State v. Kolisnitschenko

• Decision Date: 30 June 1978
• Docket Number: No. 76-166-CR,76-166-CR
• Citation: 267 N.W.2d 321,84 Wis.2d 492
• Parties: STATE of Wisconsin, Respondent, v. Michael KOLISNITSCHENKO, Appellant.
• Court: Wisconsin Supreme Court

Page 321

267 N.W.2d 321

84 Wis.2d 492

STATE of Wisconsin, Respondent, v. Michael KOLISNITSCHENKO, Appellant.

No. 76-166-CR.

Supreme Court of Wisconsin.

Argued April 5, 1978.

Decided June 30, 1978.

Myron P. Keyes, Kenosha, argued and on brief for appellant.

Marguerite M. Moeller, Asst. Atty. Gen. (argued) with Bronson C. La Follette, Atty. Gen., on brief, for respondent.

ABRAHAMSON, Justice.

At 1:40 a. m., November 11, 1974, Michael Kolisnitschenko broke into the home of a neighbor, Palma Griffiths, and killed her by stabbing her seventeen times. In the first part of his bifurcated trial, he was found guilty of murder. In the second part, the jury rejected Kolisnitschenko's defense that he was not guilty by reason of mental disease or defect. The jury reached that conclusion despite the testimony of Dr. Crowley, a psychiatrist, and Dr. Liccione, a clinical psychologist, that at the time of the murder Kolisnitschenko was psychotic. The two doctors concluded that because of his psychotic condition, Kolisnitschenko was unable to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Kolisnitschenko now asserts that the jury's verdict regarding his insanity defense was the result of an erroneous instruction it received from the trial court.

Kolisnitschenko and a friend of his testified that during the twelve hours preceding the murder, Kolisnitschenko had consumed a variety of drugs including eight to ten amphetamine tablets, beer, Champale, 10 mixed alcoholic drinks, and a third of an ounce of marijuana. Around midnight, less than two hours before the murder, when Kolisnitschenko and his companion were driving in the country and smoking marijuana, both experienced an "eerie" feeling. They said the feeling persisted for ten or fifteen minutes; they felt as if another presence had entered the car or as if they had received a 1,000 volt electrical shock. On the drive home, Kolisnitschenko began having premonitions which involved a figure and a body lying on the floor. When they pulled up to his house, Kolisnitschenko was talking about something evil happening. Glimpsing Griffiths' house across the street, he said it would happen there. The premonition persisted, and Kolisnitschenko asked his friend to take him away from that neighborhood. The friend reassured him that nothing would happen and then left.

Kolisnitschenko testified that he perceived the murder as if it occurred in a dream. He seemed to be following a shadow figure as it entered the house and stabbed Mrs. Griffiths. About 2 a. m. Kolisnitschenko called the friend with whom he had been driving and said, "Remember what we were talking about. I did it."

On this appeal, Kolisnitschenko challenges the trial court's instructions to the jury relating to the circumstances under which one will be relieved of responsibility for criminal conduct by reason of mental disease. The court's instructions were, in pertinent part, as follows:

"A person is not responsible for his criminal conduct if at the time of such conduct he had a mental disease so as to lack substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. ¹

". . .nta

"A mental disease which is the product of a voluntarily induced state of intoxication by drugs or alcohol or both does not constitute a mental disease which is recognized as a defense by the law." ²

Kolisnitschenko asserts that the portion of the instruction regarding voluntary intoxication was erroneous. He argues that where voluntary intoxication and a preexisting mental disorder interact to cause a mental disease, the voluntariness of the intoxication is irrelevant and will not defeat an insanity defense.

The instruction to which Kolisnitschenko objects was based on language from Gibson v. State, 55 Wis.2d 110, 115-116, 197 N.W.2d 813 (1972). Gibson claimed he was insane when he killed his sister-in-law as a result of taking two amphetamines and drinking beer. There was no evidence that Gibson suffered from a mental disease or mental disorder prior to ingesting the amphetamines and beer. With respect to Gibson's insanity defense, we declared:

"On the issue of insanity, Drs. Johnson and Bacon both testified that in their opinion Gibson was in such a drugged condition at the time of the murder that he was suffering from a mental defect or disease and he was not able to conform his conduct to the requirements of the law. We do not consider that a voluntarily-drugged condition is a form of insanity which under the American Law Institute test of insanity can constitute a mental defect or a disease." (Emphasis added.)

