SULLIVAN, J.
Despite nonconflicting expert and lay opinion testimony that defendant Gregory Galloway was insane, the trial court rejected the insanity defense after concluding that the defendant could continue to be a danger to society because of an inadequate State mental health system. This was insufficient to sustain the trial court’s finding because there was no probative evidence from which an inference of sanity could be drawn.
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The trial court concluded, based on the expert testimony and the numerous medical records introduced into evidence, that the defendant suffers from bipolar disorder, an Axis I psychiatric disorder. [Footnote omitted.] This evidence showed that prior to his killing his grandmother, the defendant had had a long history of mental illness, and he had had many “contacts” with the mental health system. [Footnote omitted.] He had been diagnosed with bipolar disorder by up to twenty different physicians, often with accompanying psychotic and manic symptoms. He had also been voluntarily and involuntarily detained or committed for short-term treatment more than fifteen times.
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Prior to trial, the defendant was examined by three experts: Dr. Parker, a psychiatrist engaged by the defense; Dr. Coons, a court-appointed psychiatrist; and Dr. Davidson, a court-appointed psychologist. All three experts agreed that he suffers from a mental illness, suffers paranoid delusions (a symptom of severe psychosis), and has suffered from intermittent psychosis since 1999. Dr. Parker and Dr. Coons both testified (and submitted in their preliminary reports) that the defendant was legally insane at the time of the murder. They both opined that he was jolted out of his delusion when he realized that he did not feel better and had just harmed someone he loved. The psychologist, Dr. Davidson, submitted a preliminary opinion to the court that the defendant was sane at the time of the murder. The basis for his opinion was that it was unlikely the defendant would have been insane only for the few moments that it took for him to grab the knife and stab his grandmother. But while testifying, Dr. Davidson withdrew his opinion in light of additional facts that he did not have when he submitted his preliminary opinion. Among other things, Dr. Davidson was unaware that the defendant had been experiencing delusions and responding to internal stimuli in the days leading up to the murder and on the day of the murder. Dr. Davidson also was unaware that eyewitnesses heard the defendant call his grandmother the devil as he stabbed her. After being presented with all of the facts while on the witness stand, Dr. Davidson ultimately testified that he could not give an opinion on the matter.
After the close of trial, but before a verdict was rendered, the defendant stopped taking his medication and deteriorated to the point where he was found incompetent to stand trial. He regained competence after treatment at a state mental hospital.
On May 4, 2009, the trial court found the defendant guilty but mentally ill for murdering his grandmother, rejecting the insanity defense. Finding that none of the experts or lay witnesses testified that the defendant was sane, the trial court based its conclusion on demeanor evidence. Specifically, the court found that the defendant and his grandmother had interacted with each other and other people on the day of the murder, he had committed the offense in front of several family members and made no effort to conceal his crime, he had not attempted to evade police, and he had cooperated with law enforcement. Additionally, the defendant had been alert and oriented throughout the trial proceedings and had been able to assist counsel. The court also found that the defendant’s “psychotic episodes increased in duration and frequency” and that he “lacks insight into the need for his prescribed medication.” . . . The court then found that the defendant had “repeatedly discontinued medication because of side effect complaints and would self medicate” by abusing alcohol and illicit drugs. . . . Furthermore, there was “no evidence that this pattern of conduct [would] not continue if the Defendant [were] hospitalized and released, posing a danger to himself and others in the community.” . . . The court concluded that the defendant “is in need of long term stabilizing treatment in a secure facility.” . . . .
During the sentencing hearing, on June 2, 2009, the trial court indicated that the preferred route would be to commit the defendant to a mental health facility for the rest of his life but concluded that route was not an option.
There is absolutely no evidence that this mental illness is [feigned], or malingered, or not accurate and there is no dispute as to that. But quite frankly, this is a tragedy that’s ripped apart a family and there is very little this Court can do to remedy that. This case is as much a trial of our mental health system as it is of a man. For 20 years, Mr. Galloway’s family has sought long-standing permanent treatment for Mr. Galloway, and the fact that there may not be the funds available to pay for the mentally ill in the State of Indiana does not mean that we don’t have mentally ill people in the State of Indiana. . . . [T]his is difficult for everyone[,] and I can pick apart about 20 mental health records that were submitted to this Court where I would have begged a mental health provider to keep Mr. Galloway long term in a civil commitment, but they have not. Mr. Galloway is able to take his medication when forced to do so in a very structured setting, but we have a 20-year history which shows when he is not in that setting that he will not take his medication, that he will continue to have episodes[,] and most concerning for this Court is that he will endanger others and himself. One of my options is not to say that he’s committed for the rest of his life in a mental health institution. That would have been easy, but that’s not one of my choices. . . . I cannot in good conscience allow someone with the severe mental health illness to return to the community[,] and that is what has made this case so very difficult.
