# Daniel Lewis Howze v. Ronald C. Marshall, Supt.

> Court of Appeals for the Sixth Circuit · January 23, 1984 · 716 F.2d 396

URL: https://www.frixlaw.com/law-library/cases/9471113

## Case

- **Full name:** Daniel Lewis HOWZE, Petitioner-Appellant, v. Ronald C. MARSHALL, Supt., Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 23, 1984
- **Citations:** 716 F.2d 396
- **Precedential status:** Published
- **Opinion:** Concurrence
- **Judges:** Martin, Jones, Brown
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9471113

## Opinion text

NATHANIEL R. JONES, Circuit Judge,
concurring in the result.
The Majority holds that an insanity defense based upon a claim that one cannot conform his/her behavior to the requirements of the law does not negate the voluntariness element of aggravated robbery in Ohio. Although I agree with the result, I construe the majority’s reasoning to include the district court’s misapplication of Leland v. Oregon, 343 U.S. 790 , 72 S.Ct. 1002 , 96 L.Ed. 1302 (1952), and its progeny. Therefore, I concur separately.
The petitioner contends that under Ohio law, the crime of aggravated robbery contains three statutory elements: (1) that the defendant knowingly obtained or attempted to obtain property of some value, (2) that he had the purpose to deprive the owner of such property, and (3) that he used a deadly weapon. In addition, Ohio Revised Code § 2901.21(A) provides that a person is not guilty of a criminal offense unless his liability is based on a voluntary act and he has the requisite degree of culpability. Therefore, in order for the state to prove the appellant’s guilt beyond a reasonable doubt, it would have to establish that he acted knowingly, purposefully, and voluntarily in committing the offense.
Appellant submits that imposing the burden upon him to prove that he could not conform his actions to the requirements of the law required him to negate the voluntariness element of aggravated robbery in violation of his due process rights. Accord Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975). To give appropriate consideration to the appellant’s argument, one must trace the status of the insanity defense as it has been construed in this context.
There are three types of insanity defenses: (1) the M’Naghten “Right-and-Wrong” test, (2) the American Law Institute modification of the M’Naghten test which focuses on the ability to conform one’s behavior to the law or the “irresistible impulse” test and, (3) the Durham “product of mental illness” test. In Leland v. Oregon, supra, the Supreme Court considered an Oregon statute that imposed upon a criminal defendant the burden of proving an insanity defense beyond a reasonable doubt. Leland involved the application of M’Naghten “right-and-wrong” test for determining one’s insanity. The court held that the imposition of the reasonable doubt standard for the purpose of proving this affirmative defense was not violative of due process. In my view, Leland v. Oregon, supra, is distinguishable from the instant case because the Ohio standard for insanity, as raised in this appeal, is the ALI modifica *401 tion of the M’Naghten insanity test and because the voluntariness element of the offense that is present here was not an element of Oregon’s criminal responsibility statute in Leland.
Leland v. Oregon, supra, was decided at a time when the precise differences in the insanity defenses were unclear. This is evidenced by that Court’s explanation that the Oregon statute “amounts to no more than a legislative adoption of the ‘right-and-wrong’ test of legal insanity in preference to the ‘irresistible impulse’ test.” 343 U.S. at 800 , 72 S.Ct. at 1008 . The Court further recognized that the “[kjnowledge of right and wrong is the exclusive test of criminal responsibility in a majority of American jurisdictions.” Id. Thus, it is clear that the insanity defense that was analyzed in Leland is different from that which is before this court today.
Moreover, the defendant in Leland was charged with first degree murder, an offense which did not include a voluntariness element. In Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), the Supreme Court held that if there is a logical incompatibility between an affirmative defense and the prosecution’s proof of all the elements of the crime charged such that proof of the affirmative defense negates an element of the offense, the burden for proving such a defense cannot be placed upon the defendant without violating due process. Id. at 700-02 , 95 S.Ct. at 1890-91 . It has been clearly established that the states have the power to define their crimes and to allocate the burdens of persuasion. In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). However, this power is limited in that the burden of persuading the factfinder that every element of the crime has been proved beyond a reasonable doubt must always be placed on the prosecution. See Holloway v. McElroy, 632 F.2d 605, 625 (5th Cir.1980). Any shifting of the burden of proving each element of the offense, whether explicit or implicit, whether direct or indirect, offends due process.
In the instant case, the appellant asserted an insanity defense under the modified M’Naughten test — viz. he asserted that he was not able to conform his behavior to the law. The notion of “free will” has been construed to mean that an individual is “capable of acting or abstaining from action.” State v. Staten, 18 Ohio St.2d 13, 17 , 247 N.E.2d 293 (1969). In my view, this means that one must be able to act in conformity with one’s choices and that one must have the capacity to make a choice. Thus, when an individual can establish that his actions are not the product of reasoned choices or that upon making a choice he could not act accordingly, he has negated all notions of voluntariness in terms of his actions. Thus, I would conclude that the insanity defense as asserted herein is clearly inconsistent with and contrary to the notion that one undertakes to commit an act voluntarily. However, in light of the fact that state courts are the ultimate expositors of state law and since the Ohio Court of Appeals has held that self-defense, as raised in this case, does not negate the voluntariness element of aggravated robbery, see State v. Howze, 66 Ohio App.2d 41, 46 , 420 N.E.2d 131 (1979), such a conclusion is binding and I concur only in the result reached by the majority. I do not agree with the majority’s implied application of Leland v. Oregon, supra, to this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471113. Public record. Not legal advice.