(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 February 3, l997 -- Decided May 8, 1997
O'HERN, J., writing for a unanimous Court.
The specific issue in this criminal appeal is whether sequential instructions to the jury that it need
not consider the evidence of defendant's insanity unless it had first found defendant guilty of an offense
precluded the jury from considering whether the evidence of insanity negated the mental states required for
conviction.
In June l99l, defendant, Joseph Delibero, was arrested and charged with first-degree robbery,
second-degree burglary, criminal mischief, and possession of burglar's tools. Delibero entered a plea of not
guilty and the case was tried before a jury. At trial, Delibero introduced evidence of diminished capacity and
insanity. He maintained that, on the night of the burglary, he was having dinner with his wife at their home
when he experienced a blackout, after consuming a large amount of food. In support of his defense, Delibero
called several witnesses, including two psychiatric experts, both of whom testified that Delibero was suffering
from a mental illness at the time of the offense. The State offered two expert witnesses in rebuttal.
At the conclusion of all evidence, the trial court instructed the jury regarding both the defense of
diminished capacity and that of insanity. Specifically, in respect of the diminished capacity defense, the trial
court instructed the jury that evidence of Delibero's mental state could be considered in determining
whether the State had proven beyond a reasonable doubt that Delibero had the requisite mental states
required for the crimes charged.
Immediately after this instruction, the trial court instructed the jury on the issue of insanity, generally
tracking the model jury charge. Specifically, the court instructed the jury that if Delibero “was laboring
under a defect of reason from a disease of the mind, so as not to know the nature and quality of the act he
was doing, or if [he] did know it, that he did not know what he was doing was wrong, the defendant then was
legally insane and therefore, not criminally responsible for his acts.” In addition, the trial court instructed
the jury that, although the burden to establish the defense of insanity by a preponderance of the credible
evidence rests with the defendant who asserts that defense, the burden of proving the defendant guilty of the
offense charged beyond a reasonable doubt never shifts and remains with the State.
The jury convicted Delibero of second-degree burglary, criminal mischief, possession of burglar's
tools, and second-degree robbery. He was subsequently sentenced to three concurrent terms of
imprisonment.
On appeal, Delibero challenged for the first time the instruction to the jury on diminished capacity
and insanity. He argued that, by requiring him to prove that he labored under “a defect of reason from a
disease of the mind so as not to know the nature and quality” of his acts, the instructions placed on him the
burden of disproving the intent element of the offenses charged. The Appellate Division reversed Delibero's
conviction, finding that the trial court's jury instructions had impermissibly shifted the burden of proof to
establish his innocence because the court had failed to clarify for the jury that evidence of insanity was
relevant to the State's burden of proving Delibero's mental state.
The Supreme Court granted the State's petition for certification.
HELD: Although a jury instruction should make clear that evidence of insanity may be relevant to the
jury's determination of whether the State has proven beyond a reasonable doubt that at the time of the
offense the defendant possessed the requisite mental state to convict of the offense charged, the instruction
in this case did not prevent the jury from considering the relevant evidence of insanity for that purpose.
1. A jury considers evidence of diminished capacity in relation to the State's burden to prove the essential
elements of a crime. (p. 10)
