STATE of Minnesota, Respondent, v. David Francis BROM, Appellant.
No. C3-89-2269.
Supreme Court of Minnesota.
Nov. 30, 1990.
Reversed and remanded to the trial court for further proceedings in accordance with this opinion.
TOMLJANOVICH, J., took no part in the consideration of this case.
Raymond F. Schmitz, Olmsted County Atty., Rochester, for respondent.
TOMLJANOVICH, Justice.
In the early evening of February 18, 1988, Olmsted County sheriff‘s deputies discovered the bodies of Paulette, Bernard, Diane, and Richard Brom on the second floor of the Brom family home.1 All four individuals had sustained numerous gashes in the head and upper body. Police subsequently found a blood-stained ax in the basement that forensic tests indicated was used to kill all four victims. Tests also revealed the ax handle bore appellant‘s palm and finger prints.
On February 19, 1988, Rochester police officers arrested appellant in connection with the deaths of his parents and siblings. Because he was 16 years old at the time, appellant was initially charged in the juvenile justice system. After a much-publicized reference hearing and appeal, however, appellant was referred for prosecution as an adult. See In re D.F.B., 433 N.W.2d 79 (Minn.1988). Primarily in response to adverse publicity generated by his reference hearing, appellant moved the trial court for a change of venue pursuant to
Sixty-three potential jurors were interviewed in seven days of voir dire. Each was questioned by counsel regarding the influence of media coverage on her or his pretrial impressions and opinions. All acknowledged some awareness of the press coverage appellant‘s case received and several admitted predetermined opinions with respect to appellant‘s guilt. None of those actually empaneled, however, were challenged for cause by either the defense or the state and at the close of voir dire, neither the defense nor the state moved for a change of venue.
Because appellant pleaded both not guilty and not guilty by reason of mental illness, his trial proceeded in two phases as required by
In phase two of his trial, appellant bore the burden of proving his legal mental illness by a preponderance of the evidence.5 The defense presented expert testimony from one psychiatrist who concluded that appellant did not understand that killing his parents and siblings was wrong when he did so and that, therefore, he was legally insane. The state offered expert testimony from four psychiatrists. Of these four witnesses, two concluded that appellant was not legally insane at the time he committed the murders and two did not offer an opinion as to his legal mental illness. All of the experts agreed, however, that appellant suffered some form of mental illness or impairment.
Having been instructed regarding appellant‘s burden of proving his legal mental illness by a preponderance of the evidence, the jury returned verdicts of guilty as to four counts of murder in the first degree. The trial court then imposed four life sentences, pursuant to
DISCUSSION
I. Change of Venue
Appellant claimed the trial court violated his right to due process of law by denying his pretrial motion for a change of venue. He requested this court grant him a new trial.
In State v. Buschkopf, 373 N.W.2d 756 (Minn.1985), this court held that where no seated juror was challenged for cause and defense counsel exercised only 12 of 15 peremptory challenges, defendant was presumed “satisfied with the jury as selected, and [was without ground] to assert the necessity of a venue change.” Id. at 769. Appellant‘s claim is nearly identical to that raised in Buschkopf. Each of the 63 potential jurors interviewed was questioned by both the defense and prosecution regarding exposure to pretrial publicity and media coverage related to appellant‘s case. Although all acknowledged some degree of exposure, none of the 15 individuals actually empaneled was challenged for cause on any ground, and in the course of voir dire appellant exercised only 14 of his 15 peremptory challenges. Appellant is therefore not entitled to a new trial.
Moreover, in denying appellant‘s motion the trial court indicated that it would “certainly entertain another motion for a change of venue,” pursuant to
We note that the newspaper coverage appellant pointed to in support of his motion appeared 16 months before his trial. We have consistently held that a substantial interval of time between the publicity complained of and the trial date decreases the likelihood of juror prejudice owing to that publicity. See State v. Fratzke, 354 N.W.2d 402, 407 (Minn.1984) (seven-month interval lessened potential for juror prejudice due to adverse publicity); State v. Swain, 269 N.W.2d 707, 720 (Minn.1978) (lapse of six months decreased likelihood of pretrial prejudice); State v. Hogan, 297 Minn. 430, 437, 212 N.W.2d 664, 669 (1973) (three-month lapse decreased potential for pretrial prejudice due to media coverage). The trial court was therefore correct in giving substantial weight to the interval of time between the publicity appellant identified as prejudicial and the date of his trial.
II. Psychiatric Testimony Regarding Premeditation
Appellant claimed that in prohibiting expert psychiatric testimony from the guilt phase of his bifurcated trial, the trial court precluded his defense as to the element of premeditation and thereby denied him due process of law.
