State v. Galloway

Decision Date02 August 1993
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Steven Anthony GALLOWAY, Defendant-Appellant.
CourtNew Jersey Supreme Court

Edward P. Hannigan, Deputy Public Defender II, argued the cause, for appellant (Zulima V. Farber, Public Defender, attorney).

Linda A. Rinaldi, Deputy Atty. Gen., argued the cause, for respondent (Robert J. Del Tufo, Atty. Gen., attorney).

The opinion of the Court was delivered by


In this case, defendant admits shaking a three-month-old child hard several times, thereby injuring the child and causing his eventual death. A jury found defendant guilty of murder as well as of endangering the welfare of a child. Although defendant does not deny causing the child's death, he claims that because of diminished capacity he could not form the intent necessary for the crime of murder.

On appeal, the Appellate Division found that the trial court had erroneously instructed the jury concerning the burden of proof on the diminished-capacity defense, but found that error harmless because the evidence failed to establish that defense. That determination, implicating the standards that govern the defense of diminished capacity, presents a major issue in this appeal. Additional issues raised relate to the jury instructions for murder, the admissibility of defendant's confession, and defendant's relationship with the child as it bears on the crime of endangering the welfare of a child.


On December 19, 1987, defendant, Steven Galloway, was at the home of his girlfriend, Diane Brazilian. At 11:40 p.m., Ms. Brazilian went out to pick up her younger sister. She left the victim, her three-month-old child, Steven, asleep in the room adjacent to where defendant was watching television. Ms. Brazilian's parents had gone upstairs to bed. At some point, the child began to cry, and defendant went over and picked up the child. Defendant stated that he fell while carrying the child, causing the child to cry harder. He admitted shaking the child hard to stop the crying. That shaking caused the child's head to bob back and forth rapidly, causing hemorrhaging of the blood vessels of the child's brain, commonly known as the "shaken baby syndrome."

When Ms. Brazilian returned a short time later, she expressed concern about the way the child was breathing. After a short time, Ms. Brazilian decided to take the child to the hospital. At the hospital, the serious nature of the child's injuries became clear. Later, Lieutenant Lewis Nappoletano and Detectives Gregory Crumine and William Magarino of the Long Branch Police Department arrived at the hospital to question the child's family. The police department had received information that a child, possibly the victim of child abuse, had suffered serious injuries and might die.

Nappoletano talked to defendant in the hospital hallway. Defendant initially told Nappoletano that the child "wasn't breathing right," that he had "had problems burping all day," and that he had "vomited." Nappoletano then orally informed defendant of his Miranda rights. Defendant said he understood them. After speaking further with defendant, Nappoletano asked both defendant and Ms. Brazilian to go to police headquarters. Nappoletano explained that they did not have to comply. Nevertheless, defendant and Ms. Brazilian went to the station.

At headquarters at approximately 5:40 a.m., defendant read and signed a form waiving his Miranda rights. Defendant then gave a statement to police. That statement, completed at 8:00 a.m., did not mention shaking the child. Nappoletano asked defendant if he would speak to another officer, and defendant said that he would. Nappoletano asked defendant to speak with Detective Ralph DeFillipo because Nappoletano did not believe that defendant's initial statement was entirely truthful. DeFillipo orally advised defendant of his Miranda rights. DeFillipo admits that during his interview he used the "theme" that defendant had to tell him what had happened to the child so the doctors could properly treat the child. DeFillipo also knew that the child had been conceived as the result of Ms. Brazilian's rape by her previous boyfriend and that defendant's anger might have been a motive to harm the child.

DeFillipo described defendant as "extremely nervous" and said that defendant had cried at times during the interview. Later, DeFillipo called Nappoletano back into the room, and defendant told Nappoletano that he had lied in his earlier account. Nappoletano describes defendant as "actually sobbing" when Nappoletano entered the room. Defendant then gave an incriminating oral account of the events surrounding the shaking of the child. At that point, Nappoletano placed defendant under arrest, informed him orally of his Miranda rights, and provided defendant with a written copy of his rights. Defendant signed a written waiver of his Miranda rights. Defendant then gave a written statement concerning the baby's injury. In that statement, defendant admitted to wanting to hurt the child and to squeezing and shaking the child very hard. Defendant reviewed the statement and signed it. The police then took defendant to the Monmouth County Correctional Facility where, the next day, defendant recounted to Thomas Fatigante, a corrections officer, that he had committed the offense because his girlfriend had been raped and the baby was a product of the rape, and that he had always intended to do it.

