Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 12, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 115617
JAMES A. CARPENTER,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE COURT
YOUNG, J.
Defendant presented evidence at his bench trial that,
although not legally insane, he lacked the mental capacity to
form the specific intent required for the crimes of first
degree home invasion, MCL 750.110a(2), and felonious assault,
MCL 750.82. The trial court found defendant guilty of both
offenses, and the Court of Appeals affirmed.
We originally granted leave to consider whether the lower
courts properly determined that it was defendant’s burden to
establish his diminished capacity defense by a preponderance
of the evidence under MCL 768.21a. However, we are now
persuaded by the prosecution’s argument that, by enacting a
comprehensive statutory scheme setting forth the requirements
for and the effects of asserting a defense based on either
mental illness or mental retardation, the Legislature has
signified its intent not to allow a defendant to introduce
evidence of mental abnormalities short of legal insanity to
avoid or reduce criminal responsibility by negating specific
intent.1 Therefore, we affirm the decision of the Court of
Appeals on that basis.
I. Factual and Procedural Background
The events giving rise to defendant’s convictions took
place in the early morning of July 9, 1995. After attending
a dance at a local community hall, complainants Audrey Thomas
and Aron Blakely returned to Thomas’ home in Saginaw at
approximately 2:00 a.m.2
Thomas and Blakely were sitting in the family room when
Thomas heard the doorbell ring. Thomas discovered that
1
Defendant’s motion to strike the prosecution’s brief
raising this issue is denied.
2
Thomas and defendant previously had a long-term
relationship. A child was the product of that relationship.
2
defendant was at the door. Defendant demanded to be let in,
yelling that Blakely should “come on out” and that Thomas was
his “woman.” When Thomas refused to admit him, defendant
eventually crashed through a window. Defendant produced a
handgun and fired two shots in the general direction of Thomas
and Blakely. Neither was hit. Blakely then announced that he
was leaving. As defendant opened the door for him, defendant
struck Blakely in the face with his fist. Although defendant
initially walked out the front door with Blakely, he
immediately returned to the house where he confronted Thomas,
striking her head with the butt of his gun. The blow
apparently caused the gun to discharge a third time. Blakely
heard the shot and went next door to call the police.
Defendant eventually fled the scene and drove to his
nearby home. He immediately called Thomas and threatened her.
Several police officers arrived at defendant’s home a short
time later. A stand-off ensued, during which defendant
threatened to shoot himself and any officers who attempted to
enter the house. Saginaw Police Sergeant Terri Johnson-Wise
established telephone contact with defendant and spoke with
him several times. She testified that defendant was yelling
and screaming initially, and that when he calmed down he began
talking about demons and “money that was stolen from him.”
At some point, defendant asked for some heart medication
that was in his truck. Saginaw Police Officer Daniel Kuhn
3
lured him to a window by offering to give defendant his
medication. When Officer Kuhn tried to grab defendant through
the open window, defendant got free and slammed the window on
Officer Kuhn’s fingers. Defendant eventually allowed the
officers to enter and he was placed under arrest. He was
subsequently charged with first-degree home invasion, MCL
750.110a(2), two counts of assault with intent to commit
murder, MCL 750.83, being a felon in possession of a firearm,
MCL 750.224f, possession of a firearm during the commission of
a felony, MCL 750.227b, and resisting and obstructing a police
officer, MCL 750.479.
At his bench trial, defendant presented a diminished
capacity defense. In addition to several lay witnesses that
testified that he had been drinking before the incident and
that he appeared intoxicated, defendant presented a report
from Kingswood Hospital, where he had been treated
approximately a month after the incident. The report
described him as being “delusional” and indicated that he
suffered from organic brain damage. The report further
described his conduct upon admission to the hospital:
He stated that his son had been killed in
April 1995 and “they had broken into my computer.”
He says that he has special forces that are
guarding him; that people are stealing money from
his son’s records. He also hears voices telling
him that people are looking and laughing at him.
. . . He is afraid that someone is trying to
poison him. He talks of the organization that is
manipulating him and that someone has put “voodoo
4
dolls” on him.
Defendant also presented expert testimony from Dr.
Michael Abramsky, a board-certified clinical and forensic
psychologist. Dr. Abramsky testified that defendant’s bizarre
behavior at the time of the shooting and ensuing standoff
“suggests that he was mentally ill at the time” and that
defendant’s drug-induced organic brain damage,3 combined with
his ingestion of alcohol and various prescription drugs, was
the likely cause not only of his behavior but his claimed loss
of memory of the incident. In sum, Dr. Abramsky believed that
defendant suffered from diminished capacity and that he
therefore could not formulate a specific intent.
In rebuttal, the prosecution presented the testimony of
Dr. George Watson of the Center for Forensic Psychiatry.
Although he acknowledged defendant’s apparent organic brain
damage, Dr. Watson did not believe defendant to be obviously
and acutely psychotic. Instead, on the basis of his clinical
interview, Dr. Watson believed “that the possibility of Mr.
Carpenter exaggerating appeared to be more likely . . . .”
In a comprehensive written opinion, the trial court
issued its findings. The court found defendant guilty of
resisting and obstructing a police officer and being a felon
in possession of a firearm. Regarding the two counts of
3
Defendant has a history of marijuana and cocaine abuse.
5
assault with intent to commit murder, the court found that the
prosecution had failed to prove that defendant intended to
kill either victim. Instead, the court found that the
evidence only supported a finding of guilt on the lesser
offense of felonious assault. Finally, the trial court found
defendant guilty as charged of both first-degree home invasion
and possession of a firearm during the commission of a felony.
The court proceeded to address and reject defendant’s
diminished capacity defense:
The [c]ourt does not find that the defendant
has supported his burden of proof of diminished
capacity by a preponderance of the evidence. His
actions seem very “goal oriented” . . . . His
actions in driving to Ms. Thomas’s home, his
ringing the door bell, the epitaphs [sic] of
displeasure, his entry into Ms. Thomas’s home, his
aiming the gun, his shots into the ceiling and near
the ceiling scaring the victims, his striking Mr.
