(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 31, 1995 -- Decided June 5, 1995
GARIBALDI, J., writing for a unanimous Court.
Jose Luis Reyes and Norma Martinez lived together from late 1982 until June 1984, when Reyes was
imprisoned for narcotics possession. Because Norma could no longer afford the rent, she and her sister,
Teresita Martinez, moved into the apartment of a friend, Emie Pagan. After Reyes was released from jail,
Norma ended their relationship because of Reyes' continued abusiveness, jealousy and threats.
On October 28, 1984, after having had an argument with Norma, Reyes ingested a variety of
intoxicants, including angel dust (PCP), heroin, marijuana, and alcohol. Sometime after 5:00 a.m. the
following morning, Reyes went to his friend Eduardo's home, grabbed a kitchen knife and proceeded to
Emie Pagan's apartment. Reyes broke into Emie's apartment and found everyone sleeping. Reyes went
directly to Emie's room where he stabbed Emie to death. Thereafter, Norma, Teresita, and Teresita's
boyfriend, Roberto, tried to subdue Reyes. During the struggle, Reyes stabbed Norma, Teresita, and
Roberto. Reyes also terrorized Norma and Teresita and sexually assaulted Norma. Eventually, Norma was
able to calm Reyes and she agreed to leave with him. Sometime later, Reyes brought Norma to the hospital
where he was arrested by police.
On November 16, 1994, Reyes was indicted for: burglary; murder; felony murder; aggravated assault;
terroristic threats; attempted aggravated sexual assault; attempted murder; and possession of weapons for an
unlawful purpose. The matter was tried as a capital case, requiring a death-penalty phase. Reyes' defense at
trial was that he was unable to form the requisite mental intent because he suffered from voluntary
intoxication and diminished capacity due to mental defect or disease brought about by his long-term ingestion
of drugs and alcohol. At the conclusion of the trial, the court acquitted Reyes of the burglary of Eduardo's
garage and the jury acquitted him of attempted aggravated sexual assault of Norma. Reyes was found guilty
of all other charged offenses, including murder.
At the conclusion of the penalty-phase, the jury declined to impose the death penalty, finding that
the aggravating factor of committing the murder during the course of a felony did not outweigh the
mitigating factors of extreme mental or emotional disturbance and intoxication. Reyes was sentenced to
eighty-years of imprisonment with a forty-five-year period of parole ineligibility.
Reyes appealed his conviction, contending, among other things, that the trial court had improperly
instructed the jury on voluntary intoxication by improperly shifting the burden of proof onto the defense.
The Appellate Division affirmed Reyes' convictions, finding that, in light of the entire jury charge, the trial
court's instruction had adequately distinguished between voluntary intoxication and diminished capacity and
had not impermissibly shifted the burden of proof of voluntary intoxication to Reyes. Reyes filed a petition
for certification before the Supreme Court, raising essentially the same issues. That petition was denied,
effectively ending Reyes' direct appeal.
Reyes filed a timely petition for post-conviction relief, arguing that the trial court's charge on diminished capacity went beyond the limits established in State v. Breakiron and State v. Zola, both of which were decided after Reyes' trial but before the filing of his appellate brief; that the trial court's charge on diminished capacity also violated Humanik v. Beyer, decided by the Third Circuit Court of Appeals; and that
appellate counsel's failure to raise those trial-court errors on Reyes' direct appeal constituted ineffective
assistance of counsel. The trial court denied Reyes' petition for post-conviction relief, finding that the
evidence did not support a diminished-capacity instruction and, therefore, it should not have been submitted
to the jury. As such, any error in the charge was harmless.
On appeal, the Appellate Division reversed the decision of the trial court, finding that the jury
charge was clearly inconsistent with the dictates of Breakiron and Zola and that the failure to raise that issue
clearly affected Reyes' direct appeal. The Appellate Division remanded for a new trial.
The Supreme Court granted the State's petition for certification.
HELD: The trial court's jury charge on diminished capacity was consistent with the decisions in State v.
Breakiron and State v. Zola. That charge, however, did not comport with Humanik v. Beyer
because it contained the "preponderance of the evidence filter." Nevertheless, because the evidence
that Reyes presented on diminished capacity failed to establish the presence of a mental disease or
defect, that error was harmless.
1. The trial court did not have the benefit of this Court's decisions in Breakiron and Zola. Nevertheless, the
trial court's charge, taken as a whole, complies with the requirements of those two decisions. The trial court
made abundantly clear that the burden of proving beyond a reasonable doubt that Reyes was capable of
forming the necessary intent at the time of the murder, despite the presence of mental disease or defect,
always remained with the State. The charge, read as a whole, never removed from the State the ultimate
burden of proving beyond a reasonable doubt that Reyes acted purposely or knowingly, regardless of his
intoxication and/or diminished capacity due to mental disease or defect. (pp. 13-21)
2. Not every mental disease or defect has relevance to the mental states prescribed by the Code of Criminal
Justice. A reviewing court looking at the evidence introduced on Reyes' behalf to demonstrate his mental
disease or defect would have concluded that Reyes' rage and intoxication, his depression, personality type
and "lack of control of behavior," as described by his expert witness, did not constitute the quantum of
evidence sufficient to support a diminished-capacity charge. Thus, it was harmless error to have given Reyes
a flawed diminished-capacity charge because he was not entitled to that charge in the first place. That
determination is enforced by the decision in State v. Pitts. (pp. 21-23)
3. The diminished-capacity charge contained the "preponderance of the evidence filter" condemned by the
Third Circuit in Humanik. Although the charge did not comport with Humanik, that error was harmless.
