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Evidence of Prior Violent Act by Defendant Properly Admitted to Refute “Extreme Emotional Disturbance” Affirmative Defense

The Court of Appeals, in a full-fledged opinion by Judge Stein, in a murder case, determined that evidence of a prior violent act committed by the defendant was properly admitted to rebut defendant’s “extreme emotional disturbance” defense. Defendant presented expert testimony alleging he suffered from post-traumatic stress disorder (PTSD) stemming from a stabbing attack. The defendant argued that his reaction to seeing his friend attacked, intensified by the PTSD, was the reason he fired his gun at a group of people, killing one of them. The defense argued that, prior to the stabbing which triggered the PTSD, defendant was a non-violent person. The evidence of the pre-PTSD violent act by defendant was properly admitted to call into question the “PTSD” defense. A violent incident which occurred after the charged offense, however, should not have been admitted:

Where …. evidence of a defendant’s bad acts or uncharged crimes is “relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes” … .

Evidence of uncharged criminal conduct or bad acts that are probative of a defendant’s state of mind may be admissible if the defendant “opens the door” to such evidence by putting in issue his state of mind at the time of the commission of the charged crime by, for example, raising an extreme emotional disturbance or insanity defense … . Nevertheless, such a defense opens the door to the People’s rebuttal evidence “only to the extent that [the proffered] evidence has a natural tendency to disprove [the defendant’s] specific claim” … . That is, evidence of uncharged crimes or bad acts is admissible to rebut an extreme emotional disturbance defense where the evidence has “some ‘logical relationship’ to, and a ‘direct bearing upon,’ the People’s effort to disprove” the defense, and the probative value of the evidence outweighs its prejudicial effect … .  Although the balancing of probative value against potential prejudice is a matter that lies within the trial court’s discretion …, “the threshold question of identifying a material issue to which the evidence is relevant poses a question of law” … .

… The crux of the defense was that defendant, a previously nonviolent person, was suffering from PTSD as a result of the 2005 stabbing incident and that his actions in firing into the group on the street were attributable to his PTSD. By raising this defense and presenting the testimony of [two witnesses] — both of whom testified regarding defendant’s personality and behavior before the 2005 stabbing as compared with his behavior after that event — defendant “necessarily put[] in issue some aspects of his character and personal history” … . The prosecutor’s inquiries pertaining to the 2002 incident were “directly relevant to the question of defendant’s reaction patterns” because it was an instance in which “defendant had resorted to violence in the face of relatively mild provocation” before the 2005 stabbing occurred … . This altercation “ha[d] a logical and natural tendency to disprove [defendant’s] specific claim” that he was an otherwise peaceful person who reacted with violence only because his PTSD was triggered by the circumstances in which the shooting took place … . In other words, it tended to refute the subjective element of defendant’s defense, i.e. that he actually acted under the influence of PTSD. Moreover, the court’s decision to allow this incident to be explored on cross-examination, rather than through the testimony of a rebuttal witness, was not improper under the facts presented here. People v Israel, 2015 NY Slip Op 08370, CtApp 11-18-15

 

 

Violation of Defendant’s Right to Remain Silent Was Harmless Error—Elements of “Extreme Emotional Disturbance” Defense to Murder Explained

The Third Department, over a dissent, determined that the error in eliciting testimony, in violation of defendant’s post-Miranda right to remain silent, about defendant’s failure to apprise law enforcement that he shot the victims while under extreme emotional disturbance, was harmless error.  The decision includes a detailed discussed of the relevant criteria for “extreme emotional disturbance:”

As the Court of Appeals has instructed, the extreme emotional disturbance defense is comprised of both subjective and objective elements. “The subjective element focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” …, i.e., “that the [defendant’s]; claimed explanation as to the cause of his [or her]; action [was]; not contrived or [a]; sham” … . This subjective element is “generally associated with a loss of self-control” … . The objective element, in turn, “requires proof of a reasonable explanation or excuse for the emotional disturbance . . . [, which]; must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for [the]; emotional disturbance was reasonable” … .