Blakely and Ms. Thomas, his departure from the
home, and significantly, his threatening phone call
back to [Ms.] Thomas, all suggest very goal
oriented actions consistent with the capacity to
form a specific intent.
The trial court eventually sentenced defendant to the
following prison terms: twenty-eight months to twenty years
for the home invasion conviction, twenty-eight months to four
years for each of the felonious assault convictions, twenty
eight months to five years for the felon-in-possession
conviction, and one to two years for the resisting and
obstructing conviction. The court further ordered that these
sentences be served consecutive to the mandatory two-year term
6
for the felony-firearm conviction.
In affirming defendant’s convictions and sentences, the
Court of Appeals rejected defendant’s argument that the trial
court erred in shifting the burden to defendant to prove his
claim of diminished capacity by a preponderance of the
evidence.4
This Court granted defendant’s application for leave to
appeal. 462 Mich 912 (2000).
II. Standard of Review
The proper application of MCL 768.21a is a question of
law subject to de novo review. People v Rodriguez, 463 Mich
466, 471; 620 NW2d 13 (2000).
III. The Traditional Insanity Defense
In Michigan, use of the insanity defense has been
governed by statute since 1975. 1975 PA 180. Legal insanity
is an affirmative defense requiring proof that, as a result of
mental illness or being mentally retarded as defined in the
mental health code, the defendant lacked “substantial capacity
either to appreciate the nature and quality or the
wrongfulness of his or her conduct or conform his or her
conduct to the requirements of the law.” MCL 768.21a(1).5
4
Unpublished opinion per curiam, issued July 16, 1999
(Docket No. 204051).
5
However, “[a]n individual who was under the influence of
voluntarily consumed or injected alcohol or controlled
(continued...)
7
Importantly, the statute provides that “[t]he defendant has
the burden of proving the defense of insanity by a
preponderance of the evidence.” MCL 768.21a(3) (emphasis
added).
There are also several procedural requirements that must
be satisfied before an insanity defense may be raised. We
recently summarized those requirements in People v Toma, 462
Mich 281, 292, n 6; 613 NW2d 694 (2000):
A defendant in a felony case who wishes to
interpose an insanity defense, must serve written
notice on the court and the prosecutor not less
than thirty days before trial and submit to a
court-ordered examination, relating to the claim of
insanity, by personnel for the center for forensic
psychiatry or other qualified personnel. MCL
768.20a(1) and (2); MSA 28.1043(1)(1) and (2). A
defendant or the prosecutor may also obtain
independent psychiatric examinations. MCL
768.20a(3); MSA 28.1043(1)(3). The failure by the
defendant to fully cooperate in either the
court-directed or independent examinations, bars
the defendant from presenting testimony relating to
insanity at trial. MCL 768.20a(4); MSA
28.1043(1)(4).
Finally, MCL 768.36 sets forth the consequences of a
jury’s finding that a defendant is guilty of an offense and
that, although the defendant was mentally ill at the time the
offense charged was committed, the defendant was not legally
insane. If a defendant is found “guilty but mentally ill,”
5
(...continued)
substances at the time of his or her alleged offense is not
considered to have been legally insane solely because of being
under the influence of the alcohol or controlled substances.”
MCL 768.21a(2).
8
the trial court “shall impose any sentence which could be
imposed pursuant to law upon a defendant who is convicted of
the same offense.” MCL 768.36(3). If incarcerated, the
defendant must “undergo further evaluation and be given such
treatment as is psychiatrically indicated for his mental
illness or retardation.” Id. If the defendant is placed on
probation, “the trial judge, upon recommendation of the center
for forensic psychiatry, shall make treatment a condition of
probation.” MCL 768.36(4).
IV. The “Diminished Capacity” Defense
As defined by our Court of Appeals, the so-called
“diminished capacity” defense allows a defendant, even though
legally sane, to offer evidence of some mental abnormality to
negate the specific intent required to commit a particular
crime. See, e.g., People v Jones, 151 Mich App 1, 5-6; 390
NW2d 189 (1986). “[T]he theory is that if because of mental
disease or defect a defendant cannot form the specific state
of mind required as an essential element of a crime, he may be
convicted only of a lower grade of the offense not requiring
that particular mental element.” Chestnut v State, 538 So 2d
820, 822 (Fla, 1989) (citation omitted).
This Court has several times acknowledged in passing the
concept of the diminished capacity defense. See, e.g., People
v Lloyd, 459 Mich 433; 590 NW2d 738 (1999) (holding that
defense counsel was not constitutionally ineffective for
9
presenting a diminished capacity defense as opposed to a
defense of legal insanity); People v Pickens, 446 Mich 298;
521 NW2d 797 (1994) (holding that the defendant was not
prejudiced by counsel’s failure to pursue a diminished
capacity defense); People v Griffin, 433 Mich 860; 444 NW2d
139 (1989) (remanding for a hearing on the defendant’s claim
that trial counsel was ineffective for failing to explore
defenses of diminished capacity and insanity). However, we
have never specifically authorized its use in Michigan courts.
Instead, it was our Court of Appeals, in People v Lynch,
47 Mich App 8; 208 NW2d 656 (1973), that introduced to
Michigan the diminished capacity defense. The defendant in
Lynch was charged with having murdered her baby by starvation.
As part of her defense, the defendant sought to have admitted
into evidence testimony from two psychiatrists supporting her
claim that she did not possess the requisite intent to be
convicted of first-degree murder, MCL 750.316. The trial
court refused to admit the evidence on the ground that the
defendant had never raised an insanity defense and did not
give the required statutory notice.6
In reversing the defendant’s jury conviction, the Court
of Appeals rejected the prosecution’s argument that allowing
evidence of mental illness less than insanity as bearing on
6
At the time Lynch was decided, the notice provision for
raising an insanity defense was contained in MCL 768.20.
