People v. Patterson

• Decision Date: 01 April 1976
• Parties: , 347 N.E.2d 898 The PEOPLE of the State of New York, Respondent, v. Gordon G. PATTERSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 573

383 N.Y.S.2d 573

39 N.Y.2d 288, 347 N.E.2d 898

The PEOPLE of the State of New York, Respondent, v. Gordon G. PATTERSON, Appellant.

Court of Appeals of New York.

April 1, 1976.

Betty D. Friedlander, Waverly, and Victor J. Rubino, New York City, for appellant.

John M. Finnerty, Dist. Atty., Bath, for respondent.

JASEN, Judge.

The principal issue on this appeal is whether, in a murder prosecution, constitutional due process limitations are invaded by placing the burden of persuasion on a defendant with respect to the defense of acting 'under the influence of extreme emotional disturbance' in order to reduce the homicide to the less culpable crime of manslaughter in the first degree.

The defendant, Gordon Patterson, and his wife, Roberta, had a highly unstable marital relationship, marked by recurring verbal arguments and physical assaults. As a result of one such incident, Roberta Patterson left her husband and instituted divorce proceedings. She also resumed dating John Northrup, a neighbor to whom she had been engaged prior to her marriage to the defendant. On December 27, 1970, the defendant, carrying a borrowed rifle, went to his father-in-law's residence and observed his wife in a state of semiundress in John Northrup's presence. Thereupon, he entered the house and shot Northrup twice in the head, killing him. The defendant confessed to the killing and, after a hearing, the confession was held voluntary and was admitted into evidence against him at trial. Defendant's wife, an eyewitness to the crime, testified, over objection of defense counsel, that defendant fired two shots at the victim from close range. The defense called 11 witnesses, including the defendant, who testified in great detail as to the defendant's life and particularly that period of his wife when he was married to Roberta Patterson. The defense at the trial was that the crime, if there was one, was unintentional. This was based on defendant's version of events to the effect that the gun went off accidentally. Defendant also raised the affirmative defense that at the time of the alleged crime, he was acting under the influence of extreme emotional disturbance.

The court's charge to the jury was based on the homicide provisions of the Penal Law (§ 125.25, subd. 1, par. (a) ¹; § 125.2 subd. 2). ² The jury was instructed that '(t)he mere fact that the defendant fired a gun and thereby killed John Northrup does not, alone, suffice to establish his guilt of murder. The offense, as here charged, is an intent crime, and the law requires that it be proved beyond a reasonable doubt that the defendant acted intentionally.' The People were required to establish beyond a reasonable doubt that the defendant 'intended, in firing the gun, to kill either the victim himself or some other human being.' To find intent, the jury had to conclude that the defendant had the 'conscious objective to cause death, and that his act or acts resulted from that conscious objective.' The jury was cautioned that they 'must not expect or require the defendant to prove to your satisfaction that his acts were done without the intent to kill. Whatever proof he may have attempted, however far he may have gone in an effort to convince you of his innocence or guiltlessness, he is not obliged, he is not obligated to prove anything. It is always the People's burden to prove his guilt, and to prove that he intended to kill in this instance beyond a reasonable doubt.'

With respect to the defense of extreme emotional disturbance, the court stated that the point of this evidence was to convince the jury, by a preponderance of the evidence, that 'the defendant's apparent intention to cause death, if you should find there was such, was not the result of a calm and calculating decision on his part, but that it was influenced by extreme emotional disturbance.' The court did not elaborate on the definition of 'extreme emotional disturbance', noting that the words are 'self-evident in meaning'. However, the court cautioned that "extreme' precludes mere annoyance or unhappiness or anger, but requires disturbance excessive and violent in its effect upon the defendant experiencing it.' As to the burden of proof, the court repeated its earlier instruction that 'generally, the burden rests on the prosecution to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. In this respect, the defendant's raising of an affirmative defense makes a slight variation; although the rule still stands, generally, as to proof of the whole case, the burden of proving his affirmative defense--that indeed his acts were under extreme emotional disturbance which appears, reasonably, to be an explanation or excuse--is placed upon the defendant himself. The District Attorney is not required to deny this excuse.'

