State v. Smith

574 P.2d 548, 223 Kan. 203, 1977 Kan. LEXIS 401

Opinions

The opinion of the court was delivered by

Schroeder, C.J.:

This is an appeal in a criminal action from a jury verdict which found David Earl Smith (defendant-appellant) guilty of one count of felony murder (K.S.A. 21-3401), one count of burglary (K.S.A. 21-3412), and one count of felony theft (K.S.A. 21-3701).

The sole question on appeal is whether it was error for the trial court to instruct the jury regarding the defendant’s insanity defense using the M’Naghten rule, and overruling the defendant’s requested instruction using the American Law Institute Model Penal Code test.

On January 20, 1976, Greta Edwards was brutally beaten to death at her home in Overland Park, Kansas, by the defendant, who was her next door neighbor. The evidence is largely undisputed.

The defendant is a seventeen-year-old juvenile who was living at home with his parents and enrolled in a trade school in Kansas City, Missouri, when the murder occurred. On the day of the murder he left school shortly before noon and purchased an eight pack of seven-ounce beer. Thereafter, he consumed the entire eight pack in addition to taking “three hits” of amphetamines.

The defendant was next seen at a novelty store in a shopping area several blocks from his home around 1:15 p.m. While browsing in the store, he had no difficulty walking or speaking. The clerk became suspicious of him, however, and summoned the Mission, Kansas, police to the store. Officer Edwin McClain testified he did not notice anything unusual about the defendant at the time, which was around 2:20 in the afternoon.

At approximately 3:15 p.m. the defendant’s father, Bobby Smith, had just awakened and was dressing in order to pick his wife up at work. He testified when he went outside to his car he noticed several items of property lying on the ground in front of his son’s car including a coin collection, a C.B. radio, a lighted dresser mirror, and a small stereo. They appeared to have blood on them. These items were later identified at the trial as belonging to the Edwards family. Also at this time Mr. Smith saw his son in the backyard of the Edwards’ home, and he was walking in a northerly direction away from him.

Shortly thereafter, the defendant appeared from the north and walked down the street into his own home. His father testified he was walking in an uncharacteristic manner described as “bouncy and jumpy, faster than usual,” and his appearance was disheveled and unkempt. He had blood on himself and his clothing and cuts on his left hand.

The defendant told his father Mrs. Edwards was hurt and bleeding. He then proceeded to call the police and handed the telephone receiver to his father. Mr. Smith told the police dispatcher that officers should be sent to his home. The defendant then emptied his pockets and took a Colt pistol from under his belt. Mr. Smith went next door to the Edwards’ home and discovered Mrs. Edwards lying in a pool of blood on the floor on the front entryway.

The Overland Park Police Department arrested the defendant without any incident of resistance. Apparently, he originally entered the Edwards’ home with the intent to commit a burglary when he was discovered by Mrs. Edwards. In his statement to the police he admitted breaking into the Edwards’ home and related how Mrs. Edwards came home and called out “David” referring to her own son by the same name. The defendant liked Mrs. Edwards and had no reason for killing her. He stated, “I kept hitting her and hitting her. I started yelling ‘Stop breathing and I will quit.’ ” His explanation for hitting Mrs. Edwards was that the last time he had been to juvenile court his probation officer told him he would be put in a mental institution.

The defendant was certified to stand trial as an adult. At his trial the pathologist who conducted the autopsy on Greta Ed wards testified the cause of death was innumerable blows with a blunt object to the scalp area causing compound fractures of the skull, lacerations and avulsion of the brain. Mrs. Edwards’ hands were covered with lacerations and her left index finger was fractured. Mrs. Edwards’ wrist watch had stopped at 3:20. This fact, viewed in the light of the record, which disclosed devastating and forceful blows to the head area together with Mrs. Edwards’ obvious attempts to protect herself, rather solidly set the time of death.

The defendant offered testimony from a clinical psychologist, Dr. Edward P. Neufeld; an osteopathic physician specializing in general psychiatry, Dr. Donald Curran; and a medical doctor specializing in psychiatry, Dr. J. Scott Morrison, to support his defense of legal insanity at the time of the offense.

Dr. Neufeld first saw the defendant on January 27, 1976, when he administered a series of psychological tests to him. He testified the defendant had elevated feelings of people being against him which could be described as paranoid in nature. He said the defendant also had feelings of being strange or different from others, a fear of going crazy, and suffered from “personality disorders.” When asked his opinion whether the defendant could have stopped himself from hitting Mrs. Edwards he stated, “[G]iven the very unique circumstances, hypothesized anger with his outburst of rage, given his lack of internal controls, given the panic of the situation, given the nature of the crime, no, ... he could not have stopped on his own.”

