People v. Kohl

• Decision Date: 07 June 1988
• Parties: , 527 N.E.2d 1182 The PEOPLE of the State of New York, Respondent, v. John KOHL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 45

532 N.Y.S.2d 45

72 N.Y.2d 191, 527 N.E.2d 1182

The PEOPLE of the State of New York, Respondent, v. John KOHL, Appellant.

Court of Appeals of New York.

June 7, 1988.

Clark J. Zimmermann, Batavia, for appellant.

Michael F. Griffith, Dist. Atty., Warsaw, (Valerie Friedlander, Albany, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

The decisive issue is whether Penal Law § 40.15, defining New York's affirmative defense of mental disease or defect, violates the State constitutional Due Process Clause because Penal Law § 25.00(2) places the burden of proof by a preponderance of evidence on defendants for all affirmative defenses. We conclude that there is no State constitutional violation because placing this burden on the defendant does not relieve or transform the People's primary and constant burden of proving, beyond a reasonable doubt, all the elements of the crimes charged, including all components of the applicable culpable mental state element. Thus, we affirm the Appellate Division order upholding the conviction, 129 A.D.2d 987, 514 N.Y.S.2d 154.

Defendant rented a house on a dairy farm in which he resided with his girlfriend and their infant son. On May 13, 1985, Peter Schiltz took his two sons, aged 2 and 3, with him to the dairy farm to deliver feed. When the delivery was completed, Schiltz lifted his sons into the front seat of his truck and started to leave. Defendant came out of his house and fired shots from a .12 gauge shotgun into the front seat. The initial shots killed one son and wounded the other and Schiltz. Returning to his house, defendant told his girlfriend that the man outside had sexually assaulted defendant's children. Defendant reloaded the gun and ran out screaming, "I got to get him. He's getting away." Schiltz had staggered to the barn where defendant stalked him, firing two more shots. Schiltz was on his hands and knees pleading for his life when defendant fired two final, fatal shots, saying, "Take that, you son of a bitch." The owner of the farm appeared and yelled, "Why, why did you do this?" Defendant said that Schiltz was going to pay one of his sons to sexually assault defendant's infant son. Before the police arrived, defendant assured his girlfriend, "They can't hurt me. I'm from another planet."

Defendant was charged with two counts each of intentional and depraved mind murder, second degree, and one count each of intentional and depraved mind assault, first degree. He waived his right to jury trial (CPL 320.10), and indicated that he would assert the affirmative defense of mental disease or defect (Penal Law § 40.15).

At the bench trial, the prosecution at first concentrated on the factual developments by testimony of the eyewitnesses. The defense then called the defendant's girlfriend and his mother, who testified defendant frequently complained of severe head pains and exhibited bizarre behavior. Two psychiatrists, as experts for defendant, added that he was suffering from schizophrenia, paranoid type. The People presented two psychiatrists who, after examination of defendant, concluded he was not suffering from any mental disease or defect. Three of these psychiatrists agreed that at the time defendant fired the gun he intended to shoot his victims and that it was reasonable to conclude that defendant knew that firing a gun could kill his victims.

The trial court found defendant guilty of intentional murder of Schiltz, depraved mind murder of one son, and depraved mind assault of the other son. The trial court expressly found that "each and every element of those three counts * * * have been proven beyond a reasonable doubt" and that "defendant has failed to prove by a preponderance of the evidence that he should be found not guilty because he lacked criminal responsibility by reason of mental disease or defect".