10
the defendant’s capacity to form the intent required to commit
a particular crime would “sanction a subterfuge” avoiding the
standards of the insanity defense enunciated by this Court in
People v Durfee, 62 Mich 487; 29 NW 109 (1886).7 The Court
also disagreed that recognizing a diminished capacity defense
separate from legal insanity “would permit the defense to in
effect sneak in the insanity defense without labeling it as
such and without the necessity of complying with the notice
statute as to the insanity defense.” Lynch, supra at 20.
While it acknowledged that some states viewed mental capacity
as “an all or nothing matter and that only insanity . . .
negates criminal intent,” the Court of Appeals concluded that
proof of diminished capacity is admissible as “bearing on
7
Before the Legislature’s enactment of 1975 PA 180, the
test for determining legal insanity was controlled by Durfee.
The Durfee test, in turn, was based in part on the M’Naghten
rule: “‘[A]t the time of the committing of the act, the party
accused was laboring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of
the act he was doing; or, if he did know it, that he did not
know he was doing what was wrong.’” People v Martin, 386 Mich
407, 415; 192 NW2d 215 (1971), quoting Daniel M’Naghten’s
Case, (HL 1843) 10 Cl Fin 200 (8 Eng Rep 718), 722 (1843).
In addition to the M’Naghten rule, which focuses solely
on a defendant’s cognitive abilities, the Durfee Court added
a volitional component asking whether the defendant’s mental
disease or abnormality prevented him from controlling his
actions. This second component has commonly been referred to
as the “irresistible impulse” test. In Martin, supra at 418,
we explained the “salient elements” of the Durfee test as
follows: “1) whether defendant knew what he was doing was
right or wrong; and 2) if he did, did he have the power, the
will power, to resist doing the wrongful act?”
11
intent generally or at least on those special states of mind
where a specific intent is required or whether the state of
mind by definition determines the degree of offense as here.”
Id.
In People v Mangiapane, 85 Mich App 379; 271 NW2d 240
(1978), the Court of Appeals had occasion to address the
diminished capacity concept under the current statutory
framework established by 1975 PA 180. In Mangiapane, the
defendant sought to introduce psychiatric testimony on the
issue of his capacity to form the specific intent to commit
assault with intent to commit murder in violation of MCL
750.83. The trial court denied the request on the ground that
the defendant did not raise the defense and give the
prosecution notice under MCL 768.20a.
The Court of Appeals affirmed, explaining that, by
enacting 1975 PA 180, the Legislature intended “to bring under
one procedural blanket all defenses to criminal charges that
rest upon legal insanity as defined in the statute,” and that
“the defense known as diminished capacity comes within th[e]
codified definition of legal insanity.” Id. at 394-395.
Thus, the Court held that, in order to introduce evidence
that, although not legally insane, the defendant lacked mental
capacity to form specific intent, the defendant had to fully
comply with the statutory insanity defense provisions. Id. at
395-396.
12
The Court of Appeals decision in Mangiapane was then
followed by a series of decisions continuing to address
diminished capacity defense as a form of the statutory
insanity defense. See, e.g., People v Denton, 138 Mich App
568; 360 NW2d 245 (1984); People v Anderson, 166 Mich App 455;
421 NW2d 200 (1988).
Consistent with this line of cases, the Court of Appeals
held that a defendant seeking to present a diminished capacity
defense bears the burden of establishing such a defense by a
preponderance of the evidence under MCL 768.21a(3), which took
effect on October 1, 1994. Defendant challenges that holding,
arguing that nothing in the language of § 21a suggests a
legislative intent to place on defendants the burden of
proving diminished capacity.
We agree with defendant that there is no indication in
§ 21a that the Legislature intended to make diminished
capacity an affirmative defense. However, that is only
because, as explained below, the Legislature’s enactment of a
comprehensive statutory scheme concerning defenses based on
either mental illness or mental retardation demonstrates the
Legislature’s intent to preclude the use of any evidence of a
defendant’s lack of mental capacity short of legal insanity to
avoid or reduce criminal responsibility by negating specific
intent.
13
V. The Continued Viability of the Diminished
Capacity Defense in Michigan
Since its inception in the United States, the diminished
capacity defense has been the subject of much debate.8 At
present, there is a wide divergence of views among the states
concerning the admissibility of evidence of mental illness
short of insanity. See, generally, 1 Robinson, Criminal Law
Defenses, § 64(a), pp 272-279. A common criticism is that the
subtle gradations of mental illness recognized in the
psychiatric field are of little utility in determining
criminal responsibility:
“[T]o the psychiatrist mental cases are a
series of imperceptible gradations from the mild
psychopath to the extreme psychotic, whereas
criminal law allows for no gradations. It requires
a final decisive moral judgment of the culpability
of the accused. For the purposes of conviction
there is no twilight zone between abnormality and
insanity. An offender is wholly sane or wholly
insane.” [State v Bouwman, 328 NW2d 703, 706
(Minn, 1982) (citations omitted).]
In State v Wilcox, 70 Ohio St 2d 182, 192-193; 436 NE2d 523
(1982), the court expressed a similar view:
8
It apparently is well recognized that the diminished
capacity defense originated in Scotland in 1867. See State v
Wilcox, 70 Ohio St 2d 182; 436 NE2d 523 (1982); Arenella, The
diminished capacity and diminished responsibility defenses:
Two children of a doomed marriage, 77 Columbia L R 827, 830,
n 16 (1977). The state of California, in turn, is considered
to be the jurisdiction that pioneered the defense in the
United States. Wilcox, supra at 187; see also State v
Sessions, 645 P2d 643, 644, n 2 (Utah, 1982) (“[People v
Wells, 33 Cal 2d 330; 202 P 2d 53 (1949)] is credited with
beginning the diminished capacity in California”).
14
Theoretically the insanity concept operates as
a bright line test separating the criminally
responsible from the criminally irresponsible. The
diminished capacity concept on the other hand
posits a series of rather blurry lines representing
gradations of culpability.