To be sure, the extreme emotional disturbance defense “is significantly broader in scope than the ‘heat of passion’ doctrine [that]; it replaced” … and, for that reason, the “[a];ction[s]; influenced by [such defense]; need not be spontaneous” … . “‘Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore'” … . That said, evidence demonstrating a defendant’s “high degree of self-control” … , as well as any “postcrime conduct . . . suggest[ing]; . . . that [the defendant]; was in full command of his [or her]; faculties and had consciousness of guilt” … , is entirely inconsistent with an extreme emotional disturbance defense.  People v Pavone, 2014 NY Slip Op 03881, 3rd Dept 5-29-14

 

Defendant Entitled to Jury Charge on Extreme Emotional Disturbance Despite Lack of CPL 250.10 Notice

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined the defendant’s request for an “extreme emotional disturbance” jury charge should have been granted, in spite of the defendant’s withdrawing his CPL 250.10 notice re:  offering mental health evidence. At trial the defendant did not introduce any evidence of or cross-examine any witness about the defendant’s mental state. The evidence of defendant’s mental state was contained in defendant’s videotaped confession, which was presented at trial by the People. Because the CPL 250.10 notice concerns only mental-state evidence “offered” by the defendant, the absence of the notice did not preclude the extreme-emotional-disturbance jury charge:

A defendant is entitled to a jury charge on EED where the evidence, viewed in the light most favorable to the defendant, is sufficient for the jury “to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied” … . Accordingly, the trial court must grant the defendant's request for an EED charge if the jury could reasonably conclude from the evidence that, at the time of the homicide, the defendant “was affected by an extreme emotional disturbance, and that [the] disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it” … . This is true even if the “[d]efendant did not testify or otherwise present evidence” and the “request for an extreme emotional disturbance charge [i]s based entirely on proof elicited during the People's case” … . * * *

In its present form, CPL 250.10 requires notice when a defendant “inten[ds] to present psychiatric evidence” … , which the statute broadly defines as “[e]vidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of,” as relevant to this appeal, “extreme emotional disturbance” … . The Legislature did not specify what qualifies as mental health evidence “offered by the defendant”; however, to “offer evidence,” as that legal phrase is traditionally understood, means to put forth evidence and “demand its admission” (Black's Law Dictionary 1081 [6th ed 1991]; see Black's Law Dictionary [9th ed 2009], proffer [“To offer or tender (something, esp. evidence) for immediate acceptance”]). Additionally, the frequently used meaning of “present” is “to bring or introduce into the presence of someone” (MerriamWebster's Collegiate Dictionary 982 [11th ed 2003]). The Legislature's use of these “active” terms suggests that it intended the notice requirement to apply where the defendant affirmatively seeks to admit psychiatric evidence in support of an EED defense. People v Gonzalez, 12, CtApp 2-13-14

 

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Jury Should Have Accepted Extreme Emotional Disturbance Affirmative Defense

In a full-fledged opinion by Justice Cohen, over a dissent, the Second Department determined the jury’s failure to reduce the defendant’s conviction to manslaughter because he was under the influence of extreme emotional disturbance when he killed his girlfriend was against the weight of the evidence.  The opinion describes the nature and causes of the defendant’s emotional state in great detail. The court explained the “extreme emotional disturbance” affirmative defense as follows:

We begin our analysis by examining the nature and scope of the affirmative defense of extreme emotional disturbance. Penal Law §§ 125.25(1)(a) and 125.20(2), “[r]ead in tandem,” together “provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse’ is guilty of manslaughter and not murder” … . The defense of extreme emotional disturbance does not negate intent (see Penal Law § 125.20[2]…). Instead, the “defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although [ ] not free from responsibility for [the] crime, [defendant] ought to be punished less severely” … . Although the defense of extreme emotional disturbance is “an outgrowth of the heat of passion’ doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder,” the defense is broader than the “heat of passion” doctrine, and was intended to apply to a “wider range of circumstances” … .

The defense of extreme emotional disturbance comprises two elements. The first element is “wholly subjective” and”involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham” … . The subjective element “focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” … . The subjective element is generally associated with a loss of self-control … . The second element, which the Court of Appeals has acknowledged to be “more difficult to describe,” requires that an objective determination be made as to whether there was a reasonable explanation or excuse for the emotional disturbance … . “Whether such a reasonable explanation or excuse exists must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been'” … . People v Sepe, 2013 NY Slip Op 06030, 2nd Dept 9-25-13

 

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