State v. Wilcox

• Decision Date: 16 June 1982
• Docket Number: No. 81-977,81-977
• Citation: 24 O.O.3d 284,70 Ohio St.2d 182,436 N.E.2d 523
• Parties: , 24 O.O.3d 284 The STATE of Ohio, Appellant, v. WILCOX, Appellee.
• Court: Ohio Supreme Court

Page 182

70 Ohio St.2d 182

436 N.E.2d 523, 24 O.O.3d 284

The STATE of Ohio, Appellant, v. WILCOX, Appellee.

No. 81-977.

Supreme Court of Ohio.

June 16, 1982.

Syllabus by the Court

1. The partial defense of diminished capacity is not recognized in Ohio. (State v. Jackson, 32 Ohio St.2d 203, 291 N.E.2d 432, followed.)

2. A defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that the defendant lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime.

On July 22, 1979, appellee, Moses J. Wilcox, and an accomplice, Jesse Custom, broke into and ransacked the home of Duane D. Dixon, an acquaintance of Custom. During the course of the burglary Dixon was shot to death. Custom was apprehended within hours of the discovery of the body and a warrant was issued for appellee. He was arrested several months later on an unrelated charge by Warrensville Heights police and then transferred to the Cleveland City Jail. While in jail, appellee made a statement (unchallenged on appeal to this court) regarding the Dixon burglary-homicide. In his statement appellee admitted his involvement in the break-in but implicated Custom as the triggerman.

On January 16, 1980, appellee was indicted for violations of R.C. 2903.01 (aggravated murder) and R.C. 2911.11 (aggravated burglary). On January 30, 1980, the Court of Common Pleas of Cuyahoga County upon motion, referred appellee to the court psychiatric clinic, pursuant to R.C. 2945.371 and 2945.39, for an evaluation to determine whether he was competent to stand trial and whether he was sane when the criminal acts occurred. The examining psychiatrist found appellee to be borderline retarded, schizophrenic, dyslexic, and to be suffering from organic brain syndrome and so testified at a March 1980 hearing. The court ruled that appellee was incompetent to stand trial and committed him to Lima State Hospital for treatment. In August 1980 appellee was again brought before the court and after a hearing the court determined that he was competent to stand trial.

A jury trial was held commencing August 18, 1980. Appellee entered a plea of not guilty by reason of insanity and at trial introduced psychiatric testimony with respect thereto. The trial court, however, refused to permit additional psychiatric testimony or charge the jury on the question of whether appellee's supposed diminished mental capacity precluded him from forming the specific intent to commit the offenses of aggravated murder and aggravated burglary. The jury rejected appellee's insanity defense and found him guilty on both counts. The court sentenced appellee to concurrent terms of life and 6-25 years for the murder and burglary offenses, respectively.

Appellee appealed to the Court of Appeals, which reversed the trial court in a split decision and ordered a new trial. The court held that "diminished capacity is a valid defense as tending to negate the elements of specific intent in particular crimes," and further held that the trial court's "refusal to permit testimony (or a special jury instruction) on the defense of diminished capacity constitutes reversible error." Judge (now Justice) Krupansky, dissenting, was satisfied that sufficient evidence of appellee's mental capacity was before the jury and that the requested special instruction was unwarranted.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty. and Donald C. Nugent, Cleveland, for appellant.

Floyd B. Oliver and James A. Carney, Cleveland, for appellee.

SWEENEY, Justice.

The question before the court in the instant appeal is whether appellee is entitled to a new trial at which he may present expert psychiatric testimony relating to his alleged incapacity to form the requisite specific intent to commit aggravated murder and aggravated burglary. The state, finding support in the dissent below, contends that "all relevant admissible evidence related to the mental status of Moses Wilcox was before the jury." As a consequence thereof the state further contends that "any additional psychiatric testimony if offered would not have altered anything in the trial" and therefore the trial court's refusal to admit the additional evidence even if erroneous constituted non-prejudicial, harmless error. ¹ Appellee argues that the Court of Appeals did not err in ordering a new trial because the "defense of diminished capacity is properly proveable in the state of Ohio and that where the trial court frustrates or otherwise fails to admit relevant testimony in furtherance of its proof, as in the instant case, it has committed reversible error."