We need not join the affray because we agree with the
prosecution that our Legislature, by enacting the
comprehensive statutory framework described above, has already
conclusively determined when mental incapacity can serve as a
basis for relieving one from criminal responsibility. We
conclude that, through this framework, the Legislature has
created an all or nothing insanity defense. Central to our
holding is the fact that the Legislature has already
contemplated and addressed situations involving persons who
are mentally ill or retarded yet not legally insane. As noted
above, such a person may be found “guilty but mentally ill”
and must be sentenced in the same manner as any other
defendant committing the same offense and subject to
psychiatric evaluation and treatment. MCL 768.36(3). Through
this statutory provision, the Legislature has demonstrated its
policy choice that evidence of mental incapacity short of
insanity cannot be used to avoid or reduce criminal
responsibility by negating specific intent.
As a final matter, we note that even persons acquitted of
an offense by reason of insanity may be confined and required
to undergo evaluation and treatment. MCL 330.2050. As we
15
explained in People v Webb, 458 Mich 265, 281; 580 NW2d 884
(1998), MCL 330.2050 is “a measure to promote public safety.
Persons acquitted by reason of insanity, particularly where
the facts are grave, cannot be allowed simply to walk out the
front door of the courthouse. The statute is clearly designed
to establish a procedure by which it can be determined whether
the person can safely reenter society.” We agree with the
Supreme Court of Wisconsin that
[w]here . . . the statutes provide that a person
found not guilty by reason of insanity is to be
committed to a mental treatment facility until
recovered and until his return to society presents
no danger to the public, the introduction of
evidence of mental condition on the question of
impaired capacity to form intent during the guilt
phase of the trial could well be required to acquit
the defendant, sane or insane, without ever
inquiring into the issue of sanity and without
regard to the provisions of the statute requiring
treatment of those pleading and establishing
insanity. [Steele v State, 97 Wis 2d 72, 91; 294
NW2d 2 (1980) (citation omitted).]
Similar sentiments were expressed in Bethea v United States,
365 A2d 64, 90-91 (DC App, 1976), a decision that is widely
cited for the view that the diminished capacity defense should
be rejected:
Under the present statutory scheme, a
successful plea of insanity avoids a conviction,
but confronts the accused with the very real
possibility of prolonged therapeutic confinement.
If, however, psychiatric testimony were generally
admissible to cast a reasonable doubt upon whatever
degree of mens rea was necessary for the charged
offense, thus resulting in outright acquittal,
there would be scant reason indeed for a defendant
to risk such confinement by arguing the greater
16
form of mental deficiency. Thus, quite apart from
the argument that the diminished capacity doctrine
would result in a considerably greater likelihood
of acquittal for those who by traditional standards
would be held responsible, the future safety of the
offender as well as the community would be
jeopardized by the possibility that one who is
genuinely dangerous might obtain his complete
freedom merely by applying his psychiatric evidence
to the threshold issue of intent.
Like the Supreme Court of Ohio, we decline to adopt an
alternative defense to legal insanity “that could swallow up
the insanity defense and its attendant commitment provisions.”
Wilcox, supra at 189. “[T]he concepts of both diminished
capacity and insanity involve a moral choice by the community
to withhold a finding of responsibility and its consequence of
punishment.” Bethea, supra at 90, n 55.9 Accordingly, we
hold that the insanity defense as established by the
Legislature is the sole standard for determining criminal
responsibility as it relates to mental illness or
9
It is for this reason that we find to be irrelevant the
largely procedural distinction between the affirmative defense
of legal insanity and the use of diminished capacity evidence.
In either case, a defendant is attempting to avoid
responsibility for his actions. In our view, the Legislature,
by adopting a comprehensive framework concerning mental
illness and retardation as it relates to criminal
responsibility, has established that defendants suffering from
mental deficiencies amounting to legal insanity “should be
acquitted on that ground and treated for their disease.
Persons with less serious mental deficiencies should be
accountable for their crimes just as everyone else.”
Chestnut, supra at 825.
17
retardation.10
Defendant, however, maintains that it would violate due
process to preclude a defendant from introducing evidence
that, although not legally insane, he lacked the mental
capacity to form a specific intent. The United States Supreme
Court’s decision in Fisher v United States, 328 US 463; 66 S
Ct 1318; 90 L Ed 1382 (1946), dispositively answers this
contention in the negative. The defendant in Fisher sought an
instruction in his District of Columbia murder trial that
would have permitted the jury “to weigh evidence of his mental
deficiencies, which were short of insanity in the legal sense,
in determining the fact of and the accused’s capacity for
premeditation and deliberation.” Id. at 470. In upholding
the refusal of the trial court to give such an instruction,
the Supreme Court noted that “[f]or this Court to force the
District of Columbia to adopt such a requirement for criminal
trials would involve a fundamental change in the common law
10
We decline the dissent’s invitation to address our prior
decisions recognizing voluntary intoxication as negating
specific intent, see, e.g., People v Langworthy, 416 Mich 630;
331 NW2d 171 (1982), as the continued validity of that
separate and distinct defense is not before us. While
defendant presented evidence that he had been drinking on the
night of the offense and that he was taking various
prescription drugs, there was no defense claim that
intoxication alone precluded defendant from being able to form
the requisite specific intent. Rather, the entire defense was
based upon defendant’s apparent organic brain damage. Indeed,
defendant’s own expert testified that this was not just a case
in which “someone went out and drank.”
18
theory of responsibility.” Id. at 476. The Court concluded
that
[s]uch a radical departure from common law concepts
is more properly a subject for the exercise of
legislative power or at least for the discretion of
the courts of the District. The administration of
criminal law in matters not affected by
Constitutional limitations or a general federal law
is a matter peculiarly of local concern. [Id. at
476.]
Given the clear message of the Court’s decision in
Fisher, the reliance by both defendant and the dissent on
other United States Supreme Court decisions not addressing the
issue presented here is not persuasive. Indeed, the Seventh
Circuit Court of Appeals relied on Fisher to reach the same
decision we do today: “[A] state is not constitutionally
compelled to recognize the doctrine of diminished capacity and
hence a state may exclude expert testimony offered for the
purpose of establishing that a criminal defendant lacked the
capacity to form a specific intent.” Muench v Israel, 715 F2d
1124, 1144-145 (CA 7, 1982); see also Mott, supra at 541
(“Fisher stands for the proposition that state legislatures,
without violating the constitution, may preclude defendants
from offering evidence of mental and psychological
deficiencies to challenge the elements of a crime”).
