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State v. Galloway

Decided: August 2, 1993.


On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Concurring -- Justice O'Hern. Concurring in part; Dissenting in part -- Justice Clifford. The opinion of the Court was delivered by Handler, J. O'Hern, J., Concurring. Clifford, J., Dissenting in part.


In this case, defendant admits shaking a three-month-old child hard several times, thereby injuring the child and causing his eventual death. A jury found defendant guilty of murder as well as of endangering the welfare of a child. Although defendant does not deny causing the child's death, he claims that because of diminished capacity he could not form the intent necessary for the crime of murder.

On appeal, the Appellate Division found that the trial court had erroneously instructed the jury concerning the burden of proof on the diminished-capacity defense, but found that error harmless because the evidence failed to establish that defense. That determination, implicating the standards that govern the defense of diminished capacity, presents a major issue in this appeal. Additional

issues raised relate to the jury instructions for murder, the admissibility of defendant's confession, and defendant's relationship with the child as it bears on the crime of endangering the welfare of a child.


On December 19, 1987, defendant, Steven Galloway, was at the home of his girlfriend, Diane Brazilian. At 11:40 p.m., Ms. Brazilian went out to pick up her younger sister. She left the victim, her three-month-old child, Steven, asleep in the room adjacent to where defendant was watching television. Ms. Brazilian's parents had gone upstairs to bed. At some point, the child began to cry, and defendant went over and picked up the child. Defendant stated that he fell while carrying the child, causing the child to cry harder. He admitted shaking the child hard to stop the crying. That shaking caused the child's head to bob back and forth rapidly, causing hemorrhaging of the blood vessels of the child's brain, commonly known as the "shaken baby syndrome."

When Ms. Brazilian returned a short time later, she expressed concern about the way the child was breathing. After a short time, Ms. Brazilian decided to take the child to the hospital. At the hospital, the serious nature of the child's injuries became clear. Later, Lieutenant Lewis Nappoletano and Detectives Gregory Crumine and William Magarino of the Long Branch Police Department arrived at the hospital to question the child's family. The police department had received information that a child, possibly the victim of child abuse, had suffered serious injuries and might die.

Nappoletano talked to defendant in the hospital hallway. Defendant initially told Nappoletano that the child "wasn't breathing right," that he had "had problems burping all day," and that he had "vomited." Nappoletano then orally informed defendant of his Miranda rights. Defendant said he understood them. After speaking further with defendant, Nappoletano asked both defendant and Ms. Brazilian to go to police headquarters. Nappoletano

explained that they did not have to comply. Nevertheless, defendant and Ms. Brazilian went to the station.

At headquarters at approximately 5:40 a.m., defendant read and signed a form waiving his Miranda rights. Defendant then gave a statement to police. That statement, completed at 8:00 a.m., did not mention shaking the child. Nappoletano asked defendant if he would speak to another officer, and defendant said that he would. Nappoletano asked defendant to speak with Detective Ralph DeFillipo because Nappoletano did not believe that defendant's initial statement was entirely truthful. DeFillipo orally advised defendant of his Miranda rights. DeFillipo admits that during his interview he used the "theme" that defendant had to tell him what had happened to the child so the doctors could properly treat the child. DeFillipo also knew that the child had been conceived as the result of Ms. Brazilian's rape by her previous boyfriend and that defendant's anger might have been a motive to harm the child.

DeFillipo described defendant as "extremely nervous" and said that defendant had cried at times during the interview. Later, DeFillipo called Nappoletano back into the room, and defendant told Nappoletano that he had lied in his earlier account. Nappoletano describes defendant as "actually sobbing" when Nappoletano entered the room. Defendant then gave an incriminating oral account of the events surrounding the shaking of the child. At that point, Nappoletano placed defendant under arrest, informed him orally of his Miranda rights, and provided defendant with a written copy of his rights. Defendant signed a written waiver of his Miranda rights. Defendant then gave a written statement concerning the baby's injury. In that statement, defendant admitted to wanting to hurt the child and to squeezing and shaking the child very hard. Defendant reviewed the statement and signed it. The police then took defendant to the Monmouth County Correctional Facility where, the next day, defendant recounted to Thomas Fatigante, a corrections officer, that he had committed the

offense because his girlfriend had been raped and the baby was a product of the rape, and that he had always intended to do it.

Defendant was charged with murder and third-degree endangering the welfare of a child. At trial, he sought through expert witnesses to establish that his mental condition at the time warranted the defense of diminished capacity. Defendant was convicted of both charges and received a thirty-year sentence without possibility of parole for the murder conviction and a concurrent five-year sentence on the remaining charge.

On appeal, in an unreported per curiam opinion, the Appellate Division upheld the convictions. The Court granted defendant's petition for certification, 130 N.J. 13, 611 A.2d 651 (1992).


