State v. Shoffner

• Court: Wisconsin Supreme Court
• Writing for the Court: FAIRCHILD; Speaking now, for a majority of the court, consisting of Mr. Justice Gordon, Mr. Justice Beilfuss; HALLOWS; WILKIE; KAUFMAN; BEILFUSS; GORDON
• Citation: State v. Shoffner, 31 Wis.2d 412, 143 N.W.2d 458 (Wis. 1966)
• Decision Date: 01 July 1966
• Parties: STATE of Wisconsin, Respondent, v. Alexander William SHOFFNER, Jr., Appellant.

Page 458

143 N.W.2d 458

31 Wis.2d 412

STATE of Wisconsin, Respondent, v. Alexander William SHOFFNER, Jr., Appellant.

Supreme Court of Wisconsin.

July 1, 1966.

James M. Shellow, Shellow & Shellow, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Paul T. Miller, Asst. Dist. Atty., Milwaukee, for respondent.

FAIRCHILD, Justice.

1. The defense of insanity. In instructing the jury, the learned circuit judge faithfully followed our decision in State v. Esser ¹ and defined the defense of insanity in terms of capacity to understand the nature and quality of the act and capacity to distinguish between right and wrong with respect to it.

The defense had requested, in preferential order, four alternative instructions. The elements involved in each were as follows:

The first: lack of substantial capacity to appreciate criminality of conduct or lack of substantial capacity to conform conduct to the requirements of law. ²

The second: lack of substantial capacity to conform conduct to the requirements of law. ³

The third: whether the accused was suffering from disease of the mind to such a degree that he ought not to be held responsible. ⁴

The fourth: whether the act is the product of mental disease. ⁵

As appears in the statement of facts, there was expert testimony tending to establish elements of the defense which are not included in the Esser definition, i.e lack of substantial capacity to conform conduct, and the offense a product of the mental illness. Thus we are again presented with the problem we resolved by bare majority vote four years ago in Esser.

As noted in Esser, the question faced by society when a mentally-ill person engaged in offensive conduct made punishable by law is

'whether at the time of engaging in the offensive conduct the accused was dominated or affected by the mental illness to so substantial a degree that society cannot in good conscience, hold him responsible for the conduct as a crime, i.e., punish him. * * *' ⁶

Conceivably the jury could be instructed that the plea of insanity raised that question and the jury must answer it, thus permitting the jury to function as the conscience of the community as well as fact finder. ⁷

For various reasons, which we attempted to point out in Esser, no solution is perfect, and each alternative can be legitimately subjected to some criticism. The majority, in Esser, chose the definition involving capacity to understand the nature and quality of the act and capacity to distinguish between right and wrong, pointing out that under the Wisconsin rule on burden of proof, a defendant succeeds if he is able to raise a reasonable doubt concerning his capacity to do so.

We also pointed to a lack of evidence that he previously existing right-wrong test, coupled with placing the burden of proof upon the state, had resulted in injustice. We suggested that significance might be found in a study of cases where an attempted insanity defense had been unsuccessful, but the prisoner had later been found in need of treatment for mental illness.

In the four years which have elapsed since Esser, no case has come before us in which the record indicated to us that a mentally-ill person had been found guilty in violation of good conscience. We have received no information of any other sort tending to demonstrate the likelihood of such result under the Esser definition. Judges who preside over criminal trials would be the group most cognizant of instances, if any, where persons whose conduct had been substantially affected by mental illness have been convicted. We are not aware of any indication by Wisconsin trial judges that there have been such instances. There has been no change in the statue which imposes the burden of proof upon the state on this issue. ⁸

We are aware that there has been activity in several other jurisdictions concerning the definition of the defense of insanity. The legislatures in Maine, Illinois and New York have adopted new definitions. In 1961 Maine adopted the following definition:

'An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. The terms 'mental disease' or 'mental defect' do not include an abnormality manifested only by repeated criminal conduct or excessive use of drugs or alcohol.' ⁹

This definition follows Durham.

