Finger v. State

Shearing, J.,

with whom Maupin, C. J., and Rose, J., agree, dissenting:

I would affirm the judgment of conviction adjudicating Frederick Finger guilty of second-degree murder but mentally ill. I do not agree that he has the right to plead not guilty by reason of insanity, as he asserts, nor do I agree that the Nevada statutory scheme violates the Due Process Clause of either the United States Constitution or the Nevada Constitution.

Finger pleaded guilty but mentally ill after the court refused to allow his plea of not guilty by reason of insanity. Under the Nevada statutory scheme, no one is obligated to plead guilty. Every person accused of a crime has a right to a trial. When an accused pleads guilty, he or she does so strictly voluntarily. The court is obligated to canvass the accused to make sure that the plea is voluntary. Finger argues that NRS 174.035(3), the statute which authorizes the guilty but mentally ill plea, provides an incentive for pleading guilty, because of the fear of what could happen at trial. That is the incentive for most pleas and does not violate any constitutional provision.

If the accused refuses to plead guilty or guilty but mentally ill or nolo contendere, the court must enter a plea of not guilty 1 and the accused proceeds to trial. The same result occurred with the previous plea of not guilty by reason of insanity; the case proceeded to trial. At trial, the defendant had to prove insanity. Under the present statutory scheme, at trial, the State must prove that the defendant had the necessary mental state.

In 1995 the Nevada Legislature abolished the plea of not guilty by reason of insanity and substituted a plea of guilty but mentally ill. The majority concludes that the new Nevada statutory scheme on the culpability of mentally impaired individuals is unconstitutional because it does not take into account the defendant’s criminal intent or mens rea. The Nevada statutory scheme does take into account the defendant’s mental state to the extent necessary to comply with substantive due process.

*581 At trial, the State must prove every element of the offense charged beyond a reasonable doubt, including the element of intent, whether general or specific. The defendant may raise the issue of his or her mental state either by defense evidence or by attacking the prosecution evidence of intent or mental state. The Legislature left intact two provisions which make it very clear that the requisite mental state must be proven. NRS 193.190 provides:

In every crime or public offense there must exist a union, or joint operation of act and intention, or criminal negligence.

NRS 193.200 provides:

Intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused.

Furthermore, the accused is also entitled to an instruction to the jury in accordance with NRS 194.010 which provides in relevant part:

Persons capable of committing crimes. All persons are liable to punishment except those belonging to the following classes:

4. Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent, where a specific intent is required to constitute the offense.

5. Persons who committed the act charged without being conscious thereof.

6. Persons who committed the act or made the omission charged, through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence.

(Emphasis added.) This statute clearly requires the jury or other fact finder to take into account the criminal intent of the defendant. Thus, a person who is acting under a delusion or other mental state negating intent to commit a crime would not be convicted under the Nevada statutes. Neither would a person who acted with no “evil design, intention or culpable negligence.” 2

The Legislature was even more explicit in pointing out that an accused’s mental state is to be considered in the determination of guilt. NRS 193.220 provides:

When insanity or voluntary intoxication may be considered. No act committed by a person while in a state of insan *582 ity or voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of his insanity or intoxication may be taken into consideration in determining the purpose, motive or intent.

Under the present Nevada law, the mental condition of an accused does not automatically absolve anyone of a crime, but it is a factor to consider in determining whether every element of the crime charged has been proven. The Due Process Clauses of the United States and Nevada Constitutions require no more.

The words of Justice Felix Frankfurter in 1952 on the issue of what culpability is required to turn homicide into murder are still apt today.

The tests by which such culpability may be determined are varying and conflicting. One does not have to echo the scep-ticism uttered by Brian, C.J., in the fifteenth century, that ‘the devil himself knoweth not the mind of men’ to appreciate how vast a darkness still envelops man’s understanding of man’s mind. Sanity and insanity are concepts of incertitude. They are given varying and conflicting content at the same time and from time to time by specialists in the field. Naturally there has always been conflict between the psychological views absorbed by law and the contradictory views of students of mental health at a particular time. At this stage of scientific knowledge it would be indefensible to impose upon the States, through the due process of law which they must accord before depriving a person of life or liberty, one test rather than another for determining criminal culpability, and thereby to displace a State’s own choice of such a test, no matter how. backward it may be in the light of the best scientific canons. 3

The United States Supreme Court has clearly indicated that it will not impose any particular test for determining culpability for crimes.

