State v. Rhoades ( 1991 )

McDEVITT, Justice.

This case arises from the murder of Nolan Haddon, a convenience store clerk, during the course of a robbery. Paul Ezra Rhoades was charged with that murder, and after pretrial proceedings he entered a conditional guilty plea to second degree murder and robbery. The trial court accepted the plea agreement and sentenced Rhoades to an indeterminate life sentence for murder in the second degree, and an indeterminate life sentence for robbery.

By the terms of the plea agreement, Rhoades reserved for appeal the issues discussed below, except that the issue of prosecutorial misconduct in withholding exculpatory evidence from the defense was not listed as an issue preserved for appeal by the plea agreement.

The specific issues raised in this appeal are as follows:

I. Whether the trial court’s failure to make a pre-trial ruling on the constitutionality of the statutory abolition of the insanity defense was error.

II. Whether the legislative abolition of the defense of mental condition in criminal cases violates the Idaho or United States Constitutions.

III. Whether inculpatory statements allegedly made by Rhoades to the police should have been suppressed as violative of Miranda v. Arizona; pursuant to enhanced requirements of reliability in capital prosecutions; or due to the failure of the police to tape record the alleged statements of the defendant.

IV. Whether the trial court should have excluded testimony by two jail house informants.

V. Whether the trial judge should have disqualified himself for prejudice in the Haddon case after imposing a death sentence upon the same defendant in another separately tried murder case.

VI. Whether the prosecution’s failure to turn over to defendant exculpatory evidence constituted a denial of due process.

VII. Whether the trial court’s approval of the prosecutor’s method of charging weapons enhancements was erroneous.

I.-II.

PRETRIAL RULING ON AVAILABILITY OF INSANITY DEFENSE

In 1982, the Idaho Legislature revised the criminal code to abolish the insanity defense in criminal cases, repealing I.C. § 18-209 (“[m]ental disease or defect excluding responsibility is an affirmative defense”) and enacting new language in § 18-207(a) to provide that “[m]ental condition shall not be a defense to criminal conduct.” See Idaho Sess. Laws, eh. 368, §§ 1 and 2 (1982).

In a pretrial motion, defense counsel requested a ruling from the trial court on the constitutionality of the legislative repeal of the insanity defense. It was urged that the abolition of the defense deprives criminal defendants of due process rights under the state and federal constitutions.

Both parties extensively briefed and argued the issue of justiciability; that is, whether there was any factual showing on the record which would grant the court the authority to render a ruling in the nature of a declaratory judgment on the issue. Rhoades had been examined by a court appointed psychiatrist pursuant to defense counsel’s request. However, the defense did not introduce evidence indicating the psychiatrist’s conclusions as to whether there was any basis on which to raise the issue of mental defect.

In opposition to the motion, the prosecution argued that the absolute absence of evidence on Rhoades’s mental condition made the issue a non-justiciable controversy upon which the court had no jurisdiction to rule.

The defense countered that no showing was required under the unique circumstances. The defense asserted that the court did have jurisdiction to render a declaratory judgment, arguing that the nature of a declaratory judgment is to clarify legal uncertainty, and that having no legal definition of insanity then existing in the criminal law of Idaho made it impossible for a psychiatrist to render an opinion on whether Rhoades was legally insane. Thus, the defense requested the court to rule on whether the insanity defense would be available, and if so, which of the several legal definitions of insanity would be utilized in the case. The defense asserted that only then, in the context of a defined legal standard to be used at trial, would it become possible for a psychiatrist to give a meaningful opinion on the criminal responsibility of the defendant.

The defense further argued that even if some showing was required under other circumstances, the prosecution and the court had waived the necessity of presenting preliminary evidence on Rhoades’s mental condition when a defense request for psychiatric assistance at state expense was granted without the preliminary showing required by statute. The defense argues that the circumstances constitute a waiver of any showing that might be required in the later request for a ruling on the availability of the insanity defense.

