State v. Bishop

DURHAM, Justice:

(concurring separately).

I join Justice Zimmerman’s opinion except insofar as he joins Justice Stewart’s opinion on the issue of the manslaughter instruction. I also decline to join in the following portions of Chief Justice Hall’s opinion for the reasons explained below.

Manslaughter Instructions (§ IX)

The jury convicted defendant of first degree murder, an element of which was intentional killing. By virtue of the sequencing of instructions, the jury was told to consider the lesser included offense of manslaughter if, and only if, it failed to find that all of the elements of first degree murder or second degree murder existed beyond a reasonable doubt.¹ Having found first degree murder, the jury rendered moot the claimed error in the manslaughter instructions. Therefore, I believe that the Chief Justice’s opinion improperly reaches the issue of the content of the manslaughter instructions and that those portions of the opinion are pure dicta. See State v. Valdez, 30 Utah 2d 54, 58, 513 P.2d 422, 424 (1973); State v. Gallegos, 16 Utah 2d 102, 104-05, 396 P.2d 414, 416 (1964).

Furthermore, contrary to the conclusion of the Chief Justice’s opinion, I think that part of the challenged instruction was erroneous. The instruction says, “Such [extreme mental or emotional] disturbance therefore cannot have been brought about by his own peculiar mental processes or by his own knowing or intentional involvement in another crime.” Instruction No. 28 (emphasis added). I submit that the sustaining of this language by the Chief Justice’s opinion renders unintelligible the statutory definition of manslaughter, which is, causing “the death of another under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.” Utah Code Ann. § 76-5-205(1)(b) (1978). It is not possible to determine whether a defendant’s mental or emotional disturbance is reasonably explained or excused without considering his “own peculiar mental processes.” For example, a parent grief-stricken over the loss of a child may assault the killer and cause his death “under the influence of extreme ... emotional disturbance.” The grief is the disturbance, and it may have a reasonable excuse. A person suffering from post-traumatic shock syndrome may likewise assault and cause the death of someone who approaches him in the street at night. His own mental processes cause him to see threat and danger where “reasonable” persons, persons not possessing his mental state, would not. The crime might nevertheless constitute manslaughter.

Grief and post-traumatic shock syndrome are only two examples of internal mental or emotional conditions that can cause emotional disturbance leading to violent actions. The emotional disturbance is not triggered by external stimuli, but by internal mental states which may or may not have reasonable explanation or excuse² and which may or may not rise to the level necessary to sustain a diminished capacity defense. Other examples of subjective mental or emotional conditions which could and should be relevant to a manslaughter analysis are sleep deprivation, medication imbalance, severe anxiety (not amounting to a mental illness), and physical illness. These conditions may bring about emotional disturbance leading to loss of self-control —they are internal triggers, and they would be appropriate to a manslaughter finding under certain facts. It is improper in my view to preclude a jury from taking into account a defendant’s “peculiar mental processes” when considering manslaughter.

Defendant Bishop claimed that his psychological defects, while not rising to the level of mental illness which would mitigate or obviate intent, nevertheless were sufficiently serious to create an emotional disturbance when he was faced with public exposure by his victims. This was a legitimate approach, and the trial judge properly permitted defendant to put on his evidence supporting this theory. The jury instruction language quoted above, however, would have effectively prevented the jury from considering the theory or the evidence and was therefore improper. Since the jury found first degree murder and never considered manslaughter, the issue is moot and the error harmless. I am afraid that the Chief Justice’s opinion is needlessly making bad law on manslaughter.

Sufficiency of the Aggravating Circumstances Evidence (§ XII)

Because the record contains separate jury verdicts finding defendant guilty of the crime of aggravated kidnapping, which also constituted an element of capital homicide under section 76-5-202(l)(d), I concur in the treatment afforded this issue by the Chief Justice’s opinion. I note, however, that I think it was improper for the trial court to enter separate convictions and sentences on the kidnapping charges in view of the use of these acts to aggravate the killings to capital murders. The same crime cannot be the predicate for two criminal convictions. See Utah Code Ann. § 76-1-402(3) (1978); State v. Shaffer, 725 P.2d 1301, 1312-14 (Utah 1986). Defendant has not raised this issue, and it is presumably of no import in view of this Court’s sustaining the death penalty.

1 . Instruction No. 37 told the jury:

If you believe that the evidence establishes each and all of the essential elements of the offense beyond a reasonable doubt, you must find the defendant guilty of Criminal Homicide, Murder in the First Degree. On the other hand, if the evidence has failed to so establish one or more of said elements ... you must then consider the guilt or innocence of the defendant of the lesser included offense of Criminal Homicide, Murder in the Second Degree.

Instruction No. 38 similarly instructed the jury members that they should consider manslaughter only if the evidence failed to establish second degree murder beyond a reasonable doubt.

2 . I think it is this portion of the manslaughter statute that the trial court's instruction was really trying to address, since it seems clear to me that, however agitated Bishop’s mental state due to his psychological deviation might have become, there could not be a "reasonable explanation or excuse” for killing under the influence of this disturbance.