State v. King, CR-86-0063-AP

• Decision Date: 22 September 1988
• Docket Number: No. CR-86-0063-AP,CR-86-0063-AP
• Citation: 158 Ariz. 419,763 P.2d 239
• Parties: STATE of Arizona, Appellee, v. Frederick KING, Appellant.
• Court: Arizona Supreme Court

Page 239

763 P.2d 239

158 Ariz. 419

STATE of Arizona, Appellee, v. Frederick KING, Appellant.

No. CR-86-0063-AP.

Supreme Court of Arizona.

Sept. 22, 1988.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee (former), Dean W. Trebesch (current), Maricopa County Public Defender by John W. Rood III, Deputy Public Defender, and J. Douglas McVay, Phoenix, for appellant.

FELDMAN, Vice Chief Justice.

The jury convicted Frederick King (defendant) of the first degree murder of Pearline Brisby and of the attempted first degree murder of Linda Cutright. Defendant appeals from the judgments of guilt and the sentences imposed. We discuss the issue of whether the trial court committed fundamental error in its instructions to the jury with respect to defendant's burden of proof on the insanity defense. We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033. We reverse.

FACTS

Defendant and Brisby had been involved in a long-term relationship eventually resulting in Brisby's giving birth to defendant's child. Defendant, Brisby, and the The grand jury indicted defendant on one count of first degree murder and one count of attempted first degree murder. See A.R.S. §§ 13-1105(A) and -1001(A). At trial, the defense was insanity. See A.R.S. § 13-502. Defendant offered trial testimony from two psychiatrists. One psychiatrist testified that defendant was in a disassociative state ¹ at the time of the shooting, and the other testified that defendant was M'Naghten insane during the shooting. The state elicited opposing, though somewhat equivocal, evidence from its psychiatric witnesses.

[158 Ariz. 421] child had lived together for a period of time, but Brisby took the child and moved away prior to the incidents at issue. Defendant and Brisby became alienated, if not hostile toward one another, and defendant acted with some degree of irrationality prior to the day in question. On the day of the crimes, defendant purchased a pistol and ammunition, and went to Brisby's workplace. In the parking lot, he began shooting at Brisby's supervisor, Cutright, seriously wounding her. When Brisby shouted and begged him not to shoot Cutright, defendant turned on her and emptied the gun into her body, killing her.

A.R.S. § 13-502(B) governed defendant's burden of proof on the question of insanity. A defendant claiming insanity as a defense has the burden of proving his insanity by "clear and convincing" evidence. Id. Asserting that placing the burden of proof on him was unconstitutional, defendant objected to the court's insanity instructions on that ground only. He did not object to the wording of the individual instruction defining "clear and convincing evidence." The jury found defendant guilty, and the court sentenced him to life imprisonment without possibility of parole for twenty-five years on the first degree murder conviction and to a term of ten and one-half years on the attempted first degree murder conviction, the sentences running concurrently. See A.R.S. §§ 13-703, -1001(C)(1), -604, and -701. Pursuant to A.R.S. § 13-4031, defendant filed a direct appeal in this court.

DISCUSSION

Defendant first contends that A.R.S. § 13-502(B), which places the burden of proof of insanity on defendant, violates the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. We have recently upheld the statute against constitutional challenges. State v. Fletcher, 149 Ariz. 187, 192, 717 P.2d 866, 871 (1986). We see no reason to retreat from that holding or to debate the matter further.

Defendant raises a much more serious problem, however, with respect to the instruction on his burden of proof: Did the trial court commit fundamental error in its instruction on the quantum of evidence required to establish the insanity defense?

A. Did the court err in its instruction on the clear and convincing standard?

A defendant relying on the M'Naghten rule must carry his burden of proof by "clear and convincing evidence." A.R.S. § 13-502(B). The trial court instructed the jury on this quantum of evidence as follows:

The defendant has the burden of proving that he is not responsible for criminal conduct by reason of insanity by clear and convincing evidence.

To be clear and convincing, evidence should be clear in the sense that it is certain, plain to the understanding, unambiguous, and convincing in the sense that it is so reasonable and persuasive as to cause you to believe it.

Reporter's Transcript (RT) Dec. 12, 1985, at 24.