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In this case, there was not sufficient evidence of probative value from which an inference of sanity could be drawn sufficient to create a conflict with the (nonconflicting) expert testimony that the defendant was insane at the time of the offense. First, there was no lay opinion testimony given that conflicted with the experts’ opinions that the defendant was insane at the time of the stabbing. The three eyewitnesses to the stabbing called by the State testified that the defendant was showing familiar signs of “losing it.” The defendant’s aunt, who was sitting on the couch as her mother was stabbed only a few feet away, testified that the defendant had a “wild look” in his eye and that she recognized this as the look he gets right before he loses it. She also heard the defendant call his beloved grandmother the devil as he stabbed her. Two other witnesses – the defendant’s mother and the defendant’s friend – also testified that the defendant was showing signs of losing it in the days and hours leading up to the murder. Thus, . . . there were five lay wit-nesses in this case whose testimony supports the experts’ opinions.
Second, there was not sufficient demeanor evidence of probative value from which an inference of sanity could be drawn. The trial court based its findings on very little evidence. It found as probative of sanity the fact that, over the course of an hour, the defendant shopped, ate, and filled a car with gasoline without incident. It also found as probative the fact that the defendant cooperated with police after the fact. Viewed in isolation, each of these events may indeed represent the normal events of daily life. However, when viewed against the defendant’s long history of mental illness with psychotic episodes, the defendant’s demeanor during the crime, as testified to by three eyewitnesses, and the absence of any suggestions of feigning or malingering, this demeanor evidence is simply neutral and not probative of sanity.
Additionally, we are unable to agree with the trial court’s conclusions that certain facts were probative of sanity. Two investigating officers testified that there was absolutely no evidence of a plan or motive. In light of this, the trial court found as probative of sanity the fact that the defendant, without any warning, stabbed his grandmother, his best friend with whom he had lived for seven years, in front of three family members while calling her the devil. We see nothing connecting the absence of plan or motive and the defendant acting without warning as he did as probative of sanity.
The trial court also found as probative of sanity the fact that the defendant deteriorated during trial to the point that he was deemed legally incompetent and was committed to a state hospital to regain competence. We do not find the defendant’s deteriorating to incompetence to stand trial to be probative of his sanity at the time of the offense.
The trial court expressly found that the defendant deteriorates mentally and experiences psychosis when he does not take his medication. At the time of the stabbing, the defendant was supposed to be taking his medications twice a day. He told police, however, that he had not taken any prescription medication in two days. The trial court found this failure to take medication to be probative of sanity, but we do not, especially in light of the trial court’s finding that the defendant became psychotic when not on his medication.
The trial court also relied on the defendant’s demeanor during trial, when he was competent to stand trial, as probative of his sanity at the time of the crime. As discussed at length supra, a defendant’s demeanor during court proceedings is certainly probative of sanity with regard to his or her competence to stand trial. . . . But the probative value of a defendant’s courtroom demeanor during trial as to his or her mental state at the time of the crime is doubtful. The justification for considering a defendant’s demeanor before and after the crime is that conduct occurring in temporal proximity to the crime “may be more indicative of actual mental health at [the] time of the crime than mental exams conducted weeks or months later.” Thompson, 804 N.E.2d at 1149. Trial proceedings, however, often occur many months or even years after the crime. In this case, the two-day bench trial occurred nearly a year after the murder. Thus, we do not find the fact that the defendant “was alert and oriented throughout the proceedings and assisted his counsel and the investigator” to be probative of his sanity at the time of the crime.
Finally, . . . there is no evidence or suggestion that the defendant here feigned his mental illness. The trial court expressly found as much with regard to defendant’s long history of mental illness.
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Because the insanity defense relieves a defendant of criminal responsibility, even where it is established beyond a reasonable doubt that he or she committed the criminal act, there is an inherent risk of abuse. We are mindful of these risks, which is why substantial deference is given to the trier of fact’s finding of sanity. The trier of fact is in the best position to judge the credibility of the witnesses and to observe the defendant over a period of time. Accordingly, whether a defendant is malingering or feigning mental illness or insanity is clearly an appropriate consideration for the trier of fact. . . . .
It was not appropriate, however, for the trier of fact to consider the condition of our State’s mental health system. Although raising the insanity defense opens the door to examining the defendant’s entire life and allows in evidence that might otherwise be inadmissible under our rules of evidence, see Garner v. State, 704 N.E.2d 1011, 1014 (Ind. 1998), what may or may not happen to the defendant in the future cannot be considered. The trier of fact must make its determination as to whether the defendant was insane at the time of the offense using only evidence and considerations that are relevant [footnote omitted] to the defendant’s mental state at the time of the offense.