2. Insanity is an affirmative defense that a defendant must prove by a preponderance of the evidence. (pp.
10-11)
3. The State in a criminal prosecution is bound to prove every element of the offense charged beyond a
reasonable doubt and that burden cannot be shifted to a defendant, even when he is asserting an affirmative
defense. (pp. 11-13)
4. Although evidence of diminished capacity is admissible whenever it is relevant to prove that the defendant
did not have a state of mind that is an element of the offense, courts no longer instruct juries that a
defendant asserts an affirmative defense when presenting evidence of diminished capacity. (pp. 13-14)
5. When evidence relating to an affirmative defense also bears on the elements of an offense, the jury must
be allowed to consider the evidence for that purpose as well. (pp. 14-15)
6. The trial court's instruction, that it must consider evidence as to defendant's mental capacity in
determining whether the State has proven the requisite state of mind beyond a reasonable doubt, correctly
explained that the jury could consider evidence as to a defendant's mental state in relation to the elements
of the crime, regardless of whether the jury believes that the defendant has proven diminished capacity by a
preponderance of the evidence. (pp.15-16)
7. Although the complexity of drawing the distinction between the concepts of diminished capacity and
insanity may call for a fuller instruction than that given by the trial court, the instruction actually given was
not incorrect. (pp. 16-20)
8. To remove any ambiguity, trial courts should, in the future, explicitly instruct juries that in considering the
prosecution's burden to prove every element of an offense charged beyond a reasonable doubt, the jury must
consider all evidence of a defendant's mental state, including that offered as evidence of diminished capacity
or of insanity. (p. 20)
9. A consideration of the instruction as a whole in this case leads to the conclusion that its entirety
overcame any omission specifically to have better instructed the jury. (pp. 20-21)
Judgment of the Appellate Division is REVERSED and defendant's conviction is REINSTATED.
The matter is REMANDED to the Law Division for resentencing in accordance with the opinion of the
Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and
COLEMAN join in JUSTICE O'HERN's opinion.
SUPREME COURT OF NEW JERSEY
A-
85 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSEPH DELIBERO,
Defendant-Respondent.
Argued February 3, 1997 -- Decided May 8, 1997
On certification to the Superior Court,
Appellate Division.
Steven J. Kaflowitz, Special Deputy Attorney,
Assistant Prosecutor, argued the cause for
appellant (Edward M. Neafsey, Acting Union
County Prosecutor, attorney).
Kevin G. Byrnes, Designated Counsel, argued
the cause for respondent (Susan L. Reisner,
Public Defender, attorney).
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for amicus curiae,
Attorney General of New Jersey (Peter G.
Verniero, Attorney General, attorney).
The opinion of the Court was delivered by
O'HERN, J.
This criminal appeal concerns the relationship between a
jury charge on diminished capacity and a charge on insanity.
Diminished capacity describes a disease or defect of mind that
may negate the mental state that is an element of the offense
charged. The insanity defense exculpates an actor from guilt for
conduct that would otherwise be criminal. The specific question
is whether sequential instructions to the jury that the jury need
not consider the evidence of defendant's insanity unless it had
first found defendant guilty of an offense precluded the jury
from considering whether the evidence of insanity negated the
mental states required for conviction.
We hold that a jury instruction should make clear that
evidence of insanity may be relevant to the jury's determination
of whether the State has proven beyond a reasonable doubt that at
the time of the offense the defendant possessed the requisite
mental state to convict of the offense charged. We find that the
instruction in this case did not prevent the jury from
considering the relevant evidence of insanity for that purpose.
We reverse the judgment of the Appellate Division and reinstate
defendant's conviction.
We adopt the facts of the case generally from defendant's
briefs.
On the night of June 30, 1991, Armando Guerra confronted an intruder in his parents' Hillside home. The intruder, later
identified as defendant Joseph Delibero, was holding a
pillowcase. Guerra grabbed the intruder, who then dropped the
pillowcase. The two men began to struggle.
Hillside police officers responding to a report of a robbery
in progress found Guerra holding defendant in the home's
driveway. The police arrested defendant.
The house had been ransacked. The officers searched
defendant and the pillowcase. Defendant was carrying a chisel, a
pocketknife, and a flashlight. The pillowcase contained several
items, including a wallet, jewelry, coins, and a money box.
Guerra later identified these items as belonging to himself or to
his family.
At trial, an officer testified that, "[j]ust prior to our
transport and while the defendant was in the rear of our radio
car he started going into some type of convulsions" and had
difficulty breathing. The officers contacted first aid and an
ambulance took defendant to a hospital. While at the hospital,
defendant gave his name as "Joseph Califano" and stated he lived
in Brooklyn.
The next day, police officers found a car parked near the
Guerras' home. The car was registered to defendant's wife.
