Van Dean v. State

668 P.2d 639, 1983 Wyo. LEXIS 354

• Court: Wyoming Supreme Court
• Decided: August 22, 1983
• Docket: 5804
• Status: Published

Opinions

ROONEY, Chief Justice.

This appeal is from a judgment and verdict after a jury trial in which appellant was found guilty of first-degree arson in violation of § 6-7-101, W.S.1977.¹ Appellant had entered pleas of not guilty, not guilty by reason of mental illness or deficiency,² and not triable by reason of mental illness or deficiency.³ Appellant was sentenced to not less than two nor more than eight years in the penitentiary with the additional requirement that the last six months of incarceration be at the Wyoming State Hospital in Evanston.

Appellant words the issues on appeal as follows:

“Whether the trial court erred in refusing Appellant’s instructions regarding mental illness or deficiency, and in giving Instruction No. 6, which failed to adequately define the applicable principles regarding mental illness or deficiency.

“Whether the trial court erred in refusing to consider probation as a sentencing alternative, which failure constitutes plain error.”

We affirm, but modify the sentence to delete the requirement that some of the sentence be served at the Wyoming State Hospital.

INSTRUCTIONS

Appellant objected to the refusal of the trial court to give his requested Instructions B, C and E, and he objected to the giving of Instruction 6.

Proposed Instruction B reads:

“A finding that defendant was mentally responsible for his acts is not equivalent to a finding that he acted with specific intent, that is, willfullness [sic] and malice, necessary for the offense alleged. Even if you find from the evidence in the case beyond a reasonable doubt that the defendant was mentally responsible for his acts at the time of the alleged offense, it is still your duty to consider all the evidence in the case which may aid in determining whether he acted with necessary specific intent.”

Proposed Instruction C reads:

“If you find that the defendant’s mental capacity was diminished to an extent that would make him incapable of forming the willfullness [sic] and malice that is an element of the crime of first degree arson, then you must find the defendant not guilty.”

Proposed Instruction E reads:

“A person is not legally responsible for his criminal conduct if:

“1. He was suffering at the time of the criminal conduct from a mental illness or deficiency; and

“2. As a result, he lacked substantial capacity, either to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law.

“The term ‘mental illness’ means mental disease or defect that would render the defendant incapable of understanding the nature, quality, consequences, and wrong-fullness [sic] of his act, and includes the concept of ‘irresistable-impulse [sic]’ or ‘uncontrollable act’.

“The term ‘mental deficiency’ means a defect attributable to mental retardation, brain damage or a learning disability.

“The phrase ‘mental illness or deficiency’ does not include an abnormality manifested only by repeated criminal conduct.

“The State must prove that the defendant was mentally responsible for the crime beyond a reasonable doubt.

“Thus, if you do not believe that the State has proven beyond a reasonable doubt that the defendant was mentally responsible, then you should find him not guilty by reason of mental illness or deficiency.”

Instruction 6 reads:

“Under certain circumstances a person is not legally responsible for his criminal conduct. Among those circumstances, defendant is not legally responsible for criminal conduct if:

“1. He was suffering at the time of the criminal conduct from a mental illness or deficiency; and

“2. As a result, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

“The term ‘mental deficiency’ means a defect attributable to mental retardation, brain damage and a learning disability.

“The phrase ‘mental illness or deficiency’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

“The state must prove that the defendant was mentally responsible for the crime beyond a reasonable doubt.

“Thus, if you do not believe that the state has proven beyond a reasonable doubt that the defendant was mentally responsible, then you should find him not guilty by reason of mental illness or deficiency.”

Proposed Instruction B is Wyoming Pattern Jury Instruction Criminal No. 4.103 except that appellant has added the words “that is willfullness [sic] and malice” as a definition of specific intent. And this is the misconception which invalidates appellant’s entire position. He argues that “the defense theory of the case [is] that appellant was unable to form the specific intent which is a necessary element of the crime of first-degree arson.”

First-degree arson was not a specific intent crime at the time of the offense and trial.⁴ When an act is made a crime by the legislature, two kinds of “intent” may be involved. A “general intent” may be sufficient, i.e. an intent to commit the act or engage in specific conduct, guilty knowledge, mens rea. A specific intent may be made one of the required elements of the crime, i.e. with a designated purpose or intention to produce the desired result such as “intent to kill,” 22 C.J.S. Criminal Law, §§ 30 and 32; 21 Am.Jur.2d Criminal Law, §§ 129 and 130.

“ * * * ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence’ the fact that the defendant intended to do the proscribed act makes that crime a general criminal intent offense. (Emphasis added.) ‘When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ * * * ” (Emphasis in original.) People v. Love, 111 Cal.App.3d Supp. 1, 168 Cal.Rptr. 591, 600 (1980).