In New York, criminal responsibility may be avoided if "as a result of mental disease or defect, [defendant] lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong" (Penal Law § 40.15). Prior to 1984, the so-called insanity defense was catalogued as a traditional defense which the prosecution bore the burden of disproving beyond a reasonable doubt, in addition to its usual burden as to all elements of the crimes charged (Penal Law § 25.00[1]; and former § 30.05[2] ). The prosecution, of course, enjoyed the presumption that all persons are sane. Thus defendant, even under former law, bore some burden of coming forward with evidence rebutting the presumption of sanity ( see, People v. Silver, 33 N.Y.2d 475, 480-481, 354 N.Y.S.2d 915, 310 N.E.2d 520; Brotherton v. People, 75 N.Y. 159, 162-163). The presumption, however, was rebuttable: "[the] slightest creditable attack * * * even 'non-psychiatric proof' alone might overcome the presumption and sustain a verdict of acquittal" ( People v. Silver, supra, 33 N.Y.2d at 481-482, 354 N.Y.S.2d 915, 310 N.E.2d 520). In 1984, after years of intensive study and debate, the Legislature repealed Penal Law § 30.05 and substituted Penal Law § 40.15, which made mental disease or defect an "affirmative" defense (L.1984, ch. 668; see also, Donnino, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 40.15, at 141-144; McQuillan, Insanity as Affirmative Defense--A Proposed Standard in New York, N.Y.L.J., June 22, 1987, at 1, col. 3; 1981 Report of N.Y.Law Rev.Commn., 1981 N.Y.Legis.Doc. No. 65, reprinted in 1981 McKinney's Session Laws of N.Y., at 2251-2293).

The United States Supreme Court has upheld several statutes placing the burden of proof for insanity on a defendant. In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, reh. denied 344 U.S. 848, 73 S.Ct. 4, 97 L.Ed. 659, a murder conviction was challenged on the ground that requiring defendant to prove insanity beyond a reasonable doubt at the time of the murder violated due process under the 14th Amendment. The Supreme Court upheld the Oregon statute, noting that the burden of proving premeditated design--that statute's mens rea--was on the People initially and at no time shifted to the defendant. Defendant, on the other hand, had the burden of proving insanity--a legally distinct issue. The Supreme Court gave special weight to the fact that the jury was instructed that they first had to consider whether the People had sustained their full burden, and that only if satisfied beyond a reasonable doubt of defendant's guilt could the jury then turn to the issue of defendant's insanity and his burden in respect to it (see also, Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160).

In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, defendant was charged with murder under a Maine homicide statute. Defendant raised that State's statutory affirmative defense, which placed on defendant the burden of proving "heat of passion on sudden provocation". The jury was instructed that the "malice aforethought" component of the Maine statute was an indispensable element of the crime and that "malice" could be implied from a deliberate act committed suddenly, without provocation. Consequently, the prosecution's burden of proving malice was satisfied by a presumption and the prosecution was never required to come forward with evidence of malice. The instruction emphasized that " 'malice aforethought and heat of passion on sudden provocation are two inconsistent things' * * * thus by proving the latter the defendant would negate the former" ( see, Mullaney v. Wilbur, supra, at 686-687, 95 S.Ct. at 1883). The Supreme Court held that, under this statutory scheme and jury instruction, defendant's Federal due process rights were transgressed because the prosecution could rest on a presumption of malice throughout the trial, while the defendant was required to negate that very presumption with proof that he acted under the heat of passion, thus causing defendant to disprove directly a presumed essential element of the crime charged.

Those cases were building blocks to People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, where we and the Supreme Court itself upheld, against a Federal constitutional due process challenge, New York's affirmative defense of extreme emotional disturbance (Penal Law § 125.25[1] ). We analogized that affirmative defense to the Oregon statute in Leland and distinguished it from the Maine statute in Mullaney, saying: "[The] prosecution is at all times required to prove, beyond a reasonable doubt, the facts bearing [on] the defendant's intent. That the defendant acted because of an extreme emotional disturbance does not negate intent. The influence of an extreme emotional disturbance explains the defendant's intentional action, but does not make the action any less intention (39 N.Y.2d, supra, at 302, 383 N.Y.S.2d 573, 347 N.Y.S.2d 898). The Supreme Court affirmed (432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281) and held: "This affirmative defense * * * does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion" ( id., at 206-207, 97 S.Ct. at 2325; see also, Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 1103, 94 L.Ed.2d 267 [1987] ).

Recognizing the high hurdles impeding a successful Federal constitutional challenge defendant asserts that the New York State Constitution should provide a more stringent due process standard than that allowed by the Supreme Court cases, and that, alternatively, New York's presumpti of sanity renders Penal Law § 40.15 unconstitutional.

In determining whether to exercise independent judgment under the New York State Constitution to provide greater protection than the due process floor set by the Supreme Court, we first look to the texts of...