Inside the car, police found a police scanner, chisels, two pry
bars, and a wallet with a driver's license giving the name of
Joseph Delibero with an Elizabeth address.
A grand jury charged defendant with first-degree robbery,
second-degree burglary, criminal mischief, and possession of
burglar's tools. Defendant entered a plea of not guilty.
The case was tried before a jury. At trial, defendant
introduced evidence of diminished capacity and insanity. He
testified that on the night of the break-in he was having dinner
with his wife at their home in Elizabeth when he experienced a
blackout, after consuming a large amount of food. He recalled
seeing "lights exploding" as he left the house. He later felt as
if he were watching "from above" as a man struggled with him.
Defendant recalled seeing the police, but said that his head
was still "exploding" while everything around him became bright.
He woke up in the ambulance, but lost consciousness again and
later awoke in the hospital. He had experienced a similar
incident years earlier. Defendant recounted a history of abuse
while a child and of being moved through several foster homes.
To support his defense, defendant called several witnesses.
Dr. Stephen Teich, a forensic psychiatrist who had been appointed
by a New York court in relation to an earlier proceeding in New
York in which defendant had been found insane, testified. Teich
examined defendant concerning the night of the break-in, reviewed
defendant's medical records, and interviewed members of
defendant's family. Teich testified that "[defendant's] mental
illness was very active at the time [the break-in] was going on
and that as a result of his mental illness he lacked a
substantial capacity to be able . . . to know directly what he
was doing [or] to have any awareness of issues of right or
wrong." Teich stated that at the time of the break-in, defendant
was suffering from a "major [affective] disorder" and
"disassociative episodes" that impaired his mental state. Teich
concluded that defendant's condition prevented him from forming a
purposeful or knowing state of mind with regard to his actions in
the Guerra home.
Defendant also called Dr. Benjamin Chu, a psychiatrist. Dr.
Chu examined defendant shortly after the break-in. Chu diagnosed
defendant as having a "bipolar disorder/mixed," or manic
depressive illness. Chu recommended a course of drug treatments
and psychiatric therapy for what Chu called defendant's pervasive
mood disorder. On cross-examination, Chu admitted that he did
not know the legal definition of insanity and could not render an
opinion on the effect of defendant's mental state upon a
particular action.
Defendant's daughter also testified. She stated that
defendant had seemed "unusual" around the time of the break-in,
being withdrawn from life and rarely speaking to anyone.
The State offered two witnesses in rebuttal. Dr. Richard
Kull, a forensic psychiatrist, concluded from his review of the
record that "defendant did have the capacity to form the intent
of purposeful or knowing behavior." Dr. Jean Keltz, a
psychologist, had interviewed defendant in November 1992, while
defendant was being held in pretrial custody at the Trenton
Psychiatric Hospital. Keltz testified that defendant had
exaggerated his symptoms and was "malingering" in an attempt to
remain at the hospital.
The jury convicted defendant of second-degree burglary,
criminal mischief, possession of burglar's tools, and second-degree robbery, a lesser-included offense of first-degree
robbery. The State moved for an extended term of imprisonment.
The trial court granted the motion, and sentenced defendant to
two concurrent sixteen-year terms for the burglary and robbery
convictions. The trial court merged the criminal mischief
conviction with the robbery conviction, and sentenced defendant
to six months on the possession charge, to be served concurrently
with the sixteen-year terms.
On appeal, defendant challenged for the first time the
instructions to the jury on diminished capacity and insanity. He
argued that by requiring him to prove that he labored under "a
defect of reason from a disease of the mind so as not to know the
nature and quality" of his acts, the instructions placed upon him
the burden of disproving the intent element of the offenses
charged. Defendant did not challenge that portion of the charge
instructing the jury that the insanity defense would prevail if
defendant did know the nature and quality of his acts, but did
not know the acts were wrong.
The Appellate Division, in an unreported opinion, reversed
defendant's conviction because it found that the trial court's
jury instructions had impermissibly shifted the burden of proof
to defendant to establish innocence.
