On Appeal from the United States District Court for the District of New Jersey, Trenton, D.C. Civil Action No. 85-5455.
Stapleton, Scirica, and Cowen, Circuit Judges.
STAPLETON, Circuit Judge:
We are asked in this habeas corpus proceeding to consider the constitutionality of New Jersey's so-called "diminished capacity" statute, N.J.Stat.Ann. § 2C:4-2, which requires that the defendant bear the burden of proving by a preponderance of the evidence the existence of a mental disease or defect "which would negate a state of mind which is an element of the offense." The district court held that neither the statute nor the instructions to the jury in the petitioner's case violated the petitioner's due process right to have the state prove each and every element of the crime charged beyond a reasonable doubt. We conclude, however, that the trial court's charge did not conform to the dictates of due process. Moreover, we also conclude that the constitutional problem in this case arises not only from the particular approach taken by the trial court in its instructions but also from the diminished capacity statute itself.
The facts surrounding the crime for which the petitioner, John Humanik, was convicted are essentially uncontroverted. See State v. Humanik, 199 N.J. Super. 283, 489 A.2d 691 (N.J. Super. Ct. App. Div.), certif. denied, 101 N.J. 266, 501 A.2d 934 (1985). On June 4, 1982, Humanik was sentenced to a term of life imprisonment, and ordered to serve 25 years without being eligible for parole, for the murder of his former girlfriend of three years, Lisa Ann Guzzo. He became involved with Ms. Guzzo in 1978, when he was 17 and she was just 13, and had over the course of their relationship developed a strong attachment to the entire Guzzo family, referring to victim's mother as "mom" and frequently staying at the Guzzo family home. This attachment was attributed, at least in part, to Humanik's emotionally deprived upbringing, having been abandoned by his mother and having spent an extended period of time in a foster home before eventually being raised by an aunt.
The sequence of events leading to the murder began on August 5, 1981, when Ms. Guzzo told Humanik that she wanted to end the relationship and date another man. Over the next several days, Humanik made repeated attempts to convince Ms. Guzzo not to leave him, but was unsuccessful. On August 11, the evening of the murder, after procuring his uncle's gun a few days earlier and purchasing the necessary ammunition, Humanik went to the Guzzo's home, ostensibly to determine the identity of her new boyfriend. Humanik entered the home and at gunpoint ordered Ms. Guzzo's sister and new boyfriend who were also in the house to be seated while he spent several hours trying to persuade Ms. Guzzo to take him back.
At 11:30 p.m., upon the return home of the victim's parents, Humanik pointed the gun at Ms. Guzzo and fired the fatal shot. He immediately fled from the scene of the shooting, traveling to New York, North Carolina, Florida, and ultimately Las Vegas where he eventually was apprehended approximately two months later.
At trial, Humanik conceded that he shot and killed Ms. Guzzo at her family home. The sole contested issue was Humanik's state of mind at the time of the shooting. His defense was that he did not intend to kill Ms. Guzzo and therefore lacked the requisite mens rea for murder.*fn1 More specifically, Humanik contended that he suffered from a mental disease or defect that deprived him at the time of the shooting of the capacity to formulate an intent to kill Ms. Guzzo. This line of defense implicated New Jersey's "diminished capacity" statute which provides as follows:
2C:4-2 Evidence of mental disease or defect admissible when relevant to element of the offense
Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.
N.J.Stat.Ann. § 2C:4-2 (emphasis supplied). In the alternative, Humanik also claimed that the shooting was accidental.
In the interest of avoiding confusion, we digress at this point from our account of the facts and procedural history of this matter to note that the phrase "diminished capacity," while widely used in this context, does not accurately describe the content of the statute. As the text indicates, the defense referred to is relevant only when the disease or defect "negates," that is renders one wholly without capacity to have, the particular state of mind required as an element of the offense. The potential for confusion is exacerbated further by the fact that the phrase "diminished capacity" can evoke notions of diminished culpability associated with defenses that excuse or justify conduct that fully satisfies all elements of the offense charged, as for example, the defenses of insanity and self-defense.
