Hughes v. Mathews

• Citation: 576 F.2d 1250
• Decision Date: 06 June 1978
• Docket Number: No. 77-2010,77-2010
• Parties: Jeffrey Ames HUGHES, Petitioner-Appellee, v. James MATHEWS, Warden, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1250

576 F.2d 1250

Jeffrey Ames HUGHES, Petitioner-Appellee, v. James MATHEWS, Warden, Respondent-Appellant.

No. 77-2010.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 24, 1978.

Decided May 12, 1978.

As Amended June 6, 1978.

Pamela Magee-Heilprin, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for respondent-appellant.

Charles Bennett Vetzner, Post-Conviction Defense Project, Madison, Wis., for petitioner-appellee.

Before CASTLE, Senior Circuit Judge, and SWYGERT and WOOD, Circuit Judges.

CASTLE, Senior Circuit Judge.

This appeal from the granting of a writ of habeas corpus to a state prisoner presents the general problem of integrating the disciplines of law and psychiatry in a usable, if not precise, manner. The particular questions to be resolved are: (1) whether a rebuttable presumption that a person intends the probable consequences of his acts coupled with an exclusion of all psychiatric evidence offered to show lack of capacity to form intent, unconstitutionally relieves the prosecution of proving the intent element of the crime; and (2) whether an evidentiary rule excluding psychiatric testimony on the issue of specific intent, by itself, is impermissible. Finding that both questions must be answered in the positive, we affirm.

I.

The facts are stated in detail in the Wisconsin Supreme Court opinion, Hughes v. State, 68 Wis.2d 159, 227 N.W.2d 911 (1975), and will be briefly summarized here. After a period of marital difficulties, petitioner and his wife, Jacquelin Hughes, entered into a formal separation agreement and divorce proceedings were commenced. In the early morning hours of February 25, 1973, following a telephone argument regarding petitioner's scheduled visitation with his five-year-old daughter, petitioner broke into the house of his wife's parents, Mr. and Mrs. Gross, where his wife and daughter were staying. Mrs. Gross escaped to the home of a neighbor and telephoned Mr. Gross, who was at work, and the police. After the neighbor, Mr. Kasprzak, went to the Gross house to attempt to calm the petitioner, Mrs. Gross heard two loud noises. When the police arrived, they found petitioner with his daughter in the living room and Mrs. Hughes and Mr. Kasprzak dead of gunshot wounds in the basement.

Petitioner was charged with two counts of first-degree murder and, under Wisconsin's bifurcated trial system, he pleaded not guilty and not guilty by reason of mental disease or defect. ¹ Prior to the trial, petitioner was examined by court-appointed psychiatrists. Upon receiving the psychiatric report, petitioner withdrew his plea of not guilty by reason of mental disease or defect and proceeded only upon the not guilty plea. As explained by his counsel at the pretrial conference, it was petitioner's theory of defense that he lacked the requisite specific intent for first-degree murder and was guilty only of second-degree murder. ² (Tr. 25, 71.) At trial, after the close of the state's case, petitioner called a psychiatrist to testify regarding petitioner's mental state at the time of the act. The trial court granted the prosecutor's motion to exclude the psychiatrist's testimony and the defense made the following offer of proof If Dr. Kevin Kennedy were called as a witness . . . he would testify that at the time, (defendant) was suffering from a depraved mind and that he was, in forensic psychiatry, termed an antisocial personality or a psychopath, and that an abnormal mental condition prevented him from forming the specific intent to kill.

(Tr. 548-549.) The defense offered no other evidence and, after being given instructions, including one regarding the legal presumption of intent, the jury found the petitioner guilty on both counts. The court imposed two consecutive life sentences.

The Wisconsin Supreme Court subsequently affirmed petitioner's conviction. Hughes v. State, supra. The Wisconsin opinion, in relevant part, rejected petitioner's argument that since specific intent is an element of first-degree murder, psychiatric evidence must be admitted to enable a defendant to rebut the legal presumption that a person intends the natural and probable consequences of his acts. In so deciding, the Wisconsin Supreme Court cited several of its prior decisions ³ which held that psychiatric evidence was admissible only on the issue of insanity.

Petitioner then filed for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254. After examining established Wisconsin policy against admitting psychiatric evidence on intent, the district court granted the writ. Hughes v. Mathews, 440 F.Supp. 1272 (E.D.Wis.1977). The state brought this appeal.