“ * * * A specific intent crime is one in which a particular intent is a necessary element of the crime itself. * * * ” Russell v. State, Fla.App., 373 So.2d 97, 98 (1979).

The word “intent” has long been accepted for use in these fashions, but it is not a very apt term to describe the mental element requisite for each crime, covering as it does not only the specific intent necessary in some crimes and the general intent to do wrong which is sufficient in other crimes, but also criminal negligence, which should not properly be called “intent” at all. Long time use, however, dictates the use of the word in these fashions.

Appellant may have misconstrued the words “willfully and maliciously” in the statute (see fn. 1) as a requirement of specific intent. Obviously, such is not so. These words describe the act to be committed and not an intention to produce a desired specific result. Any intent to be derived from them is a general intent.

“ * * * [W]illfully means intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly. [Citations.]” Matter of Adoption of CCT and CDT, Wyo., 640 P.2d 73, 76 (1982). “ * * * ‘[M]alicious’ when used in defining the crime of arson is quite different from its literal meaning. * * * ‘The malice * * * need not be express, but may be implied; it need not take the form of malevolence or ill will, but it is sufficient if one deliberately and without justification or excuse sets out to burn the dwelling house of another.’ ” Commonwealth v. Lamothe, 343 Mass. 417, 179 N.E.2d 245, 246 (1961).

“We find no error in the trial court’s refusal to give this instruction. To be a wilful and malicious burning in the law of arson, the burning must simply be done voluntarily and without excuse or justification and without any bona fide claim of right. In re Appeal In Pima County Juvenile Action No. J-37390-1, 116 Ariz. 519, 570 P.2d 206 (App.1977). Arson is a crime of general, rather than specific intent and the requirement that the defendant act ‘wilfully and maliciously’ does not mean that the defendant must have an actual subjective purpose that the act he does intentionally shall produce either a (1) setting a fire or burning of the structure or (2) damage to or destruction of said structure. State v. O’Farrell, 355 A.2d 396 (Me.1976). As pointed out in State v. Bell, 113 Ariz. 279, 551 P.2d 548 (1976) reh. den. 113 Ariz. 326, 553 P.2d 1200 (1976), the word ‘wil-fully’ does not add a specific intent element. ‘Wilfully’ means intentionally as distinguished from accidentally or involuntarily and ‘maliciously’ means that state of mind which actuates conduct injurious to others without lawful reason, cause or excuse. In re Appeal In Pima County Juvenile Action No. J-37390-1, supra; see also, A.R.S. § 1-215(36) and (15).” State v. Scott, 118 Ariz. 383, 576 P.2d 1383, 1385 (1978).

The trial court properly refused appellant’s proposed Instruction B. It would have injected the element of specific intent into the crime charged — an element that is not properly there. The court did instruct the jury on the definitions of willfully and maliciously as follows:

“Willfully means conduct that is purposeful and intentional and not accidental.”

“ ‘Maliciously’ means the commission of a wrongful act done intentionally without legal justification or excuse. The term ‘malice’ conveys the meaning of hatred, ill will, or hostility and implies a wicked condition of the mind.”

As previously noted, such is other than specific intent, and there was no instruction on specific intent.

Proposed Instruction C, supra, would direct jury consideration of the concept of diminished capacity as a defense. Some jurisdictions recognize such but usually restrict the concept to specific intent crimes. Ordinarily, the fact that first-degree arson is not a specific intent crime might serve to obviate the necessity of further considering the propriety of the refusal to give proposed Instruction C. However, in objection to the refusal to give it, appellant argued in part:

“ * * * i gtjp fee] [⅛] stands for the proposition that mental condition can be used as a defense to not only specific intent crimes but any crime that requires a specific state of mind, such as willfulness and malice.”

We defined “diminished capacity” — also referred to as “partial responsibility” — in Peterson v. State, Wyo., 586 P.2d 144, 152 (1978):

“While admittedly a difficult hypothesis to define, as a majority of courts dealing with the subject have generally found, diminished capacity

includes any psychiatrically recognized abnormal mental condition, other than intoxication produced by the use of alcohol or drugs, including subnormal intelligence, but which does not constitute legal insanity under any definition of legal insanity.’ (Emphasis added.)