In his supplemental brief, defendant claims the trial judge erred in so instructing the jury. He argues that the instruction creates an impossible burden by requiring him to provide evidence which is "certain," "plain" and "unambiguous." If Our court of appeals recently considered a similar contention and instruction. It agreed that such a definition of the standard of proof "inappropriately escalated [defendant's burden] beyond that imposed by the clear and convincing evidence standard as developed in caselaw and incorporated into A.R.S. § 13-502." State v. Renforth, 155 Ariz. 385, 386, 746 P.2d 1315, 1316 (Ct.App.1987), rev. granted Nov. 17, 1987. Quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075-76, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring), for the proposition that factfinders can seldom if ever "acquire unassailably accurate knowledge" and, at best, "can [only] acquire ... a belief of what probably happened," the court held that the instruction was incorrect. Renforth, 155 Ariz. at 386, 746 P.2d at 1316 (emphasis in original). The court wrote that the correct definition of "clear and convincing" evidence was evidence that was "highly probable." Id. at 387, 746 P.2d at 1317 (citing McCORMICK, LAW OF EVIDENCE § 340, at 959-60 (3d ed. 1982), and In re Neville, 147 Ariz. 106, 111, 708 P.2d 1297, 1302 (1985)).

[158 Ariz. 422] not an impossible burden, defendant continues, the instruction requires far more than should be required by the standard of "clear and convincing evidence."

The state argues that the Renforth decision confuses the "highly probable" definition used in civil cases with the so-called "traditional" test for M'Naghten insanity, a test requiring a degree of certainty best described as "clear" evidence. We are unpersuaded by this argument. We see no good and much harm coming from adopting differing definitions of "clear and convincing evidence" for use in civil cases (including those involving fraud, punitive damage issues and other quasi-criminal questions) and cases involving criminal law. Nor do we find any authority for the proposition that the "clear and convincing" standard is given a different definition in criminal cases than that followed in civil cases.

The state also argues that the instruction given in the case at bench more clearly embodies the legislative intent in enacting A.R.S. § 13-502(B) than the "highly probable" formulation found in Neville. Again we disagree. The legislature certainly intended to adopt the "strictest possible approach to the insanity defense." Arizona State Senate, Minutes of the Committee on the Judiciary (Discussion of S.B. 1120), 36 Leg. 1st Sess., Jan. 25, 1983, at 2. Undoubtedly, these sentiments pertain to the retention of the M'Naghten rule per se and the shifting of the burden of proof to the defendant. ² Absent some explicit statement by the legislature with respect to a specific formulation of the clear and convincing definition, we find it hard to believe that the legislature intended to adopt the definition contained in the instruction given in this case--a definition bearing little, if any, relation to reality. Indeed, the legislative history indicates the senate judiciary subcommittee realized that the "clear and convincing" standard was an intermediate standard, and found the "beyond a reasonable doubt" standard "too strict" a standard to place upon a defendant claiming insanity. Final Report of the Senate Judiciary Interim Subcommittee on the Insanity Defense, Dec. 28, 1982, at 14. We approve, therefore, the following views of the court of appeals:

Among the common definitions of "certain" are "not to be doubted as a fact: indisputable" and "given to or marked by complete assurance and conviction, lack of doubt, ... as if through infallible knowledge or perception...." [citation omitted] To convince a fact finder to this degree clearly requires a greater intensity of proof than to convince that a proposition is highly probable. The use The error of defining clear and convincing evidence as "certain" was compounded in this case by further definition as "unambiguous." "Ambiguity" is "the condition of admitting of two or more meanings, of being understood in more than one way...." [citation omitted] Few things in law are unambiguous, least of all the question whether a defendant's lack of understanding of the nature and quality of his acts renders him not responsible by reason of insanity. The defendant in this case was not required to eliminate ambiguity from his proof or to instill certainty in the minds of the jurors. His lesser burden was to persuade the jury that his position on the psychiatric issue was highly probable.

[158 Ariz. 423] of the term "certain" is so likely to mislead in defining clear and convincing evidence that, rather than attempting to parse degrees of certainty on a scale from reasonable to moral to absolute, we would avoid its usage altogether.

Renforth, 155 Ariz. at 388, 746 P.2d at 1318. As the court of appeals demonstrates, defining "clear and convincing" as "certain" and "unambiguous" comes perilously close to the beyond a reasonable doubt standard, a standard expressly rejected by the subcommittee as "too strict." Final Report, supra, at 14.

The state further argues that any isolated error in the "clear and convincing" instruction was cured by a...