The trial court first charged the jury on diminished capacity. After summarizing the testimony of Dr. Teich and Dr. Kull, the trial court charged:
Now, we're going to go into the issues of mental disease and defect now, which have taken a lot of time in this case, which much of the case is about.
You heard the concept, I think referred
to by both attorneys, mental defect or
diminished capacity. I'm going to talk about
it now.
Evidence as to the defendant's mental
state may be considered by you in determining
whether or not the State has proven beyond a
reasonable doubt that the defendant acted
purposely, knowingly or recklessly on June
30, 1991.
If you find the State has failed to
prove beyond a reasonable doubt that the
defendant had the requisite mental states
required for this crime, you must find him
not guilty. If you find the State has proven
beyond a reasonable doubt all of the elements
of the crime inclusive of the mental states
required, then you should find him guilty.
If you find the State has not proven any of
the elements or any part thereof of these
crimes, you must, of course, find him not
guilty.
Immediately after this instruction, the trial court, generally
tracking the model jury charge, instructed the jury on the issue
of insanity.
The second mental state or issue we're
talking about is that of insanity. And this
is somewhat different from the diminished
capacity.
The defendant maintains that he is not
guilty of the crimes charged by reason of
insanity. If you find that the State has
failed to prove beyond a reasonable doubt any
essential element of the offense or the
defendant's participation in the events, you
must find him not guilty and of course you
need not consider the evidence as to his
insanity or lack of same.
If you find the State has proven beyond
a reasonable doubt each essential element of
the offense and his participation in the
crime, then you must consider the evidence as
to his sanity.
. . . Insanity is an affirmative defense and
the burden of proving it by a preponderance
of the evidence is on the defendant who
asserts that particular defense. If there is
no preponderance of the evidence of insanity,
the insanity defense fails and the defendant
stands in the position of a sane person
responsible for all criminal acts.
. . . If at the time of committing the act
the defendant was laboring under a defect of
reason from a disease of the mind, so as not
to know the nature and quality of the act he
was doing, or if the defendant did know it,
that he did not know what he was doing was
wrong, the defendant then was legally insane
and therefore, not criminally responsible for
his acts. That's the standard you must apply
in this case.
Keep in mind, however, that although the
burden rests upon the defendant to establish
the defense of insanity by a preponderance of
the credible evidence, the burden of proving
the defendant guilty of the offense charged
here beyond a reasonable doubt is on the
State, and that burden never shifts.
If you find the State has proven all the elements of the crime and the defendant has
established his defense of insanity by a
preponderance of the credible evidence, your
verdict should be "not guilty by reason of
insanity" and you shall so report when a
verdict is asked of you.
The Appellate Division found that the trial court correctly
instructed the jury on diminished capacity, but found that the
charge on insanity was inadequate. The court acknowledged that
placing a statutory burden upon a defendant to prove insanity was
not unconstitutional. However, the Appellate Division found that
the instruction on insanity prevented the jury from considering
evidence that may have been relevant to whether defendant had the
requisite mental state to commit the crimes charged.
Relying on federal precedent, the court stated that "[i]t
was essential that the jury consider how evidence of defendant's
insanity bears on the issue of whether the State has met its
burden of proof of defendant's intent." The Appellate Division
found that the trial court had failed to clarify for the jury
that evidence of insanity was relevant to the State's burden of
proving defendant's mental state. The instruction therefore
unconstitutionally shifted the burden of proof to defendant on an
essential element of the offense.
We granted the Union County Prosecutor's petition for
certification.
146 N.J. 497 (1996). We also granted permission
to the Attorney General to appear and submit a brief as amicus
curiae.
On prior occasions, we have reviewed the difference between the concepts of diminished capacity and insanity. See State v. Galloway, 133 N.J. 631 (1993); State v. Zola, 112 N.J. 384 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed.2d 205 (1989); State v. Breakiron, 108 N.J. 591 (1987). These terms are complex and their application has long troubled the law. See generally Daniel N. Robinson, A History of the Insanity Defense from Antiquity to the Present (1996). It is sufficient to observe that diminished capacity refers to evidence that can negate the presence of an essential mental element of the crime (as when, for example, a learning-disabled person strikes another but is unable to know that the blow could kill). Breakiron, supra, 108 N.J. at 600-01. A jury considers evidence of diminished capacity in relation to the State's burden to prove the essential elements of the crime. State v. Harris, 141 N.J. 525, 555 (1995).