Specifically, there was no competent evidence that Reyes suffered from a mental disease or defect that
impaired his cognitive capacity to act knowingly and purposely. Thus, the Appellate Division's reliance on
State v. Galloway is misplaced because that court reads Galloway too broadly. Reyes had a violent, explosive
personality, and he may have been depressed over his break-up with Norma. However, he was never
diagnosed as suffering from some type of underlying mental disease or disorder. (pp. 23-28)
4. The failure to raise Humanik on direct appeal did not constitute ineffective assistance of counsel. If that
argument had been raised on direct appeal, the reviewing court would have found the error harmless in light
of the conclusion that diminished capacity was not present. Thus, the ineffective-assistance-of-counsel
argument is moot because counsel's failure to raise the issue could not have prejudiced Reyes' direct appeal.
(pp. 28-29)
Judgment of the Appellate Division is REVERSED, and Reyes' motion for post-conviction relief is
DENIED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI'S opinion.
Supreme Court of New Jersey
A-
85 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSE LUIS REYES,
Defendant-Respondent.
Argued January 31, 1995 -- Decided June 5, 1995
On certification to the Superior Court,
Appellate Division.
Gary H. Schlyen, Chief Assistant Prosecutor,
argued the cause for appellant (Ronald S.
Fava, Passaic County Prosecutor, attorney).
Edward P. Hannigan, Assistant Deputy Public
Defender, argued the cause for respondent
(Susan L. Reisner, Public Defender, attorney;
Mr. Hannigan and William Welaj, Designated
Counsel, on the briefs).
Nancy A. Hulett, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey, attorney; Deborah T.
Poritz, Attorney General, attorney).
Jose Luis Reyes submitted a supplemental
letter brief, pro se.
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal concerns defendant's motion for post-conviction
relief. Defendant asserts that the diminished-capacity charge
given at his trial was unconstitutional under State v. Breakiron,
108 N.J. 591 (1987), and State v. Zola,
112 N.J. 384 (1988),
cert. denied,
489 U.S. 1022,
109 S. Ct. 1146,
103 L. Ed.2d 205
(1989), and that his appellate counsel's failure on direct appeal
to object to that erroneous charge constituted ineffective
assistance of counsel. Defendant further contends that counsel's
assistance was ineffective because of his failure to assert that
N.J.S.A. 2C:4-2 was unconstitutional based on Humanik v. Beyer,
87 F.2d 432 (3d Cir.), cert. denied,
493 U.S. 812,
110 S. Ct. 57,
107 L. Ed.2d 25 (1989).
I. Facts
Jose Luis Reyes and Norma Martinez first met in October
1982, when Jose was twenty-two years old and Norma was sixteen,
and shortly thereafter they moved in together. The couple lived
together until June 1984, when Jose was imprisoned for narcotics
possession. Norma could no longer afford the rent, so she and
her sister, Teresita Martinez, moved into the apartment of a
friend, Emie Pagan.
When Jose was released from jail a few months later, he and
Norma resumed dating. Norma ended the relationship a short time
later in September 1984, when Jose became jealous and physically
abusive towards her, as he had been in the past. She told Jose
that she did not want to see him anymore. Nevertheless, he
continued to harass Norma, physically abusing her when he saw her
on the street, and warning her not to date other men. Despite
his threats, Norma secretly began dating another man.
On Sunday, October 28, 1984, Jose went to Emie Pagan's
apartment to visit Norma. The two immediately began to argue
over defendant's insistence that Norma was involved with another
man. That argument attracted the attention of Emie, Teresita,
and Roberto Perez, Teresita's boyfriend, who all went to the
doorway to investigate. Teresita told Jose to leave Norma alone,
and Emie ordered Jose "to get the hell out [of her house]." Emie
led Norma back into the apartment, with all but defendant
following, and slammed the door shut.
Jose then went across the street to question Roberto's two
nephews. Defendant demanded to know if either of them was dating
Norma; both denied going out with her. Jose again returned to
Emie's apartment, and asked to speak with Norma. Norma agreed to
speak to defendant outside on the sidewalk, but he once more
began to harass Norma. Teresita briefly argued with Jose before
going back inside the apartment. Defendant finally left the area
at about 3:00 p.m.
Jose then went to New York City, where he indulged in a
variety of intoxicants, purchasing and consuming a bag of "angel
dust" (PCP), a "dime" bag of heroin (about ten dollars worth),
some marijuana, and about a quart of alcohol. Later that
evening, at about 7:45 p.m., he and two companions were picked up
by a Port Authority police officer for being under the influence
of a controlled dangerous substance.
At approximately 1:45 a.m, after he had been released on
bail, defendant went to a nearby bar where he drank and played
pool. Eventually, he and a friend, Ralphie, smoked a "dust
joint" (a marijuana cigarette laced with angel dust, or PCP).
Before leaving, Ralphie gave Jose another "dust joint," which
defendant later smoked by himself.
Around 5:00 or 5:30 a.m., Jose let himself into the
apartment of a friend, Eduardo Rosa, with a key that Eduardo had
given him. Eduardo woke up when Jose turned on the light.
Defendant told Eduardo about his arrest earlier that evening.
Jose took a kitchen knife from Eduardo's apartment, and Eduardo
saw Jose place the knife between his belt and pants. Eduardo
asked Jose why he wanted the knife, to which he said Jose
replied, laughing, "I want it for you." Jose then left Eduardo's
apartment and headed for Emie Pagan's, which was about one
hundred feet away.
When Jose arrived at Emie's apartment, he cut through a
screen covering the bathroom window using a pair of snips he had
stolen that day from Eduardo's garage. Once through the screen,
Jose broke into Emie's apartment. Everyone was asleep. Jose
entered and went directly to Emie's room, stabbing her several
times in the arms and twice in the chest. At trial, the medical
examiner testified that one of the wounds penetrated her heart,
causing Emie's death, which probably occurred within fifteen to
twenty minutes after she was stabbed.
