant who had used
LSD and mescaline "in the months leading up to the offense," and who
remained psychotic for several months after the drugs had worn off. In
Porreca v. State, 433 A.2d 1204, 1208 (Md. Ct. Spec. App. 1981), the court
held that a defendant in a PCP-induced psychosis that lasted three to six
months after the offense could invoke the doctrine. In State v. Maik, 287 A.2d 715, 721-22 (N.J. 1972), the court held that a defendant who had
killed an acquaintance in a psychotic state two months after ingesting LSD
was entitled to an insanity defense. And in People v. Conrad, 385 N.W.2d 277, 280-81 (Mich. Ct. App. 1986), the court held that a defendant who had
used PCP four or five times during the two weeks preceding the murder, and
whose psychotic symptoms lasted for several months thereafter, was entitled
to invoke the defense. We are not persuaded that these decisions compel a
different result here. First, we note that in Kelly there was evidence
that the defendant had used drugs for three years before the offense, 516 P.2d at 876-77, while in Porreca the evidence showed that the defendant had
abused drugs for two years, including PCP "with some regularity," 433 A.2d
at 1206, and in Maik there was no evidence that the defendant's
"schizophrenic break" was due to his LSD use, as opposed to depression
resulting from a failed romantic relationship, 287 A.2d at 719. Second,
while we question whether these decisions are consistent with the uniformly
held requirement of a "permanent" or chronic mental illness, we base our
holding on the absence of any evidence that defendant here had developed a
fixed insanity through long-term substance abuse. Finally, to the extent
these decisions hold otherwise, we simply do not agree that the settled
insanity doctrine has any application to a defendant who intentionally
ingests a mind-altering substance for a period of about two months, and
commits an offense shortly thereafter during a psychotic episode that would
not have occurred but for the drugs.
FN 13. Dr. Linder stated that defendant's reaction "was that seen rarely
and more commonly manifested, when it does occur, in individuals vulnerable
and genetically predisposed where the toxic effects of LSD interact with
premorbid vulnerability to produce a sustained psychotic reaction."
(Internal quotation omitted). Dr. Lukas similarly explained that studies
had shown that persons with a "genetic predisposition to schizophrenia,"
or "premorbid" (undiagnosed) schizophrenic disorders "may experience
pathological behavior that is temporally related to drug use," and that
defendant's "mental health history clearly puts him in this category."
FN 14. In his final report to the court, Dr. Linder stated that absent
defendant's latent predisposition, his drug use probably would not have
resulted in a psychotic reaction, and, equally, that but for the drug use,
the latent condition probably would not have produced a psychotic reaction
at the time of the offense. As he explained: "Without the predisposing
elements of his susceptibility, the drug use alone would have probably not
led to the resulting psychotic condition. Without the drug use, in an
individual susceptible to decompensation as was Mr. Sexton, the
deterioration probably would not have occurred within the same time frame
and it may have been avoided altogether due to other interceding
circumstances." At his deposition, Dr. Linder again agreed that, "but for
the drugs" that defendant had consumed, he probably would not have become
psychotic.
FN 15. Contrary to the assertion of our dissenting colleague, it is of
no moment that the defendants in these decisions remained under the
influence of drugs or alcohol at the time of the offense while defendant
here may not have been under the immediate influence of LSD. Even if it
was the "latent" illness from which defendant's psychosis emerged, that
illness was allegedly activated by defendant's two-month use of drugs, and
he therefore remains liable for its consequences, anticipated or not (at
least in the absence of evidence of a fixed insanity resulting from
long-term substance abuse).
FN 16. Although the dissent criticizes our holding for being limited to
the use of "illegal" drugs that trigger a latent mental illness, post, ¶
67, n.20, that is the precise language used by the trial court in the
proposed instruction, and the issue that we certified for review.
FN 17. As I discuss below, infra, ¶ 52-56, the majority's response,
ante, ¶ 37, is to distort defendant's offer of proof.
FN 18. The moral blameworthiness rationale is reinforced by the use of
the word "illegal" in every reference to drugs. The choice of phrasing
makes unclear whether the majority's holding would also apply to a mentally
ill alcohol abuser. The decisions from other states make clear that the
common law treats alcohol and drug abusers alike. See J. Dressler, supra,
§ 24.01[A], at 319 ("[T]he law pertaining to intoxication does not
distinguish between alcohol and other foreign substances, including
prescribed medications and illegal drugs."); Commonwealth v. Campbell, 284 A.2d 798, 801 (Pa. 1971) (stating that overwhelming view of courts across
country is that "there should be no legal distinction between the voluntary
use of drugs and the voluntary use of alcohol in determining criminal
responsibility for a homicidal act"). The majority's focus on illegal
drug abusers reinforces that it is making a policy judgment that is in the
province of the Legislature rather than this Court.
FN 19. Again, the majority supports its rationale with cases dealing
with intoxication, ante ¶ 43, exactly what is not involved in this case.
FN 20. In passing, the majority states that when a defendant presents
evidence of insanity, "the State may offer evidence to prove that the
voluntary ingestion of intoxicants was an essential causal element of the
insanity so as to refute the claim that it absolves the defendant of
criminal responsibility." Ante, ¶ 35. In support of this proposition, the
majority cites State v. Hanson, 529 A.2d 720, 724 (Conn. App. Ct. 1987),
wherein a Connecticut appellate court made a similar statement after noting
that Connecticut's insanity statute explicitly precluded an insanity
defense if the voluntary ingestion of drugs proximately caused the mental
illness. The Hanson court was also reviewing whether the trial court, in
acting as factfinder, properly rejected the insanity defense, not whether
the defendant should have had an opportunity to present the defense to the
factfinder. Id. In any event, our statute provides that "[t]he defendant
shall have the burden of proof in establishing insanity as an affirmative
defense by a preponderance of the evidence." 13 V.S.A. § 4801(b). Thus,
at most, the majority is imposing a burden of production on the State, with
the defendant retaining the burden of proving that he is entitled to an
insanity defense.
FN 21. It is difficult to pin down the standard the majority is using.
It is described often as the "essential causal element" standard, ante ¶
33, but ¶ 35 makes clear that it is a traditional "but for" test. Note
that where, as here, the defendant has the burden of proof, the defendant
must prove that drug use does not meet the "but for" test.
FN 22. Although defendant requests that we "affirm the trial court's
rulings below," he briefed the case as a settled insanity case.
FN 23. The facts of this case and Kelly are so nearly identical that the
facts of one opinion could be substituted with the facts of the other
without the reader even noticing.
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