Insanity, by contrast, is an affirmative defense that a defendant must prove by a preponderance of the evidence. Id. at 552. N.J.S.A. 2C:4-1 defines the defense as when a person was "laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act . . ., or, if [the actor] did know it, that [the actor] did not know what [the actor] was doing was wrong."See footnote 1 An insane person, unlike one
suffering from diminished capacity, may act in accordance with
the elements required to commit an offense, but the insanity
absolves that person of criminal responsibility. The familiar
example is that of a son who kills his mother because he believes
that the voice of God has directed him to act. Generally, the
defense of insanity has been raised only for the most serious
crimes: "[t]here is not an operating defense of insanity in
relation to burglary or theft, or the broad sweep of index crimes
generally. . . . Operationally the defense of insanity is a
tribute, it seems . . . to our hypocrisy rather than to our
morality." Norval Morris, Madness and the Criminal Law 63-64
(1984).
The manner in which federal law has treated the effect of
mental illness on culpability and the presence of the requisite
mental states compounds the difficulty in distinguishing between
the concepts. It is no easy task to simplify for a jury the
burden-shifting that federal doctrine requires.
The State in a criminal prosecution is bound to prove every element of the offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed.2d 368 (1970). That burden cannot be shifted to a defendant, even when a defendant is asserting an affirmative defense. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed.2d 508 (1975). In Leland v. Oregon, however, the United States Supreme Court
held that it would be permissible to impose on a defendant the
burden of proving an exculpatory insanity defense,
343 U.S. 790,
799,
72 S. Ct. 1002, 1007-08,
96 L. Ed. 1302, 1308-09 (1952), so
long as the State remained constitutionally responsible to prove
every element of the offense beyond a reasonable doubt. Id. at
799-800, 96 S. Ct. at 1008, 96 L. Ed. at 1309. The principle
announced in Leland was affirmed in Patterson v. New York, which
upheld a burden on defendants to prove extreme emotional distress
as a defense to murder because such a defense did not require
negation of any facts that the State was required to prove.
432 U.S. 197,
97 S. Ct. 2319,
53 L. Ed.2d 281 (1977).
Ten years after Patterson, the Court decided Martin v. Ohio,
480 U.S. 228,
107 S. Ct. 1098,
94 L. Ed.2d 267 (1987), which
concerned the imposition of a duty upon a defendant, charged with
aggravated murder, to prove self-defense by a preponderance of
the evidence. The Court held that Ohio's requirement did not
violate the Due Process clause because it did not "shift to the
defendant the burden of disproving any element of the State's
case." Martin, supra, 480 U.S. at 234, 107 S. Ct. at 1102, 94 L.
Ed.
2d at 274. The Martin court said that its decision might
have been different if "the jury had been instructed that self-defense evidence could not be considered in determining whether
there was a reasonable doubt about the State's case, i.e., that
self-defense evidence must be put aside for all purposes unless
it satisfied the preponderance standard. Such an instruction
would . . . plainly run afoul of [Winship]." Martin, supra, 408
U.S. at 233-34, 107 S. Ct. at 1102, 94 L. Ed.
2d at 274. But see
Montana v. Egelhoff, __ U.S. __,
116 S. Ct. 2013,
135 L. Ed.2d 361 (1996) (limiting foregoing language in Martin in context of
admissibility of intoxication evidence, and stating that right to
present such evidence was not fundamental).