Humanik relied on the opinion of two experts as the basis for his defense; Dr. Seymour Kuvin testified that Humanik suffered from Borderline Personality Disorder, app. at 161, and Carl Einhorn, Ph.D., diagnosed Humanik's psychology as "schizo-affected psychosis." App. at 165. Both experts expressed the opinion that Humanik did not act knowingly or purposely in killing Guzzo. App. at 18. In rebuttal, the state offered two expert witnesses. John P. Motley, M.D., and Alvin Krass, Ph.D., agreed that Humanik suffered from a personality disorder, but nevertheless opined that it did not affect his ability to perform acts knowingly or purposely. App. at 18, 154, 155.
In the face of the conflicting expert testimony, the central issue at trial, which remains of principal importance in this proceeding, concerned which party bore the burden of persuasion on the issue of Humanik's purported inability to formulate purpose or intent. Humanik presented the trial court with two separate theories why requiring the defendant to prove a "mental disease or defect which would negate a state of mind which is an element of the offense," as suggested by the language of the statute, violated the Constitution.
First, he noted that the statute's last sentence, which explicitly places the burden of proof on the defendant, did not become effective until September 24, 1981. See L. 1981, c. 290, § 8 (effective Sept. 24, 1981). Although Humanik was tried after the effective date, in June of 1982, he nevertheless committed the crime before September 24, 1981, on August 11, 1981. As such, according to Humanik, because the change in law was substantive, not merely procedural, and additionally because it disadvantaged him, applying the 1981 amendatory language in his case would violate the prohibitions of the Constitution's ex post facto clause.
Second, he claimed that, in any event, by placing the burden on the accused to prove a mental disease or defect defense by a preponderance of the evidence, the statute violates the due process requirement that the state must prove each element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Humanik argued that a mental disease or defect defense, unlike other exculpating defenses such as insanity or self-defense which serve to excuse or justify a crime, operates solely to negative the state of mind which is an element of the offense. Accordingly, the only burden which can constitutionally be placed on the accused with respect to such a defense is the burden to come forward with competent evidence of mental disease or defect. Once the accused satisfies that obligation, the issue of mental disease or defect is one for the jury and the state must shoulder the burden of disproving beyond a reasonable doubt either the existence of the disease or defect or its incapacitating effect at the time of the alleged crime.
The trial court disagreed, concluding that it was constitutionally permissible to place the burden of proving diminished capacity on the defendant. It charged the jury in pertinent part as follows:
In connection with the question of the defendant's mental state at the time in question, since the defendant has raised this defense, that is, the defense that he had a mental disease or defect at that time which prevented him from having the state of mind the law says he would have to have, that is, a knowing or purposeful mental state in connection with the killing, he has the burden to prove that he had such mental defect or disease by a preponderance of the evidence.
App. at 210 (emphasis supplied). The jurors returned a verdict convicting Humanik of purposeful and knowing murder. App. at 8.
Humanik appealed his conviction to the New Jersey Superior Court, Appellate Division, arguing inter alia that the trial court erred in its burden of proof instruction. The court upheld the conviction. It reasoned that requiring Humanik to establish the defense by a preponderance of the evidence did not implicate the prohibition against ex post facto laws because, "[a]lthough N.J.S.A. 2C:4-2 was originally silent with respect to the burden of proving mental impairment, the amendment did not change the law in that respect." State v. Humanik, 199 N.J. Super. 283, 489 A.2d 691, 702 (N.J.Super.App.Div., 1985). The court also rejected Humanik's due process challenge, holding that "the legislature can constitutionally compel the defense to rebut the assumption of mental normalcy as long as the prosecution bears the burden of establishing the requisite state of criminal culpability beyond a reasonable doubt . . . the trial judge's instructions clearly apprised the jury of the State's obligation in that regard." Id. at 699-700. By order dated May 16, 1985, the Supreme Court of New Jersey denied certification, thus exhausting Humanik's state remedies.
On November 14, 1985, Humanik petitioned the district court for a writ of habeas corpus. That court found no constitutional violation in the state court proceedings, reasoning that even if placing the burden of proof on the defendant violated the ex cost facto clause, any error in this regard had to be considered harmless beyond a reasonable doubt on the entire record. Furthermore, it concluded that the ...