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State v. Breakiron

Decided: October 29, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT A. BREAKIRON, DEFENDANT-APPELLANT



On appeal from and certification to Superior Court, Appellate Division, whose opinion is reported at 210 N.J. Super. 442 (1986).

For affirmance in part and reversal in part -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein join in this opinion. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

This case concerns the scope of the "diminished capacity" defense afforded by N.J.S.A. 2C:4-2. The particular question presented is whether the trial court erred in refusing to charge the jury that evidence of diminished capacity resulting from a mental disease or defect was relevant to the question of whether defendant's admitted killing of another was knowing or purposeful.

Defendant has confessed to killing a young woman with whom he lived. Following the killing, he took the victim's young child from the victim's home, stole a car and money from her parents' home, and fled to Florida. After apprehension he confessed to these acts. He was indicted for murder, kidnapping, and burglary. Defendant pled insanity as a defense to all the charges and, as to the murder, contended that because of an alleged mental disease or defect, the killing was not knowing or purposeful. At trial, he offered psychiatric testimony that

he suffered from schizophrenic tendencies; that he was hyperactive, disruptive, and physically and psychologically abused as a child; and that these conditions resulted in disorientation that made the defendant unable to formulate an intent knowingly or willfully to kill the victim. The trial court permitted the evidence to go to the jury on the issue of insanity. The trial court, however, refused to charge the jury with respect to any other relevance that the evidence might have as to the defendant's mental state. In the trial court's view, the Code of Criminal Justice had abolished the defense of diminished capacity in that no specific intent was required in order to be found guilty of murder under the Code. The jury convicted the defendant of murder, kidnapping, and burglary.

On appeal, the Appellate Division disagreed with the trial court that the Code had abolished a defense of diminished capacity in the circumstances of this case. But the majority ruled that the issue need not be submitted to a jury unless the proffer satisfied the trial court by a preponderance of the evidence that the condition had resulted in an act that was lacking in either the knowledge or the purpose required under the Code. 210 N.J. Super. 442, 449 (1986). Exercising original jurisdiction, the court was not persuaded that the defendant had met that standard. One judge dissented, arguing that the issue of the effect of the evidence on defendant's knowledge or purpose should have been submitted to the jury. Both majority and dissent in the Appellate Division agreed that the statute was constitutional insofar as it placed a burden on the defendant of proving the defense of diminished capacity. The majority would have required the burden to include not only proof of the presence of mental disease or defect, but also proof that the "condition negated the state of mind which is an element of the offense." Id. at 452. The dissent believed that "the statute shifts the burden of proof to the defendant only with respect to the question of whether he had a mental disease or defect." Id. at 463.

Defendant appealed as of right under Rule 2:2-1 and sought certification of other issues not addressed by the dissent below. We granted that petition, 105 N.J. 523 (1986), but limited it solely to the issue of the constitutionality of N.J.S.A. 2C:4-2. We now affirm in part and reverse in part.

I.

A precise understanding of the meaning of the phrase "diminished capacity" defense is necessary to the disposition of this case. To reach this understanding, we must review again the concepts of criminal responsibility set forth in the Code of Criminal Justice, N.J.S.A. 2C:2-1 to -12. Although the diminished capacity defense may have peripheral relevance to crimes other than murder, we shall consider it here only in the context of murder, which in itself is a form of criminal homicide under the Code.

Although we recently treated the diminished capacity defense in State v. Ramseur, 106 N.J. 123 (1987), we did not undertake there the detailed analysis necessary to deal with the recurring problems of interpretation illustrated by this case and others. See State v. Serrano, 213 N.J. Super. 419 (App.Div.1986), certif. denied, 107 N.J. 102 (1987) (trial court committed reversible error in failing to charge "diminished capacity" as an affirmative defense when testimony could justify finding that defendant suffered from a mental disease and did not have requisite state of mind); State v. Humanik, 199 N.J. Super. 283 (App.Div.), certif. denied, 101 N.J. 266 (1985) (defendant need prove existence of a mental disease or defect by only a preponderance of evidence in order to shift burden to State).

