McCarthy v. State

• Decision Date: 09 February 1977
• Parties: Michael A. McCARTHY, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 180

372 A.2d 180

Michael A. McCARTHY, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee.

Supreme Court of Delaware.

Submitted Jan. 19, 1977.

Decided Feb. 9, 1977.

Upon appeal from Superior Court. Affirmed.

Carl Schnee and David E. Brand, of Schnee & Castle, Wilmington, for defendant below, appellant.

Edward C. Pankowski, Jr., Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

Before HERRMANN, Chief Justice, DUFFY and McNEILLY, Justices.

HERRMANN, Chief Justice:

The defendant was convicted on two counts of rape in the first degree (11 Del.C. § 764); ¹ one count of attempted rape in the first degree (11 Del.C. § 531); ² and one count of kidnapping in the second degree (11 Del.C. § 783). ³ He appeals on several grounds, including (1) the Trial Judge's failure to instruct the jury on the doctrine of 'diminished responsibility'; and (2) the unconstitutionality of 11 Del.C. § 403, ⁴ Delaware's Statute dealing with the commitment of a defendant upon a verdict of 'not guilty by reason of insanity.'

The charges and conviction stem from three separate incidents; upon the defendant's application, based upon his intent to assert insanity as an affirmative defense, ⁵ all four charges were tried together. At trial, although admitting the offenses, the defendant pleaded not guilty and produced expert testimony addressed to the defense of insanity. The jury returned guilty verdicts on all four charges, and the defendant was sentenced to four concurrent life sentences.

I.

As to the defendant's contention that the Trial Court erred in failing to charge the jury on the doctrine of 'diminished responsibility', the basic theory underlying the doctrine can be stated as follows:

(S)ince certain crimes, by definition, require the existence of a specific intent, any evidence relevant to the existence of that intent, including evidence of an abnormal mental condition not constituting legal insanity, is competent for the purpose of negating that intent. . . . (Thus) the actual purpose of such evidence is to establish, by negating the requisite intent for a higher degree of the offense, that in fact a lesser degree of the offense was committed.

Annot., 22 A.L.R.3d 1228, 1238 (1968). It is fundamental that the doctrine of diminished responsibility is not intended to supplant the test of mental illness; it is only after a defendant has been determined to be 'criminally responsible' for his actions, I.e. legally sane, that the doctrine has been considered applicable to determine the degree of the offense for which he will be held responsible.

There is a broad spectrum of judicial opinion as to the acceptability of medical testimony adduced for the purpose of establishing such diminished responsibility. The contrariety of judicial reaction has ranged from total inadmissibility, (Commonwealth v. Fleming, 360 Mass. 404, 274 N.E.2d 809 (1971); State v. Malumphy, 105 Ariz. 200, 461 P.2d 677 (1969)) to admissibility for the purpose of negating an element of the offense charged and allowing conviction upon some lesser-included offense only (United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972); People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492 (1959)). It appears that, '(t)he majority of courts which have held (medical evidence) admissible upon the issue of intent or mental state have permitted it (only) for the purpose of negating the premeditation or deliberation requirement to first degree murder.' Annot., supra at 1232; see also State v. DiPaolo, 34 N.J. 279, 168 A.2d 401 (1961). No case has been brought to our attention in which the doctrine of diminished responsibility has been applied to statutory offenses such as are here involved.

The doctrine of diminished responsibility was left an open question in this State in Wierzbicki v. State, Del.Supr., 293 A.2d 564 (1972), wherein the question presented here was not reached. ⁶ There, this Court cautioned, however, that the 'question should be thoroughly considered before the practice is established for all criminal prosecutions of accepting such evidence which admittedly would not support the defense of insanity under the law of Delaware.' Id. at 566--67.

Since Wierzbicki, the General Assembly specifically addressed the doctrine of diminished responsibility. In a proposed § 407 of the new Criminal Code, the doctrine was explicitly recognized; ⁷ prior to its effective date, however, the provision was repealed. See 59 Del.Law, c. 203, § 36. We find it unnecessary to speculate in this case upon the intent of the General Assembly in deleting the proposed § 407; sufficient for present purposes is our conclusion that the doctrine is inapplicable to the particular offenses for which the defendant in this case was charged.