VI. Conclusion
The Legislature has enacted a comprehensive statutory
scheme setting forth the requirements for and the effects of
19
asserting a defense based on either mental illness or mental
retardation. We conclude that, in so doing, the Legislature
has signified its intent not to allow evidence of a
defendant’s lack of mental capacity short of legal insanity to
avoid or reduce criminal responsibility by negating specific
intent. Rather, the insanity defense as established by the
Legislature is the sole standard for determining criminal
responsibility as it relates to mental illness or retardation.
Consequently, we affirm the decision of the Court of Appeals
on this alternative basis.
CORRIGAN , C.J., and WEAVER , TAYLOR , and MARKMAN , JJ.,
concurred with YOUNG , J.
20
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 115617
JAMES A. CARPENTER,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I disagree that the Legislature has signified its intent
to preclude a defendant from negating mens rea by introducing
evidence of mental illness short of legal insanity.
For the state to obtain a conviction of certain crimes,
the Legislature requires that it prove beyond a reasonable
doubt that the accused acted with specific intent. I maintain
that people accused of those crimes should not be prevented
from offering evidence of mental abnormality or illness
showing that they acted without the requisite specific intent.
I believe that the majority's broad rule excluding such
evidence lacks sound justification. It violates the
presumption of innocence and the due process rights to present
a defense and be convicted only upon proof beyond a reasonable
doubt of every element of a crime. Thus, I respectfully
dissent.1
I. Due Process Rights
The state may not deprive any person "of life, liberty,
or property, without due process of law . . . ." US Const, Am
XIV; Const 1963, Art 1, § 17. Although an accused has no
absolute right to present evidence relevant to his defense, a
limitation on his ability to present a defense may, under some
circumstances, violate due process. See Rock v Arkansas, 483
US 44, 55; 107 S Ct 2704; 97 L Ed 2d 37 (1987); Chambers v
Mississippi, 410 US 284, 294; 93 S Ct 1038; 35 L Ed 2d 297
(1973). Rules excluding evidence contravene the due process
right to present a defense when they infringe a weighty
interest of an accused or significantly undermine a
fundamental element of the defense. See United States v
Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d 413
(1998), citing Rock, supra at 58; Chambers, supra at 302.
1
Generally, mental abnormality evidence may negate only
specific intent. Indeed, this was the use approved in People
v Lynch, 47 Mich App 8, 20-21; 208 NW2d 656 (1973).
Accordingly, the focus here is on psychiatric evidence
presented for that purpose. This opinion should not be
construed as advocating the use of psychiatric evidence of
mental abnormality or illness to negate the requisite mens rea
in general intent crimes.
2
Several United States Supreme Court cases have addressed
an accused's right to present evidence in support of his
defense. In Chambers,2 the Supreme Court held that
Mississippi's evidentiary rules deprived the defendant of a
fair trial. They prevented him from calling witnesses who
would have testified that another witness made trustworthy,
inculpatory statements on the night of the crime. The Court
reasoned that "where constitutional rights directly affecting
the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanically to defeat the ends of
justice." Id. at 302.
In Washington v Texas,3 the trial court denied the
defendant's request to have a defense witness testify. The
court relied on Texas statutes providing that persons charged
or convicted as coparticipants in the same crime could testify
for the state but not for one another. Defendant sought to
call a witness who would have offered relevant and material
evidence for the defense. The Supreme Court held that the
categorical exclusion of the witness was an unconstitutional
and arbitrary denial of the defendant's rights. Id. at 23.
2
Supra at 302-303.
3
388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967).
3
Later, in Crane v Kentucky,4 the Supreme Court held that
the defendant's right to have a fair opportunity to present a
defense was violated by the trial court's blanket exclusion of
evidence. The Court found that the evidence was competent and
reliable, that it bore on the reliability of a confession, and
that it was central to the defendant's claim of innocence.
The common thread of Chambers, Washington, and Crane is
the due process requirement that an accused be permitted a
fair opportunity to defend against any and all state
accusations. A fair opportunity to defend, if meaningful, must
entail adversarial testing of the state's case against the
accused. It must mean that the state may not prevent an
accused from raising an effective defense. The state may not
impede a defendant's right to put on a defense by imposing
either mechanical or arbitrary rules of evidence. See Montana
v Egelhoff, 518 US 37, 63-64; 116 S Ct 2013; 135 L Ed 2d 361
(1996) (O'Connor, J., dissenting, joined by Stevens, Souter,
and Breyer, JJ.).
Today, the majority creates a rule per se prohibiting an
accused from introducing evidence that, because of mental
abnormality or illness, he lacked the specific intent to
commit the crime. Under my view of controlling United States
Supreme Court authority, this exclusion denies an accused his
4
476 US 683, 687; 106 S Ct 2142; 90 L Ed 2d 636 (1986).
4
due process right to present a defense.
Although, as noted, the right is not entirely limitless,
an essential component of procedural fairness is an
opportunity to be heard. That opportunity becomes an empty one
when the state is permitted to exclude competent, reliable
evidence directly affecting the ascertainment of guilt. See
Crane, supra at 690 (citations omitted); see also Chambers,
supra at 302; State v Ellis, 136 Wash 2d 498, 527; 963 P2d 843
(1998); United States v Pohlot, 827 F2d 889, 900-901 (CA 3,
1987). Hence, by foreclosing challenges to the state's proof
concerning an essential element of the crime charged, the
majority's broad rule impermissibly undermines a fundamental
element of an accused's defense. It denies defendants with
mental abnormalities their due process right to present a
defense.
Moreover, the majority has impermissibly diminished the
constitutional requirement of prosecutorial proof of guilt
beyond a reasonable doubt on each element of the charged
offense. The United States Supreme Court held in In re
Winship,5 that due process protects an accused against
conviction except upon proof beyond a reasonable doubt of
every element of the charged criminal offense. Where a certain
5
397 US 358, 363-364; 90 S Ct 1068; 25 L Ed 2d 368
(1970).