“Anno., Mental or Emotional Condition as Diminishing Responsibility for Crime, 22 A.L.R.3d 1228, 1231. Such a concept recognizes not only that a mental disease or defect not arising to the level of legal insanity may be sufficient to negate the existence of a specific crime element, People v. Welborn, 1967, 257 Cal.App.2d 513, 65 Cal.Rptr. 8, it as well exposes the illogie of the ‘all or nothing’ assumption underlying numerous judicial decisions— that a person is either wholly ‘sane’ and therefore fully answerable for all his actions, or ‘insane’ and not answerable at all. Commonwealth v. Walzaek, 1976, 468 Pa. 210, 360 A.2d 914, 918. While many courts have discussed both diminished capacity and intoxication in the context of negation of a required element of criminal intent (including malice as is in question in the situation at bar) most courts, in discussing diminished capacity recognize it independent and separate from any defense of intoxication. People v. Poddar, 1974, 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342; State v. Santiago, 1973, 55 Haw. 162, 516 P.2d 1256; State v. Green, 1975, 271 Or. 153, 531 P.2d 245; In re Miller, 1973, 33 Cal.App.3d 1005, 109 Cal.Rptr. 648; Johnson v. State, 1970, 226 Ga. 511, 175 S.E.2d 840; State v. Nichols, 1965, 3 Ohio App.2d 182, 209 N.E.2d 750. See generally, Anno., §§ 5-9, 22 A.L.R.3d 1228, 1238-1257. Contra: Johnson v. State, Alaska 1973, 511 P.2d 118.” (Footnote omitted.)

We did not approve the concept of diminished capacity in Peterson. It was discussed there only to explain what it was and to discard it from consideration. The case was resolved on the basis of an intoxication instruction.

The concept of diminished capacity has found favor in several jurisdictions as a result of a problem, perceived by them, in applying the historically accepted “tests” to determine the existence of the defense of insanity to a criminal charge. The theory is that mental insufficiency may negate the intent requisite to the crime charged, although such insufficiency does not pass the test by which insanity is determined. The resulting difficulty, of course, is the lack of a method — without tests — to determine degrees of sanity or insanity. Thus, the same problem exists in attempting to apply “diminished capacity” as in applying the historically accepted “tests.” Most of the jurisdictions accepting the concept restrict its use to specific intent crimes. But if there is validity to its rationale, such restriction is improper since the rationale is the same for general intent crimes and for specific intent crimes. Annotation: Mental or Emotional Condition as Diminishing Responsibility for Crime, 22 A.L.R.3d 1228; Peterson v. State, supra; LaFave and Scott, Criminal Law, § 42 (1972).

In any event, we need not consider the application of historic tests, of diminished capacity, of the several philosophies evolving therefrom, etc., as defenses to a criminal charge. The mental element necessary for commission of a crime has now been established by the legislature. (See fns. 2 and 3) Instruction 6, supra, sets forth the defenses contained in such statutes. If the legislature had intended additional defenses, it would have said so. Courts will not enlarge, stretch, expand or extend a statute to matters not falling within its express provisions, and they will not usurp the powers of the legislature by deciding what should have been said. Lo Sasso v. Braun, Wyo., 386 P.2d 630 (1963); Barber v. State Highway Commission, 80 Wyo. 340, 342 P.2d 723 (1959). The first sentence of subsection (a) and all of subsection (b) of § 7-11-304, W.S.1977, (see fn. 2) are § 4.01 of the Model Penal Code, except that the words “mental illness or deficiency” have been substituted for the model act words “mental disease or defect.” In a footnote to the quotation from Peterson v. State, supra, we noted that even California may have discarded the diminished capacity concept in favor of the test proposed by the American Law Institute, i.e. § 4.01 of the Model Penal Code, citing People v. Drew, 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318 (1978); see People v. Wischemann, 94 Cal.App.3d 162, 156 Cal.Rptr. 386 (1979). California has vacillated on the issue, as noted in the dissenting opinion, but § 7-11-304, W.S.1977 (see fn. 2) was § 4.01 of the Model Penal Code and the reasoning for the holdings relative thereto is pertinent. The court properly refused proposed Instruction C and adequately instructed the jury in Instruction 6 relative to the mental condition which would constitute a defense to the charge.

Finally, appellant argues that proposed Instruction E, supra, should have been given instead of Instruction 6, supra. Proposed Instruction E is similar to Instruction 6 except that it inserts a new paragraph between the first and second paragraphs of item 2 of Instruction 6 and it deletes the words “or otherwise antisocial” from the third paragraph of item 2.

Although appellant treats proposed Instruction E as correlative to the diminished capacity concept, the added paragraph injects “irresistable-impulse [sic]” or “uncontrollable act” into consideration. The “irresistable-impulse [sic]” test has been accepted in a number of jurisdictions as a standard to determine criminal responsibility. However, it is inconsistent on its face with the standard set forth in the Model Penal Code and in §§ 7-11-301 and 7-11-304, W.S.1977 (see fn. 2). 21 Am.Jur.2d Criminal Law, § 60; United States v. Freeman, 357 F.2d 606 (2d Cir.1965); Schwager v. State, Wyo., 589 P.2d 1303 (1979). As already noted, the legislature has set forth the standard relative to the mental condition which will constitute a defense to a criminal charge. Such standard should not be increased or decreased.

The deletion of the words “or otherwise antisocial” from Instruction 6 as requested by proposed Instruction E would cause the instruction to only partially state the law. The third paragraph of item 2 in Instruction 6, including the words “or otherwise antisocial,” is quoted from § 7 — 11— 304(b), W.S.1977, (see fn. 2).

