State v. Pennington

Beier, J., dissenting:

I respectfully dissent. The majority opinion relies upon an overinterpretation of K.S.A. 22-3220 and, as a result, approves exclusion of relevant evidence that should have been admitted to support Pennington’s defense of mental disease or defect.

K.S.A. 22-3220 states that “[i]t is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense.”

All Kansas criminal offenses require proof of a mens rea element. See K.S.A. 21-3201(a). For each crime, this element is set forth in the defining statute, or it is supplied by K.S.A. 21-3201, or both. See State v. Bruce, 255 Kan. 388, 394, 874 P.2d 1165 (1994); State v. Sterling, 235 Kan. 526, Syl. ¶ 1, 680 P.2d 301 (1984). In this case, Pennington was convicted of aggravated kidnapping, attempted aggravated kidnapping, and two counts of aggravated robbery. Aggravated kidnapping and attempted aggravated kidnapping are specific intent crimes. See State v. Esher, 22 Kan. App. 2d 779, 782-83, 922 P.2d 1123, rev. denied 260 Kan. 997 (1996) (listing specific intent crimes). Aggravated robbery is a general intent crime. See Esher, 22 Kan. App. 2d at 784 (listing general intent crimes).

Aggravated kidnapping is defined as a kidnapping in which bodily harm is inflicted on the victim. See K.S.A. 21-3421. The lad-napping statute sets forth the specific intent element, requiring proof of a taking or holding of a victim accomplished by force, threat, or deception “with the intent . . . to,” among other things, “facilitate . . . commission of any crime.” K.S.A. 21-3420. In other words, to get a conviction on this count, the prosecution had to prove Pennington specifically intended to commit a robbery or some other crime when he took and held Ellis. The State had direct *443evidence to support this element of the crime. After his arrest, Pennington told officers that he had engaged in all of the three incidents to obtain money.

An attempt is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” (Emphasis added.) K.S.A. 21-3301(a). Thus, on this count of Pennington’s complaint, the prosecution needed to prove that he specifically intended to commit an aggravated kidnapping of Robinson, which in turn required that his taking or holding of her, had it been successful, was specifically intended to facilitate a robbery or other crime.

Aggravated robbeiy is defined as a robbery committed by a person armed with a dangerous weapon or who inflicts bodily harm. See K.S.A. 21-3427. In the incident at the Total gas station, Pennington was armed with a dangerous weapon. In the incident involving Ellis, he was again armed with a knife and he inflicted bodily harm. Robbery is defined as a taking of property from the person or presence of another by force or by threat of bodily harm. See K.S.A. 21-3426. Because the definitional statutes for aggravated robbery and robbery are silent on the mens rea element, the crime of aggravated robbery requires proof only of general intent, as it is described in K.S.A. 21-3201(a) and (b):

“(a) Except as otherwise provided, a criminal intent is an essential element of eveiy crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.
“(b) Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms ‘knowing,’ ‘willful,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘intentional.’ ”

In other words, on the aggravated robbery counts, the State’s burden of proof was lighter. It needed to show only that Pennington engaged in “purposeful and willful and not accidental” conduct, not that he had any particular intention about what he would achieve through that conduct.

*444By enacting K.S.A. 22-3220 in 1995, the legislature did away with Kansas’ insanity defense and limited a criminal defendant’s opportunity to present evidence that mental illness played a role in his or her crime to that relevant to mens rea. See State v. White, 279 Kan. 326, 333, 109 P.3d 1199 (2005). A criminal defendant is permitted to introduce expert witnesses or other evidence to litigate that element. If all of the evidence introduced by both sides on that element negates the required mens rea, the defendant is entitled to an acquittal.

The majority is correct that evidence of the mere existence of a mental disease or defect of the defendant is not relevant and thus not admissible. To be admissible, the evidence of the mental disease or defect must have some bearing on the defendant’s ability to form the required mens rea. State v. Jorrick, 269 Kan. 72, 82, 4 P.3d 610 (2000) (quoting Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J.L. & Pub. Pol’y 253, 254-55 (Winter 1999).

The majority is incorrect, however, in further narrowing the K.S.A. 22-3220 admissibility rule. Its opinion states: “The mens rea defense . . . only allows evidence of a mental disease or defect that negates the mental state element of the crime charged.” (Emphasis added.) Slip op. at 15. The legislature did not demand that a defendant’s evidence negate the mens rea element of the crime charged before it can be admitted. It required only that it be relevant to the mens rea element before it can be admitted. Indeed, negation of the mens rea element entitles a defendant to far more than admission; it entitles him or her to acquittal. See Jorrick, 269 Kan. at 82. Whether such negation is achieved is a jury call, to be made once all relevant evidence has been allowed to come before it.

In this case, defense expert Barnett was prepared to testify that Pennington suffered from “a serious delusional disorder. He does not — He does not form intent in the same way that you or I would. He forms intent based on his delusional systems” and, in the charged incidents, “[Pennington’s] intent was formed based on delusional thinking.”

*445The majority, like the district court judge, oversimplifies Barnett’s opinion. It was not limited to finding “Pennington was able to form intent.” Slip op. at 19. According to Barnett, Pennington’s ability to form the required mens rea was affected and impaired by delusions, erroneous beliefs held in the face of incontrovertible facts to the contrary. Although the results of Pennington’s mental disease or defect may have been labeled “intent,” when the district judge forced Barnett to reduce his nuanced testimony to one word, the rest of what Barnett had to say made clear that any mens rea formed by Pennington was necessarily a function of his trouble recognizing and responding appropriately to reality. This expert opinion testimony was certainly relevant to whether Pennington’s mental disease or defect affected his ability to form the required mens rea for the crimes charged and should have been admitted pursuant to K.S.A. 22-3220.

In my view, the fact that there was evidence to the contrary is insignificant. Again, the defense did not have to demonstrate that Barnett’s testimony would negate the mens rea element, only that it could have some bearing on the jury’s decision about whether that element was satisfied. The statute does not assign a weighing function to the district judge or even to this court, only the determination of relevance and, thus, admissibility.

I find one additional flaw in the reasoning of the district judge and the majority: Both fail to take into account the varying mens rea elements at issue in aggravated kidnapping, attempted aggravated kidnapping, and aggravated robbery. The content differences in this element from one crime to another must be considered. A general intent crime such as aggravated robbeiy is at least arguably less vulnerable to admissibility of evidence supporting a mental disease or defect defense than a specific intent crime such as aggravated kidnapping. Further, all specific intent crimes are not created equal in this regard.

Finally, I would hold that the district judge’s error in excluding Barnett’s testimony is reversible. There was no real question that Pennington engaged in the conduct that formed the basis of the charges against him. The only issue worth trying was whether he possessed the requisite mens rea. When he was prevented from *446introducing Barnett’s testimony, the members of the jury were deprived of the only evidence drat could have prompted them to acquit. Barnett’s explanation of Pennington’s serious delusional disorder could have made a difference in the outcome, and its absence from the trial was inconsistent with substantial justice.