Finally, the defense argued that there was a sufficient factual showing on the record to bring Rhoades’s sanity into issue. Noting that where the insanity defense is permitted it may be established by lay testimony, the defense cited the preliminary hearing testimony of one of the arresting officers to the effect that on the night Rhoades was arrested he was unstable and incoherent.

The trial court denied the defense request for a ruling on the constitutionality of Idaho’s abolition of the insanity defense, holding that the issue was a non-justiciable controversy. The issue before us is whether the trial court erred in determining that the question was not justiciable. We hold that the trial court was within the bounds of its authority in declining to rule on the defense motion.

The authority to render a declaratory judgment is bestowed by statute. The Declaratory Judgment Act, contained in Idaho Code tit. 10, ch. 12, confers jurisdiction upon the courts the option to “declare rights, status, and other legal relations, whether or not further relief is or could be claimed.” I.C. § 10-1201. An important limitation upon this jurisdiction is that, “a declaratory judgment can only be rendered in a case where an actual or justiciable controversy exists.” Harris v. Cassia County, 106 Idaho 513, 516, 681 P.2d 988, 991 (1984). This concept precludes courts from deciding cases which are purely hypothetical or advisory.

Declaratory judgments by their very nature ride a fine line between purely hypothetical or academic questions and actually justiciable cases. Many courts have noted that the test of justiciability is not susceptible of any mechanistic formulation, but must be grappled with according to the specific facts of each case. Id.; 22 Am.Jur.2d Declaratory Judgments § 33, at 697. This Court, in Harris, adopted the following language from the United States Supreme Court’s definition of justiciability as a guiding standard in the context of declaratory judgment actions:

[A] controversy in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages.

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241-42, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937) (citations omitted).

The same principle as pronounced by this Court provides:

The Declaratory Judgment Act ... contemplates some specific adversary question or contention based on an existing state of facts, out of which the alleged “rights, status and other legal relations” arise, upon which the court may predicate a judgment “either affirmative or negative in form and effect.”

The questioned “right” or status” may invoke either remedial or preventative relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered; but in either or any event, it must involve actual and existing facts.

State v. State Bd. of Educ., 56 Idaho 210, 217, 52 P.2d 141, 144 (1935).

In this case, at the time of the motion for a ruling on the availability of the insanity defense, Rhoades had been examined by a psychiatric expert pursuant to a defense request. That particular expert was imported for this case from Colorado, specially requested by the defense due to his expertise in mental condition relating to criminal law and the effect of drugs in the context of diminished capacity.

During hearing on the motion, the trial court asked defense counsel whether the expert had expressed any opinion on Rhoades’s ability to understand the nature of his acts or form a criminal intent. Defense counsel responded that it would be impossible to obtain any opinion on the matter unless and until the court provided a legal definition of insanity for the expert to work with.

We perceive the difficulty of the defense in obtaining an expert opinion on such a complex issue without the guiding framework of a legal standard. We also recognize that a psychiatric opinion on the mental condition of a defendant in a criminal case is forged by a long process of interaction between the expert and the defense, and that the final result of that process will not generally be available in a refined form during the pretrial stage of a criminal case.

However, the trial court did not require that the defense present an expert opinion as to the ultimate issue of Rhoades’s sanity. The court requested any expression of opinion by the expert as to whether insanity might be an issue in the case, or an assertion by counsel that he was raising the defense of insanity. The court did not require actual testimony concerning exact mental processes or precise cognitive abilities of the defendant. It would have sufficed for the expert to provide a summary affidavit stating that in his opinion there was a viable issue of insanity involved in the case. Alternatively, the expert might have submitted an affidavit to the effect that it would be impossible for him to render an opinion without a guiding legal standard. Yet another option might be to offer an opinion based on the definition of insanity that Idaho had in place prior to the legislative repeal of the defense, restricting the affidavit to an in camera review in order to protect the defense from the consequences of prematurely offering an opinion from an improperly prepared defense expert.