A.

Twelve centuries of debate have yet to resolve the law's attitude about the criminal mind. At common law proof of an actus reus and a mens rea sufficed to establish criminal liability. It is easier to translate the Latin than to explain the

concepts it capsulizes. In today's parlance, we describe these elements as the requirement of a voluntary act and a culpable state of mind, the minimum conditions for liability. See N.J.S.A. 2C:2-1 and -2. The characteristic emphasis of the common law on the conduct of the reasonable person as the measure of responsibility has dominated the debate. The concept of reasonableness gradually evolved from early notions of absolute liability (for example, forfeiture of the deodand*fn1). See Robinson, "A Brief History of Distinctions in Criminal Culpability," 31 Hastings L.J. 815, 821 (1980). After absolute liability, "[a] distinction between what might be called 'willful' harms and 'accidental' harms [was the next distinctive notion] and was the first reflection of concern for an actor's culpable state of mind. This generally represents the broader version of the modern knowing-reckless distinction." Id. at 821. The remaining periods of development saw further refinements of categories of accidental harms into those that were with or without fault; accidental harms with fault were divided further into subcategories of negligence and recklessness. Id. at 821-22.

From these origins there developed a highly complex sub-set of mental states specifically related to the law of homicide. It seems generally agreed that these distinctions were developed for the purpose of distinguishing capital murders from others. The long history of the development of those states of mind, particularly as they applied to the law of homicide, has been well described in Wechsler & Michael, "A Rationale of the Law of Homicide: I," 37 Colum.L.Rev. 701 (1937).

As noted, at its earliest stages, the common law imposed liability without regard to a culpable state of mind. If someone caused harm, the person was accountable for it without any

consideration of intent. Hogan, "Crime, Punishment and Responsibility," 24 Vill.L.Rev. 690 (1979). Professor Wechsler explains that the evolving

English common law rules purported to distinguish among homicides in terms of those that were murder, those that were manslaughter and those that were justifiable and excusable. The principal function of these distinctions was to differentiate criminal from non-criminal homicides, and [capital] homicides * * * from those that were not. The American law followed the same general pattern * * * [with certain] further distinctions * * *. [Wechsler & Michael, supra, 37 Colum.L.Rev. at 702 (footnotes omitted).]

In New Jersey, as elsewhere, we recognized the distinction between first and second degree murder as that which drew the line between capital and non-capital murder, the former being premeditated and deliberate or committed in the course of the commission of certain felonies, and the latter constituting all other homicides that would have been murder at common law. State v. Ramseur, supra, 106 N.J. at 387-89 (Handler, J., dissenting).

Notwithstanding such refinements, the law continued to resist inquiry into the actual subjective state of an actor's mind. This resistance stemmed, at least in part, from circumstances of procedural law. At early common law, a defendant was not permitted to present witnesses on his or her own behalf, and the defendant's own testimony was regarded as especially suspect. Robinson, supra, 31 Hastings L.J. at 845. The issue of mental state was resolved neatly by maxims. The actor was presumed to intend the natural and probable consequences of his or her own act: thus the question of mens rea was collapsed into the concept of actus reus. Not until Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), did the Supreme Court clarify that in a system based on the presumed innocence of the offender, to presume a guilty mental state was unconstitutional.

B.

To resolve what Justice Jackson had described as "the variety, disparity and confusion * * * [concerning] the requisite but

elusive mental element[s of crime]," Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct. 240, 244, 96 L. Ed. 288, 294 (1952), the drafters of the Model Penal Code (hereinafter MPC) unveiled what has been described as "their most significant and enduring achievement, a thoughtful definition of distinct levels of culpability." Robinson, supra, 31 Hastings L.J. at 815. They sought to reduce nearly eighty miscellaneous mental states of culpability into four basic states of culpability. Ibid. They recognized as a requirement of justice the proposition that, notwithstanding the deterrent value of punishing offenders without regard to fault,

it is the distinctive feature of the penal law that it condemns offenders as wrongdoers, marshalling the formal censure of conviction and coercive sanctions on this ground. * * * *