The safeguards built into the Nevada statutory scheme for determining culpability clearly comply with the standard for due process set by the courts. The Court in Leland v. Oregon was considering whether a test other than M’Naghten was required. 4 The Court pointed out that the choice of a test of legal sanity involves not only scientific knowledge but also questions of basic policy as *583 to the extent to which that knowledge should determine criminal responsibility. 5 The Court implied that because of the wide disagreement among those who have studied the question of criminal responsibility and the policy questions involved, the Court would basically defer to the states on this matter.

The argument that Finger makes in support of the insanity defense and the M’Naghten test is largely based on the lengthy history of M’Naghten. Yet it has long been recognized that the term “insanity” and the M’Naghten test for “insanity” under the criminal law have historically been terms of art with very little relation to medical or behavioral science. The cases applying the M’Naghten test are replete with outdated words like “lunatic” and “insane” which have little relationship to modern knowledge about human behavior or mental problems, processes and treatments. The Nevada Legislature has conformed the law to the more modern views that psychiatry cannot offer sufficient certainty to produce reasonable and consistent accuracy in resolving questions of criminal responsibility and that it is therapeutically desirable to treat deviants as responsible for their conduct rather than as involuntary victims playing a sick role. 6 The jury makes the ultimate determination as to intent in determining guilt or innocence. There is no requirement for a separate plea or finding of not guilty by reason of insanity. When determining whether a statutory scheme is consistent with due process, we must look anew at the fundamental precepts of due process and not blindly follow historical concepts.

The majority seems to focus on the defendant’s knowledge of the wrongfulness of his act under M’Naghten as being an essential element for constitutionality. Even though the Nevada statutory scheme does require a knowledge of wrongfulness, I disagree that it must do so. The United States Supreme Court has never articulated a general constitutional doctrine of insanity requiring a knowledge of wrongfulness. 7 The Supreme Court in Powell v. Texas stated:

We cannot cast aside the centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his antisocial deeds. The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly *584 shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States.

Nothing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms. . . . [Formulating a constitutional rule would reduce, if not eliminate, that fruitful experimentation, and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold. It is simply not yet the time to write the Constitutional formulas cast in terms whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers. 8

Furthermore, the United States Supreme Court has recognized that it is constitutionally permissible to enact strict liability crimes. 9 In Lambert v. California, the Court stated: “There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.” 10

As the majority notes, the Due Process Clause requires protection of those principles deemed fundamental to the American scheme of justice. Procedural fairness is one of those fundamental principles. The Nevada statutory scheme for defendants who were mentally ill at the time of the alleged crime assures the same procedural due process as other defendants receive.

A substantive fundamental principle is that no one be held criminally culpable if they are so mentally impaired that they did not know what they were doing or had no control over what they were doing. The Nevada statutes do not hold someone criminally culpable if they do not know what they are doing or have no control. In none of the examples cited by the majority in which the M’Naghten “insanity” test would exonerate the defendant, would the defendant be convicted under the present Nevada statutes. These statutes fully conform to due process principles and should be upheld.

The majority also acknowledges that the court could construe NRS 193.220 as simply a change in the procedure by which the issue of legal insanity is presented to the jury, rather than a change in the substantive law of insanity. If it can do so, it is obligated to do so. “Where a statute is susceptible to both a constitutional and an unconstitutional interpretation, this court is *585 obliged to construe the statute so that it does not violate the constitution.” 11 I disagree with the proposition that the Legislature may not change the substantive law of insanity to conform to more modern knowledge of human behavior. However, I stress that even if the majority believes that criminal intent is constitutionally required, it should, consistent with the rules governing statutory construction, interpret the entire statutory scheme to require that criminal intent, since it is perfectly consistent with the Nevada statutory scheme. The majority has failed to do so, and has thereby failed to honor the long-established principle of statutory interpretation.

I do not believe that the Legislature has enacted a statute which violates the Due Process Clause of either the United States or the Nevada Constitutions. Finger’s judgment of conviction should be affirmed.

NRS 174.035(5).

NRS 194.010(6).

Leland v. Oregon, 343 U.S. 790, 803 (1952) (Frankfurter dissenting on the issue of burden of proof only).

M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843).

Id. at 801 .

1 National Commission on Reform of Federal Criminal Laws, Working Papers, 248-251 (1970).

Powell v. Texas, 392 U.S. 514, 535 (1968) (affirming conviction of an alcoholic for public intoxication).

Id. at 535-537 .

Lambert v. California, 355 U.S. 225 (1957).

Id. at 228 .

Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 874, 883 , 878 P.2d 913, 919 (1994) (citing Sheriff v. Wu, 101 Nev. 687, 689-90 , 708 P.2d 305 (1985)).