5
mental state is an element of the crime, the government must
allege and prove that mental state. See Morissette v United
States, 342 US 246, 275; 72 S Ct 240; 96 L Ed 288 (1952).
The case of Martin v Ohio,6 is instructive. There, the
United States Supreme Court considered an Ohio statute that
placed on a defendant the burden of proving by a preponderance
of the evidence an affirmative defense like self-defense. The
Court held that the statute did not violate due process;
however, it noted, it would have been error to instruct the
jury that "self-defense evidence could not be considered in
determining whether there was a reasonable doubt about the
state's case" where Ohio's definition of the intent element
made self-defense evidence the state's burden. Id. at 233-234.
Such an instruction would have been improper because it would
have relieved the State of its burden and "plainly run afoul
of Winship's mandate." Id. at 234.
Here, although the Legislature has required proof beyond
a reasonable doubt of mens rea,7 the majority has rendered
inadmissible evidence relevant to negating the mens rea. In so
doing, it has foreclosed any meaningful challenge to the
prosecution's proofs. With respect to specific intent crimes,
6
480 US 228; 107 S Ct 1098; 94 L Ed 2d 267 (1987).
7
Black's Law Dictionary, 6th ed, defines "mens rea" as
"criminal intent."
6
at least, I believe that this "cut[s] against our traditional
concept of the adversary system" and "downgrades the
prosecution's burden to something less than that mandated by
due process of law." People v Hendershott, 653 P2d 385, 393
(Colo, 1982).
The majority asserts that Fisher v United States,8
dispositively answers in the negative the question whether its
holding today violates due process. In Fisher, the defendant
was charged with first-degree premeditated murder arising from
an incident inside a Washington, D.C., library. The defendant
was the library's janitor. The evidence showed that on the
fatal morning, the librarian told the defendant that he was
not doing the work for which he was being paid, and in the
course of her scolding called him a "black nigger." Id. at 479
(Frankfurter, J., dissenting). In anger, the defendant slapped
the librarian "impulsively," causing her to scream. He then
retrieved a piece of wood and struck her with it, after which
he seized her by the throat until she went limp.
The defense theory was that he never wanted to kill the
librarian, but wanted to stop her screaming, which unnerved
him. Id. at 479-480 (Frankfurter, J., dissenting). At the
close of proofs, the trial court instructed on insanity,
irresistible impulse, malice, deliberation, and premeditation.
8
328 US 463; 66 S Ct 1318; 90 L Ed 1382 (1946).
7
Over defense counsel's objection, the trial court refused to
give the following instruction:
The jury is instructed that in considering the
question of intent or lack of intent to kill on the
part of the defendant, the question of
premeditation or no premeditation, deliberation or
no deliberation, whether or not the defendant at
the time of the fatal acts was of sound memory and
discretion, it should consider the entire
personality of the defendant, his mental, nervous,
emotional and physical characteristics as developed
by the evidence in the case. [Id. at 470-471, n 6.9]
Defendant was convicted as charged of first-degree murder.
The Supreme Court affirmed the conviction. It upheld the
refusal to give the defendant's requested instruction. The
Court noted that the defendant was challenging a local
evidentiary rule that was long established and deeply rooted
in the District of Columbia. Id. at 477. It declined to force
the District of Columbia to enact the rule of responsibility
that the defendant sought, labeling the request "a fundamental
change in the common law theory of responsibility." Id. at
9
The requested instruction related to the defendant's
claim that, in assessing whether the defendant, in fact,
deliberated, the jury should be able to consider the following
factors: defendant's chronic alcoholic nature, his limited
intellect, his limited "judgment and comprehension," as well
as his race. See Siegel, Felix Frankfurter, Charles Hamilton
Houston and the "N-word": A case study in the evolution of
judicial attitudes toward race, 7 S Cal Interdisciplinary L J
317, 346-351, 355 (1998), discussing the Fisher decision in
great depth. Given these broad proffered factors, one scholar
considered Fisher to be arguably more of a provocation case
than a diminished capacity case. See id. at 370, stating that
the defendant's real defense was that racism "explained, if
not legally caused, the crime."
8
476.10
The majority is correct that the Supreme Court in Fisher
approved of the refusal to give an instruction bearing on
whether a defendant acted with the requisite specific intent.
However, I disagree that it resolves the instant defendant's
due process challenge.
First, while the Supreme Court has never explicitly
overruled Fisher, it has arguably done so by implication.
Fisher must be interpreted in light of subsequent Supreme
Court decisions. In my view, the line of cases starting with
In re Winship and ending with Martin creates the inference
that the rule of Fisher has been implicitly overruled.11
10
In Griffin v United States, 336 US 704; 69 S Ct 814; 93
L Ed 993 (1949), Justice Murphy stated that the Supreme
Court's decision in Fisher was based, in part, on the Court's
reluctance to upset a District of Columbia evidence rule that
existed when the case arose. That rule provided that "'mental
deficiency which does not show legal irresponsibility' is not
'a relevant factor in determining whether an accused is guilty
of murder in the first or second degree.'" Id. at 722 (Murphy,
J., dissenting); see, generally, Fisher, supra, declining the
defendant's request to declare evidence of mental deficiency
short of legal insanity a relevant factor in determining one's
guilt of first-degree murder.
11
See Benjamin, The jurisdictional implications of a mens
rea approach to insanity: Plugging the "detainment gap" after
Foucha v Louisiana, 19 U Dayton L R 41, 61, n 114 (1993); see
also United States v Brawner, 471 F2d 969, 1001-1002 (DC CA,
1972) (en banc), superseded by statute on other grounds, as
stated in Shannon v United States, 512 US 573, 582; 114 S Ct
2419; 129 L Ed 2d 459 (1994), rejected by Bethea v United
States, 365 A2d 64, 83-92 (DC App, 1976), noting how
subsequent cases have "undercut the Fisher approach," which it
(continued...)
