Although it affirmed the judgment of the post-conviction court in denying relief, the Indiana Supreme Court endorsed a change in jury instructions regarding mentally ill defendants.
Brad Passwater appealed the denial of his petition for post-conviction relief, in part, because the instructions approved by the Indiana Supreme Court were misleading, leaving the jury to believe he could be released from an outpatient facility 90 days after being found guilty of murder.
At his trial for the murder of his mother, Passwater’s counsel requested jury instruction on the penal consequences of guilty but mentally ill and not responsible by reason of insanity verdicts. Instead, the trial court gave the instructions approved by the state Supreme Court in Georgopulos v. State 735 N.E. 2d 1138, 1143 n.3 (Ind. 2000).
In Brad W. Passwater v. State of Indiana, 48S05-1210-PC-583, the Indiana Supreme Court reconsidered the Georgopulos instructions which are given in cases where the jury is faced with the option of finding a defendant not responsible by reason of insanity or guilty but mentally ill.
The court noted the second part of the Georgopulos instruction tried to synthesize the relevant portions of the state statutes. However, the court emphasized the composite is not without flaws.
Specifically, the approved Georgopulos instructions includes the phrase: “If, upon the completion of the hearing, the court finds that defendant is mentally ill and either dangerous or gravely disabled, then the court may order the defendant to be committed to an appropriate facility, or enter an outpatient treatment program of not more than ninety (90) days.”
The court then turned to the instruction provided in the Indiana Pattern Jury Instruction 11.20.
There, the phrase is rewritten as: “If the court finds that the Defendant is mentally ill and either dangerous or gravely disabled then the court may order the Defendant to be either placed in an outpatient treatment program of not more than ninety (90) days, or committed to an appropriate mental health facility until a court determines commitment is no longer needed.”
Writing for the court, Justice Robert Rucker concluded, “We are of the view that the Pattern Instruction represents an improvement over the instruction this Court found appropriate in Georgopulos and thus endorse and approve its use.”