State v. Burnham

• Decision Date: 12 October 1979
• Citation: State v. Burnham, 406 A.2d 889 (Me. 1979)
• Parties: STATE of Maine v. Royal BURNHAM, Jr.
• Court: Maine Supreme Court

Page 889

406 A.2d 889

STATE of Maine v. Royal BURNHAM, Jr.

Supreme Judicial Court of Maine.

Oct. 12, 1979.

John R. Atwood, Dist. Atty., Rockland, Charles K. Leadbetter (orally), Asst. Atty. Gen., Augusta, for plaintiff.

Strout, Payson, Pellicani, Cloutier, Hokkanen & Strong by James W. Strong, Rockland, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK and ARCHIBALD, JJ., and DUFRESNE, A. R. J.

POMEROY, Justice.

This case requires us to address for the first time in Maine the issue of whether evidence of an abnormal condition of mind will be admissible to negate the existence of a culpable state of mind when the defendant is also claiming to be excused by reason of "insanity". ¹

Royal Burnham was convicted of a violation of 17-A M.R.S.A. § 208(1)(a) ² (aggravated assault) despite his pleas of not guilty and not guilty by reason of insanity. Though 17-A M.R.S.A. § 59 makes provision for a bifurcated trial at the option of the accused, a unitary trial ³ was chosen.

This appeal seasonably followed the conviction.

Although the statement of issues is somewhat ambiguous, we discern three matters in this appeal which we must discuss and decide:

1. Appellant's contention that the Superior Court Justice erred in refusing to instruct the jury that if the defendant introduces evidence sufficient to raise a reasonable doubt as to the criminal responsibility of the defendant because of his mental condition existing at the time of the commission of the acts, the State must disprove the existence of mental disease and defect beyond a reasonable doubt, citing 17-A M.R.S.A. § 5(2)(B);

2. Appellant's contention that his constitutional rights were violated by his having been assigned the burden of proving by fair preponderance of the evidence that he lacked criminal responsibility as a result of a mental disease or defect; and

3. Appellant's contention that the Superior Court Justice erred in refusing to instruct the jury that the crime of aggravated assault, (17-A M.R.S.A. § 208(1) (A)) is a crime which, by definition, requires the state of mind of "intentionally, knowingly, or recklessly" as a necessary element and that the existence of a reasonable doubt as to such culpable state of mind may be established by evidence of an abnormal condition of mind. 17-A M.R.S.A. § 58(1-A).

We conclude there is little difficulty in disposing of the first two issues adversely to appellant's contention.

We sustain the appeal as to the third issue.

Concerning the first issue, we note 17-A M.R.S.A. § 5(2)(B) states:

2. The State is not required to negate any facts expressly designated as a "defense," or any exception, exclusion, or authorization which is set out in the statute defining the crime, either:

B. By proof at trial, unless the existence of the defense, exception, exclusion or authorization is in issue as a result of evidence admitted at the trial which is sufficient to raise a reasonable doubt on the issue, in which case the State must disprove its existence beyond a reasonable doubt.

This section is not applicable to the defense of lack of criminal responsibility (insanity) as set out in 17-A M.R.S.A. § 58(1), (2) because of § 5(3) which states that:

3. Where the statute explicitly designates a matter as an "affirmative defense," the matter so designated must be proved by the defendant by a preponderance of the evidence.

This section is applicable to the defense of insanity because of § 58(3), 17-A M.R.S.A. This section provides:

The defendant shall have the burden of proving, by a preponderance of the evidence, that he lacks criminal responsibility as described in subsection 1.

Although the drafters did not explicitly use the term "affirmative defense" in § 58, § 58(3) (quoted above) makes it clear that it was intended that the "insanity defense" continue to be an affirmative defense. The official 1975 "Comment" to § 58 notes that then existing Maine law placed the burden of proof on the defendant, Citing 15 M.R.S.A. § 102, and State v. Collins, Me., 297 A.2d 620 (1972). Subsequent post-code decisions cited Infra have affirmed that this is still the law in Maine.

As to issue no. 2, any question which may have existed has long since been resolved adversely to the position taken by the defendant. State v. Buzynski, Me., 330 A.2d 422, 431 (1974); State v. Melvin, Me., 341 A.2d 376, 379 (1975); State v. Armstrong, Me., 344 A.2d 42, 46 (1975). State v. Tracy, 372 A.2d 1048, 1049, n. 2 (1977). See also Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976), and the concurring opinion of Chief Justice Burger and Justice Rehnquist in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Any lingering doubts as to the constitutionality of Maine's allocation of the burden of proof were erased by Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

The State, relying on State v. Thompson, Me., 370 A.2d 650 (1977) and State v. Thibodeau, Me., 353 A.2d 595 (1976) argues that claimed error on the third issue has not been properly preserved under Rule 30(b), M.R.Crim.P.