Emie screamed when defendant stabbed her, her screams waking
the others. Norma woke and ran to Emie's room. Defendant saw
Norma, raced towards her, pushed her aside, and kicked in the
door to Teresita's room. Norma grabbed defendant about his neck
in a futile attempt to subdue him. Teresita and Roberto, who had
been sleeping in Teresita's room, got up. Roberto ran over and
struck defendant. Jose responded by trying to stab Roberto, but
Roberto ducked, and Jose instead stabbed Teresita. Realizing she
had been stabbed, Teresita ran screaming from the room. Jose
tried to follow, but Norma and Roberto dragged him back into the
bedroom. Roberto attempted to subdue Jose in a bear hug, but
Jose flailed out and stabbed Roberto numerous times in the arms
and legs.
Because it was still dark, Roberto did not realize he had
been stabbed, and did not realize Jose had a knife until Jose
stabbed him in the back. Bleeding profusely, Roberto fell to the
floor and feigned death. Jose then terrorized Teresita and Norma
for the next forty-five to sixty minutes. Jose ripped Teresita's
clothes off, leaving her naked, and shoved her onto the sofa.
Jose threatened to kill Norma and Teresita if they did not answer
his questions regarding Norma's involvement with other men. Each
time Norma did not answer a question to his satisfaction, Jose
alternately punched her in the face, stabbed her in the leg,
stomped on her, or sexually assaulted her by touching her vagina
and threatening to stab her there.
Eventually, Norma managed to calm defendant down by
promising to do whatever he wanted, so long as he would release
her sister unharmed. Norma agreed to go to Puerto Rico with
defendant, and he allowed her to put some clothes on and pack.
He also allowed her to call an ambulance for Teresita and the
others.
Defendant took Norma back to Eduardo's apartment. Eduardo
woke when the two came in, and defendant told Eduardo, "I stabbed
some people in the house and maybe one [of] them could be . . .
dead or something." He told Norma that "she was lucky, that [he]
got a gun ready for her." He threatened her, stating "I should
kill you here and kill myself." Concerned over these threats,
Eduardo took the knife from defendant and put it under his bed,
advising defendant, "You got enough problems."
Realizing his shirt was stained with blood, defendant asked
Eduardo for a clean shirt, which Eduardo gave him. Eduardo
recognized that Norma needed prompt medical attention, so he
borrowed his landlord's car and offered to take defendant and
Norma to the hospital. While Eduardo was getting the car,
however, defendant warned Norma, "You see what I did? If you
ever do me wrong again[,] I'll do it again." Eduardo dropped
Norma and defendant off at nearby Barnert Hospital. Because
defendant had threatened to kill her if she signed in under her
own name, Norma registered as Wanda Gonzalez.
Meanwhile, the police had taken Teresita and Roberto to
Barnert Hospital. While awaiting treatment, the two sisters saw
each other. Norma told her sister that defendant had brought her
and was waiting for her; Teresita immediately told the police
officer who had accompanied her to the hospital that defendant
was in the hospital as well. The police officer recognized
defendant in the waiting room and placed him under arrest,
noticing that there was blood on the tips of defendant's shoes.
II. Procedural History
A. The First Trial
Defendant was indicted by a Passaic County Grand Jury on
November 16, 1984. The indictment listed thirteen offenses:
burglary of Eduardo Rosa's garage, contrary to N.J.S.A. 2C:18-2
(count 1); burglary of Emie Pagan's residence, contrary to
N.J.S.A. 2C:18-2b (1) & (2) (count 2); murder, contrary to
N.J.S.A. 2C:11-3a(1) & (2) (count 3); felony murder, contrary to
N.J.S.A. 2C:11-3a(3) (count 4); aggravated assault, contrary to
N.J.S.A. 2C:12-1b(1) & (2) (counts 5, 9 & 12); terroristic
threats, contrary to N.J.S.A. 2C:12-3a & b (counts 6 & 10);
attempted aggravated sexual assault, contrary to N.J.S.A. 2C:5-1
and 2C:14-2a(3), (4) & (6) (count 7); attempted murder, contrary
to N.J.S.A. 2C:5-1 and 2C:11-3 (counts 8 & 11); and possession of
weapons for unlawful purposes, contrary to N.J.S.A. 2C:39-4
(count 13).
The case was tried as a capital case. Trial commenced June
16, 1986, and defendant testified on his own behalf. He did not
dispute the facts set forth above, admitting that he had stabbed
the victims, killing Emie Pagan and wounding Teresita Martinez,
Norma Martinez, and Roberto Perez. His defense primarily
consisted of his assertion that he did not recall the events and
that he had been unable to form the requisite mental intent
because he suffered from voluntary intoxication and diminished
capacity due to mental defect or disease brought about by his
long-term ingestion of drugs and alcohol. Defendant explained
that he had broken into the apartment "just to talk to Norma."
He asserted that Norma told him, "I don't love you. You don't
want to change. I got me a better man. He's a better lover than
you. He's better than you and I don't love you anymore."
According to defendant, when Norma told him this, he "lost
[his] mind," and "went crazy, lost [his] head." He claimed that
he did not regain his senses and "slow down" until Norma
apologized and swore her love for him. Defendant said that he
did not realize that he had killed Emie Pagan until after he had
been arrested.
Defendant produced witnesses testifying to his drug and
alcohol abuse on the night of the crimes. In particular,
defendant's expert witness, Dr. Robert Sadoff, testified
concerning defendant's claim of diminished capacity. Several
witnesses, however, including the victims and the investigating
officers, testified that defendant had not appeared to be under
the influence of any drug at the time of the incident or shortly
thereafter and had appeared to know what he had been doing.
At the close of the State's case, the trial court ordered an
acquittal on count 1 (burglary of Eduardo Rosa's garage). The
jury acquitted defendant on count 7 (attempted aggravated assault
on Norma Martinez), but found defendant guilty on all remaining
charges, including murder.
