State v. Chavez

KLEINSCHMIDT, Judge,

dissenting.

I agree with the majority opinion except as to the erroneous jury instruction on the defense of insanity. The court gave the following instruction:

A person is insane if he does not know right from wrong, or if he did not know the probable results of his action.

The correct test to establish the defense of insanity in Arizona is that at the time, of the criminal act an accused must have had:

(1) Such a defect of reason as not to know the nature and quality of the act, or

(2) If he did know, that he did not know he was doing what was wrong. State v. Brosie, 113-Ariz. 329, 553 P.2d 1203 (1976); State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965), cert. denied, 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 530 (1966).

In Brosie our supreme court said that knowledge of the results of an act can be equated with knowledge of the nature and quality of an act so that the instruction complained of is not always fatal.¹ The very last paragraph of that opinion reads:

As stated, we do not approve of the deletion of the element of knowledge of the nature of the act because it tends to focus the jury’s attention only upon the consequences of the defendant’s act. Since the error in the instant case is harmless, the judgment of conviction is affirmed.

113 Ariz. at 331, 553 P.2d at 1205 (emphasis added).

I take this to mean that whenever the offending instruction is given we must examine the facts of each case to determine whether the error was harmless. Since the supreme court criticized the instruction’s tendency to focus only on the consequences of the act it follows that in some cases, under facts different than those presented in Brosie, it would be reversible error to give an instruction that deletes reference to the nature and quality of the act. In other words, as I read Brosie, nature and quality cannot always be equated solely with consequences.

While the instruction was harmless in Brosie I cannot say that it was here. Confusion as to the correct test permeated the whole trial and threw the insanity issue so out of focus that the defendant was denied

due process of law. Not one single person involved in this case ever articulated the correct test for insanity. The judge, no doubt misled by the stock recommended jury instructions, gave the very instruction criticized in Brosie. The prosecutrix, based on her cross-examination of Dr. Castillo, apparently believed the test was: (1) whether the defendant suffered from a mental disease or defect, and (2) if so, whether the mental disease or defect would cause the defendant not to know right from wrong. Alternatively, the prosecutrix questioned the doctor as to whether the appellant knew the consequences or results of his acts and another time she referred to appellant knowing the “nature of his offense.” The defense lawyer, from all that can be told from the record, apparently accepted from the very beginning the test for insanity criticized in Brosie.

Dr. Robert Castillo, the psychiatrist who testified that the defendant was not responsible for his acts, thought the test was “whether someone can distinguish right from wrong.” He displayed considerable confusion as to whether the test included the test for competency and in response to prodding from the prosecutrix defined it as “If a person can distinguish right from wrong and if a person understands, you know, the full effect of what he is doing” or variously, in response to further prodding, “whether or not the defendant did know the probable results of his acts.”

Dr. Michael Bayless, a psychologist called by the state, defined the test as:

Well, basically I think that the M’Naghten Test is the person’s ability to discern right from wrong, the ability to understand, I think, the nature of the proceedings against him that he’s being charged with, his ability to assist counsel. It’s a legal question____

[T]he M’Naghten Rule is did a person know right from wrong at the time he committed the act.

Dr. Otto Bendheim, a psychiatrist, defined the test as:

This simply asks the question as to whether a person is aware of the wrongfulness of his conduct, if he commits wrongful conduct. If he knows the nature and quality of his conduct and if he is able to know right from wrong, (emphasis added.)

Another witness, Dr. Michael Cleary, came closest to a correct statement of the test when he said:

Yes. The test is a variation of the M’Naghten Rule. And under the test in Arizona, the defendant is relieved of responsibility if he did not know the nature and quality of his acts, or if he did not know the meaning between right and wrong ____

In other words, he has got to be in a condition where he doesn’t know the nature and quality of his acts and he doesn’t know right from wrong, (emphasis added.)

Both Dr. Bendheim and Dr. Cleary approached a correct statement of the rule and, but for one factor, could be said to have defined its essence acceptably. Both erred by requiring both prongs of the test to exist before a defendant is relieved of criminal responsibility.

The concepts of criminal responsibility and the defense of insanity were fuzzy from the beginning to the end of this trial. The question is whether the confusion really made any difference in the outcome of the case. I acknowledge that there was ample evidence from which the jury could have concluded that the appellant was sane. There was, however, evidence to support the opposite conclusion and much of this could be characterized as going to the issue of whether Chavez knew the quality of his acts — that is his ability to comprehend the harmfulness of his acts.

The evidence shows that the appellant had been a loner all his life, one of several sons of a mother who had suffered from a debilitating mental illness which may be genetically transmitted. He was an angry and impulsive person who had long suffered from depression. His condition was progressive and grew even worse after the dissolution of his marriage and the breakup of his family. He had symptoms of paranoia. He believed that people were watching him and following him. He developed a religiosity manifested by his surrounding himself with religious artifacts, his former wife’s picture included among them. He was obsessed with reuniting his family.

Dr. Bayless, who testified for the state, said that Chavez told him, “I know. I was doing something wrong but I didn't think it was that serious. I was fighting for my children and it’s not wrong for a man to fight for his kids. I did what I felt was right.” (emphasis added). When it is added that a belief that conduct so totally unacceptable was not that serious sprang from a defect of reason, the makings of a respectable insanity defense were present. In my opinion, Dr. Bayless’ testimony alone is sufficient evidence on knowledge of the quality of the act so that an instruction which emphasized only the knowledge of the consequences of the act was erroneous.

Since the instruction given embodies the knowledge of right from wrong and since Chavez though his act wrongful but justified, I have given thought to whether the instruction might have been barely sufficient. The problem is that knowledge of the degree to which behavior may be wrong clearly has to do with an appreciation of the quality of the act and, indeed, shades into a question of whether conduct is perceived as wrong at all. I cannot say the mistake did not effect the outcome of the case, especially in view of the fact that the jury deliberated for two days before reaching a verdict.

While I share the frustration that many people have with the semantical problems that plague the law’s attempt to deal with the violent acts of the mentally ill, there must be standards and we must adhere to them. I would reverse and remand for a new trial.

1 . While I am required to follow Brosie when it applies, I would point out that the supreme court’s reasoning in that case equates knowledge of the quality of the act solely with knowledge of the harmfulness or consequences of the act. This is a narrow definition of "quality." There is a discussion of the history and development of the insanity defense in State v. Esser, 16 Wis.2d 567, 115 N.W.2d 505, (1962), in which the Wisconsin court, discussing the issue that confronts us here, said:

We think, however, that including the former element (nature and quality) gives important emphasis to one element of the realization of the wrongfulness of an act. Suppose that one vaguely realizes that particular conduct is forbidden, but lacks real insight into the conduct. He may be furtive about such conduct, but not really be able to make a normal moral judgment about it.

16 Wis.2d at 598, 115 N.W.2d at 521.