A major issue implicating the validity of defendant's conviction involves the defense of diminished capacity. The diminishedcapacity statute in effect at the time of defendant's trial, N.J.S.A. 2C:4-2, stated:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have the state of mind which is an element of the offense. In the absence of such evidence, it may be assumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

In State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987), the Court held that although the diminished-capacity statute required the State to prove beyond a reasonable doubt that the defendant had acted with the necessary mental state despite the presence of a mental disease or defect, it also required the defendant to establish the existence of that mental disease or defect. Subsequently, in Humanik v. Beyer, 871 F. 2d 432 (3d Cir.1988), cert. denied, 493 U.S. 812, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1990), the court held that the imposition of a burden of proof on the defendant violated a defendant's due-process rights. Our courts now adhere to that ruling, 124 N.J.L.J. 1562 (Dec. 28, 1989), and the conforming statutory amendment of the defense of diminished capacity.

L. 1990, c. 63. Thus, the Appellate Division correctly found that the trial court's jury instruction on the burden of proof had been in error. Nevertheless, it determined that the error had been harmless because defendant had not submitted sufficient evidence to warrant a jury charge on diminished capacity.

The Appellate Division placed great emphasis on the fact that defendant's mental condition had been characterized by the expert testimony as a "personality disorder" and could not, therefore, be considered a "mental disease or defect." The Appellate Division further found that the evidence presented related only to a loss of impulse control and was not the type of mental disease that has been recognized by our law as diminishing mental capacity by affecting the cognitive faculties.

We disagree with both aspects of that decision. The legislative history of the Code and our subsequent decisions demonstrate that the term "mental disease or defect" does not preclude evidence of a mental condition consisting of a borderline personality disorder as such. The Court in Breakiron commented on the breadth of the phrase "mental disease or defect," observing that the statutory defense of diminished capacity contemplates a broad range of mental conditions that can be a basis for the defense: "The variety and forms of mental disease are legion." 108 N.J. at 618 n. 10, 532 A.2d 199.

That understanding of the defense of diminished capacity is reflected in the history of the New Jersey Code of Criminal Justice (New Jersey Code or Code), which expresses the legislative intent underlying the enactment of this defense. The New Jersey Code adopted the diminished-capacity defense of the Model Penal Code (MPC) § 4.02. Although the Code did not adopt the MPC's insanity defense, MPC § 4.01, the MPC used the terms "disease" and "defect" in describing both defenses. The explanations accompanying the MPC concerning the insanity defense thus clarify how those terms are used in the application of the diminished-capacity defense.

The Model Penal Code refrained from defining the content of the phrase "mental disease or defect." Rather, those terms are left open to accommodate developing medical understanding. Model Penal Code § 4.01 cmt. 4 (Official Draft 1985). The MPC Commentary also notes that most jurisdictions relying on its formulation have not provided a definition of mental disease or defect. Id. cmt. 5. Further, the MPC's proposed jury charge instructs that "the law does not attempt to say what failures or conditions of the mind are properly to be regarded as disease." Id. app. C.

In addition to the Model Penal Code, the New Jersey Code drew heavily on existing New Jersey law in adopting the diminished-capacity defense. New Jersey Penal Code, Vol. II: Commentary: Final Report of the New Jersey Criminal Law Revision Commission, 99. See State v. Breakiron, supra, 108 N.J. at 607, 532 A.2d 199. That law also demonstrates an expansive understanding of the kinds of mental deficiencies that might sustain a defense. In State v. DiPaolo, 34 N.J. 279, 295, 168 A.2d 401 (1961), the Court strongly approved the admission of psychiatric evidence pertaining to the defendant's mental state:

The judiciary cannot bar evidence which rationally bears upon the factual inquiry the legislature has ordered. The capacity of an individual to premeditate, to deliberate, or to will to execute a homicidal design or any deficiency in that capacity, may bear upon the question whether he in fact did so act. Hence evidence of any defect, deficiency, trait, condition, or illness which rationally bears upon the question whether those mental operations did in fact occur must be accepted. Such evidence could be excluded only upon the thesis that it is too unreliable for the courtroom . . . .

See also State v. Sikora, 44 N.J. 453, 210 A.2d 193 (1965) (following that rule but excluding psychiatric evidence that would excuse conduct of defendant as being beyond his or her control). Acknowledging those sources, the Court in Breakiron recognized that the Code declined to define "mental disease or defect" and, in eschewing technical definitions of mental disease or defect, intended to leave that determination to the finders of fact. 108 N.J. at 620, 532 A.2d 199.

Against that background, we conclude that the Legislature by its use of the term "mental disease or defect" did not intend to preclude evidence of a mental condition consisting of a "disorder" as such. Forms of psychopathology other than clinically-defined mental diseases or defects may affect the mental process and diminish cognitive capacity, and therefore may be regarded as a mental disease or defect in the statutory or legal sense. Ralph Slovenko, The Meaning of Mental Illness in Criminal Responsibility, 5 J.Legal Med. 1, 16 (1984).