The reasoning of Leland, Patterson, and Martin does not
extend to the burden of proving the existence of diminished
capacity. In Breakiron, we upheld the then-current version of
the diminished capacity statute, which imposed a burden upon a
defendant of proving diminished capacity by a preponderance of
the evidence. We found that the statute required only that the
defendant show the existence of a mental disease or defect
relevant to an element of the offense. Breakiron, supra, 108
N.J. at 611. The burden remained on the State to prove mens rea
(the culpable mental state of the actor). Id. at 613. See also
Zola, supra, 112 N.J. at 399 (affirming Breakiron).
In Humanik v. Beyer,
871 F.2d 432 (3d Cir.), cert. denied,
493 U.S. 812,
110 S. Ct. 57,
107 L. Ed.2d 25 (1989), however,
the Third Circuit ruled that imposing such a burden on a
defendant violated federal due-process requirements. Such a
burden impermissibly imposed a "filter" that relieved the burden
of the State to prove every element of the crime. Id. at 443.
Humanik and Breakiron concerned an earlier version of New
Jersey's diminished capacity statute. The Legislature
subsequently amended the statute. L. 1990, c. 63, § 1. The
current statute does not impose a burden of proof; evidence of
diminished capacity is admissible "whenever it is relevant to
prove that the defendant did not have a state of mind which is an
element of the offense." N.J.S.A. 2C:4-2. Our courts no longer
instruct the jury that a defendant asserts an affirmative defense
when presenting evidence of diminished capacity. Harris, supra,
141 N.J. at 551.
Often, however, evidence of the two concepts may overlap; facts adduced in support of one claim may be relevant to the other. State v. Moore, 113 N.J. 239, 287-88 (1988). When evidence relating to an affirmative defense also bears on the elements of an offense, the jury must be allowed to consider the evidence for that purpose as well. State v. Sette, 259 N.J. Super. 156, 183 (App. Div.), certif. denied, 130 N.J. 597 (1992).
In Harris, the defendant presented evidence that supported claims of both insanity and diminished capacity. 141 N.J. at 552. The defendant objected to the jury instructions concerning these claims. He alleged that the instructions stratified the jurors' deliberations and prevented them from considering the evidence in reaching a proper verdict. Id. at 553.
We disagreed, and found the instructions proper. We noted that the trial court had gone to great lengths to fashion a fair and correct charge in accordance with the burden-shifting required by constitutional principles. Ibid. The trial court had instructed the jury to consider the insanity defense only
after it had found that the State had proven all elements of the
crimes charged. The court then instructed that the jury consider
the evidence on diminished capacity "in the event that you find
that the defendant has not carried [the] burden as to the defense
of insanity." Id. at 554. Seen as a whole, the jury
instructions conveyed to the jury that it had to consider
evidence of diminished capacity in relation to the State's
burden. It was told to ignore evidence of diminished capacity
only if it found the defendant not guilty by reason of insanity.
Id. at 555-57.
The instructions given in Harris are the reverse image of
those here. In Harris, the court instructed the jury to consider
insanity first and then diminished capacity. In Delibero's case,
the court instructed the jury to consider diminished capacity
first and then insanity. Specifically, the jury was instructed
that it must consider evidence as to defendant's mental capacity
in "determining whether or not the State has proven beyond a
reasonable doubt that the defendant acted purposely, knowingly or
recklessly." This instruction correctly explained that the jury
could consider evidence as to a defendant's mental state in
relation to the elements of the crime, regardless of whether the
jury believes that the defendant has proven diminished capacity
by a preponderance of the evidence, and the instruction did not
contravene Humanik, supra, 871 F.
2d at 440.
The Appellate Division reasoned, however, that the insanity
instruction
served to set up a model of procedure for the
jury: consider all but the evidence
concerning insanity to determine whether the
State met its burden of proof. The thought
continued in the next sentence when the judge
told the jury to consider the "evidence as to
[defendant's] sanity" only if it found the
State had "proven beyond a reasonable doubt
each essential element of the offense and his
participation in the crime."
The Appellate Division determined that the instruction prevented
the jury from finding that the evidence of defendant's insanity
could have raised a reasonable doubt as to defendant's intent.
