insanity defense in Vermont

2012The State, in contrast, argued that diminished capacity was akin to an insanity defense or an instruction on lesser-included offenses, both decisions within the defendant’s control. *221 See State v. Bean, 171 Vt. 290, 302 , 762 A.2d 1259, 1267 (2000); In re Trombly, 160 Vt. 215, 218 , 627 A.2d 855, 857 (1993).

2012The State, in contrast, argued that diminished capacity was akin to an insanity defense or an instruction on lesser-included offenses, both decisions within the defendant’s control. *221 See State v. Bean, 171 Vt. 290, 302 , 762 A.2d 1259, 1267 (2000); In re Trombly, 160 Vt. 215, 218 , 627 A.2d 855, 857 (1993).

2005The appellate court held that a trial judge “may not force an insanity defense on a defendant found competent to stand trial if the individual intelligently and voluntarily decides to forego that defense.” Id. at 367 .

2005Id. at 376-78 ; see also State v. Bean, 171 Vt. 290, 300-01 , 762 A.2d 1259, 1266 (2000) (holding that the decision to assert an insanity defense rests with the defendant because defendant bears the consequences of the decision). 4 Consequently, the Frendak court concluded that “if a defendant has acted intelligently and voluntarily, a trial court must defer to his or her decision to waive the insanity defense.” 408 A.2d at 378 .

2008Just as a defendant cannot be forced to choose between the right to counsel and the right to forego an insanity defense, see State v. Tribble, 2005 VT 132, ¶ 33 , 179 Vt. 235 , 892 A.2d 232 (holding that the trial court erred by treating the defendant’s refusal to proceed with an insanity defense as a waiver of his right to counsel), defendant cannot be forced to choose between his right to a speedy trial and his right to effective counsel.

2008Just as a defendant cannot be forced to choose between the right to counsel and the right to forego an insanity defense, see State v. Tribble, 2005 VT 132, ¶ 33 , 179 Vt. 235 , 892 A.2d 232 (holding that the trial court erred by treating the defendant’s refusal to proceed with an insanity defense as a waiver of his right to counsel), defendant cannot be forced to choose between his right to a speedy trial and his right to effective counsel.

2021Compare 13 V.S.A. § 4801(a) (setting forth two-prong insanity test that relieves person of responsibility for criminal conduct if person proves by preponderance of evidence that “at the time of such conduct [1] as a result of mental disease or defect [2] he or she lacks adequate capacity either to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law”), with State v. Bruno, 2012 VT 79, ¶ 42 , 192 Vt. 515 , 60 A.3d 610 (describing “diminished capacity as a mental disability of the defendant at the time of the alleged commission of the offen

2021Compare 13 V.S.A. § 4801(a) (setting forth two-prong insanity test that relieves person of responsibility for criminal conduct if person proves by preponderance of evidence that “at the time of such conduct [1] as a result of mental disease or defect [2] he or she lacks adequate capacity either to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law”), with State v. Bruno, 2012 VT 79, ¶ 42 , 192 Vt. 515 , 60 A.3d 610 (describing “diminished capacity as a mental disability of the defendant at the time of the alleged commission of the offen

2012The State, in contrast, argued that diminished capacity was akin to an insanity defense or an instruction on lesser-included offenses, both decisions within the defendant’s control. *221 See State v. Bean, 171 Vt. 290, 302 , 762 A.2d 1259, 1267 (2000); In re Trombly, 160 Vt. 215, 218 , 627 A.2d 855, 857 (1993).

2012The State, in contrast, argued that diminished capacity was akin to an insanity defense or an instruction on lesser-included offenses, both decisions within the defendant’s control. *221 See State v. Bean, 171 Vt. 290, 302 , 762 A.2d 1259, 1267 (2000); In re Trombly, 160 Vt. 215, 218 , 627 A.2d 855, 857 (1993).

2006The 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).

2006The 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).

1978On appeal from the judgment entered upon the verdict of guilty, the defendant claims that the trial court should have relieved him of the notice requirement and that the failure to do so deprived him of his constitutional right to present an insanity defense. *41 Although, the plea of not guilty by reason of insanity was abolished upon our adoption of the Rules of Criminal Procedure, State v. Lapham, 135 Vt. 393 , 377 A.2d 249, 251 (1977); V.R.Cr.P. 11(a), 12(a), a defendant must still give notice of his intention to rely on an insanity defense.

1978On appeal from the judgment entered upon the verdict of guilty, the defendant claims that the trial court should have relieved him of the notice requirement and that the failure to do so deprived him of his constitutional right to present an insanity defense. *41 Although, the plea of not guilty by reason of insanity was abolished upon our adoption of the Rules of Criminal Procedure, State v. Lapham, 135 Vt. 393 , 377 A.2d 249, 251 (1977); V.R.Cr.P. 11(a), 12(a), a defendant must still give notice of his intention to rely on an insanity defense.

2008Defendant also argues that he did not waive the insanity defense, and that his plea must therefore be reversed under State v. Brown, 2005 VT 104, ¶ 36 , 179 Vt. 22 , 890 A.2d 79 .

2008Defendant also argues that he did not waive the insanity defense, and that his plea must therefore be reversed under State v. Brown, 2005 VT 104, ¶ 36 , 179 Vt. 22 , 890 A.2d 79 .

2005We rejected the application of Frendak in State v. Davignon, 152 Vt. 209, 216-22 , 565 A.2d 1301, 1305-08 (1989), and the State cites that case for the proposition that waiver of the insanity defense does not require an inquiry by the court.

2005We rejected the application of Frendak in State v. Davignon, 152 Vt. 209, 216-22 , 565 A.2d 1301, 1305-08 (1989), and the State cites that case for the proposition that waiver of the insanity defense does not require an inquiry by the court.