Dr. Neufeld was unable to describe the defendant’s condition as “a disease of the mind” because in his professional usage that term meant an organic malady. He testified the defendant did know the nature and quality of his actions on some level, and on an “intellectual level” he did know the difference between right and wrong.

Dr. Curran agreed the defendant knew, the difference between right and wrong at the time of the murder. It was his opinion, however, the defendant could not control his behavior during the passion of the moment. He testified the added elements of beer and speed “compounded his poor capacity to delay and then to do what is culturally or socially right.”

Finally, Dr. Morrison conducted an extensive clinical psychological interview with the defendant. He testified about various incidents the defendant had related to him in which the defendant felt he had no control over himself. Dr. Morrison described this psychological state as “dissociation.” He stated in such a condition the defendant’s awareness of what he is doing is there but his ability to alter what he is doing is not there. Dr. Morrison admitted on cross-examination, however, “dissociation” is considered an ego defense and is not considered a classically defined mental disease. Dr. Morrison testified he presumed the combination of the defendant’s personality type, specifically the dissociative aspects of it, with the drugs converged at the moment he began to hit Mrs. Edwards and rendered him incapable of conforming his behavior with the law and with ethical and moral values. While he felt the defendant knew the burglary and theft were wrong and striking Mrs. Edwards was wrong, Dr. Morrison was not convinced the defendant knew he was killing Mrs. Edwards.

After the defendant’s experts testified, the state called Dr. William McKnelly, Jr., as its expert. Dr. McKnelly interviewed the defendant in order to determine his competency to stand trial and his legal insanity status under the M’Naghten test.

Dr. McKnelly testified in his opinion the defendant had characterological problems, but he did not find a mental disease in the legal sense. He too felt the defendant knew the nature and quality of his acts and knew his acts were wrong.

At the close of the state’s evidence and at the close of his own evidence, the defendant moved for a judgment of acquittal. On both occasions, the trial court overruled the defendant’s motion which was based upon the American Law Institute Model Penal Code test of insanity. The trial court also overruled the defendant’s objection to instructions setting out the M’Naghten rule.

During its deliberation, the jury asked the trial court for special instructions. Two questions were specifically presented:

“1) Must we return the same verdict on all three counts or may we separate and have different verdicts on the counts?

“2) Can insanity apply only to the time the defendant was striking the victim or does it have to include all three counts?”

The trial court refused to give any additional instructions and referred the jury to its original instructions. The jury subsequently returned a verdict of guilty on all three counts. The defendant’s motion for a new trial was denied, and appeal was thereafter duly perfected.

The sole point argued by the appellant is that the rule in this state as to criminal responsibility should be changed. He asks this court to adopt the American Law Institute Model Penal Code definition which provides:

“4.01. Mental Disease or Defect Excluding Responsibility

“(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

“(2) As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.”

The M’Naghten rule has been followed in Kansas since statehood and has been the subject of judicial review on numerous occasions. (See State v. Barry, 216 Kan. 609, 533 P.2d 1308; State v. Randol, 212 Kan. 461, 513 P.2d 248; State v. Lamb, 209 Kan. 453, 497 P.2d 275; State v. Harden, 206 Kan. 365, 480 P.2d 53; Van Dusen v. State, 197 Kan. 718, 421 P.2d 197; State v. Andrews, 187 Kan. 458, 357 P.2d 739, cert. denied, 368 U.S. 868, 7 L.Ed.2d 65, 82 S.Ct. 80; State v. Mendzlewski, 180 Kan. 11, 299 P.2d 598; Fisher v. Fraser, 171 Kan. 472, 233 P.2d 1066; State v. McBride, 170 Kan. 377, 226 P.2d 246; State v. White, 112 Kan. 83, 209 Pac. 660; State v. Arnold, 79 Kan. 533, 100 Pac. 64; State v. O’Neil, 51 Kan. 651, 33 Pac. 287; and State v. Nixon, 32 Kan. 205, 4 Pac. 159.)

Here the trial court instructed on the precise language used in State v. Andrews, supra.

The leading case examining M’Naghten is State v. Andrews, supra, where this court defended the rule and sharply criticized a proposed adoption of Durham v. United States, 214 F.2d 862, 94 App. D.C. 228, 45 A.L.R.2d 1430 (1954). After analyzing the various arguments against M’Naghten the court said:

“It would appear to this court, that at the present time, there is no better rule for the protection of society than the one which was applied by the trial court in this case [M’Naghten], and which is still approved by the overwhelming weight of authority. . . .” (p. 469.)