There is an abstract logic to this reasoning, but there is
no concrete basis to infer harm in this case. By definition, any
evidence of insanity that would tend to negate mens rea would
have already been considered by the jury under the diminished
capacity charge. Obviously, the overlapping evidence from Doctor
Teich that "as a result of his mental illness, [defendant] lacked
a substantial capacity to be able to know directly what he was
doing," was considered by the jury. The expert witnesses did not
compartmentalize their testimony. Only if the jury found beyond
a reasonable doubt that the State had proven every element of the
offense would it then consider the statutory defense of insanity.
In a real sense, then, all that was left for the jury to
consider in this case was the second prong of the M'Naughten test
relating to whether defendant, despite knowing the nature and
quality of his acts, did not think that they were wrong. The
trial court gave a thumbnail description of insanity by stating
that "[i]t is society's moral judgment, recognized by our law,
that a forbidden act should not be punished unless it's done with
a knowledge that in fact it's wrong."
Although the precedent does not always distinguish between
the two M'Naughten prongs, we agree that in some cases evidence
bearing on the first prong (nature and quality of the act) may
also bear on the culpable mental states charged. We considered
at oral argument the examples of one who stabbed another thinking
that the victim would rise from the dead, and of one who stabbed
another while thinking the victim was a pumpkin being carved. In
the former example, the actor has the knowledge and purpose to
kill, but does not know the nature and quality of the act. In
the latter example the actor lacks any intent to kill. The
evidence in this case was not so finely spun. It is difficult to
accept that one who suffered a "blackout" after "gorging" at
dinner would have by happenstance brought along a police scanner
and pry bars.
The complexity of drawing the distinctions between the
concepts of diminished capacity and insanity may call for a
fuller instruction, but this was not an incorrect instruction.
Admittedly, the circumstances which give rise
to a defense of insanity sometimes also
warrant the conclusion that the defendant did
not commit the acts with the requisite mental
state. However, this overlap does not
obliterate the differences between the two
types of verdicts, nor between the legal
consequences of a mental disease that
prevents the formation of mens rea and the
legal consequences of a mental disease that
allows the formation of mens rea but
nonetheless excuses the crime.
[Amy Baker Benjamin, The Jurisdictional
Implications of a Mens Rea Approach to
Insanity: Plugging the "Detainment Gap"
After Foucha v. Louisiana,
19 U. Dayton L.
Rev. 41, 45 n.20 (1993).]
In imposing any burden on defendant, the trial court was
simply attempting to convey to the jury the differences between
the "legal consequences of a mental disease that prevents the
formation of mens rea and the legal consequences of a mental
disease that allows the formation of mens rea but nonetheless
excuses the crime."See footnote 2 Ibid. The consequences of a verdict of
insanity differ from one of diminished capacity. A judgment of
not guilty by reason of insanity does not result in a defendant
being set free; rather, the defendant is subject to further
commitment proceedings. A judgment of not guilty because of the
defendant's diminished capacity does result in a defendant being
set free. State v. Humanik,
199 N.J. Super. 283, 299 n.6 (App.
Div.), certif. denied,
101 N.J. 266 (1985), rev'd o.g. sub nom.
Humanik v. Beyer, supra,
871 F.2d 432.
The trial court made it clear to the jury that although
insanity is an affirmative defense, "the burden of proving the
defendant guilty of the offense charged here beyond a reasonable
doubt is on the State, and that burden never shifts." The trial
court did not tell the jury it should ignore the evidence that
bore on diminished capacity and insanity in determining whether
the State had met its burden.
Instead, the court stated that any "evidence as to the
defendant's mental state may be considered . . . in determining
whether or not the State has proven beyond a reasonable doubt
that the defendant acted purposely, knowingly or recklessly." We
do not have here a "backward charge"See footnote 3 that would create the
possibility that the jury understood the instructions in an
unconstitutional manner. Harris, supra, 141 N.J. at 556 (citing
Francis v. Franklin,
471 U.S. 307, 322 n.8,
105 S. Ct. 1965, 1975
n.8,
85 L. Ed.2d 344, 359 n.8 (1985)). Logically, the jury
first had to consider whether defendant was guilty before
considering whether he would be exculpated. Finally, the trial
court did not build a firewall between the overlapping evidence
of diminished capacity and insanity; the trial court was simply
providing a coherent framework within which to assess the
different burdens of proof and a proper sequence of deliberations
in relation to the common body of evidence.