Finally, the court instructed the jury that '(t)he fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree'. The court went on to explain that '(t)his does not mean that the emotional disturbance exonerates the killer, or renders his killing guiltless. As long as he actually intended to cause the death of another person * * * the killing remains a crime, and remains a homicide, but is punishable in less severe manner than murder.' No objection was taken to the above-quoted portions of the court's charge. ³

The jury found the defendant guilty of murder. The Appellate Division unanimously affirmed the judgment of conviction.

During the pendency of this appeal, the United States Supreme Court decided the case of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, wherein the court, passing on a Maine statute, held 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 p. 704, 95 S.Ct., at p. 1892.) Defendant argues that Mullaney is controlling in this case and requires the striking down of sections 125.20 and 125.25 of the Penal Law to the extent that they require a defendant charged with murder to bear the burden of proving the affirmative defense that he acted under the influence of extreme emotional disturbance.

At the threshold we are confronted with two procedural issues. The first is whether the defendant has preserved a question of law for our review, and, secondly, even if he has, whether Mullaney should be applied retroactively to a trial already completed. The defendant's constitutional contentions are based entirely upon a reading of the Mullaney decision. The jury was charged by the court on June 7, 1971, four years and two days in advance of Mullaney. At that time none of the various affirmative defenses contained in the 1967 revision of the Penal Law had yet been attacked on due process grounds. (See People v. Laietta, 30 N.Y.2d 68, 330 N.Y.S.2d 351, 281 N.E.2d 157, cert. den., 407 U.S. 923, 92 S.Ct. 2471, 32 L.Ed.2d 809 (affirmative defense of entrapment).) In May, 1973, when the Appellate Division affirmed the judgment of conviction, there was no intimation that the homicide provisions might be vulnerable to serious constitutional challenge. In fact, the initial brief filed by appellant in our court did not raise a due process argument. The point was raised for the first time in a supplemental brief prepared after Mullaney was handed down.

Our court, with a narrow exception applicable in capital cases, is strictly a law court. A failure to object to a charge at a time when the trial court had an opportunity to effectively correct its instructions does not preserve any question of law that this court can review. (CPL 470.05, subd. 2; People v Robinson, 36 N.Y.2d 224, 228, 367 N.Y.S.2d 208, 210, 326 N.E.2d 784, 786.) Strict adherence to the requirement that complaint be made in time to permit a correction serves a legitimate State purpose. (Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 13 L.Ed.2d 408.) A defendant cannot be permitted to sit idly by while error is committed, thereby allowing the error to pass into the record uncured, and yet claim the error on appeal. Were the rule otherwise, the State's fundamental interest in enforcing its criminal law could be frustrated by delay and waste of time and resources invited by a defendant. While the review by this court is restricted, on the initial appeal to the Appellate Division, that court, with its broader powers of review, may consider claims of error, notwithstanding a failure to object. (CPL 470.15; People v. Robinson, supra.)

There is one very narrow exception to the requirement of a timely objection. A defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings prescribed by law. (Cancemi v. People, 18 N.Y. 128, 138; People ex rel. Battista v. Christian, 249 N.Y. 314, 319, 164 N.E. 111, 113.) In Cancemi, it was held that a defendant could not consent to being tried by a jury of less than 12 members. In People ex rel. Battista v. Christian (supra), the court ruled that an information charging a defendant with an 'infamous' crime was a nullity, despite defendant's consent, where the State Constitution provided that infamo crimes could be prosecuted only by Grand Jury indictment. Thus, the rule has come down to us that where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below. (People v. Bradner, 107 N.Y. 1, 4--5, 13 N.E. 87, 88; see People v. Miles, 289 N.Y. 360, 363--364, 45 N.E.2d 910, 912.)

This traditionally limited exception has, on occasion, been given broader expression. In People v. McLucas, 15...