9
In addition, more recent and, in my view, persuasive
authority exists demonstrating the constitutional infirmity
of barring evidence of one's mental abnormalities short of
insanity to negate specific intent. See, e.g., Pohlot, supra
at 901,12 stating that "a rule barring evidence [of the
defendant's mental abnormality] on the issue of mens rea may
be unconstitutional so long as we determine criminal liability
in part through subjective states of mind;" See also Ellis,
supra at 523; Hendershott, supra at 393.
In light of the above, I believe that Fisher does not
control the instant case. Rather, I maintain that the
majority's rule of exclusion violates due process. As the
Colorado Supreme Court so astutely stated:
While it may be permissible to permit a jury
to infer an essential ingredient of a crime from a
proven fact so long as there is a rational
connection between the proven fact and the inferred
fact, e.g., Barnes v United States, 412 US 837; 93
S Ct 2357; 37 L Ed 2d 380 (1973); Tot v United
States, 319 US 463; 63 S Ct 1241; 87 L Ed 1519
(1943), it is quite another matter to insulate this
ingredient from disproof by defense evidence. A
11
(...continued)
referred to as "draconic;" Pohlot, supra at 900-901.
12
In Pohlot, the Court was unpersuaded by either Fisher
or federal circuit court decisions following Fisher. It stated
that those cases failed to distinguish "between the use of
evidence to negate mens rea and a broader diminished capacity
defense. The recent circuit court opinions also focus on the
exclusion of expert opinion evidence, not on the exclusion of
all evidence of mental abnormality, including the defendant's
own testimony." Pohlot, supra at 901, n 12.
10
rule precluding the defendant from contesting the
culpability element of the charge would render the
prosecution's evidence on that issue uncontestable
as a matter of law, in derogation of the
presumption of innocence and the constitutional
requirement of prosecutorial proof of guilty beyond
a reasonable doubt. E.g., Sandstrom v Montana, 442
US [510, 520-524; 99 S Ct 2450; 61 L Ed 2d 39
(1979)]; Morrissette [supra at 274-275].
[Hendershott, supra at 391.]
There can be no question that the majority's holding
affixes a heavy burden on defendants' due process rights.
Because the majority provides no plausible justification, I
think its holding violates due process.
II. No Plausible Justification for the Majority's
Broad Rule of Exclusion
According to the majority, by enacting the insanity13 and
guilty but mentally ill (GBMI)14 statutes, the Legislature
created a scheme. It provided the requirements for and the
effects of asserting a defense based on mental illness or
retardation. The majority deduces from the scheme an intent to
bar evidence of a defendant's lack of mental capacity short of
insanity to negate specific intent. I disagree, and find its
statutory interpretation analysis unpersuasive.
The first step in statutory interpretation is to give
effect to the intent of the Legislature. See Tryc v Michigan
Veterans Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). To
13
MCL 768.21a.
14
MCL 768.36.
11
do so, we examine first the specific language of the statute.
If the language is clear and unambiguous, we assume that the
Legislature intended its plain meaning, and we will enforce
the statute as written. See In re MCI Telecommunications
Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). This Court
should reject an interpretation of a statute that speculates
about Legislative intent and requires us to add language into
the statute. See id. at 414.
Here, importantly, neither the insanity statute nor the
GBMI statute mentions the permissibility of using evidence of
mental abnormality to negate specific intent. Rather, both
statutes concern affirmative defenses available to a legally
insane defendant.15 These two statutes, by their plain
language, apply only if a defendant seeks to introduce
evidence of a mental illness to justify or excuse an otherwise
criminal act.
This clearly contrasts with the introduction of
diminished capacity evidence. The use of such evidence does
not constitute an affirmative defense. See Pohlot, supra at
897. A defendant claiming diminished capacity does not admit
guilt of the crime charged or assert that he is legally
15
The insanity statute provides that legal insanity "[i]s
an affirmative defense." MCL 768.21a. The GBMI statute
expressly provides that it applies "[i]f the defendant asserts
a defense of insanity . . . ." MCL 768.36.
12
insane. Rather, he denies the prosecution's prima facie case
by challenging its claim that he possessed the requisite mens
rea at the time of the crime.16 Hence, insanity evidence to
prove the affirmative defense of legal insanity is distinct
from diminished capacity evidence to disprove the requisite
mens rea of a specific intent crime. See United States v
Gonyea, 140 F3d 649, 651 (CA 6, 1998).17
I consider the distinction between the two,18 coupled with
the absence of language in the insanity and GBMI statutes
addressing the use of evidence of mental abnormality to negate
16
See Morse, Undiminished confusion in diminished
capacity, 75 J Crim L & Criminology 1, 6 (1984).
17
Moreover, diminished capacity represents a degree of
mental impairment short of legal insanity. See Britton &
Bennett, Adopt guilty but mentally ill?-No!, 15 U Tol L R 203,
211 (1983).
18
The majority attempts to group diminished capacity
evidence into the insanity and GBMI statutory scheme. It does
this by asserting that a defendant who uses diminished
capacity evidence, like one who uses insanity evidence, is
trying to "avoid responsibility." Slip op at 17, n 9. The
assertion is simply inaccurate. Put most simply, one who uses
diminished capacity evidence seeks merely to ensure that no
conviction occurs except upon proof beyond a reasonable doubt
of every element of the offense. See Morse, supra at 6. If
diminished capacity evidence creates a reasonable doubt
regarding one of the elements of the crime charged, the
defendant is not "avoiding responsibility" for that crime.
Rather, he is attaining that to which he is constitutionally
entitled: an acquittal of that offense. See Morrissette, supra
at 275. In my view, this distinction is significant, and
persuades me that the insanity and GBMI statues evidence no
clear legislative intent to exclude diminished capacity
evidence.
13
the mens rea. And I cannot conclude that the Legislature
intended to bar the use of evidence of one's mental
abnormality short of insanity to negate specific intent when
it enacted the insanity and GBMI statutes. See MCI
Telecommunications, supra at 414.19
I share the majority's concern that the accused who
successfully show that their mental illness negated the
requisite mens rea may be set free without treatment or
imprisonment. However, that cannot justify reading into
legislation a rule of exclusion per se where none exists.