In the future, to remove any ambiguity, trial courts should
explicitly instruct juries that in considering the prosecution's
burden to prove every element of an offense charged beyond a
reasonable doubt, the jury must consider all evidence of a
defendant's mental state, including that offered as evidence of
diminished capacity or of insanity. The instructions given by
the trial court in Leland provide a guide. The court there
instructed the jury that the "evidence adduced during this trial
to prove defendant's insanity shall be considered and weighed by
[the jury], with all other evidence, whether or not you find
defendant insane, in regard to the ability of the defendant to
[form the requisite mental state]." Leland, supra, 343 U.S. at
794-95, 72 S. Ct. at 1005, 96 L. Ed. at 1307.
To sum up, we agree with the Appellate Division that incorrect instructions of law are poor candidates for rehabilitation under the harmless error doctrine. State v. Weeks, 107 N.J. 396, 410 (1987). But these instructions were not so much incorrect as they were capable of being improved. If counsel had pointed out to the trial court all the concerns raised in this appeal, the court could have fashioned a better charge that would have specifically instructed the jury to consider the evidence bearing on insanity in assessing whether
the State had met its burden of proving beyond a reasonable doubt
every element of the offenses charged.
The objection to the charge given arises as one of plain
error and the question is whether the absence of the specific
instruction was such that it was clearly capable of producing an
unjust result. R. 2:2-9. A jury charge must be examined in its
entirety. State v. Ramseur,
106 N.J. 123, 280 (1987).
"[P]ortions of a charge alleged to be erroneous cannot be dealt
with in isolation but the charge should be examined as a whole to
determine its overall effect." State v. Wilbely,
63 N.J. 420,
422 (1973). A consideration of the instruction as a whole leads
to the conclusion that its entirety overcame any omission
specifically to have better instructed the jury. Taken as a
whole, the instruction could not be understood to have foreclosed
the jury's full and appropriate consideration of the evidence of
insanity in weighing whether the State had met its burden of
proof.
The Appellate Division having found no other grounds to
reverse the conviction, the judgment of the Appellate Division is
reversed and defendant's conviction is reinstated. The matter is
remanded to the Law Division for resentencing in accordance with
the opinion of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and COLEMAN join in JUSTICE O'HERN's opinion.
NO. A-85 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSEPH DELIBERO,
Defendant-Respondent.
DECIDED May 8, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 The statute codifies the standard announced in M'Naughten's Case,
8 Eng. Rep. 718 (1843).
Footnote: 2"You can be insane yet still be capable of entertaining the subjective desire to kill a
human being. But you cannot be convicted of murder if you are so crazy that you kill
without knowing what you are doing. Thus, if [an accused] was under the delusion that
he was shooting two gerbils rather than two human beings, he could not be guilty of
murder, but if [the] delusion took the form of thinking that he had a sacred duty to
reduce the human population by two, he could be guilty of murder, at least guilty prima
facie, though he might have a defense of insanity. Because a state of mind requirement
is part of the prima facie case of murder, even if the defense of insanity were abolished
. . . some insane killers would still escape conviction for murder, because their insanity
had prevented them from forming the intent required of a murderer." Greider v.
Duckworth,
701 F.2d 1228, 1236-37 (7th Cir. 1983) (Posner, J., concurring) (internal
quotations and citations omitted).
Footnote: 3In State v. Erazo,
126 N.J. 112, 125-26 (1991), we found that an instruction that the
jury could find passion/provocation manslaughter only if it first acquitted the defendant
of knowing or purposeful murder was "backwards" because only a homicide that would
otherwise be knowing or purposeful could be reduced to manslaughter by the presence
of passion/provocation.