In addition, the determination that a condition constitutes a mental disease or defect is one to be made in each case by the jury after the court has determined that the evidence of the condition in question is relevant and sufficiently accepted within the psychiatric community to be found reliable for courtroom use. As observed by the Court in Breakiron, to resolve, as a matter of law, the ultimate factual dispute over whether a mental condition is a "disease or defect" would involve weighing the evidence and would thereby intrude into the province of the jury. 108 N.J. at 620, 532 A.2d 199. That understanding is consistent with the decisions of other courts that have either followed or have been strongly influenced by the MPC approach. See, e.g., United States v. Smeaton, 762 F. 2d 796, 798 (9th Cir.1985) (noting that conflict in psychiatrists' testimony lay in their interpretation of kinds of disorders included in term "mental disease or defect," and holding that function of jury was to resolve factual issues, including question of what constitutes mental disease or defect); Government of Virgin Islands v. Fredericks, 578 F. 2d 927, 928 (3d Cir.1978) (stating that "the decision of whether a defendant is affected by a mental disease or defect rests with the jury's evaluation of all lay and medical evidence in the case").

In keeping with the intended application of the diminished-capacity defense, we also reject the State's assertion that because the revised Diagnostic and Statistical Manual of Mental Disorders (DSM) gives borderline personality disorder a V-Code diagnosis, i.e., a condition described as "a behavioral and psychological

problem . . . not attributable to a mental disorder," the evidence failed to show a mental defect or disease. We are not persuaded that the label suggested by the DSM should determine whether defendant's mental state constitutes a mental defect or disease under the diminished-capacity defense. The DSM itself cautions that

[i]t is to be understood that inclusion here, for clinical and research purposes, of a diagnostic category . . . does not imply that the condition meets legal or other nonmedical criteria for what constitutes mental disease, mental disorder, or mental disability.

[ Id. at xxix.]

We recognized in Breakiron that psychiatric classifications may not precisely fit our legal concepts of criminal responsibility. 108 N.J. at 618 n. 10, 532 A.2d 199. Moreover, Dr. Chamberlain, one of defendant's experts, based his diagnosis on the unrevised version of DSM-III, which did not classify "borderline personality disorder" as a V-Code condition.

Consistent with the legislative understanding that informed the Code, our cases recognize the broad range of mental conditions that can satisfy the Code standard of "mental disease or defect." "Personality disorders" have been among those conditions that have formed the basis for a diminished-capacity defense. For example, in State v. Moore, 122 N.J. 420, 585 A.2d 864 (1991), defendant had killed his wife and son with a hammer. The defense expert testified that the defendant had been diagnosed as suffering from a borderline personality disorder that had caused a stress-induced psychosis. Id. at 437, 585 A.2d 864. The Court found that the evidence, including that diagnosis, was sufficient to warrant a jury instruction on the diminished-capacity defense. In State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), the Court considered whether the trial court should have charged diminished-capacity defense even in the absence of a request for such an instruction. The defendant, diagnosed with a cyclothymic personality disorder and chronic anxiety disorder, id. at 591, 562 A.2d 1320, savagely killed two people with a knife. Although the Court

found that the evidence did not establish the diminished-capacity defense, that Conclusion was not based on the diagnosis of the defendant's mental condition as a "personality disorder."

The formal characterization of the defendants' mental condition was not critical to our decisions. Rather, in Pitts the Court focused on the causal links between the defendant's mental disorder and the symptoms of that mental state when he killed his victims. The Court determined that the defense expert's testimony had failed to link the defendant's symptoms, which consisted of rage and loss of control, with the diagnosis of a personality disorder. 116 N.J. at 609, 562 A.2d 1320.

The Court also found in Pitts that the evidence demonstrated only a loss of emotional control, not an impairment of the defendant's cognitive function bearing on his capacity to form the intent to commit murder. Id. at 610, 562 A.2d 1320. A similar approach was followed in Moore, in which the Court determined that the diminished-capacity defense was available. It noted that "as thin as the evidence was, it contained a diagnosis of a 'brief reactive psychosis' that defendant suffered at the time of the murder," and that that could be found to have impaired his cognitive function. 122 N.J. at 436-37, 585 A.2d 864. Accordingly, the Court concluded that the defendant had offered evidence from which a jury could have determined that the State had failed to prove the requisite state of mind beyond a reasonable doubt. Id. at 437, 585 A.2d 864.

The Appellate Division here determined that the expert testimony did not justify the diminished capacity defense because it did not show an actual impairment of defendant's cognitive faculties. Rather, the testimony on defendant's mental condition demonstrated that defendant had suffered a "loss of impulse control." The Appellate Division stated, "While it can be said in a general sense that loss of impulse control interferes with a person's ability to think clearly, this is not the type of mental disease or defect which has been recognized by the law as affecting cognitive faculties." In expressing that view, the court relied on and quoted

from another Appellate Division case, State v. Carroll, 242 N.J. Super. 549, 577 A.2d 862 (1990), certif. denied, 127 N.J. 326, ...

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