2022While the statute does not expressly apply this definition to competency, “[w]hen the same word is used in various sections of the act, or in statutes in pari materia, it will bear the same meaning throughout, unless it is obvious that another meaning was intended.” State v. Welch, 135 Vt. 316, 321 , 376 A.2d 351, 354 (1977).

2022While the statute does not expressly apply this definition to competency, “[w]hen the same word is used in various sections of the act, or in statutes in pari materia, it will bear the same meaning throughout, unless it is obvious that another meaning was intended.” State v. Welch, 135 Vt. 316, 321 , 376 A.2d 351, 354 (1977).

2017The fact that the rules provide for a State examination in the context of an insanity defense but do not so provide in the context of a competency determination indicates that the rules were not intended to require a defendant to submit to a State-ordered competency evaluation. 3 In addition to relying on Rule 57 as the source for its authority to require defendant to submit to a competency evaluation by a State-selected expert, the trial court interpreted 13 V.S.A. § 4814 as "clearly anticipat[ing] that, at a contested competency hearing , the State may call witnesses other than the psychiatr

2017The fact that the rules provide for a State examination in the context of an insanity defense but do not so provide in the context of a competency determination indicates that the rules were not intended to require a defendant to submit to a State-ordered competency evaluation. 3 In addition to relying on Rule 57 as the source for its authority to require defendant to submit to a competency evaluation by a State-selected expert, the trial court interpreted 13 V.S.A. § 4814 as "clearly anticipat[ing] that, at a contested competency hearing , the State may call witnesses other than the psychiatr

2012Mallen et ah, Legal Malpractice § 18.1, at 2 (5th ed. 2000))); see also Strickland, 466 U.S. at 691 (“[Wjhen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.”). ¶ 14.

2008As the en banc California Supreme Court stated, a defendant's right to a speedy trial may be denied by the failure of the state to provide "enough public defenders or appointed counsel, so that an indigent [defendant] must choose between the right to a speedy trial and the right to representation by competent counsel." Johnson, 162 Cal.Rptr. 431 , 606 P.2d at 747-48 ("A defendant deserves not only capable counsel, but counsel who, barring exceptional circumstances, can defend him without infringing upon his right to a speedy trial."). *1123 ¶ 39.

2008As the en banc California Supreme Court stated, a defendant’s right to a speedy trial may be denied by the failure of the state to provide “enough public defenders or appointed counsel, so that an indigent [defendant] must choose between the right to a speedy trial and the right to representation by competent counsel.” Johnson, 606 P.2d at 747-48 (“A defendant deserves not only capable counsel, but counsel who, barring exceptional circumstances, can defend him without infringing upon his right to a speedy trial.”). ¶ 39.

2008Defendant correctly notes that we require a personal waiver based on a record colloquy for a defendant to waive the right to counsel, State v. Pollard, 163 Vt. 199, 206-07 , 657 A.2d 185, 190-91 (1995), or the insanity defense, State v. Brown, 2005 VT 104, ¶ 39 , 179 Vt. 22 , 890 A.2d 79 .

2008Defendant correctly notes that we require a personal waiver based on a record colloquy for a defendant to waive the right to counsel, State v. Pollard, 163 Vt. 199, 206-07 , 657 A.2d 185, 190-91 (1995), or the insanity defense, State v. Brown, 2005 VT 104, ¶ 39 , 179 Vt. 22 , 890 A.2d 79 .

2006As 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, *1103 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 defe

2006See, 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 tremensf and that shortly before the murder he suffered delusions of “seeing witches and devils.”).

2006See, 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."). [7] The doctri

2006As 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.

2006As 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 , 116 S.Ct. 2013 , 135 L.Ed.2d 361 (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.

2006See, 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.

2006See, e.g., Commonwealth v. Henry, 524 Pa. 135 , 569 A.2d 929, 935 (1990) (rejecting defendant's claim that the trial court erred in precluding an insanity defense based on his theory that he suffered *1107 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 intoxicant

2006Although 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.

2006Although 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, 381 Mass. 340 , 409 N.E.2d 732, 738-39 (1980), and Commonwealth v. Brennan, 399 Mass. 358 , 504 N.E.2d 612, 616 (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.

2006Borrowing 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 di

2006Borrowing from a Massachusetts decision, Commonwealth v. Herd, 413 Mass. 834 , 604 N.E.2d 1294, 1298 (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

2006See, 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.

2006See, e.g., Commonwealth v. Henry, 524 Pa. 135 , 569 A.2d 929, 935 (1990) (rejecting defendant's claim that the trial court erred in precluding an insanity defense based on his theory that he suffered *1107 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 intoxicant

2006For an illustrative sample of older decisions, see, e.g., People v. Travers, 88 Cal. 233 , 26 P. 88, 91 (1891) ("[S]ettled insanity produced by a 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, 100 Mo. 493 , 13 S.W. 1063 , 1064 (1890) (holding that "long-continued h

2006For an illustrative sample of older decisions, see, e.g., People v. Travers, 88 Cal. 233 , 26 P. 88, 91 (1891) ("[S]ettled insanity produced by a 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, 100 Mo. 493 , 13 S.W. 1063 , 1064 (1890) (holding that "long-continued h

2006For an illustrative sample of older decisions, see, e.g., People v. Travers, 26 P. 88, 91 (Cal. 1891) (“[SJettled insanity produced by a 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 intemperan

2006For an illustrative sample of older decisions, see, e.g., People v. Travers, 88 Cal. 233 , 26 P. 88, 91 (1891) ("[S]ettled insanity produced by a 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, 100 Mo. 493 , 13 S.W. 1063 , 1064 (1890) (holding that "long-continued h