We reject this contention.

The defendant timely submitted a request for jury instructions to the trial court. All of the requested instructions dealt either with the "insanity" defense or with the defendant's state of mind in connection with the requirement that the State prove beyond a reasonable doubt that the defendant possessed the requisite culpable state of mind at the time of the commission of the act in issue. ⁴ Requested instruction no. 2 was that the Court instruct the jury that: "Evidence of an abnormal condition of mind may establish the existence of reasonable doubt as to the defendant's guilt." This request tracks the language of 17-A M.R.S.A. § 58(1-A). Request no. 2 coupled with requested instruction no. 4 ⁵ clearly raised the issue of the relationship between an abnormal condition of mind and the requirement that the State prove the existence of the culpable state of mind of "recklessness" beyond a reasonable doubt. No instruction specifically directed to this question was included in the charge. We think that on this ground alone error must be found preserved under this Court's decisions in State v. Rice, Me., 379 A.2d 140, 144 (1977), and State v. Millett, Me., 273 A.2d 504, 505-506 (1971). The defendant also, however, entered an objection at the close of the Court's instructions to the jury. The second portion of that objection paraphrased instruction no. 3 of the request submitted. Although both instruction no. 3 and the instruction requested at the close of the trial court's charge confuse the issues of culpable state of mind and the insanity defense (a confusion which we seek to unravel below), here, as in State v. Thompson, supra The presiding Justice was fully aware of the defendant's requested instruction . . .. The defendant has complied with the underlying spirit of Rule 30(b) and has preserved his point for appellate review. (370 A.2d at 653).

We find the alleged error preserved with respect to failure to instruct the jury as to the requirement of 17-A M.R.S.A. § 5(1) (that each element of the crime must be proved beyond a reasonable doubt) and its relation to 17-A M.R.S.A. § 58(1-A).

In order to determine whether or not this failure constituted error in this case, we must examine and interpret the meaning of this section and its relation to the "insanity defense" in Maine's revised Criminal Code. We must reconcile the facial inconsistency between 17-A M.R.S.A. § 58(1-A) and 17-A M.R.S.A. § 59(2)(B).

Section 58(1-A) provides:

In a prosecution for a crime which may be committed intentionally, knowingly or recklessly, where such culpable state of mind is a necessary element, the existence of a reasonable doubt as to such state of mind may be established by evidence of an abnormal condition of mind.

As originally enacted, this subsection appeared at § 5(4) which read:

The existence of a reasonable doubt as to any intention, knowledge, or recklessness required as an element of a crime may be established by any relevant evidence including evidence of abnormal condition of mind or intoxication . . . (intoxication defined).

The "Comment" on that section stated:

Subsection 4 states that where the State must prove a culpable mental state as an element of the crime, Any evidence which raises a reasonable doubt on whether the defendant had that mental state is admissible. (Emphasis added).

It is important to note that this subsection was then part of the section which set forth generally, in subsection (1), the requirement that each element of the crime must be proved beyond a reasonable doubt. ⁶ The "Comment" notes that this rule is compelled by the Federal Constitution. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Before the code became effective, certain amendments were made including the moving of the substance of § 5(4) to § 58(1-A) and to § 58-A; thus splitting the references to abnormal condition of mind and intoxication and locating them in sections dealing with those subjects, rather than with the subject of proof beyond a reasonable doubt.

Subsections 1, 2 and 3 of § 58, 17-A M.R.S.A. deal with the affirmative defense of lack of criminal responsibility as a result of mental disease or defect. The definition of "Mental disease or defect " in subsection 2 refers to that infirmity as an "Abnormal condition of mind . . .". The drafters apparently contemplated that in some cases evidence relevant to proof of the defense of "Mental disease or defect ", as defined in § 58(2) would also be relevant to negate a culpable state of mind. However, they continued to adhere to the view that intent ("Culpable state of mind ") and "Insanity " are two separate concepts. The language from a Wisconsin case to that effect, State v. Hebard, 50 Wis.2d 408, 184 N.W.2d 156 (1970), was quoted approvingly in the 1975 "Comment " to § 59. This was the view...