Because the State was prosecuting defendant under the
capital-punishment statute, the court moved to the penalty phase.
The jury unanimously found aggravating factor N.J.S.A. 2C:11-3(c)(4)(g) (murder committed during the course of a felony,
burglary), and mitigating factors N.J.S.A. 2C:11-3(c)(5)(a)
(defendant was under the influence of extreme mental or emotional
disturbance) and N.J.S.A. 2C:11-3(c)(5)(d) (defendant's capacity
to appreciate the wrongfulness of his conduct or to conform his
conduct was significantly impaired as the result of mental
disease or defect or intoxication). However, the jury found that
the aggravating factor did not outweigh the mitigating factors
beyond a reasonable doubt, thus precluding imposition of a death
sentence.
The trial court denied defendant's motion for a new trial
and imposed an aggregate term of eighty-years imprisonment with a
forty-five-year parole bar. Defendant's judgment of conviction
was signed on August 1, 1986, and entered on August 5, 1986.
B. The Direct Appeal
Defendant appealed his conviction to the Appellate Division,
raising six points of error: (1) the trial court had improperly
instructed the jury on voluntary intoxication; (2) the trial
court had erred in admitting other-crimes evidence; (3) if the
other-crimes evidence was properly admitted, then the trial court
had erred in failing to give a limiting instruction on the other-crimes evidence; (4) the trial court had violated defendant's
due-process rights by denying him the opportunity to cross-examine Norma Martinez about her own drug use; (5) the prosecutor
had exceeded the bounds of fair play during his opening statement
to the jury; and (6) the trial court had erred in admitting
inflammatory and unduly prejudicial photographs of the crime
scene.
In his direct appeal, however, defendant focused primarily
on the alleged error in the jury charge on voluntary
intoxication, which he argued shifted the burden of proving
voluntary intoxication to the defense. Nonetheless, the
Appellate Division affirmed in an unpublished per curiam opinion
issued March 27, 1989. The court analyzed the jury charge and
determined that "the judge correctly charged the jury that where
there is some evidence of voluntary intoxication, the burden
remains with the State to prove that defendant could form the
requisite intent necessary for conviction of the offense despite
such intoxication." Accordingly, the Appellate Division found
that, viewed in light of the entire jury charge, that instruction
had adequately distinguished between voluntary intoxication and
diminished capacity and had not impermissibly shifted the burden
of proof of voluntary intoxication to defendant.
Defendant filed a petition for certification on May 24,
1989, raising essentially the same issues that he had raised
before the Appellate Division. We denied defendant's petition on
September 6, 1989, thus effectively ending defendant's direct
appeal.
C. Collateral Attack: Motion for Post-Conviction Relief
On August 5, 1991, defendant filed a timely motion for post-conviction relief. Defendant's principal contentions in his
post-conviction-relief motion were that the charge on diminished
capacity went beyond the limits established in Breakiron, supra,
108 N.J. 591, and Zola, supra,
112 N.J. 384, both of which were
decided after defendant's trial but before the filing of
defendant's appellate brief; that the trial court's charge on
diminished capacity at trial also violated Humanik, supra,
87 F.2d 432; and that appellate counsel's failure to raise those
trial-court errors on his direct appeal constituted ineffective
assistance of counsel.
Although defendant's trial counsel and his appellate counsel
were notified by defendant that ineffective assistance of counsel
was going to be raised in the post-conviction hearing, neither
attorney was subpoenaed and neither of them was questioned
regarding his or her actions during the post-conviction-relief
proceedings. Defendant did not testify regarding his claim.
During the post-conviction-relief hearing, the trial court
stated that defendant's appellate counsel should have requested a
rehearing from the Appellate Division on the basis of Humanik and
should have raised the Humanik issue in defendant's petition for
certification. Nevertheless, the trial court denied defendant's
motion for post-conviction relief, finding that the record failed
to disclose any underlying
psychosis or some other mental disease or defect
during the course of these incidents. [The
record] reveals largely . . . a man who was
jealous, angry, out of control and probably
somewhat affected by PCP and heroin and marijuana.
Again, this is not diminished capacity.
Because the evidence did not support a diminished-capacity
instruction, it should not have been submitted to the jury;
therefore, any error in the charge given was harmless.
The Appellate Division reversed in an unpublished per curiam
opinion. Though acknowledging that it was unclear whether
Humanik would apply to motions for post-conviction relief, the
Appellate Division found that the "jury instructions were clearly
inconsistent with the dictates of Breakiron and Zola."
Therefore, the Appellate Division found that it had to decide
whether "defendant was deprived of effective assistance of
counsel because his attorney did not raise the issue on direct
appeal." The Appellate Division formulated that issue "not [as]
whether the judge should have given the diminished capacity
charge [but as] whether the erroneous instructions which were
given may be deemed harmless on the theory that they should not
have been given at all." The Appellate Division then likened
this case to State v. Galloway,
133 N.J. 631 (1993), a decision
issued four years after defendant's direct appeal and a year and
a half after the trial court denied defendant's post-conviction-relief motion. In Galloway we held that "[f]orms of
psychopathology other than clinically-defined mental diseases or
defects may affect the mental process and diminish cognitive
capacity, and therefore may be regarded as a mental disease or
defect in the statutory or legal sense" as contained in N.J.S.A.
2C:4-2. 133 N.J. at 643. With that as background, the Appellate
Division concluded:
While an error in not charging diminished capacity
properly under Humanik can be deemed "harmless" if
the proofs suggest no such charge should have been
given, the same is not necessarily true when, as
here, the charge also violated Breakiron and Zola
and put a burden on defendant which was clearly
unconstitutional under our State pre-Humanik
interpretation of the constitution. Thus, here
the failure to raise the issue clearly affected
the result of the direct appeal.
Consequently, the Appellate Division reversed and granted
defendant a new trial.