Defendant was charged with murder and third-degree endangering the welfare of a child. At trial, he sought through expert witnesses to establish that his mental condition at the time warranted the defense of diminished capacity. Defendant was convicted of both charges and received a thirty-year sentence without possibility of parole for the murder conviction and a concurrent five-year sentence on the remaining charge.

On appeal, in an unreported per curiam opinion, the Appellate Division upheld the convictions. The Court granted defendant's petition for certification, 130 N.J. 13, 611 A.2d 651 (1992).


A major issue implicating the validity of defendant's conviction involves the defense of diminished capacity. The diminished-capacity statute in effect at the time of defendant's trial, N.J.S.A. 2C:4-2, stated:

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 the state of mind which is an element of the offense. In the absence of such evidence, it may be assumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

In State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987), the Court held that although the diminished-capacity statute required the State to prove beyond a reasonable doubt that the defendant had acted with the necessary mental state despite the presence of a mental disease or defect, it also required the defendant to establish the existence of that mental disease or defect. Subsequently, in Humanik v. Beyer, 871 F.2d 432 (3d Cir.1988), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d 25 (1990), the court held that the imposition of a burden of proof on the defendant violated a defendant's due-process rights. Our courts now adhere to that ruling, 124 N.J.L.J. 1562 (Dec. 28, 1989), and the conforming statutory amendment of the defense of diminished capacity. L.1990, c. 63. Thus, the Appellate Division correctly found that the trial court's jury instruction on the burden of proof had been in error. Nevertheless, it determined that the error had been harmless because defendant had not submitted sufficient evidence to warrant a jury charge on diminished capacity.

The Appellate Division placed great emphasis on the fact that defendant's mental condition had been characterized by the expert testimony as a "personality disorder" and could not, therefore, be considered a "mental disease or defect." The Appellate Division further found that the evidence presented related only to a loss of impulse control and was not the type of mental disease that has been recognized by our law as diminishing mental capacity by affecting the cognitive faculties.

We disagree with both aspects of that decision. The legislative history of the Code and our subsequent decisions demonstrate that the term "mental disease or defect" does not preclude evidence of a mental condition consisting of a borderline personality disorder as such. The Court in Breakiron commented on the breadth of the phrase "mental disease or defect," observing that the statutory defense of diminished capacity contemplates a broad range of mental conditions that can be a basis for the defense: "The variety and forms of mental disease are legion." 108 N.J. at 618 n. 10, 532 A.2d 199.

That understanding of the defense of diminished capacity is reflected in the history of the New Jersey Code of Criminal Justice (New Jersey Code or Code), which expresses the legislative intent underlying the enactment of this defense. The New Jersey Code adopted the diminished-capacity defense of the Model Penal Code (MPC) § 4.02. Although the Code did not adopt the MPC's insanity defense, MPC § 4.01, the MPC used the terms "disease" and "defect" in describing both defenses. The explanations accompanying the MPC concerning the insanity defense thus clarify how those terms are used in the application of the diminished-capacity defense.

The Model Penal Code refrained from defining the content of the phrase "mental disease or defect." Rather, those terms are left open to accommodate developing medical understanding. Model Penal Code § 4.01 cmt. 4 (Official Draft 1985). The MPC Commentary also notes that most jurisdictions relying on its formulation have not provided a definition of...

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    ...which "gives officers leeway to tell some lies during an interrogation."1 See id. at 44, 215 A.3d 516 (citing State v. Galloway, 133 N.J. 631, 655, 628 A.2d 735 (1993) ; State v. Miller, 76 N.J. 392, 403-04, 388 A.2d 218 (1978) ); see also State v. Baylor, 423 N.J. Super. 578, 588-89, 34 A.......
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