State v. Breakiron

• Decision Date: 22 May 1986
• Citation: 510 A.2d 80,210 N.J.Super. 442
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Robert A. BREAKIRON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 442

210 N.J.Super. 442

510 A.2d 80

STATE of New Jersey, Plaintiff-Respondent, v. Robert A. BREAKIRON, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 7, 1985.

Decided May 22, 1986.

Richard John Baldi, Asst. Deputy Public Defender, for defendant-appellant (Thomas S. Smith, Jr., Acting Public Defender, attorney; Blanca Rodriguez Cruz, Asst. Deputy Public Defender, of counsel and on brief).

Carol M. Henderson, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen. New Jersey, atty.; Carol M. Henderson, Deputy Atty. Gen., of counsel and on brief).

Before Judges FRITZ, BRODY and BAIME.

The opinion of the court was delivered by

BRODY, J.A.D.

Defendant strangled Theresa Caizza with a knotted towel for several minutes until she died from asphyxia, a lack of oxygen in her body tissues. The couple had been living together for four months and were about to be married. A jury rejected defendant's insanity defense and found him guilty of purposeful or knowing murder ( N.J.S.A. 2C:11-3(a)(1) or (2)) and other crimes related to his flight: second-degree kidnapping of the victim's three-year-old daughter ( N.J.S.A. 2C:13-1(b)(1)), third-degree burglary of the home of the victim's mother and stepfather ( N.J.S.A. 2C:18-2) and third-degree theft of the mother's and stepfather's car ( N.J.S.A. 2C:20-3(a)). The trial judge imposed concurrent prison terms of 30 years without parole for the murder, 7 years for the kidnapping, 4 years for the burglary and 4 years for the theft. The main issue raised on this appeal is whether the trial judge erred in refusing to submit to the jury the defense of diminished capacity ( N.J.S.A. 2C:4-2). We conclude that his ruling was correct, but not for the reason he gave.

Two psychiatrists testified, one for each side. Dr. Seymour Kuvin testified that defendant suffered from schizophrenia, a mental disease that Dr. Kuvin believed rendered defendant unable to "formulate an intent to knowingly or willfully kill Theresa Caizza" and unable to "understand the nature and quality of his acts." Dr. Steven Simring testified in rebuttal for the State. In his opinion, defendant did not suffer from schizophrenia because he had never experienced delusions or hallucinations which are essential symptoms of the disease. He concluded that defendant suffered from an "antisocial personality disorder" that did not prevent him from acting purposefully or knowingly or from understanding the nature and quality of what he was doing or that it was wrong. Dr. Simring testified that defendant had the requisite state of mind to commit murder. He concluded that the fatal act was "impulsive and that it was angry, that it was poorly thought out."

The trial judge refused to charge "diminished capacity" as a defense because he believed that the defense was no longer available under the Code. Before adoption of the Code, a murder was presumed to be in the second degree. The State had the burden of proving certain facts to elevate the crime to murder in the first degree. State v. Williams, 29 N.J. 27, 44, 148 A.2d 22 (1959). Specifically, the State had to prove that the killing was "willful, deliberate and premeditated." N.J.S.A. 2A:113-2. Using the labels "partial responsibility" or "diminished capacity," courts, before adoption of the Code, admitted "evidence of any defect, deficiency, trait, condition, or illness which rationally bears upon the question whether those mental operations[, willfulness, deliberation and premeditation,] did in fact occur...." State v. DiPaolo, 34 N.J. 279, 295, 168 A.2d 401 (1961), cert. den., 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961). (Emphasis in original.) If the homicide was a murder, but the evidence of "diminished capacity" raised a reasonable doubt as to whether the defendant's conduct was willful, deliberate and premeditated, the defendant could only be found guilty of second-degree murder.