Proposed Instruction E was properly refused.

PROBATION

The question of probation, like other sentencing issues, is left to the discretion of the trial court, but the court must consider a request for probation. Sanchez v. State, Wyo., 592 P.2d 1130, 1137 (1979), and Jones v. State, Wyo., 602 P.2d 378, 383 (1979).

Appellant argues that probation was not here considered, stating that a presentence investigation was not conducted. At the conclusion of the trial, the following occurred:

“THE COURT: * * *

“Do you or your client wish a presentence investigation and report?

“MR. O’NEIL: No, Your Honor.

“THE COURT: And speaking, then, to Mr. Dean, do you wish a presentence report?

“THE DEFENDANT: No, Your Honor.

“THE COURT: And, Mr. Sundquist, does the State wish a presentence investigation and report?

“MR. SUNDQUIST: No, Your Honor. We’d waive that!”

At the time of sentencing, the court said:

“I’ll be very frank. I don’t feel that probation should be granted in this matter.

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“Mr. Dean has a good record. For that reason — and he has parents that are willing to help him — for those reasons I feel that a minimum sentence should be applied, but the court does not feel that this is a proper case for probation.

“I feel that probation in this matter would bring the law into disrespect by the citizens. I feel that some punishment should be meted out.”

The court obviously did consider probation.

SENTENCE

Section 6-7-101, W.S.1977, (fn. 1) provides for a penalty of from two to twenty years in the state penitentiary. Appellant was sentenced to a term of two to eight years in the penitentiary with a proviso

“ * * * that the last six months of Mr. Dean’s sentence, of the sentence that he actually serves, whether it be six months before a final and complete discharge or six months before parole, or whether it will be six months before a work release or other type of program, that he be delivered to the state hospital at Evans-ton, Wyoming for extensive psychiatric counseling for his personality disorders.”

The court may order commitment of a mentally ill person to the state hospital for treatment pursuant to the proceedings set forth in § 25-10-101, et seq., W.S.1977; it may order an examination of a defendant at the state hospital pursuant to § 7-11-304, W.S.1977 (see fn. 2); it may order custody, care and treatment of a defendant at the state hospital pursuant to § 7 — 11— 306, W.S.1977; and there may be other specific statutory provisions authorizing the court to order a person to become a patient at the state hospital. But jurisdiction has not been given to the trial court to sentence a person to the Wyoming State Hospital as part of the penalty for criminal activity.⁵ In fact, § 6-7-101, W.S.1977, (see fn. 1) expressly provides that appellant be sentenced “to the penitentiary.”

Accordingly, an order issued contemporaneously with this opinion reflects that which was quoted supra relative to the service of the last six months of appellant’s sentence in the Wyoming State Hospital be deleted from such sentence.

Affirmed but with the sentence modified to delete the requirement that the last six months of the sentence be served at the Wyoming State Hospital.

1 . Section 6-7-101, W.S.1977, provides:

“Any person who willfully and maliciously sets fire to or bums or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto or any standing timber on public or privately owned land, whether the property of himself or of another, shall be guilty of arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than two (2) nor more than twenty (20) years.”

2 . “Mental deficiency” is defined in § 7-11-301, W.S.1977, as “a defect attributable to mental retardation, brain damage and learning disabilities.” Section 7-11-304, W.S.1977, provided at the time of the offense and trial:

“(a) A person is not responsible for criminal conduct if at the time of the criminal conduct, as a result of mental illness or deficiency, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

“(b) As used in this section, the terms ‘mental illness or deficiency’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

The Criminal Code, which became effective July 1, 1983, added the following sentence to § 7-1 l-304(a):

“As used in this section, the terms mental illness or deficiency mean only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality and that are not attributable primarily to self-induced intoxication as defined by W.S. 6-l-202(c).”

3 .Section 7-ll-302(a), W.S.1977, provides:

“(a) No person shall be tried, sentenced or punished for the commission of an offense while, as a result of mental illness or deficiency, he lacks the capacity to:

“(i) Comprehend his position;

“(ii) Understand the nature and object of the proceedings against him;

“(iii) Conduct his defense in a rational manner; and

“(iv) Cooperate with his counsel to the end that any available defense may be interposed.”

4 . See fn. 1. The Criminal Code, which became effective July 1,1983, defines first-degree arson as follows:

“A person is guilty of first-degree arson if he maliciously starts a fire or causes an explosion with intent to destroy or damage an occupied structure." (Emphasis added). Section 6-3-101(a), W.S.1977.

5 . Appellant, as others, may be subject to an interinstitutional transfer to the Wyoming State Hospital by the Board of Charities and Reform, the Warden, the Parole Board, etc. See, e.g. § 25-10-114, W.S.1977.