We adhere to this view. In so holding we are mindful of the arguments against M’Naghten, many of which were advanced by the appellant. Rriefly summarized, these include attacks on the M’Naghten rule because it is outdated; it covers only the cogni tive aspects of personality which makes it too narrow; it does not serve any rehabilitative function; it makes expert testimony impossible because of the restrictions imposed upon psychiatrists; it incorporates an over-intellectualized concept of mental disorder; it lacks definition; it has been overruled by a majority of the federal circuits and an increasing minority of states; and finally, its requirement of total incapacity rarely characterizes even an advanced psychotic. (See Annot., 45 A.L.R.2d 1447, 1455 [1956]; and Note, Modern Insanity Tests - Alternatives, 15 Washburn L.J. 88, 93 [1976].)

Some of these arguments were discussed by this court in State v. Andrews, supra. To its critics we reply the M’Naghten rule has the merit of being well-established as well as practical. Although it is not scientifically perfect, we feel it is the best criteria yet devised for ascertaining criminal responsibility. Psychiatry is a science in which great uncertainty still exists. Moreover, criminal responsibility is a legal question and not a medical question. Finally, while a majority of the federal circuits may follow the American Law Institute test, a majority of the states follow M’Naghten. Attention is directed to the various states which have expressly rejected the American Law Institute test.

The State of Washington has steadfastly refused to abandon the M’Naghten rule. In State v. Reece, 79 Wash. 2d 453, 486 P.2d 1088 (1971), the appellant argued the courts and psychiatrists should not have two different definitions of insanity. The court answers:

“. . . [T]he appellant has cited us to no evidence that the A.L.I. test embodies a consensus of the medical profession on the nature of insanity. Our examination of recent literature in the controversy over M’Naghten and other proposed tests of insanity convinces us that there is no agreement among psychiatrists concerning a definition of insanity. . . .” (p. 455.)

The court was also reluctant to adopt the American Law Institute test because the state legislature had previously given some indication it did not consider the test a proper defense. (See also State v. Schantz, 98 Ariz. 200, 403 P.2d 521 [1965].)

In 1968 the Advisory Committee on Criminal Law Revision of the Kansas Judicial Council recommended the statutory enactment of the American Law Institute test. The committee identified four advantages of the American Law Institute test over M’Naghten. (Kansas Judicial Council Rulletin, April 1968.) Close scrutiny of the committee study reveals all “four” advantages are concerned with one matter, the capacity test. The advisory committee felt that replacing the total incapacity test of M’Naghten with the substantial incapacity test would permit broader testimony by the experts. But this recommendation attempts to answer only one criticism of M’Naghten — restrictiveness. It fails to address other issues, particularly the confusion of juries. The Kansas legislature, however, rejected the Kansas Judicial Council’s recommendation to legislatively accept the American Law Institute test, and thereby permitted our Kansas case law to prevail.

In State v. Harkness, 160 N.W.2d 324 (Iowa 1968), the court expressly rejects the American Law Institute test and notes:

“ ‘Perhaps a revision of the rules of criminal responsibility would be forthcoming if the law felt it could place greater trust and confidence in psychiatry. The spectacle not only of individual psychiatrists in disagreement, but also entire divergent schools of thought is not an inspiring one. As one authority stated, “[P]sychiatry is still more of an art than a science.” ’ Sauer v. United States (9 Cir.), 241 F.2d 640, 648-650.” (p. 336.)

The court goes on to hold:

“However, until such time as we are convinced by a firm foundation in scientific fact that a test for criminal responsibility other than M’Naghten will serve the basic end of our criminal jurisprudence, i.e., the protection of society from grievous anti-social acts, this court has decided to continue to submit the question of criminal responsibility on the issue of insanity to the jury by the time-tested M’Naghten rule . . . .” (p. 337.)

Finally, in Hill v. State,_Miss__, 339 So.2d 1382 (1976), the Mississippi court defends the M’Naghten rule stating:

“. . . Though the M’Naghten Rule may not be a perfect means to test criminal responsibility, as this Court (including this writer) has'said before, it is the safest of the rules proposed. M’Naghten better protects society’s needs than the American Law Institute’s proposed rule . . . .” (p. 1385.)