The parties herein and the court below, relied on State v. Nichols (1965), 3 Ohio App.2d 182, 183, 209 N.E.2d 750, as authority for the proposition that the partial defense of diminished capacity is recognized in Ohio. The case of State v. Jackson (1972), 32 Ohio St.2d 203, 291 N.E.2d 432, certiorari denied (1973), 411 U.S. 909, 93 S.Ct. 1539, 36 L.Ed.2d 199, has gone unnoticed, or at the very least uncited, at any stage of these proceedings. In Jackson the question of whether Ohio would recognize the diminished capacity defense was briefed, argued, and explicitly, albeit cursorily, rejected by this court. ² Id. at page 206, 291 N.E.2d 432. We adhere to the rule adopted in Jackson but shall endeavor in this opinion to spell out our objections to the diminished capacity defense and thereby overcome whatever confusion our nearly invisible treatment of diminished capacity in Jackson has engendered among bench and bar.

I.

At the outset we note that there are a number of variations on the diminished capacity theme and a variety of labels have been applied to the doctrine. ³ Inasmuch as the Court of Appeals below referred to United States v. Brawner (C.A.D.C.1972), 471 F.2d 969, for the doctrinal underpinning of its diminished capacity formulation, it is appropriate for us to use the Brawner model of diminished capacity to provide a working definition of the doctrine for purposes of our discussion herein. According to Brawner, at page 998, "expert testimony as to a defendant's abnormal mental condition may be received and considered, as tending to show, in a responsible way, that defendant did not have the specific mental state required for a particular crime or degree of crime-even though he was aware that his act was wrongful and was able to control it, and hence was not entitled to complete exoneration." If the Brawner rule were applied to the case at bar, then appellee, even though legally sane, could present psychiatric testimony as to his abnormal mental condition (diminished capacity) to show that he did not have the specific mental state-in this instance, the purpose-required to commit the crimes with which he stands charged. However, our review of the history and policies underlying the diminished capacity concept and the experience of jurisdictions that have attempted to apply the doctrine militate against the adoption of a Brawner -type rule in Ohio.

The diminished capacity defense originated in Scotland more than a century ago "to reduce the punishment of the 'partially insane' from murder to culpable homicide, a non-capital offense. See HM Advocate v. Dingwall, (1867) J.C. 466." Arenella, supra, at page 830, fn. 16. The doctrine has been widely accepted overseas, see Arenella, supra, and Comment, Criminal Law-Partial Insanity-Evidentiary Relevance Defined, 16 Rutgers L.Rev. 174, 176-77, fn. 8, but most American jurisdictions, with the notable exception of California, ⁴ have been slow to embrace the concept. See Lewin, supra, at pages 1055, 1059, and Appendix; Goldstein, The Insanity Defense, at 195 (hereinafter Goldstein). While a number of states followed California's lead in adopting one form or another of the diminished capacity defense, see Annotation, 22 A.L.R.3d 1228, the Brawner court may have overstated the case when it found that the doctrine was being "adopted by the overwhelming majority of courts that have recently faced the question." 471 F.2d at page 1000. ⁵ A post-Brawner student note determined that the supposed trend detected in Brawner was continuing, stating that "in recent years a growing number of jurisdictions have recognized the concept of diminished capacity." Note, Diminished Capacity-Recent Decisions and an Analytical Approach, 30 Vand.L.Rev. 213, 214. At this juncture, however, it appears that enthusiasm for the diminished capacity defense is on the wane and that there is, if anything, a developing movement away from diminished capacity although the authorities at this point are still quite mixed in their views. See, infra, Parts I C and II; see, generally, Annotation, 22 A.L.R.3d 1228.

The diminished capacity defense developed as a covert judicial response to perceived inequities in the criminal law. The purported justifications for the doctrine include the following:

"(1) it ameliorates defects in a jurisdiction's insanity test criteria; (2) it permits the jury to avoid imposing the death penalty on mentally disabled killers who are criminally responsible for their acts; and (3) it permits the jury to make more accurate individualized culpability judgments." Arenella, supra, at page 853.

In addition the diminished capacity defense has a certain logical appeal when juxtaposed against the settled rule that evidence of voluntary intoxication may be considered in determining whether an accused acted with the requisite specific intent. See State v. Fox (1981), 68 Ohio St.2d 53, 428 N.E.2d 410. The analogy to the partial defense of voluntary intoxication figured prominently in the Brawner court's analysis. The court stated:

"Neither logic nor justice can tolerate a jurisprudence that defines the elements of an offense as requiring a mental state such that one defendant can properly argue that his voluntary ...