Fuentes v. State

• Decision Date: 25 November 1975
• Citation: 349 A.2d 1
• Parties: Carmello V. FUENTES, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee.
• Court: Supreme Court of Delaware

Page 1

349 A.2d 1

Carmello V. FUENTES, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee.

Supreme Court of Delaware.

Submitted Sept. 10, 1975.

Decided Oct. 14, 1975.

Revised Nov. 25, 1975.

Upon appeal from Superior Court. Reversed.

Arlen B. Mekler, Asst. Public Defender, Wilmington, for defendant below, appellant.

Peter J. Bosch, John X. Denny, Jr., and David H. Erisman, Deputy Attys. Gen., Wilmington, for plaintiff below, appellee.

Before HERRMANN, C.J., and DUFFY and McNEILLY, JJ.

HERRMANN, Chief Justice.

In this murder case, the determinative issue is the constitutionality of 11 Del.C. § 641. ¹

I.

The defendant was charged with murder in the first degree, 11 Del.C. § 636. ² The jury found the defendant guilty of murder in the second degree, 11 Del.C. § 635. ³ The sentence was life imprisonment.

Extreme emotional distress was considered a defense of mitigation in this case by virtue of § 641. This appeal is founded solely upon the ground that the Trial Judge instructed the jury, under § 641, that the 'law provides that what would otherwise be murder in the first degree would be manslaughter ⁴ if the accused acted under extreme emotional distress'; but that no similar instruction was given as to murder in the second degree. The defendant contended that principles of statutory construction applicable to § 641, due process of law, and equal protection of the laws all require that the 'mitigating circumstance' of extreme emotional distress be available to a defendant charged with murder in the second degree as well as to a defendant charged with murder in the first degree. The State relied squarely upon the unambiguous language of § 641.

II.

The issue has been resolved for us by the recent decision of the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). That case was decided after the trial of the instant case; thus, neither the trial judge nor trial counsel had the benefit of it.

In Mullaney, the law of the State of Maine required a defendant charged with murder (which upon conviction carried a mandatory sentence of life imprisonment) to prove by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce the homicide to manslaughter (in which case the punishment was fine or imprisonment not exceeding 20 years). The Supreme Court held that the Maine rule did not meet the requirement of the Due Process Clause of the Fourteenth Amendment that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged; that to satisfy that requirement, the prosecution must prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented.

In Mullaney, after reviewing the history of common law homicide and the burden of proof problem here under consideration, ⁵ the Court stated:

'This historical review establishes two important points. First, the fact at issue here--the presence or absence of the heat of passion on sudden provocation--has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. And, second, the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact.' 421 U.S. at 696, 95 S.Ct. at 1888, 44 L.Ed.2d at 518.

The rationale of Mullaney appears as follows:

'* * * (T)he criminal law of Maine, like that of other jurisdictions, is concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability. Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor. Because the former are less 'blameworth(y),' State v. Lafferty, 309 A.2d at 671, 673 (concurring opinion), they are subject to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates the interests found critical in Winship.' 421 U.S. at 697--698, 95 S.Ct. at 1889, 44 L.Ed.2d at 519.

'It has been suggested * * * that because of the difficulties in negating an argument that the homicide was committed in the heat of passion the burden of proving this fact should rest on the defendant. No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.

'Nor is the requirement of proving a negative unique in our system of criminal jurisprudence. Maine itself requires the prosecution to prove the absence of self-defense beyond a reasonable doubt. * * * Satisfying this burden imposes an obligation that, in all practical effect, is identical to the burden involved in negating the heat of passion on sudden provocation. Thus, we discern no unique hardship on the prosecution that would justify requiring the defendant to carry the burden of proving a fact so critical to criminal culpability.

'Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is As likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter. * * * We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.' 421 U.S. at 701--704, 95 S.Ct. at 1891--92, 44 L.Ed.2d at 521--22 (emphasis in text).

The term 'extreme emotional distress', established as a mitigating circumstance by § 641, is a substitute for our prior common law defense of 'provocation'. See Delaware Criminal Code, Commentary on §§ 632, 641; compare State v. Winsett, Del.Super., 8 Storey 111, 205 A.2d 510, 516 (1964). ⁶ Here, as in Maine, there is a wide divergence in the penalty provisions for homicide offenses: for first degree murder, the penalty may be death or life imprisonment (11 Del.C. § 4209); for second degree, mandatory life imprisonment (11 Del.C. § 4205(b)(1)); and for manslaughter, 3 to 30 years (11 Del.C. § 4205(b)(2)). Thus, under § 641, as in Mullaney, the degree of culpability, rather than guilt or innocence, is at stake. Neither involved an 'affirmative defense' in the full sense of the term, I.e., a defense that might lead to acquittal. And the burden of proof imposed upon the defendant was substantially the same under Maine law and § 641. Thus, the analogy between Maine law, stricken down by Mullaney, and our § 641 is unmistakable.

The State contends that Mullaney is inapplicable here because under Maine law, as contrasted with ours, 'all intentional or criminally reckless homicides were felonious homicides--a single offense of which murder and manslaughter merely constituted categories of punishment.' In our view, neither the rationale nor the conclusion of Mullaney is made inapplicable in the instant case for that reason. See People v. Balogun, N.Y.Supr., 372 N.Y.S.2d 384 (1975). The State relies upon Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), referred to in the concurring opinion in Mullaney. In Leland, the Court declined to apply to the states the specific holding of Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), which rejected the rule of Commonwealth v. York, 50 Mass. (9 Met.) 93 (1845), in federal prosecutions concerning insanity defenses. The State's reliance on Leland in an extreme emotional distress case is misplaced in view of the explicit holding of Mullaney.

Accordingly, we hold that all of § 641 except the first sentence must fall as being violative of the Due Process Clause.

This question remains: may the first sentence of the Section be severed and stand alone? We think not.

It is our opinion that, beyond doubt or question, the General Assembly would not have enacted the first sentence of § 641 alone without the remainder of the Section. See 1 Del.C. §§ 301, 308; State v. Dickerson, Del.Supr., 298 A.2d 761 (1972); Delaware Criminal Code, Commentary on § 641. Standing alone, the first sentence of § 641 is merely repetitious of § 632(3) and no useful purpose would appear therefor. We conclude that the first sentence of § 641 must fall with the remainder.

Accordingly, we hold that § 641 is wholly unconstitutional and invalid under Mullaney. ⁷

III.

Without § 641, evidence of extreme emotional distress in a murder case becomes simply a matter of evidence tending, under § 302(b) ⁸ of the Code, to negate the existence of an essential element of murder of either degree, reducing it to manslaughter under § 632. It is not a 'defense', within the provisions of § 303, ⁹ prescribing the burden of proof as to defenses because, without § 641, it is no longer a 'defense defined by this code or by another statute'.

Governed as it now will be by § 302(b), the introduction by the defendant of credible evidence of extreme emotional distress entitles him 'to a jury instruction that the jury must consider whether the evidence raises a reasonable doubt as to the defendant's guilt.' In the language of the Commentary on § 302, subsection (b)

'permits the defendant to raise any evidence he has tending to negate an element of the offense, and, if the evidence is credible (I.e., suitable to be considered by the jury), he is...