In the same year, 1961, Illinois adopted the following definition:

'(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

'(b) The terms 'mental disease or mental defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.' ¹⁰ This definition follows the American Law Institute.

A New York study commission proposed this definition:

"1. A person is not criminally responsible for conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity:

"(a) To know or to appreciate the wrongfulness of his conduct; or

"(b) To conform his conduct to the requirements of law.

"2. As used in this section, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct." ¹¹

Despite the recommendation of the study commission, which followed the American Law Institute, the New York legislature, in 1965, adopted the following definition:

'1. A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity to know or appreciate either:

'(a) The nature and consequence of such conduct; or

'(b) That such conduct was wrong.' ¹²

This definition is somewhat modified from M'Naghten.

A California special study commission has proposed a modification of the American Law Institute definition. The legislature has not acted on the proposal. The California Supreme Court considers the M'Naghten definition 'an integral part of the legislative scheme for the appraisal of criminal responsibility' and that any change should be made by the legislature. ¹³

Three federal circuit courts have adopted new definitions of the defense of insanity. ¹⁴

The Michigan Supreme Court recently indicated that, if properly presented, it would consider the Durham definition, ¹⁵ and an Ohio court expressed dissatisfaction with the M'Naghten definition presently being used in Ohio. ¹⁶

Other courts have adhered to the M'Naghten definition. ¹⁷ One of our assumptions in Esser was that 'in any case where a defendant is able to convince a jury that his mental illness totally or substantially deprives him of power to control his conduct, it seems very probable that such showing will generate in the minds of the jurors a reasonable doubt of his capacity to understand the nature and quality of his acts or to distinguish right from wrong. * * *' ¹⁸

Such an assumption would be seriously challenged by a record which contained convincing evidence that mental illness did deprive a defendant of substantial capacity to conform his conduct to the requirements of law and yet a jury convicted.

Although there was, indeed, defense testimony that Shoffner was unable to conform his conduct, the record, for reasons which will appear, is not thoroughly convincing on this point.

The defense experts were both employed by the Milwaukee County Mental Health Center, North Division. Dr. Liccione is chief psychologist and Dr. Crowley, a psychiatrist, is clinical director. Both held the opinion that Shoffner is mentally ill, with a type of schizophrenia. Dr. Crowley summarized schizophrenia as 'a psychosis characterized by disturbances of affect, perception, association, a predilection for fantasies over reality and consequent inability to adequately test reality. That's all that comes to mind at the moment. It's a very complex thing.' He described 'affect' as 'an emotional response to an idea or situation.' The affectual disturbances characterizing the schizophrenic are: 'In general inappropriateness of affect, which is an emotional response to a situation or an idea or thought which is not in keeping with that thought such as laughing at a funeral. * * * An extension of this disturbance in affect would be a complete absence of it in which the absence of it would be inappropriate. That is what was previously referred to as flatness of affect.'

Dr. Crowley testified to further opinions (the interrelation of which we as laymen may not fully understand, but which the record gives us no reason to discredit) that Shoffner's antisocial acts were the products of his illness; he would not have committed them but for his mental illness; he had a good fundamental understanding of right and wrong and was aware that it was wrong for him to commit the acts; he lacked substantial capacity to conform his conduct to the requirements of the laws he was alleged to have violated; he did not have real insight into his conduct, and lack of insight interfered with his moral judgment.

Two psychiatrists, Dr. Tabachnick and Dr. Studley, were appointed by the judge and were examined at the trial pursuant to sec. 957.27, Stats. They testified, concerning Shoffner, only in terms of the Esser test. Each stated, in response to questions by the court, opinions that Shoffner was 'sane,' that he had sufficient mental capacity to understand the nature and quality of his acts, and to distinguish between right and wrong with respect to such acts. Neither court nor counsel asked their opinions whether Shoffner was suffering from a mental disorder, as to the characteristics and symptoms of such disorder, if any, nor concerning the way and degree in which the malady, if any, affected Shoffner's behavior. ¹⁹

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