II.

We begin by examining several aspects of Wisconsin law relevant to our inquiry. First, Wisconsin statutes provide for first- and second-degree murder ⁴ which are distinguished only by the degree of intent required for conviction. One who causes the death of another by conduct "evincing a depraved mind" is guilty only of second-degree murder since he

has a general intent to do the acts and the consciousness of the nature of the acts and possible result but lacks the specific intent to do the harm.

State v. Weso, 60 Wis.2d 404, 411-12, 210 N.W.2d 442, 446 (1973). See also Wagner v. State, 76 Wis.2d 30, 48, 250 N.W.2d 331, 341 (1977) (intent to kill is not an element of second-degree murder).

Second, Wisconsin has established a rebuttable presumption of intent: "(t)he law presumes a person intends the natural and probable consequences of his own acts but the presumption may be rebutted." State v. Carlson, 5 Wis.2d 595, 604, 93 N.W.2d 354, 359 (1958). ⁵ See also State v. Wells, 51 Wis.2d 477, 483-84, 187 N.W.2d 328, 331 (1971), cert. denied,406 U.S. 907, 92 S.Ct. 1614, 31 L.Ed.2d 817 (1972). In the present case, the state trial court instructed the jury on the presumption of intent: "when there are no circumstances to prevent or rebut the presumption, the legal and natural presumption is that death was intended." (Wis. J.I. Crim. 1100.)

Finally, as noted above, Wisconsin provides for a bifurcated trial system when a defendant pleads not guilty and not guilty by reason of mental disease or defect. ⁶ This section effectuates Wis.Stats. § 971.15 (1975) which establishes and defines the insanity defense in accordance with §§ 4.01 and 4.03 of the American Law Institute's Model Penal Code (ALI-MPC). ⁷ Significantly, ALI-MPC § 4.02, which specifically provides for admissibility of evidence regarding mental disability whenever such evidence was relevant to the state of mind element of the offense, was not enacted by the Wisconsin legislature. The rejection of § 4.02, the mandatory language of § 971.175 regarding the sequential order of proof, and several public policy considerations, led the Wisconsin Supreme Court to refuse to admit psychiatric testimony on the issue of intent during the guilt portion of a bifurcated trial. See Sprague v. State, 52 Wis.2d 89, 187 N.W.2d 784 (1971) and cases cited note 3 supra. This rule excluding psychiatric evidence on the issue of intent was extended to single stage trials, where no insanity defense was raised, in Muench v. State, supra note 3, and was reaffirmed in Hughes v. State, supra. ⁸

III.

Given this factual and state law background, we consider first the validity of Wisconsin's instruction on presuming intent where the presumption cannot be rebutted by psychiatric evidence that the defendant lacked specific intent. The Supreme Court has held that all elements of a crime must be proven by the prosecution beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (state must prove criminal intent to convict defendant of murder). A conclusive presumption which relieves the state of its duty to prove all elements of the crime beyond a reasonable doubt is, therefore, unconstitutional. See Morrissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

In Wisconsin, specific intent to kill is an element of first-degree murder and is the sole factor which distinguishes that crime from second-degree murder. The district court reasoned that by instructing the jury that all persons are presumed to have intended the consequences of their acts unless facts or circumstances rebut the presumption and then prohibiting the petitioner from presenting those facts, Wisconsin constructed an irrebuttable presumption of intent which improperly relieved the prosecution of the burden of proving that element of the crime. Hughes v. Mathews, supra at 1275.

In response, the State argues that the petitioner was free to rebut the presumption by introducing other evidence, such as that showing mistake or accident, which would negate specific intent. The State, citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) and Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), maintains that it has merely chosen not to recognize the defense of lack of capacity to intend which is within its legitimate power over the criminal process. However, these cases are clearly inapplicable since they merely recognize the right of the state to shift the burden of persuasion to the defendant on affirmative defenses to crimes. Specific intent to kill is an "element" of first-degree murder in Wisconsin, Wagner v. State, supra, and is not a "defense" to the crime. While a state has the power, within constitutional limits, to define its crimes as it wishes, once it has stated what combination of factors constitutes a crime it must prove each of them beyond a reasonable doubt. ⁹ Thus, the district court was correct in holding that by instructing the jury to presume intent if not rebutted, and by excluding psychiatric evidence offered to rebut the presumption, Wisconsin set up a conclusive presumption which unconstitutionally relieved ...