The trial judge correctly concluded that the Code has eliminated that use of the "diminished capacity" concept. However, N.J.S.A. 2C:4-2 (the statute) preserves the concept in a somewhat different form. As first adopted the statute provided 2C:4-2 Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense.

a. Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense.

b. Whenever evidence is admitted under subsection a. of this section, the prosecution may thereafter offer evidence in rebuttal. [L. 1978, c. 95]

The statute made admissible evidence of a defendant's mental disease or defect to negate the culpable mental state that is an element of any offense. "Diminished capacity" was no longer limited to negating the mental state of only first-degree murder.

Before the statute became effective, however, the Legislature amended it to read:

2C:4-2 Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense.

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. [L. 1979, c. 178, § 11B]

As amended, the statute made clear that the State did not have to prove the absence of "diminished capacity" unless evidence was produced demonstrating that the defendant had a "mental disease or defect which would negate a state of mind which is an element of the offense." In effect, the amended statute established "diminished capacity" as an affirmative defense because, like defenses expressly designated "affirmative" in the Code, "diminished capacity" did not have to be disproved by the State "unless and until there is evidence supporting such defense." N.J.S.A. 2C:1-13(b)(1). The State was not required to overcome "diminished capacity" with proof beyond a reasonable doubt until the trial judge determined that the defense found some support in the evidence. See State v. Kelly, 97 N.J. 178, 200, 478 A.2d 364 (1984).

The statute arrived at its present form with the adoption of L. 1981, c. 290, § 8, (the 1981 amendment) which added the following sentence Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

By characterizing "diminished capacity" as an affirmative defense, the 1981 amendment added nothing. But by requiring that the "diminished capacity" defense "be proved by a preponderance of the evidence," the Legislature made the defense less available than when it was simply an affirmative defense that would be raised by the production of any evidence.

The State is constitutionally compelled to bear the burden of proving every element of an offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970); State v. Brown, 80 N.J. 587, 592-593, 404 A.2d 1111 (1979). That mandate is repeated in N.J.S.A. 2C:1-13(a). N.J.S.A. 2C:1-13(b)(2) provides, however, that the requirement that the State prove an element of the offense beyond a reasonable doubt does not "[a]pply to any defense which the code or another statute requires the defendant to prove by a preponderance of the evidence or such other standard as specified in this code." The Criminal Law Revision Commission report in commenting on this provision expressed "doubt as to the wisdom and, perhaps, the propriety of a provision which switches the burden of persuasion" to a defendant "where we are dealing with an element of the offense." II Final Report of the New Jersey Criminal Law Revision Commission: Commentary at 36-37 (1971).

If N.J.S.A. 2C:4-2 were to mean that a defendant has the burden of persuading the trier of fact that he had a mental disease or defect that prevented him from having the mental state which is an element of the offense charged, the statute may be unconstitutional because it would relieve the State of its burden to prove one of the elements of the offense beyond a reasonable doubt. The statute, however, does not have that meaning. The State need not overcome a "diminished capacity" defense until evidence of that defense is admitted. The effect of the statute is to render such evidence admissible only after the trial judge has been persuaded by a preponderance of the evidence that the defense is sound.

The Legislature enacted the amendment because it was concerned that unlike evidence of the usual affirmative defenses, evidence of "diminished capacity" frequently takes the form of a psychiatric opinion that is not generally shared by experts and is not designed to meet the statutory test of criminal responsibility. The nature of the mind is still so little understood that a psychiatric opinion, honestly held, is usually available to prove the presence of mental disease or defect whenever a defendant's conduct is extraordinarily deviant. Indeed, the ease with which "diminished capacity" can be raised has led many states to reject the defense. See cases collected in State v. Humanik, 199 N.J.Super. 283, 298-299, 489 A.2d 691 (App.Div.1985), certif. den. 101 N.J. 266, 1501 A.2d 934 (1985).

We therefore hold that N.J.S.A. 2C:4-2 requires the trial judge to determine whether the evidence of "diminished capacity" is of sufficient substance to be admissible. The judge, not the jury, must be persuaded by a preponderance of the evidence that the defendant suffered from a "mental disease or defect which would negate a state of mind which is an element of the offense." If the judge is so persuaded, the evidence is admissible and the State must then overcome it at trial beyond a reasonable doubt in order to establish the "state of mind which is an...