By contrast, our Legislature has made it clear that a
person may not be punished for a crime if the prosecution is
unable to prove the necessary mens rea.20 Indeed, as one
scholar explained in rejecting a concern similar to the one
the majority presents here:
19
Notably, this Court has acknowledged that the
Legislative intent in enacting the GBMI statute was to "limit
the number of persons who, in the eyes of the Legislature,
were improperly being relieved of all criminal responsibility
by way of the insanity verdict." People v Ramsey, 422 Mich
500, 512; 375 NW2d 297 (1985) (emphasis in original). This
militates against interpreting the GBMI statute as relating to
the concept of diminished capacity.
20
The situation is analogous to one where a defendant is
acquitted of first-degree murder but convicted of manslaughter
on the basis of provocation. See Brawner, supra at 1001,
stating that when one's abnormal mental condition short of
legal insanity is material in negativing premeditation, it
"does not set him 'at liberty' but reduces the degree of the
criminal homicide."
14
Some may argue that persons who gain a failure
of proof defense through the absence of a
culpability requirement, through mistake or mental
illness negating a required mental element, for
example, are nonetheless dangerous. Special
deterrence, then, is undercut when such failure of
proof defenses are relied upon. The response is
simple: if significant purposes of the criminal law
are satisfied by a criminal conviction in this
situation, then the offense should be redefined
without the mental element requirements. If the
purposes of conviction and punishment would not be
satisfied by such an alteration, then the defense
remains appropriate. [1 Robinson, Criminal Law
Defenses, § 32(b), p 123, n 8.]
Moreover, in most cases, defendants who successfully
negate prosecutors' proofs will be convicted of a lesser,
general intent offense. Even if lesser offenses are
inapplicable, procedures exist for civil commitment of those
acquitted of crimes who are considered potentially dangerous.21
In any event, the proper resolution of this concern is not to
bar relevant evidence.22
The majority also attempts to justify its holding by
asserting that a contrary rule would render the insanity
21
See MCL 330.1472a, providing inter alia, for the civil
admission of mentally ill persons; MCL 330.1498a et seq.,
civil admission of emotionally disturbed minors; MCL 330.1500
et seq., civil admission of developmentally disabled
individuals; see also Hendershott, supra at 395.
22
See People v Wetmore, 22 Cal 3d 318, 328; 149 Cal Rptr
265; 583 P2d 1308 (1978), superseded by 1981 Cal Stat 404, §
4, current version at Cal Penal Code, §§ 28-29 (West 1988),
stating that "we do not perceive how a defendant who has in
his possession evidence which rebuts an element of the crime
can logically be denied the right to present that evidence
merely because it will result in his acquittal."
15
defense superfluous. That a defendant has the right to
introduce psychiatric evidence to support the affirmative
defense of insanity does not justify barring relevant evidence
negating the prosecutor's case in chief. See Pohlot, supra at
901. Also, because evidence supporting an insanity defense and
evidence negating specific intent address distinct questions,
the breadth of the former is irrelevant to the question of the
latter's admissibility.
The majority has taken the extreme step of barring
defendants from introducing psychiatric evidence of mental
abnormality to negate the mens rea of the crime charged.
Because the rule it creates lacks sound justification, and
because it renders the prosecution's proofs on the intent
element essentially uncontestable, it violates defendant's due
process rights. See generally Sandstrom, supra at 520-524;
Morrissette, supra at 275; Martin, supra at 233-234.23
III. Authority from Other Jurisdictions
Several jurisdictions that have considered the
admissibility of evidence of mental abnormality to negate
mens rea have reached a conclusion contrary to that of the
23
Given that this Court recognizes evidence of voluntary
intoxication to negate specific intent, the majority's
rejection of mental abnormality evidence, used for the very
same purpose, defies explanation. See Brawner, supra at 999;
Phipps, supra at 148; State v Correra, 430 A 2d 1251, 1253
1254 (RI, 1981).
16
majority today. See Compton, Expert witness testimony and the
diminished capacity defense, 20 Am J Trial Advoc 381, 387-388,
n 63 (1996-1997); State v Mott, 187 Ariz 536, 555; 931 P2d
1046 (1997) (Feldman, J., dissenting). Nearly every federal
circuit court has concluded that the insanity defense reform
act24 does not bar evidence of mental abnormality to negate
mens rea. See Pohlot, supra at 900-901; United States v
Marenghi, 893 F Supp 85, 89 (D Me, 1995) (collecting cases).
I would follow this persuasive authority, and conclude
that evidence of mental abnormality or illness is admissible
to negate specific intent. Such a position merely reaffirms
three concepts basic to our system of jurisprudence: the right
to present a meaningful defense, the requirement that the
state prove beyond a reasonable doubt each and every element
of a charged offense, and the presumption of innocence.
IV. Conclusion
The majority categorically excludes relevant and material
evidence that directly concerns an essential element of
24
18 USC 17 provides, in pertinent part:
(a) Affirmative defense. It is an affirmative
defense to a prosecution under any Federal statute
that, at the time of the commission of the acts
constituting the offense, the defendant, as a
result of a severe mental disease or defect, was
unable to appreciate the nature and quality or the
wrongfulness of his acts. Mental disease or defect
does not otherwise constitute a defense.
17
specific intent crimes. This violates a defendant's due
process right to present a defense, ignores the requirement of
proof of guilt beyond a reasonable doubt, and derogates the
presumption of innocence. Because the majority fails to
justify its heavy burdening of defendants' due process rights,
I am unable to join its opinion.
I write, also, because I am troubled that the majority is
deciding this case on a ground that the prosecutor never
argued until its brief on appeal to this Court. To the extent
that this Court rejects arguments not raised below by criminal
defendants, it should reject those not raised below by the
prosecution. Adding insult to injury, the majority has turned
the prosecution's tardy argument into a rule of exclusion
that, I believe, cannot withstand constitutional scrutiny. For
these reasons, I respectfully dissent.
CAVANAGH , J., concurred with KELLY , J.
18