The State thereafter filed a petition for certification,
which we granted.
138 N.J. 265 (1994). We now reverse.
III. Development of the Diminished-Capacity Defense
Defendant's petition for post-conviction relief focuses
primarily on the trial court's diminished-capacity charge.
Therefore, we first review the chronological development of
N.J.S.A. 2C:4-2, including the case law interpreting that
statute. The diminished-capacity defense, like that found in
N.J.S.A. 2C:4-2,
emerged in large measure to ameliorate the
relatively narrow concept of insanity under the
M'Naughten test, and found its most fertile ground
in capital cases, and cases in which the mens rea
required premeditation. In short, the doctrine
emerged from experience as an attempt to fashion a
rational and coherent method for society to treat
with compassion those among us who operate in the
twilight of rationality.
[Muench v. Israel,
715 F.2d 1124, 1143 (7th Cir.
1983), cert. denied,
467 U.S. 1228,
104 S. Ct. 2682,
81 L. Ed.2d 878 (1984)]
Diminished capacity is a "failure of proof" defense: evidence of defendant's mental illness or defect serves to negate the mens
rea element of the crime. Paul H. Robinson, Criminal Law
Defenses: A Systematic Analysis,
82 Colum. L. Rev. 199, 206
(1982). This failure-of-proof defense of diminished capacity was
adopted as part of our State's enactment of the 1979 Code of
Criminal Justice (Code), and allowed criminal defendants to
introduce evidence relating to the impact of mental disease or
defect on their state of mind. See L. 1978, c. 95.
The diminished-capacity defense in N.J.S.A. 2C:4-2 was
amended in 1979 to create a rebuttable presumption that the
defendant did not have or suffer from a mental disease or defect,
that is, a presumption that the defendant is normal. See L.
1979, c. 178, § 11B. That amendment, however, failed to assign
any burden-of-proof requirement for the defendant to overcome the
presumption. Accordingly, the Legislature again amended the Code
in 1981, requiring a defendant to prove the existence of a mental
disease or defect by a preponderance of the evidence. See L.
1981, c. 298, § 8. Defendant was tried under that 1981
amendment.
This Court upheld the constitutionality of the 1981
amendment in Breakiron, supra,
108 N.J. 591. In that case, we
held that the Code "does not mean that the defendant must
disprove that the act was knowing or purposeful. It means only
what it says, that the defendant must show that he or she
suffered from a mental disease or defect that is relevant to the
mental state of the offense." Id. at 611. We further noted the
unwavering requirement that "[t]he State must prove 'every fact
necessary to constitute the crime.'" Id. at 612 (quoting In Re
Winship,
397 U.S. 358, 364,
90 S. Ct. 1068, 1073,
25 L. Ed.2d 368, 375 (1970)). With respect to the assertion that it was
impermissibly unfair to impose on the accused the obligation to
prove by a preponderance of the proof the existence of the
relevant disease or defect, we explained that
the structure of the statute does nothing more
than create an inference that the ordinary
defendant is possessed of the capacity to reach
the mental states required by the Code: the
diminished capacity defense thus requires the
defendant to establish that he or she is not such
a person. . . . Whether or not mental disease or
defect is established, the State always bears the
burden of proving beyond a reasonable doubt the
essential mental elements of the crime charged.
But the presence or absence of mental disease or
defect is not an essential element of the crime as
defined by the Legislature.
We reversed Breakiron's conviction for murder and remanded for a new trial because of the original court's erroneous refusal to charge the jury that relevant evidence of defendant's mental disease or defect might have negated the culpable mental state. Id. at 621.
Less than a year later, we reiterated our Breakiron holding, that N.J.S.A. 2C:4-2 was constitutional, and proposed an appropriate jury instruction:
The defendant must prove by a preponderance of the evidence that he suffers from a mental disease or defect. However, the prosecution must prove beyond a reasonable doubt that defendant's mental disease or defect did not negate the state of mind which is an element of the crime, that is, purposely or knowingly. In other words, the prosecution must prove beyond a reasonable doubt
that defendant acted purposely or knowingly
despite his mental condition.
On the whole, we found the charge given in Zola to be balanced,
placing on the defendant only the burden of showing the presence
of a mental disease or defect that would or could negate the
state of mind necessary for the crimes charged. Id. at 402-03.
"The State's burden, to establish the defendant's guilt beyond a
reasonable doubt, never shifted." Id. at 403.
Four days after the Appellate Division issued its per curiam
opinion affirming defendant's conviction and sentence, the Court
of Appeals for the Third Circuit in Humanik, supra,
871 F.2d 432,
disagreed with our analysis of N.J.S.A. 2C:4-2. Although
Humanik's jury charge on diminished capacity comported with our
prior holdings in Breakiron and Zola, the Third Circuit found
that it violated a defendant's due-process rights. Id. at 441-43. That court found that the proposed charge approved in Zola
had the effect of precluding jurors from considering evidence
which, although casting doubt on the presence of the requisite
mental state, did not rise to the level of a preponderance of the
evidence. Id. at 443.
If the defendant's evidence on mental disease or
defect is sufficient to raise a reasonable doubt
about the existence of the requisite intent, it
cannot constitutionally be ignored. If a
defendant's evidence on mental disease or defect
is sufficient to raise a reasonable doubt about
any element of the offense charged, he must be
acquitted.
Because the Zola-approved charge might have created an
impermissible "preponderance of the evidence filter," thereby
precluding the jury from considering evidence dispositive of the
defendant's mental state, the charge and the statute on which it
was based were declared unconstitutional. Ibid.