Appellant‘s claim is not new to this court. In State v. Bouwman, 328 N.W.2d 703 (Minn.1982), we held expert psychiatric testimony inadmissible with respect to the elements of premeditation and intent. Id. at 706. Although appellant correctly indicates that Bouwman focused almost exclusively on the rationale for precluding such testimony as to the element of criminal intent, we do not read Bouwman to permit a meaningful distinction between intent and premeditation with respect to our prohibition of psychiatric testimony.
In Bouwman, we reasoned that psychiatric testimony is irrelevant as to intent because intent must almost always be inferred from the circumstances surrounding a particular crime. See Bouwman, 328 N.W.2d at 705. Essentially, the fact finder is presented with physical evidence related to a given act and asked to draw on its sensory perceptions, life experiences, and common sense to determine whether that act was indeed intentional. Id. Because psychiatric evidence “does not relate to the physical evidence upon which the jury is to determine the issue of intent,” it is irrelevant to that issue and cannot be admitted either to prove or to disprove it. Id. Such evidence only becomes relevant when a criminal defendant‘s mental incapacity is actually put into issue—that is, in phase two of a bifurcated trial. See
Bouwman does not permit a different result with respect to premeditation.7 Although premeditation involves “more
Further, this court has followed Bouwman in rejecting subsequent challenges to the prohibition of psychiatric testimony as to the element of premeditation without developing a separate, premeditation-based rationale. See State v. Hoffman, 328 N.W.2d 709, 715–17 (Minn.1982) (psychiatric testimony confined to mental illness phase of trial and not admissible with respect to determining premeditation); State v. Jackman, 396 N.W.2d 24, 29 (Minn.1986) (affirming rejection of psychiatric testimony on the issue of premeditation). Appellant has not elucidated, and we do not now perceive, a means by which we might permit the introduction of psychiatric testimony as to premeditation without dismantling the entire bifurcated trial process. We therefore reiterate our conclusion in Bouwman that psychiatric testimony is inadmissible as to the element of premeditation.9
This court previously concluded that prohibiting psychiatric testimony from the guilt phase of a bifurcated trial does not violate a criminal defendant‘s right to due process of law. See State v. Jackman, 396 N.W.2d 24, 29 (Minn.1986). In Jackman, the trial court refused defendant Jackman‘s request to introduce psychiatric testimony regarding premeditation and intent during phase one of his bifurcated, first degree murder trial. Id. at 27. On appeal, Jackman argued that the trial court thereby denied him due process of law. Id. at 29. As does appellant here, he contended that precluding such testimony effectively denied him the opportunity to defend against the state‘s allegation that he intended and premeditated his conduct. Id. This court, however, rejected that claim, holding that prohibiting psychiatric testimony from the guilt phase of a bifurcated trial does not impinge the guarantee of due process of law. Id. Finding no reason to reach a different result here, we again
In applying the due process clause of the Minnesota Constitution,
III. Evidence of Mental Illness
Appellant claimed that he demonstrated his legal mental illness by a preponderance of the evidence and that his convictions should therefore be reversed.
A defendant must demonstrate that “at the time of committing the alleged criminal act [she or he] was laboring under such defect of reason, from [mental illness or deficiency] as not to know the nature of the act, or that it was wrong” in order to be excused from criminal responsibility because of mental illness.
This court has consistently held that the issue of legal mental illness is a question for the finder of fact to resolve. See State v. Gore, 451 N.W.2d 313, 316 (Minn.1990) (expert opinion testimony did not compel verdict of not guilty by reason of mental illness); State v. Schneider, 402 N.W.2d 779, 786 (Minn.1987) (legal mental illness is a jury question); State v. Rawland, 294 Minn. 17, 45, 199 N.W.2d 774, 789 (1972) (ultimate determination as to legal mental illness rests with the fact finder). As well, we have granted broad deference to the fact finder in determining the appropriate weight to assign expert psychiatric testimony. See DeMars v. State, 352 N.W.2d 13, 16 (Minn.1984) (fact finder not bound by expert testimony even where that testimony supports finding of legal mental
At trial, appellant offered the expert opinion of one psychiatrist who testified that appellant did not understand that killing his family was wrong at the time he did so. In response, the state offered expert testimony from two psychiatrists who concluded that appellant knew what he was doing at the time of the murders and knew that it was wrong. Further, the state introduced testimony from two other psychiatrists who, while not reaching an ultimate conclusion as to appellant‘s legal mental illness, substantially undercut the testimony of appellant‘s psychiatric expert. We do not agree with appellant that the evidence of his legal mental illness as defined by
IV. Imposition of Consecutive Life Sentences
Appellant contends the trial court abused its discretion in imposing three of his four life sentences consecutively.