Criminal law cannot, accordingly, escape the task of recognizing and defining the essential mental elements of culpability, including the defenses that negate them; nor can it ignore mental factors in determining the gravity of different crimes. It has, of course, been urged that there should be a totally objective definition of offenses, presumably in terms of the evil actually caused or threatened by behavior, giving weight to the subjective situation only in connection with the disposition to be made of the defendant. The Institute Advisers spent much time on this submission before recommending its rejection, on the ground that it ignores the distinctive nature of the penal law both as it is and as it ought to be. [Wechsler, "Codification of Criminal Law in the United States: The Model Penal Code," 68 Colum.L.Rev. 1425, 1434-35 (1968) (hereinafter "Codification of Criminal Law").]

It is a view that we share: "Our system of criminal laws is predicated usually on the imposition of punishment based on the defendant's intent. Indeed, our Code's ranking of crimes by degree places those crimes committed with intentional conduct as the highest degree of crime, for which the defendant is most severely punished." State v. Ramseur, supra, 106 N.J. at 207-08.

This "[g]raded [s]pectrum of [i]ntent in [c]riminal [l]aw" was built upon four distinct levels of intent: purpose, knowledge, recklessness, and negligence. Note, "Discriminatory Purpose and Mens Rea: The Tortured Argument of Invidious Intent," 93 Yale L.J. 111, 121 (1983). As briefly described, a person acts purposely with respect to an element of an offense if "it is his

conscious object to engage in conduct of that nature or to cause such a result," American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) § 2.02(2)(a)(i) (1985) (hereinafter Model Penal Code and Commentaries); a person acts knowingly if "he is aware that it is practically certain that his conduct will cause [the forbidden] result," id. § 2.02(2)(b)(ii); a person acts recklessly when he "consciously disregards a substantial and unjustifiable risk" that his conduct will cause the result the law seeks to prevent, id. § 2.02(2)(c); and finally, a person acts negligently when he should have been aware of a "substantial and unjustifiable risk" that his actions would cause the result that the law forbids. Id. § 2.02(2)(d). Although narrowing the range, these distinctions have hardly settled the debate. As Professor Wechsler noted,

[a] layman might find it painfully ridiculous that, after a thousand years of legal development, lawyers should still be arguing about the expressions used to denote the basic ideas of our legal system.

["Codification of Criminal Law," supra, 68 Colum.L.Rev. at 1436 n. 31 (quoting Glanville Williams, The Mental Element in Crime 9 (1965)).]

II.

Superimposed upon this structure of culpable mental state was the problem of dealing with the criminally insane. Diminished capacity is but one aspect of the larger problem of how the criminal justice system interacts with the mentally ill. See George, Jr., "The American Bar Association's Mental Health Standards: An Overview," 53 Geo.Wash.L.Rev. 338 (1985). At the center of the debate is the fundamental question of criminal responsibility, evidenced by the controversy surrounding the verdict that acquitted the defendant of criminal responsibility for the attempted assassination of President Ronald Reagan. See generally United States v. Hinckley, 529 F. Supp. 520 (D.D.C.1982). The acquittal fueled a debate about the very idea of mental responsibility for crime.

Notwithstanding the unresolved debate, the American Bar Association's Mental Health Standards continue to recommend

that a person "not [be held] responsible for criminal conduct, if at the time of such conduct, and as a result of mental disease or defect, that person was unable to appreciate the wrongfulness of such conduct." ABA, "Criminal Justice Mental Health Standards," Standards For Criminal Justice § 7-6.1(a) (2d ed. 1980 & Supp.1986) (hereinafter Mental Health Standards). That standard has been described as a rejection of the MPC's standard and a modification of the M'Naghten test.*fn2 Ellis & Luckasson, "Mentally Retarded Criminal Defendants," 53 Geo.Wash.L.Rev. 414, 437 (1985).

However defined and whatever the burden, this is the familiar insanity defense. It invites only three verdicts: guilty, not guilty, and not guilty by reason ...


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