Although the decision of the Third Circuit was not binding
on New Jersey courts, see State v. Coleman,
46 N.J. 16, 35-38
(1965), cert. denied
383 U.S. 950,
86 S. Ct. 1210,
16 L. Ed.2d 212 (1966), the Court, through Chief Justice Wilentz, in order
"not to jeopardize State criminal trials by the threat of federal
habeas reversals," issued a memorandum to all trial court judges
on October 27, 1989, stating that a defendant raising the
N.J.S.A. 2C:4-2 diminished-capacity defense no longer need prove
the defect or disease by a preponderance of the evidence. See
124 N.J.L.J. 1133 (November 2, 1989). We also called on our
coordinate branches of government to examine and respond to that
defect. Ibid. We later extended Humanik to appeals pending as
of December 8, 1989, although we noted in our memorandum that
"that fact does not require a reversal of every case presenting a
diminished capacity issue. Other appellate principles may
dictate a different result." See
124 N.J.L.J. 1562 (December 28,
1989) (summarizing Court's memorandum). Thus, we recognized that
an erroneous charge under Humanik does not warrant an automatic
reversal. On July 7, 1990, the Legislature amended N.J.S.A.
2C:4-2, deleting the offending language; that section now
requires that a defendant invoking the diminished-capacity
defense simply present some evidence of his or her mental disease
or defect. See L. 1990, c. 63, § 1.
It was not until two months after we had denied defendant's
petition for certification, which ended defendant's direct
appeal, that this Court stated that Humanik should be applied to
cases pending on direct appeal. Subsequently, we explicitly
adopted Humanik in the companion cases of State v. Moore,
122 N.J. 420 (1991), and State v. Oglesby,
122 N.J. 522 (1991),
although the Appellate Division has nevertheless determined that
"we are obliged to follow Breakiron [in post-conviction-relief
proceedings] unless the Chief Justice or our Supreme Court
directs otherwise." State v. Culley,
250 N.J. Super. 558, 564
(App. Div.), certif. denied,
126 N.J. 387 (1991).
IV. Harmless Error Analysis
A. Under Breakiron and Zola
We issued our decisions in Breakiron and Zola on October 29,
1987, and August 16, 1988, respectively. Consequently, the trial
court did not have the benefit of our decisions in Breakiron and
Zola when it instructed Reyes's jury on diminished capacity. The
Appellate Division, in its review of the post-conviction-relief
hearing, found that the charge had failed to comply not only with
Humanik, but also with the principles enunciated in Breakiron and
Zola. We agree that the charge does not comply with Humanik, but
find that, taken as a whole, it does comply with the requirements
of Breakiron and Zola.
The court charged the jury, as defense counsel requested, on
voluntary intoxication and diminished capacity. The trial
court's instruction on diminished capacity, in pertinent part,
read:
Now, while the State has the burden of proof
on each and every element of the offense,
including state of mind or intent, the defendant
has the burden by the preponderance of the
evidence to show a mental disease or defect which
prevented him from being able to form the
requisite state of mind. . . .
. . . .
[D]efendant . . . must carry the burden of
proving the defense of mental disease [or] defect
by a preponderance of the evidence. . . . Keep in
mind, however, although the burden rests upon the
defendant to establish the defense of mental
disease or defect by a preponderance of the
credible evidence, the burden of proving the
defendant guilty of the offenses charged beyond a
reasonable doubt is on the State and that burden
never shifts. The State must prove all of the
elements of the crime charged beyond a reasonable
doubt, including the element relating to the
necessary state of mind or intent.
I have told you that the State bears the
burden of proving beyond a reasonable doubt that
the defendant purposely or knowingly caused
serious bodily injury resulting in Emie Pagan's
death . . . . You must consider whether the
defendant was harboring a mental defect and by
virtue of that fact, that he did not have the
mental capacity to knowingly or purposefully kill
Emie Pagan.
. . . .
Now, you will also have to consider the
defense of diminished capacity due to mental
disease or defect with respect to the [count]
charging felony murder, burglary and attempted
aggravated sexual assault.
. . . .
In summary, while the State may prove or must
prove all of the elements of the offense,
including state of mind, by proof beyond a
reasonable doubt, the defendant has the burden by
a preponderance of the evidence of showing a
mental disease or defect which prevented him from
being able to be capable [sic] of forming the
requisite intent he had in this case. If he
satisfies his burden as to inability or incapacity
to form the requisite intent due to mental disease
or defect or intoxication by drugs and/or alcohol,
he can't be convicted of a crime requiring proof
of that state of mind.
It is a "well-established proposition that a single instruction
to a jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge." Cupp v. Naughton,
414 U.S. 141, 146-47,
94 S. Ct. 396, __,
38 L. Ed.2d 368, 373
(1973) (citing Boyd v. United States,
271 U.S. 104, 107,
46 S.
Ct. 442,
70 L. Ed. 857 (1926)). Therefore, we look at the
allegedly erroneous jury instruction not on its own, but in
context of the entire charge.
Although some portions of the judge's charge to the jury,
which consisted of approximately twenty-four pages of transcript,
might have been confusing, we find that the charge nonetheless
comported with Breakiron and Zola. The trial court made
abundantly clear that the burden of proving beyond a reasonable
doubt that defendant was capable of forming the necessary intent
at the time of the murder, despite the presence of mental disease
or defect, always remained on the State. The charge, read as a
whole, never removed from the State the ultimate burden of
proving beyond a reasonable doubt that defendant had acted
purposely or knowingly, regardless of his intoxication and/or
diminished capacity due to mental disease or defect. The jury
charge was valid under the law as then understood.
Defendant's direct appeal was heard by the Appellate
Division on March 7, 1989, and decided on March 27, 1989. At
that time, those mental diseases or disorders that constituted
diminished capacity were based mainly on our analysis in
Breakiron. Although we declined in that case "to define the
content of the phrase 'mental disease or defect' as embraced by
the Code," Breakiron, supra, 108 N.J. at 619, we did note that
the drafters of the Model Penal Code recognized that "'many
mentally disturbed persons are [quite] capable of acting
purposefully or knowingly in the minimal senses intended by the
Model Code.'" Id. at 618 (quoting American Law Institute, Model
Penal Code and Commentaries (Official Draft and Revised
Comments), at 220, (comment to § 4.02)(1985)). We further
stated:
Not every mental disease or defect has relevance
to the mental states prescribed by the Code. The
variety and forms of mental disease are legion.