Our rejection of the doctrine in the instant case is based primarily upon its basic inconsistency to the offenses here involved. As previously noted, the salient aspect of the diminished responsibility doctrine is that it does not relieve the defendant of criminal responsibility. Like 'extreme emotional distress', it is a defense of mitigation only. Fuentes v. State, Del.Supr., 349 A.2d 1 (1975). Criminal responsibility exists, but only for an offense for which the general Mens rea can be found. In practice under the doctrine, while conviction for an offense requiring a specific intent was foreclosed, conviction for a lesser-included crime, requiring only a general criminal intent, was not. This specific intent--general intent dichotomy explains not only the application of the doctrine in the first degree murder cases wherein the specific intent element of premeditation and deliberation are negated, see State v. DiPaolo, supra; State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964), but also the seemingly more liberal application of the doctrine in cases such as assault and battery with intent to kill, Bimbow v. State, Ind.App., 315 N.E.2d 738 (1974); first degree forgery, requiring specific intent to defraud, State v. Conklin, 70 Wash.2d 805, 489 P.2d 1130 (1971); assault with intent to commit murder, State v. Welsh, 8 Wash.App. 719, 508 P.2d 1041 (1973); and entering a building with intent to commit theft, People v. Taylor, Cal.App., 33 Cal.Rptr. 654 (1963). In each of these instances, the requisite specific intent constituted an aggravating factor to an otherwise general Mens rea offense and the doctrine was applied to permit a finding of the lesser offense. ⁸

As the above cases illustrate, acceptance of the doctrine requires that there be some lesser-included offense which lacks the requisite specific intent of the greater offense charged. Otherwise, the doctrine of diminished responsibility becomes an impermissible substitute test of criminal responsibility. See People v. Nance, 23 Cal.App.3d 925, 102 Cal.Rptr. 266, 268--69 (1972).

In the instant case, there are no such lesser-included offenses within those for which the defendant was charged and tried. The acceptance of the doctrine in this case therefore, would be inconsistent with the theory's basic purpose. Accordingly, we find no error in the Trial Judge's failure to instruct the jury on the doctrine of diminished responsibility.

II.

Defendant challenges the constitutionality of 11 Del.C. § 403(a) upon the ground that the provision for immediate and mandatory confinement upon a verdict of 'not guilty by reason of insanity' is violative of both the Equal Protection and Due Process Clauses. This issue is not properly before us. The mandatory commitment provision of § 403(a) becomes operative only 'upon the rendition of a verdict of 'not guilty by reason of insanity ". In this case, the jury returned guilty verdicts on all four counts. Not being subject to the operation of § 403(a), the defendant lacks standing to raise these constitutional issues.

III.

The defendant alleges a number of additional grounds for reversal of his conviction. Among these are: (1) the Trial Court erred in not instructing the jury as to the disposition of a case under § 403 upon a finding of not guilty by reason of insanity; (2) the defendant should not have had the burden of proof as to the issue of mental illness; (3) the State's cross-examination of the defendant's character witness was prejudicial and improper; (4) the prosecutor committed error by informing the jury in his opening statement that the defendant would rely on the defense of mental illness; (5) the rebuttal testimony of the State's expert witnesses was improper; (6) there was insufficient evidence to support the conviction on one of the counts of rape.

We find each of these grounds of appeal to be without merit.

A.

This Court has recently had occasion to consider and reject allegations of error for failure to instruct the jury as to the ultimate disposition of a case pursuant to § 403 and for placing on the defendant the burden of proof as to the issue of mental illness. Hand v. State, Del.Supr., 354 A.2d 140 (1976); Rivera v. State, Del.Supr., 351 A.2d 561 (1976). These cases are dispositive, respectively, of defendant's contentions, and we adhere to them.

Similarly, on the issue of cross-examining a defense character witness, our decision in DeJarnette v. State, Del.Supr., 338 A.2d 117 (1975), upholding the wide discretion of the Trial Judge in ruling upon the permissible scope of such cross-examination, is dispositive. Upon the facts of this case, we cannot say that discretion was abused.

B.

The defendant contends that the examination of the defendant by the State psychiatrists improperly went beyond the guidelines established for such examinations in State v. Mulrine, Del.Super., 183 A.2d 831 (1962); particularly, that there was violation of the caveat that '(n)o attempt will be made to get admissions from (the) defendant or to determine his guilt or innocence.' Id. at 833. The defendant argues that his being specifically asked about the incidents in question led to improper admissions. Mulrine is...