Whether to impose concurrent or consecutive multiple life sentences for first degree murder falls within the discretion of the trial court.
In Bangert, we affirmed consecutive life sentences where the defendant shot and killed two victims while they slept. Id. at 543. Similarly, in State v. Olson, 291 N.W.2d 203 (Minn.1980), this court concluded that consecutive life sentences were indeed appropriate where a defendant “with premeditation methodically burned three people to death.” Id. at 208; see also State v. Marquardt, 294 N.W.2d 849, 851 (Minn.1980) (consecutive sentences appropriate where seven victims were shot). Like the defendants in both Bangert and Olson, appellant was convicted for the premeditated murder of multiple victims. After hearing the testimony offered and observing the witnesses who testified, the trial court concluded that three consecutive and one concurrent life terms were appropriate. We find no ground on which to conclude that three consecutive life sentences exaggerate either appellant‘s culpability or his criminality. We therefore hold that the trial court did not abuse its sentencing discretion and affirm the sentences it imposed.12
V. Credit for Pre-Trial Detention
Appellant claimed, and the state agreed, that he is entitled to credit against his life sentences for the time he was detained prior to trial.
The Rules of Criminal Procedure state that the sentencing court “[s]hall assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed. Such time shall be automatically deducted from the sentence and the term of imprisonment....”
WAHL, Justice, dissenting.
I respectfully dissent.
Substantial constitutional considerations require reconsideration of our decision in State v. Bouwman, 328 N.W.2d 703 (Minn. 1982) which prohibits a criminal defendant from introducing expert psychiatric opinion evidence of mental abnormality or mental disorder to negate the requisite mens rea, in that case intent and premeditation. As the Supreme Court of Colorado has aptly stated, “A rule [of evidence] precluding the defendant from contesting the culpability element of the charge would render the prosecution‘s evidence on that issue uncontestable as a matter of law, in derogation of the presumption of innocence and the constitutional requirement of prosecutorial proof of guilt beyond a reasonable doubt.” Hendershott v. People, 653 P.2d 385, 391 (Colo.1982); e.g., Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 2457-59, 61 L.Ed.2d 39 (1979); Morissette v. United States, 342 U.S. 246, 274-75, 72 S.Ct. 240, 255-56, 96 L.Ed. 288 (1952). Requiring the prosecution to establish the culpable mental state beyond a reasonable doubt while, at the same time, prohibiting the defendant from presenting evidence to contest this issue is also a violation of due process. Hendershott v. People, 653 P.2d at 391.1
Our decision in Bouwman misconceived the nature of the defendant‘s right to present evidence to negate an element of the offense charged:
* * * The defendant has the right to offer evidence which disputes the physical facts upon which the inference of the fact of intent is sought to be established by the prosecution. However, psychiatric evidence is of no value at this part of the trial since it does not relate to the physical evidence upon which the jury is to determine the issue of intent. Rather, such expert testimony relates to the mental capacity of the defendant and is properly part of defendant‘s case wherein he must establish the defense of mental illness by the appropriate standard. (Emphasis added.)
As the Pohlot court has noted, “the mere fact that a defendant has the right to introduce psychiatric evidence in support of the affirmative defense of insanity does not justify barring the evidence from negating the government‘s case in chief.” U.S. v. Pohlot, 827 F.2d at 901.
* * * The Supreme Court has indicated that although a state may constitutionally shift the burden of proving insanity to the defendant, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), it did not sanction, and probably would not sanction, a jury charge that prevented a jury from considering evidence of mental abnormality in determining whether the state had proven premeditation and deliberation beyond a reasonable doubt. In upholding the verdict, the Court stated: ”It is apparent that the jury might have found appellant to have been mentally incapable of the premeditation and deliberation required to support a first degree murder verdict * * * and yet not have found him to have been legally insane.” Id. at 794, 72 S.Ct. at 1005 (Emphasis added.).