(See also State v. Miller,_S.Dak__, 248 N.W.2d 56 [1976]; People v. J. C. Lewis, Jr., 31 Mich. App. 91, 187 N.W.2d 571 [1971], aff’d, 386 Mich. 407, 192 N.W.2d 215 [1971], cert. denied, 408 U.S. 929, 33 L.Ed.2d 342, 92 S.Ct. 2505 [1972]; State v. Malumphy, 105 Ariz. 200, 461 P.2d 677 [1969]; State v. Poulson, 14 Utah 2d 213, 381 P.2d 93, cert. denied, 375 U.S. 898, 11 L.Ed.2d 126, 84 S.Ct. 177 [1963]; and State v. Lucas, 30 N.J. 37, 152 A.2d 50 [1959].)

Thus, the basic problem with any insanity test evolves from the inability, of the legal and medical professions to develop a mutual insanity standard. The legal profession functions from an objective, rhetorical base which seeks definitions and applies those definitions to the facts. It seeks the accountability of individual actions, the protection of society and the deterrence of crime. Conversely, the medical profession (in particular the psychiatric branch) functions from a subjective personality base which seeks behavioral nuances and analyzes those nuances by individual expertise. It seeks the discovery of mental illness, the rehabilitation of the patient and the abolition of punishment.

Indeed, agreement between the professions may be hopeless. Our goal is a test of criminal responsibility which offers a fair balance between competing considerations for the protection of society and the defendant as well as the rehabilitation and restoration of the defendant. We believe the M’Naghten rule comes the nearest to reaching this goal.

In his book, The Insanity Defense, Abraham Goldstein responds to the M’Naghten critics:

“This interpretation of M’Naghten has been dinned into the professional literature for so long that it is generally assumed there can be no other. As a result, the elimination of M’Naghten and willingness to adopt one of the newer rules, has been treated as a test of liberal faith. It is not at ali certain, however, that this picture is an accurate one. If an adequate assessment is to be made, M’Naghten must be seen as it is presented to the jury and as the jury is likely to understand it. . . "(p.47.)

It may be a jury considers the evidence in the same way regardless of which insanity instruction is used. Therefore, any change in tests becomes primarily one of form rather than substance.

In the case at bar, the use of the American Law Institute test would not have afforded the experts any more latitude. Moreover, the record shows no expert was restricted in his testimony. Further, confusion in terminology would not be diminished. The least defined terms and most confusing to all participants in this struggle are “defect of reason” and “disease of the mind.” The American Law Institute test uses virtually the same language with “mental illness, disease or defect.” This is simply a rhetorical alteration and does nothing to diminish the confusion. In addition, it adds “substantial capacity.”

Section (a) of the American Law Institute test, taken by itself, is simply a condensation of the M’Naghten rule. The cognitive feature is present. Knowledge of the act and its wrongfulness are present.

Section (b) of the American Law Institute test is simply a restatement of the irresistible impulse test. It recognizes the inability to conform one’s conduct at the time of the act. The only significant change is the requirement of less than total incapacity.

Confusion resulting from the adoption of the American Law Institute test has prompted comment by several experts. In the article, To Be Or Not To Be An Expert, 1973 Washington U. Law Quarterly, 57, Dr. Robert Schulman, of the Menninger Foundation, evaluates one federal circuit decision by stating:

“The majority views its decision as a step forward and as an effort to untangle the complicated rules of criminal responsibility; but from the expert’s view it may be a step backward, not because of restrictions placed on testimony but because of the complete lack of understanding by the court of the framework within which the expert works. This dismal abyss, after so many years of attempts at rapprochement between the law and its experts, brought the court to the point of castigating the expert, which was unnecessary if the court only wished to change the legal rule regarding insanity.-5 (p. 61.)

A companion article voices the same concern:

“I submit that today the psychiatrist is unable to perform effectively any of these tasks well; further, that he does them less well now than he did eighteen years ago when Durham, was adopted; and still further, that he is not going to do better under any variant of the American Law Institute formulation, no matter how legally sophisticated it may be presented.” (Diamond, From, Durham to Brawner, A Futile Journey, 1973 Washington U. Law Quarterly 109, 111.)

Finally, we note the testimony in this case failed to satisfy the American Law Institute test. The defendant failed to offer an expert witness who could conclusively state he suffered from a mental disease or defect. A “personality disorder” coupled with the voluntary intoxication of drugs and alcohol and the passion of the moment falls short of the American Law Institute’s standards for mental disease or defect.

We retain the M’Naghten rule in Kansas because no other test better protects society as well as serves its needs.

The judgment of the lower court is affirmed.