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The trial court erred in this case by entering a verdict of guilty but mentally ill when the evidence presented reasonably led only to a conclusion that the defendant was legally insane at the time of the offense. Underlying the trial court’s decision was not a concern of malingering or feigning but a concern about the State’s mental health system and the defendant’s need for structure and constant supervision. Among the trial court’s findings is that the defendant “lacks in-sight into the need for his prescribed medication” and “is in need of long term stabilizing treatment in a secure facility.” The trial court also found that the defendant “repeatedly discontinued medication” and there was “no evidence that this pattern of conduct will not continue if [the defendant] is hospitalized and released, posing a danger to himself and others in the community.”
Though made after the verdict, the trial court’s statements at sentencing cast light on the rationale underlying the verdict. [Footnote omitted.] The trial court confessed at sentencing that it viewed “[t]his case . . . as much a trial of our mental health system as . . . of a man.” The court lamented that it could not simply commit the defendant to a mental health institution for the rest of his life – the “easy” decision. What made the court’s decision so difficult was that it could not “in good conscience allow someone with . . . severe mental illness to return to the community.”
To be sure, the trial court was not unreasonable in finding that the defendant’s history of mental illness, his lack of insight into the need for medication, and his track record of mentally deteriorating after stopping his medication creates a high probability that the defendant will be a danger to himself and to others in the community if treated and released. Although such considerations may be relevant and appropriate during a commitment proceeding, they are not relevant or appropriate in determining whether the defendant was legally insane at the time of the offense. Thus, while we sympathize with the difficulty of the trial court’s decision, we cannot sustain it.
RUCKER and DAVID, JJ., concur.
SHEPARD, C.J., dissents with separate opinion in which DICKSON, J., joins:
This was one of those cases where the defense argued that the perpetrator was sane right before the crime and sane right after the crime, but insane for the sixty seconds or so it took to commit it. Dr. Davidson’s basic view was that it was unlikely that Galloway qualified as insane on the basis of a “very thin slice of disorganized thinking.” (Tr. at 228.)
Defense counsel’s vigorous cross-examination confronted Dr. Davidson with a host of hypotheticals (“now what if I told you”) and asked as to each new proposed fact whether it would affect his diagnosis. It was twenty to thirty pages of the sort of energetic cross-examination tactics to which we lawyers are inured but which often befuddle the uninitiated. It finally left the witness saying, in the face of this onslaught, that he was unsure.
. . . It was altogether plausible that Judge Willis could credit Dr. Davidson’s opinion that Galloway was sane and treat the doctor’s answers under cross as less compelling. She could also, of course, give weight to Galloway’s own contemporaneous declaration of regret right after he killed his grandmother.
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It seems straightforward enough that Dr. Davidson’s testimony and the defendant’s own demeanor at the time of the offense support Judge Willis’s judgment. Thus, the appellate standard for reversal has not been met. Thompson v. State, 804 N.E.2d 1106, 1149 (Ind. 2004) (“evidence is without conflict and leads only to the conclusion the defendant was insane.”)
The majority declares that it is not relevant what may happen as a result of this reversal by appellate judges. Not many of our fellow citizens would not recognize this disclaimer of responsibility as legitimate.
As the majority does acknowledge, there is risk involved when appellate judges second-guess a jury or trial judge and acquit a criminal offender. If Galloway is declared not guilty by this Court, the prosecutor will initiate a civil commitment process to determine whether Galloway should be confined because his mental illness makes him a danger to himself or to others.
The one thing we know for sure about Mr. Galloway is that he is in actual fact a danger to others.
We also know what is likely to occur as a result of this Court setting aside Judge Willis’s judgment: sooner or later, probably sooner rather than later, Galloway will be determined safe and turned back into society.
The reason we know that is that the civil commitment process has produced such an outcome over and over again with Mr. Galloway. The majority has recited the long trail of medical treatments and mental commitments. It has not focused much in that recitation on how the exercise of expert medical judgments and the civil commitment processes have combined to turn him back out on the street over and over again.
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I mention this litany–just salient elements in an even longer story–to suggest that some innocent future victim is placed at risk by this Court’s decision to second-guess Judge Willis. A society that responds to such violence with tolerance should well expect that it will experience more violence than it would if it finally said, “This is unacceptable.” Not knowing what I would say to the next victim, I choose to stand with Judge Willis and affirm the judgment of guilty but mentally ill.