They range from paranoia and schizophrenia to
affective disorders and psychopathy. Some, such
as depression and anti-social disorders, have
little or no relevance to knowledge. Others, such
as schizophrenia, are clearly relevant. Some
states have attempted to define the relevant
mental diseases. Our Code does not. But "[b]oth
jurists and mental health professionals recognize
that there is no perfect correlation between legal
standards of 'insanity' and psychiatric
classifications of mental disorder."
[Breakiron, supra, 108 N.J. at 618-19 n.10
(citations omitted) (emphasis added).]
Consequently, on that basis, a reviewing court looking at the
evidence introduced on Reyes's behalf to demonstrate his mental
disease or defect would have concluded that defendant's rage and
intoxication, his depression, personality type and "lack of
control of behavior," as described by his expert witness, did not
constitute that quantum of evidence sufficient to support a
diminished-capacity charge.
That determination is reenforced by our decision in State v.
Pitts,
116 N.J. 580 (1989), issued just two months after Reyes's
unsuccessful direct appeal. In a case strikingly similar to
Reyes's, Pitts alleged that he could not form the requisite
mental state because of mental disease or defect, and that the
trial court had committed plain error when it failed to charge
diminished capacity. Id. at 607. Pitts's expert witness
testified to the defendant's "cyclothymic personality disorder,"
a mood disorder that can, at times, cause significant depression,
but is not as severe as manic depression, where the manic
depressive loses touch with reality. Id. at 608. That expert
witness also testified that the defendant had a chronic anxiety
disorder, characterized by "unrealistic or excessive anxiety
manifested by tension and hyperactivity." Id. at 608-609
(citation omitted).
Like Reyes's expert, Pitts's psychiatric expert testified,
based on tests of and interviews with the defendant, that Pitts
had manifested
a loss of control under the influence of extreme
emotions and what I would say, combining all the
data, a rage reaction, a reaction in which his
anger reached the point of rage, which I would
define as an anger that goes out of control and an
anger which interferes with the cognitive ability
a person has, planning, judgment, recognizing
consequences, deliberating, that in my opinion, he
experiences such a loss of control.
Despite this testimony, we refused to find that the trial court had committed plain error when it failed to give Pitts the benefit of a diminished-capacity charge, reiterating our earlier admonition that "'[n]ot every mental disease or defect has relevance to the mental states prescribed by the Code.'" Ibid. (quoting Breakiron, supra, 108 N.J. at 618 n.10).
Under the law as it developed during defendant's direct appeal, Reyes's case is remarkably similar to Pitts. Both defendants killed in a fit of rage, but neither linked that rage to an underlying mental disease or defect. As it was not error to deny Pitts a diminished-capacity jury charge, neither was it error to give Reyes a flawed diminished-capacity jury charge because he had not been entitled to such a charge in the first place. If there was any error in Reyes's jury charge, it was harmless because he received the potential benefit of a charge to which he had not been entitled.
B. Under Humanik
The diminished-capacity charge, however, did contain the "preponderance of the evidence filter" condemned by the Third Circuit in Humanik. Although the charge does not comport with Humanik, we find that any error was harmless. Specifically,
there was no competent evidence that defendant suffered from a
mental defect or disease that impaired his cognitive capacity to
act knowingly and purposely.
We have reviewed the testimony of all the witnesses, reading
with particular care the testimony of defendant's expert witness,
Dr. Robert Sadoff, a psychiatrist affiliated with the University
of Pennsylvania. Based on his understanding of the incident as
related to him by defendant, as well as defendant's use of drugs
and alcohol, Dr. Sadoff testified that defendant "was in an
altered state of consciousness at the time of the stabbing in the
sense that he was in a rage and he was under the influence of the
intoxicants that he had taken" and that "when [defendant] lashed
out, he did so impulsively and in an emotional passion, rather
than in a controlled, deliberate fashion." He further opined
that defendant "did not act consciously with a full awareness and
a full deliberation about his behavior." In Dr. Sadoff's view,
defendant's actions "could not have been a purposeful,
deliberate, planned attack, but [rather] happened in a rage, in a
loss of control."
A careful review of Dr. Sadoff's testimony reveals that
diminished capacity was not present. On direct examination, Dr.
Sadoff stated his position as follows:
Q. And if a mental defect as opposed to a
mental disease had to be present for
that diminished capacity to exist, would
you say or be able to say if there was a
mental defect or temporary defect?
A. The defect would be that he was depressed over the situation; the defect
would be that he was under the influence
of intoxicants and that his judgment was
impaired.
It's not a mental illness as an illness
goes. It's not schizophrenia. There is
a depressive element and there is a lack
of control of behavior because of the
combination of the rage, of the
intoxicants.
He also testified to defendant's rage, to defendant's
explosive and emotional personality, and to defendant's asserted
intoxication on the night of the murder. However, on cross-examination, Dr. Sadoff indicated that defendant neither showed
signs of underlying organic brain disorder, nor had any prior
history of psychiatric disorders. The expert admitted that his
evaluation was based almost entirely upon defendant's
uncorroborated version of the facts, wherein defendant asserted
that he had inadvertently stabbed Emie when she stepped between
him and Norma during their argument. The prosecutor very
effectively revealed the unsubstantiated and unreliable bases on
which the doctor grounded his evaluation. The court at the post-conviction-relief hearing agreed, stating, "It is clear to this
Court that Dr. Sadoff had not reviewed the discovery in its
entirety. This, to me, is a serious flaw when evaluating the
state of mind of the defendant."