Kolisnitschenko argues that the Gibson instruction should not have been given because the facts in this case are significantly distinguishable from the facts in Gibson. Unlike Gibson, Kolisnitschenko claims he suffered from a mental disorder prior to the night of the murder. Dr. Crowley and Dr. Liccione testified that Kolisnitschenko was predisposed to the development of the psychosis from which he suffered at the time of the murder because he had a "stormy personality." Stormy personality, regarded as a mental disorder rather than a mental disease, is a non-temporary pre-psychotic condition. While an individual suffering from this disorder can behave normally while under only minimal stress, any unexpected moderate to moderately severe stress could trigger a psychotic response. An individual with a stormy personality characteristically is unstable, takes drugs, has minor scrapes with the law, has a bad marriage, performs unsatisfactorily at work and adjusts poorly to school. Dr. Fai, a psychiatrist who testified for the State, was unfamiliar with the concept of the stormy personality. He regarded Kolisnitschenko simply as a drug abuser.

The medical evidence indicated that Kolisnitschenko was not psychotic prior to the night of the murder. Nevertheless, according to Dr. Crowley, Kolisnitschenko's condition at the time of the murder was not merely an acute intoxicated state. According to Dr. Crowley and Dr. Liccione, Kolisnitschenko's stormy personality, the drugs he had taken, and his reaction to having been sexually abstinent for several months interacted to produce a temporary psychosis with which Kolisnitschenko was afflicted at the time of the murder. The testimony regarding lack of sexual activity was conclusory and, on the record as a whole, it appeared a much less significant factor than the drug ingestion.

Kolisnitschenko was no longer psychotic when Dr. Crowley first interviewed him two months after the murder. The medical evidence suggested that Kolisnitschenko's psychosis had tapered off substantially by the morning following the murder although it was still present in some degree.

The insanity defense prevents imposition of punishment on an individual who lacks the mental capacity to obey the law. ³ The law recognizes that it is inappropriate to hold one criminally accountable for behavior not within one's control.

The rule that a defendant who is legally insane will be relieved of criminal liability must be reconciled with the generally accepted rule that a defendant who is voluntarily under the influence of intoxicants (alcohol and other drugs) at the time of the crime will not be relieved of criminal responsibility. ⁴ Gibson v. State, 55 Wis.2d 110, 114, 197 N.W.2d 813 (1972); Loveday v. State, 74 Wis.2d 503, 514, 247 N.W.2d 116 (1976). The voluntary intoxication rule has been justified on both doctrinal and policy grounds. One who intentionally consumes drugs should be held to have intended all the consequences of the resulting intoxicated condition. Accepting intoxication as a defense would allow criminals to feign intoxication or to resort deliberately to intoxication as a shield against liability. ⁵ Challenges to the doctrinal and policy bases for the rule have been raised, but no other viable approach to the problem has yet emerged.

Asking us to adopt an exception to the general rule regarding voluntary intoxication, ⁶ Kolisnitschenko urges the court to hold that a temporary psychosis which results from the interaction of voluntary intoxication and an underlying mental disorder constitutes a defense to a criminal charge. Kolisnitschenko relies on State v. Maik, 60 N.J. 203, 287 A.2d 715 (1972) to support the rule he proposes. In Maik the New Jersey Supreme Court held that the trial court erred in charging the jury that the insanity defense was not available if the psychosis was triggered by Maik's voluntary use of drugs.

Kolisnitschenko interprets Maik as holding that where a psychosis has emerged from an underlying mental disorder, a court should disregard the nature of the precipitating event. We do not agree with Kolisnitschenko's interpretation; the court in Maik did not adopt this broad a rule applicable to all cases. Indeed it is obvious from the opinion that the New Jersey court evaluates the relation between the insanity defense and the voluntary intoxication rule on a case-by-case basis, giving consideration to the concept of individual responsibility and the need to protect the public from harm. The court set forth its rationale of drawing the line between the mentally ill (the sick) and the criminal (the "bad") as follows "The point to be stressed is that in drawing a line between the sick and the bad, there is no purpose to subject others to harm at the hands of the mentally ill. On the contrary, the aim of the law is to protect the innocent from injury by the sick as well as the bad. The distinction bears only upon whether the stigma of criminal shall be imposed and upon the measures to be employed to guard against further transgressions. Thus our statute, N.J.S.A. 2A:163-3 directs that a defendant acquitted because of insanity shall be held in custody until 'restored to reason.' Indeed, an offender may fare better as bad than as sick, for, if merely bad,...