The defense cites Harris v. Cassia County in support of its argument that Rhoades need not have demonstrated an “accrued right” to assert the insanity defense before being entitled to a declaratory ruling on the issue. That involved a case filed by indigent recipients of county benefits for payment of claims for prescription drugs. After twice being denied benefits in two successive years after the annual county allotment for indigents was exhausted, the plaintiffs requested a declaratory judgment to the effect that the county was not entitled to cut off their benefits whenever the county indigency fund was depleted. At the time of the action, the county fund had been rejuvenated, and the county argued that the plaintiffs claims were no longer justiciable, as their claims were again being paid by the county.

The Court, in Harris, in holding that the case was indeed justiciable and appropriate for declaratory judgment, noted that both plaintiffs were currently enrolled as recipients of county indigency benefits. The Court stated that although neither plaintiff had a pending application for indigent aid at the time, their county benefits had been terminated twice before on the basis of inadequate funds. In Harris, the Court based its determination on the actual and existing facts on the record, implicitly holding that the plaintiffs’ claims were of the justiciable variety that are “capable of repetition, yet evading review.”

In the present case, by contrast, there are no actual and existing facts on the record. The record before the trial court, and before this Court, contains nothing more than the statement of counsel that he desired to inquire into the viability of the defense, and that although Rhoades had been examined by a psychiatrist, no opinion in any form as to Rhoades’s competency could be forthcoming until the court provided an operative legal definition of insanity. As to the impossibility of offering an opinion without a legal standard to work with, the court had only the bald statement of counsel to rely upon, there being no direct statement from the expert to this effect in the record. This statement of counsel does not provide a factual showing sufficient to create a justiciable issue before the court.

The testimony of Officer Rodriguez concerning Rhoades’s manner on the night of his arrest likewise does not suffice to create a justiciable controversy on the issue of insanity. The officer stated during the preliminary hearing that on the night of the arrest:

Paul Rhoades was either acting as if he was high on some kind of narcotic, or he was high on some kind of narcotics____ [H]e really didn’t have much stability ... he had to be helped to walk. He swayed back and forth when he sat down, almost in a drunken stupor. Didn’t say too much, and when he did, he mumbled, as if, I would take it, he was not in control of his senses, ...

Other testimony confirms Officer Rodriguez’s impressions of Rhoades’s conduct on the night of the arrest, but there is no similar evidence in the record as to abnormal conduct at any other time. This testimony establishes that Rhoades was having physical difficulty on the night of his arrest, which was assumed by the officers present to be the result of drugs or intoxication. The trial court appropriately concluded that such evidence alone does not rise to the level of a showing on any enduring mental condition of the defendant.

The defense argues that any showing that might be required under the circumstances was waived by the prosecution at the time of the hearing on the defense request for appointment of a psychiatric expert at state expense. The United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 58 (1985), held that a defendant is constitutionally entitled to psychiatric assistance at state expense once a preliminary showing has been made that the mental condition of the defendant is likely to be an issue in the case. At the hearing, the prosecution represented that it had no objection to the appointment of a psychiatric expert, and further stated that:

From the State’s point of view from what we understand the evidence to be we would understand why they seek these two particular appointments, so we would urge the Court to go ahead and adopt that without requiring any further showing.

Defense counsel urges that this statement by the prosecution, and the court’s acquiescence in the motion for a court appointed expert without requiring any preliminary showing on the defendant’s mental condition, amounts to a waiver of the required showing on the issue. We disagree.

Justiciability is a question of the jurisdiction of the court over the case at issue. Baird v. State, 574 P.2d 713, 716 (Utah 1978); Mountain West Farm Bur. Mut. Ins. v. Hallmark Ins., 561 P.2d 706 (Wyo.1977). It is axiomatic that a lack of jurisdiction may not be cured by means of stipulation or waiver by the parties. Bowlden v. Bowlden, 118 Idaho 84, 794 P.2d 1140 (1990). Therefore, this defense argument must be rejected.

We uphold the trial court’s determination that the record does not create a justiciable issue to support a ruling on the issue of the repeal of the insanity defense.

BAKES, C.J., and SCHROEDER and REINHARDT, JJ., Pro Tern., concur.