Opinion
No. 00CA0398.
June 20, 2002. Rehearing Denied July 18, 2002. Certiorari Granted April 21, 2003.
Larimer County District Court No. 81CR273; Honorable John-David Sullivan, Judge.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS.
Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Mark G. Walta, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Randy D. Riggs, appeals the trial court's order denying authorization, pursuant to § 16-8-118, C.R.S. 2001, for temporary physical removal from state hospital grounds for the purpose of treatment. We reverse and remand for further proceedings.
In 1982, defendant was found not guilty by reason of insanity of first degree murder after he strangled a woman and then sexually assaulted her corpse.
After several attempts, the Colorado Mental Health Institute in Pueblo (CMHIP) gave notice to the committing court that it intended to authorize temporary physical removal of defendant from the hospital for treatment and rehabilitation activities. CMHIP sought permission for supervised leave and, when defendant's doctors thought it was appropriate, for unsupervised leave. The district attorney filed an objection. After an evidentiary hearing, the court denied the request for temporary physical removal in a lengthy written order.
I.
Defendant contends that the applicable burden of proof should be on the objecting party. We agree.
We are not convinced by the People's argument that the burden should always be on the defendant because courts have indicated "it is reasonable to assume that, until the contrary is shown, the committed defendant poses a danger to the public by reason of his mental condition." People v. Gilliland, 769 P.2d at 477, Colo. 1989) (citingPeople v. Chavez, 629 P.2d 1040 (Colo. 1981).
Here, the issue is not a matter of involuntary commitment as was addressed in People v. Chavez, supra, or of involuntary administration of antipsychotic medication as in People v. Gilliland, supra. A § 16-8-118 determination is, at its essence, a matter of treatment as opposed to a curtailment of a liberty interest. Furthermore, the plain language of the statute indicates that the court holds a "hearing upon the objections," and thus the burden should rest with the objecting party. See § 16-8-118(1)(c).
Thus, we conclude that the burden of proof under § 16-8-118 is on the objecting party, as opposed to the committed defendant. Additionally, the party with the burden of proof must meet that burden by a preponderance of the evidence. See People v. Garlotte, 958 P.2d 469 (Colo.App. 1997) (applying preponderance of the evidence standard to revocation of defendant's conditional release); People v. McCoy, 821 P.2d 873 (Colo.App. 1991).
II.
Defendant next contends that § 16-8-118 violates his constitutional rights of due process and equal protection because the statute lacks sufficient procedures and standards. We decline to reach this constitutional argument. Defendant did not adequately preserve it because he raises it for the first time on appeal. See People v. Boyd, 30 P.3d 819 (Colo.App. 2001).
III.
Defendant next contends that the trial court's order does not reflect that it considered the petition under the correct non-constitutional standards as set forth in prior decisions of Colorado courts. We agree.
Section 16-8-118 authorizes the temporary physical removal of a committed defendant from an institution for treatment and rehabilitation activities. The statute requires that the institution give written notice to the committing court of its intention to allow temporary leave for a committed defendant. Section 16-8-118(1)(a), C.R.S. 2001. Thirty days from the date of mailing of the notice, the temporary physical removal request is authorized unless the district attorney or the attorney of record for the defendant files an objection with the committing court. Section 16-8-118(1)(b), C.R.S. 2001 (no provision for a hearing if no objection is timely filed).
If an objection is filed, "the committing court shall fix a time for a hearing upon the objections, and no removal of the defendant from the institution in which he is held shall be authorized unless and until approval thereof is given by the committing court following such hearing." Section 16-8-118(1)(c), C.R.S. 2001.
A request for temporary removal in supervised and unsupervised settings does not implicate the same liberty interests as involuntary commitment or nonconsensual administration of medication. See People v. Gilliland, supra; People v. Chavez, supra. However, the request implicates lesser considerations related to safety — both for the community and the committed defendant — than release or conditional release. See § 16-8-120, C.R.S. 2001 (listing the applicable tests for release of a committed defendant); People v. Fetty, 650 P.2d 541, 543 (Colo. 1982) ("[t]he state's interest at stake in automatically committing one found not guilty by reason of insanity is to insure the public's safety as well as the safety of the accused himself").
Thus, when ruling on a contested request for temporary removal under § 16-8-118, a trial court should assess on the totality of the evidence, whether public safety can be ensured while achieving the therapeutic purpose of the release. Cf. People v. Gilliland, supra, 769 P.2d at 480; Marshall v. Kort, 690 P.2d 219 (Colo. 1984) (recognizing that a committed defendant may have a right to treatment).
Additionally, the court should weigh the rehabilitative potential of the temporary removal activities related to the committed defendant's course of treatment against the potential danger to the community based on the defendant's contact with the public. See People v. Garlotte,supra, 958 P.2d at 477 ("[i]n formulating release conditions, a court must balance the defendant's best interests with the community's need for safety"). Furthermore, the trial court must give due consideration to the decisions of health care professionals made in the exercise of their professional judgment. See Kort v. Carlson, 723 P.2d 143, 150 (Colo. 1986) ("defendant's right to treatment . . . consists . . . of the right to have decisions about the appropriate treatment developed and offered by competent decisionmakers after the exercise of their professional judgment"). In giving such consideration, the trial court must indicate and evaluate such decisions in its findings of fact. See Kort v. Carlson, supra.
Here, the record indicates that the trial court and the parties adhered to the procedural requirements set forth in § 16-8-118. However, the record does not indicate whether the trial court applied the proper legal standards in ruling on the issue before it. Thus, we remand the case to the trial court to apply the standards we have set forth in this opinion. On remand, the court may also take further evidence if it deems necessary. See People v. Garlotte, supra.
Additionally, on remand, defendant should be provided the opportunity to rectify any factual errors that he contends were made by the court in denying his request for temporary physical removal. Finally, with regard to defendant's claim that the trial court improperly admitted letters from the victim's family, we direct that on remand the court consider only evidence relevant under the standards set forth in this opinion.
Order reversed and case remanded for further proceedings consistent with this opinion.
Vogt, J., concurs.
Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5( 3), and § 24-51-1105, C.R.S. 2001.