Both the ABA Criminal Justice Mental Health Standards, Standard 7-6.2 (1989), and the ALI Model Penal Code § 4.02(1) provide that evidence concerning a defendant‘s mental condition should be admissible at a criminal trial whenever it is relevant to prove that a defendant did or did not have the state of mind required for the
The defendant, in the case before us, admitted he committed the acts which resulted in the four deaths but sought to introduce expert psychiatric opinion to negate the element of premeditation. Premeditation, as this court has held, involves, in addition to the mere intent to kill, a pre-existing reflection and deliberation. See e.g., State v. Ulm, 326 N.W.2d 159 (Minn.1982); State v. Lemire, 315 N.W.2d 606 (Minn.1982). We have stated that inferences of pre-existing reflection and deliberation are properly drawn only from physical evidence. Bouwman, 328 N.W.2d at 705. It cannot be said, however, that direct inquiries into impaired mental states have no relevance or value in determining whether an individual did, in fact, reflect or deliberate on an act. It is conceivable that a person whose actions are steered by powerful mental aberrations may leave behind physical evidence indicating a pre-existing reflection and deliberation, but that when the mental condition is itself directly explored, the jury may find the inference of premeditation substantially rebutted. Dr. Malmquist‘s proffered testimony was clearly relevant in determining the absence or presence of the requisite premeditation, under the circumstances of this case.3
A finding of premeditation is to be based upon the circumstances as a whole. State v. McCullum, 289 N.W.2d 89, 92 (Minn. 1979). Defendant‘s mental impairment is as much a part of those circumstances as intoxication, infancy, senility and other conditions recognized by this court as probative of defendant‘s state of mind. Although to some extent, conditions such as intoxication or infancy are capable of quantification, they, like mental illness, can only indicate the degree to which a condition impaired defendant‘s mental processes4. All of these conditions acknowledge a mental disability of some type and all are probative as to whether a defendant formulated the required mens rea.
This court, in Bouwman, distinguished evidence of intoxication and infancy from evidence of mental impairment, adopting the reasoning of the ninth circuit:
Exposure to the effects of age and of intoxicants upon state of mind is a part of common human experience which fact finders can understand and apply; indeed, they would apply them even if the state did not tell them they could. The esoterics of psychiatry are not within the ordinary ken. The differences are sufficiently manifest to thwart constitutional attack.
Bouwman, 328 N.W.2d at 706 (quoting Wahrlich v. State, 479 F.2d 1137, 1138 (9th Cir.1973)).
If jurors’ inability to comprehend psychiatric testimony was ever a compelling distinction, it has no current application. Statistics indicate that one in seven adults in the United States suffers from a diagnosable mental disorder and is in need of professional treatment in any six month period of time.
Moreover, the jury, in the insanity phase of the bifurcated trial, relies on expert psychiatric testimony to determine whether defendant has proved by a preponderance of the evidence that at the time of the offense he or she “was laboring under such a defect of reason * * * as not to know the nature of the act, or that it was wrong.”
In Bouwman we mistakenly equated the evidentiary doctrine providing for the admission of evidence of mental abnormality to negate mens rea with the doctrine of diminished responsibility. “Diminished responsibility,” as the Commentary to
It is argued that admitting non-insanity psychiatric evidence to negate the mens rea element of the crime will do violence to the system of bifurcation mandated by
I would reverse the convictions and remand for a new trial at which expert testimony as to defendant‘s state of mind at the time of the killings in order to negate the state‘s claim that he acted with premeditation would be admitted. This decision, as defendant‘s counsel has so eloquently argued, would constitute nothing more than the reaffirmation of several concepts basic to our system of jurisprudence: the presumption of innocence and the due process requirement that the state prove each element of the crime beyond a reasonable doubt and the defendant‘s right to present relevant evidence in his defense.
Notes
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(2) Separate Trial of Defenses. If a defendant notifies the prosecuting attorney of an intention to rely on the defense of mental illness or mental deficiency together with a defense of not guilty, * * * there shall be a separation of the two defenses with a sequential order of proof before the court or jury in a continuous trial in which the defense of not guilty shall be heard and determined first, and then the defense of the defendant‘s mental illness or deficiency.
The defense recognizes that under the current state of the law in Minnesota, specifically State v. Bouwman, that expert psychiatric testimony on the subject of premeditation in phase one of a bifurcated trial is inadmissible. Recognizing that, we wish to make an offer of proof that if called to testify in phase one, Dr. Carl Malmquist, a psychiatrist, would testify in essence that if we take things in an obvious but superficial manner, it would appear that the acts of David Brom were thought about intermittently for months prior to their occurrence. However, that ignores complicated questions with respect to the nature of his thought processes, his capacity to act otherwise, and the origins and other contributing factors that led to his preoccupation with suicide and homicide. And that Dr. Malmquist has difficulty as a psychiatrist getting into the questions of premeditation. One person with a blood alcohol level of .25 may be able to formulate specific intent, another incapable. One eight-year-old child may intend the consequences of her actions, another may not.
Further, we do not quibble with the dissent as to the incidence of mental impairment and agree “that evidence of mental impairment is well within the common experience of the average person and capable of lay understanding.” We cannot agree, however, that experience with the behavioral manifestations of mental impairment necessarily entails experience with the technical jargon of psychiatry. The jurors who convicted appellant were presented extensive evidence as to his conduct leading up to the morning of February 18, 1988. We are unwilling on the record before us to conclude that the expert testimony appellant offered to introduce would have assisted those jurors in determining whether appellant premeditated that conduct.