Moreover, when confronted on cross-examination with the
State's version of the events and asked to give an opinion based
on that version, Dr. Sadoff testified:
I think it boils down to the manner in which the
events occurred. Very clearly, that if they
occurred in a deliberate manner with the hammer
and the rope and the knife and the [snips], and
the gun and the plans and the thinking about it,
the threats and all of these things and the
confrontation that I thought happened that he told
me happened at the time of the stabbing, if that
actually happened 12 hours or more before and he
cut into the window, passed by Norma, went right
over to Emie's bed and plunged a knife into her
heart without saying anything to anybody, no
argument, no confrontation, nothing, then it's
purposeful.
If there is a confrontation, even if there was one
before, but there's a second one after he gets out
of jail after midnight and he's in the apartment
even with the knife and he has an argument with
Norma and sees the hickey and talks about the
hickey with her, and Emie steps in between at that
point to support Norma and against Jose, and he
pulls the knife then cuts Emie, not in her bed,
but in the course of the argument where he lost
control, then I would say there's a difference and
there's a problem with respect to knowing and
purposeful. Those are the differences.
When shown a photograph of Emie Pagan's body as found by the
police -- half-naked in her bedroom and with blood on her bed and
beside it but nowhere else in the apartment -- Dr. Sadoff
admitted that that presented a scenario more consistent with the
State's version of the events. Dr. Sadoff also opined that
defendant "was not mentally ill such that he did not know the
nature and quality of his act and did not know that it was wrong.
That's what I said, and I'll stand by that."
We agree with the trial court's conclusion in the post-conviction-relief hearing that
Dr. Sadoff never identified an underlying mental
disease or defect which could affect purpose or
knowledge or seriously impair cognition. He
speaks of depression, jealousy, of emotional
deprivation, inadequate behavioral control,
primitive rage. None of these disorders affect
purpose or knowledge. Indeed, the doctor seemed
to primarily focus upon the jealousy and anger in
combination with the use of PCP and heroin and
marijuana as causing the defendant to lose
control, to "act wild act crazy." But this is not
diminished capacity. This is motive plus
intoxication due to drugs. . . .
Dr. Sadoff said repeatedly that there was no
underlying mental illness and opined that the
defendant was not psychotic. Again, he never
identified a mental disease or defect except rage
or impulsivity. This clearly is not diminished
capacity.
In addition, my review of the evidence in this
case, and I reviewed every word of the testimony,
reveals nothing to indicate exhibition of
psychosis or some other mental disease or defect
during the course of these incidents. It reveals
largely, as Dr. Sadoff testified, a man who was
jealous, angry, out of control and probably
somewhat affected by PCP and heroin and marijuana.
Again, this is not diminished capacity. It is
motive plus personality description plus some
degree of intoxication from drugs.
Thus, the Appellate Division's reliance on Galloway is
misplaced, because it reads Galloway too broadly. In that 1993
case, we overturned the murder conviction of the defendant, and
although we declined to define "mental disease or defect" as used
in the Code, we gave the phrase a broad reading, stating that
"[f]orms of psychopathology other than clinically-defined mental
diseases or defects may affect the mental process and diminish
cognitive capacity, and therefore may be regarded as mental
disease or defect in the statutory or legal sense." 133 N.J. at
643 (citation omitted).
In Galloway we spoke of "mental deficiencies," but observed
that there must be evidence of an underlying mental defect or
disease, and that a connection is necessary between that mental
disease or defect and the defendant's ability to form the
required mental state for the crime charged. Id. at 647. Under
the Appellate Division's interpretation of Galloway, a defendant
without any mental defect or disease could satisfy the
diminished-capacity test.
Defendant was possessed of a violent, explosive personality,
and he might have been depressed over the break-up of his
relationship with Norma. However, defendant was never diagnosed
as suffering from some type of underlying mental disease or
disorder. Cf. Galloway, supra, 133 N.J. at 647-49 (noting that
defendant asserting diminished-capacity defense had been
diagnosed as having borderline personality disorder with isolated
explosive disorder as secondary diagnosis).
Dr. Sadoff stated that defendant had been impaired because
of emotional rage combined with the voluntary ingestion of
intoxicants. Those intoxicants had the effect of making
defendant even less able to control his violent emotions.
Although the doctor opined about the lack of full consciousness
or deliberation, he did not outline any underlying mental
deficiency. In fact, as noted above, defendant had no underlying
mental disorder at all.
V. Failure to Raise Humanik Error on Direct Appeal Did Not
Render Counsel's Assistance Ineffective.
Defendant asserts ineffective assistance of counsel because his attorney during his direct appeal failed to raise the issue of Humanik-type error in the jury charge before the Appellate Division or in his petition to this Court. We find that that
failure to raise Humanik in the earlier proceedings did not
constitute ineffective assistance of counsel. Because we
conclude that the issue of diminished capacity was not present,
if defendant had raised the issue on his direct appeal the
reviewing court would have found any error harmless. Defendant's
ineffective-assistance-of-counsel argument is thus moot because
counsel's failure to raise the diminished-capacity issue could
not have prejudiced defendant's direct appeal. See Strickland v.
Washington,
466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed.2d 674
(1984); State v. Fritz,
105 N.J. 42 (1987).
VI. Conclusion
We find that the jury charge was consistent with our
decisions in Breakiron and Zola. That charge did not, however,
comport with Humanik. Nevertheless, because the evidence that
Reyes presented on diminished capacity failed to establish the
presence of a mental disease or defect, that error was harmless.
The judgment of the Appellate Division is reversed, and
defendant's motion for post-conviction relief is denied.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion.
NO. A-85 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSE LUIS REYES,
Defendant-Respondent.
DECIDED June 5, 1995
Chief Justice Wilentz PRESIDING
OPINION Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY