IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,671
STATE OF KANSAS,
Appellee,
v.
RICHARD I. PENNINGTON,
Appellant.
SYLLABUS BY THE COURT
1. It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense.
2. Evidentiary changes resulting from the elimination of the insanity defense and its replacement by the mens rea defense are discussed. No error or abuse of discretion is shown in the trial court's exclusion, as irrelevant, of the testimony of a psychologist sought to be called by the defense.
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 17, 2004. Appeal from Sedgwick district court, TOM MALONE, judge. Judgment of the Court of Appeals affirming the district court on the single issue subject to review is affirmed. Judgment of the district court is affirmed. Opinion filed April 28, 2006.
Christopher L. Hughes, of Wichita, argued the cause, and Carl F. A. Maughan, of Law Offices of Carl Fredrick Alexander Maughan L.L.C., of Wichita, and Roger L. Falk, of Law Office of Falk & Owens, of Wichita, were on the briefs for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Charles L. Rutter, assistant district attorney, Nola Foulston, district attorney, and Phill Kline, attorney general, were on the briefs for appellee.
The opinion of the court was delivered by
McFARLAND, C.J.: Richard I. Pennington appeals his jury trial convictions of aggravated kidnapping (K.S.A. 21-3421), attempted aggravated kidnapping (K.S.A. 21- 3421 and 21-3301), and two counts of aggravated robbery (K.S.A. 21-3427). The charges arise from three separate cases which were consolidated for trial.
In his appeal, Pennington raised numerous issues. A divided panel of the Court of Appeals affirmed the convictions. State v. Pennington, No. 89,671, unpublished opinion filed December 17, 2004. One member of the panel dissented from the majority's determination that the trial court's exclusion of the testimony of a defense expert witness, a psychologist, did not constitute an abuse of judicial discretion. We granted Pennington's petition for review on the expert witness issue only.
FACTUAL BACKGROUND
The underlying facts recited by the Court of Appeals are not disputed and may be summarized as follows:
On February 4, 2002, Pennington pumped gas into his truck at a Total gas station. He then went inside the store, approached the counter, and pulled out his wallet. Instead of paying for the gas, he told the clerk to give him all of the money in the register. The clerk told Pennington there was no money. Pennington then displayed a knife. The clerk backed away from the register and repeated that there was no money. Another customer came into the store, and Pennington ran out, leaving in his truck without paying for the gas. The clerk identified Pennington at trial as the perpetrator.
One week later, on February 9, 2002, Pennington entered a local laundromat where Janet Robinson was doing her laundry. Pennington approached her, grabbed her by the collar, and said, "Lets go to the bathroom." Robinson struggled, scratching Pennington's eyes. Pennington began choking her and picked her up by her throat. She grabbed his hair, and they fell to the floor. Pennington ran out of the laundromat. During the struggle, Robinson suffered stab wounds from the knife Pennington was holding. She identified Pennington as the perpetrator in a photo lineup and at trial.
Four days later, on February 13, 2002, Pennington approached Stacey Ellis in the parking lot of the local Wal-Mart and asked if she had jumper cables to start his truck. She pulled her car next to Pennington's truck and unsuccessfully tried to jump start his truck. Ellis then went inside Wal-Mart. When she returned to her car, Pennington asked her for a ride to his house. She agreed. Once inside Ellis's car, Pennington directed her to an isolated area. He then grabbed her by the shoulder, displayed a knife, and told her to get out of the car and into the trunk. She refused, and Pennington stabbed at her with the knife. She blocked the knife, receiving cuts to her hand and a small cut on her throat. Pennington told her he would kill her if she did not get into the trunk. She then complied. The car did not move for awhile, and Ellis concluded Pennington was getting into her purse. Later, Pennington stopped the car and asked her for her identification number for her ATM card. As the car continued on, she was able to pop the trunk open. She jumped out of the trunk when the car slowed, ran to a nearby house, and called the police. Ellis identified Pennington as the perpetrator at trial.
Pennington was stopped by an officer who observed him speeding and weaving in and out of traffic. When the officer approached the car, Pennington opened the car door and immediately told the officer he had just stolen the car from "some gal." The officer ordered Pennington out of the car. After getting out of the car, Pennington told the officer he had a knife in his pocket, and the officer confiscated it. The officer asked Pennington where he was coming from, and he said a woman had just jumped out of the trunk. Pennington gave the approximate location where she had jumped and told the officer, "[S]he damned-near got killed . . . she went running in front of cars." Pennington told the officer he was trying to get money from the woman's ATM when she jumped. The officer placed Pennington in the patrol car, radioed the information about the woman to dispatch, and then read Pennington his Miranda rights. Pennington then volunteered detailed information about the kidnapping.
At the law enforcement center, Pennington agreed to give a DNA sample, consented to the search of the car, and after being read his Miranda rights again, agreed to speak with officers. Pennington told of his participation in all three incidents. The purpose of each, he stated, was to obtain money.
Pennington was convicted of aggravated robbery for the Total gas station incident, attempted aggravated kidnapping for the laundromat incident, and aggravated kidnapping and aggravated robbery for the Wal-Mart incident. Denying all departure motions, the court sentenced Pennington to the presumptive sentence of 653 months for the aggravated kidnapping, and 61 months on each of the other convictions. The court ordered the sentences to run consecutive to each other and consecutive to the federal sentence for which Pennington was on parole at the time of these offenses.
FACTS RELATIVE TO EXPERT WITNESS BARNETT
The following procedural facts are relevant to the sole issue before us.
Prior to trial, the defense filed a notice of intent to rely on the defense of mental disease or defect under K.S.A. 22-3220. A defense expert, Dr. Robert W. Barnett, a psychologist, interviewed Pennington twice and produced two reports. In the first report, Dr. Barnett diagnosed organic personality disorder, delusional disorder, and personality disorder with dependent features. With respect to whether Pennington had the capacity to form criminal intent, Dr. Barnett's report stated:
"Mr. Pennington is not mentally retarded and otherwise does appear to have the mental capacity to form criminal intent. However, due to his delusional thinking and possibly an organic impairment of some type, he may have difficulty controlling his intent once it is formed."
The second report came about later after Pennington told police he had murdered women and buried their bodies. Dr. Barnett reinterviewed Pennington and prepared a second report, stating:
"I addressed the issue of competency to stand trial in my first report, and I do not wish to alter my opinion in that regard at this time. However my opinion relating to Mr. Pennington's ability to form criminal intent has taken a somewhat sharper focus. Mr. Pennington's delusional disorder is more pervasive and persistent than was originally my impression after the first interview. His behavior since then (i.e., false reports) is supportive of this diagnosis and indicates a more severe disorder than I originally surmised. Initially, it was my impression that Mr. Pennington could be successfully challenged regarding his various delusional beliefs, but I no longer feel that is the case."
The State filed a motion in limine seeking to exclude Dr. Barnett's testimony, examination records and reports. The State argued that because Dr. Barnett was of the opinion that Pennington was capable of forming criminal intent, his examination records and opinions would be irrelevant, inadmissible, and prejudicial.
The motion in limine was considered on the morning of trial. The court noted Dr. Barnett's second report was unclear about whether he was changing his opinion that Pennington was capable of forming intent. Defense counsel stated it was his understanding that Dr. Barnett was indicating that Pennington was unable to form criminal intent. The following exchange then occurred:
"THE COURT: He doesn't just say that though. . . .
"[DEFENSE COUNSEL]: I know, Your Honor, and I think I've been on this side of the argument on other occasions. All I can offer, Your Honor, is that he is a doctor governed by a different discipline, and sometimes those disciplines don't mesh. But in any event, we would respectfully submit that this is sufficient evidence to give the question to the jury. It's evidence of his mental capacity. As I say, we'll have treating doctors also come in and talk about Mr. Pennington's mental capacity, and this is his defense.
"THE COURT: Let me ask you this as simply as I can. Do you have any medical doctor who can testify pointblank that the defendant was unable to form specific intent on the dates that he's charged with these crimes?
"[DEFENSE COUNSEL]: Your Honor, the best way I can answer that question is if I put that question directly to Dr. Barnett, I'm going–I'm anticipating that he's going to say no, that he did not have the capacity to form the specific intent or the intent–
"THE COURT: So why didn't he put that in his report? That's why we have reports. We want to know what the man will testify to. We don't know now; and if he does testify to that, I think it's fair to say the State's just now hearing it for the first time, and so they can perhaps want to do more evaluations and delay this whole trial.
"[DEFENSE COUNSEL]: Well, Your Honor, I–I think that's what Dr. Barnett was saying in his second letter. He didn't come out and use those words, but that's what I understand he was trying to convey."
The court then asked defense counsel if Dr. Barnett could appear so they could clarify his opinion. Defense counsel offered to contact him, and suggested that if Dr. Barnett was not able to appear in person because his office is in Lawrence, he might be able to participate in a conference call.
A conference call was arranged and Dr. Barnett was subjected to questioning. He was not placed under oath, but there was no request that his testimony be sworn, nor any objection to proceeding in this fashion. Defense counsel began the inquiry by asking Dr. Barnett, "[B]ased on your evaluations and your interviews in this case, do you have an opinion as to whether or not Mr. Pennington had the mental capacity to form the intent to commit these crimes in February of 2002?" Dr. Barnett responded by stating he needed to answer it with some detail, and then stated:
"Mr. Pennington has a serious delusional disorder. He does not–He does not form intent in the same way that you or I would. He forms intent based on his delusional systems. It's my impression that once he forms this intent he has a great deal of difficulty being derailed from the intent, as evidenced by the recent episodes where he led the police on the wild-goose chases regarding the alleged murder victims. He is below-average intelligence, but he is not mentally retarded. Does that answer your question?"
Defense counsel tried again, asking, "[D]id [Pennington] have the mental capacity to form the intent–criminal intent to commit these crimes in February? And that's again a 'yes' or 'no' answer, as best you can." Dr. Barnett responded, "Yes, but with the caveat that he does not form intent the same way that other people do." Defense counsel asked him to explain, and Dr. Barnett stated:
"In these particular cases the intent was formed based on delusional thinking. Delusions are, simply stated, false beliefs, and in Mr. Pennington's case he does have a delusional disorder. He–False beliefs are generated. He makes decisions and then forms intent based on those and then finds it very–Well, he then has difficulty separating reality from his delusions."
Defense counsel asked Dr. Barnett if he was saying that "he did certain acts, but he did those acts with a mental state which you've defined as a delusional mental state?" Dr. Barnett agreed.
The prosecutor was then given an opportunity to question Dr. Barnett. The prosecutor asked Dr. Barnett to identify specifically what delusion Pennington was operating under at the time of these crimes. Dr. Barnett was unable to do so. Dr. Barnett did admit that the facts demonstrated that Pennington's actions were for the purpose of obtaining money, he had the intent to commit the acts, and they were intentional acts.
The trial court then asked Dr. Barnett about his opinion:
"THE COURT: First of all, I do want to explain the statutes here in Kansas. When a defendant is charged with a crime, whether or not he has a mental disease or defect is not a defense unless the defendant lacked the mental state required as an element of the offense charged, and in this case what we're talking about is intent.
"Now, you know what the defendant is charged with for the crimes back in February, and you've read the reports associated with those crimes. I just have one question to ask you, and I do have to limit you to a 'yes' or 'no' answer.
"DR. BARNETT: I understand.
"THE COURT: Was the defendant able to form the intent necessary to commit the crimes he is charged with?
"DR. BARNETT: Yes.
"THE COURT: Thank you.
"DR. BARNETT: May I ask a question?
"THE COURT: No, but I'll let the–since I asked the question here I'm gonna give the attorneys one more chance at asking you something if they have a question."
Defense counsel then asked Dr. Barnett about different forms of intent. Dr. Barnett said:
"First of all, we–in psychology we assume that virtually all behavior is based on intent. We distinguish between different types of intent. There's intent based on mental reasoning and judgment, which I don't believe Mr. Pennington possesses for a variety of reasons. I've always had difficulty with this statute for that reason in that it's difficult for me to imagine any type of behavior that was not preceded by intent of some kind. So I would have to–my answer to the judge's question would have to be qualified by that statement."
The court granted the motion in limine, ruling that Pennington would not be allowed to call Dr. Barnett as a witness to support his mental disease or defect defense. The court held that under K.S.A. 22-3220, evidence of mental disease or defect is only relevant to the extent it establishes that the defendant lacked the ability to form the necessary criminal intent. Because Dr. Barnett's opinion was that Pennington had the ability to form the criminal intent required to commit the crimes charged, his testimony was irrelevant to the mental disease or defect defense. The court also held that the testimony would "only fill the jury with a lot of extraneous testimony that is not really relevant to the narrow issue that we have."
THE COURT OF APPEALS OPINION
On appeal to the Court of Appeals, Pennington argued that the exclusion of Dr. Barnett's testimony invaded the province of the jury to weigh Dr. Barnett's testimony and denied him the right to present his defense theory. Two judges on the panel held the trial court did not abuse its discretion in excluding the testimony. The majority held that in order for evidence of the defendant's delusions and mental problems to be relevant under K.S.A. 22-3220, that evidence must tend to demonstrate that his mental condition prevented him from forming the requisite intent to commit the crimes charged. Because Dr. Barnett's opinion was that Pennington was able to form intent, his testimony was not relevant. Pennington, slip op. at 13-14.
The dissenting panel judge contended that K.S.A. 22-3220 should be construed to permit the defense to present testimony on the defendant's mental state, thereby allowing the jury to determine whether the defendant lacked the required mental state under K.S.A. 22-3220.
ANALYSIS
Standard of Review
Generally, we review a trial court's admission or exclusion of expert testimony for abuse of discretion. See, e.g., State v. Rice, 261 Kan. 567, 589, 932 P.2d 981 (1997) (quoting State v. Cheeks, 253 Kan. 93, 99, 853 P.2d 655 [1993]). However, under State v. White, 279 Kan. 326, 331-32, 109 P.3d 1199 (2005), the applicable standard of review in this case is de novo.
As in White, the issue involves interpretation of the mental disease or defect defense statute, K.S.A. 22-3220. See White, 279 Kan. at 332. This issue also requires the court to determine whether the district court's exercise of discretion was based on an erroneous legal conclusion. The trial court essentially determined that Dr. Barnett's testimony, as a matter of law, was not relevant to a defense under the mental disease or defect statute. See State v. Elnicki, 279 Kan. 47, 51, 105 P.3d 1222 (2005) (quoting State v. Carter, 278 Kan. 74, Syl. ¶ 1, 91 P.3d 1162 (2004) ("evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question"); cf., State v. Alexander, 24 Kan. App. 2d 817, 819, 953 P.2d 685 (1998) ("The exclusion of evidence to support a compulsion defense is not subject to the normal abuse of discretion standard for reviewing a trial court's evidentiary rulings. Whether the compulsion defense is available to a defendant is a matter of law determined by the court."). Lastly, Pennington's claim that he was denied the constitutional right to present his defense theory presents a question of law. See White, 279 Kan. at 332-33.
Discussion
The mental disease or defect defense is set out in K.S.A. 22-3220, which provides, in pertinent part:
"It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense."
We recently summarized the history of K.S.A. 22-3220 in White:
"As this court has often explained, prior to the effective date of this statute–January 1, 1996–there were two defenses relating to mental disease or defect: insanity and diminished capacity. See State v. Hedges, 269 Kan. 895, 900, 8 P.3d 1259 (2000). Criminal insanity was evaluated using the M'Naghten test. 269 Kan. at 900. While the defense of diminished capacity was not a substitute for a plea of insanity, it could be used for the limited purpose of negating specific intent where a defendant was sane. 269 Kan. at 901. However, K.S.A. 22-3220 removed any reference to insanity and instead focused on a lack of the mental state required as an element of the offense charged. It now prevents a defendant from raising insanity or diminished capacity as a defense. See State v. Jorrick, 269 Kan. 72, 81, 4 P.3d 610 (2000). Accordingly, all capacity defenses, for crimes which took place on or after January 1, 1996, focus on the mens rea of the crime. 269 Kan. at 83." 279 Kan. at 333.
In this case, intent was the only mental state element of the crimes charged. Aggravated robbery requires an intent to take property. Attempted aggravated kidnapping requires intent to commit the crime of aggravated kidnapping. Aggravated kidnapping requires the intent to facilitate flight or the commission of any crime. Thus, in order for evidence of Pennington's mental disease or defect to be a defense under K.S.A. 22-3220, it must have prevented him from forming that intent.
Dr. Barnett, however, was of the opinion that Pennington was capable of forming intent to commit the crimes charged, although he believed he formed that intent based on unspecified delusions. Pennington argues that where an intent to act is formed on the basis of false beliefs or delusions, the formation of that intent is not rational or purposeful but, rather, is mistaken or accidental. Thus, defendant contends, the evidence of Pennington's delusions was relevant to the question of whether he was capable of forming intent and should have been admitted.
The problem with this argument is that under the mens rea approach, it is no longer relevant whether intent is formed rationally or whether it is formed based on delusions. As the Court of Appeals' majority correctly recognized, intent formed on the basis of delusions may have provided a defense under the prior insanity approach, but not under the mens rea approach. Pennington, slip op. at 13.
The dissenting panel member contended that K.S.A. 22-3220 does not restrict the mental disease or defect defense to the inability to form intent, "even though the offense charged may utilize language of intent." Rather, K.S.A. 22-3220 must be construed more broadly to allow evidence that relates more generally to a defendant's lack of "mental state." Pennington, slip op. at D-2.
This argument fails to recognize the distinction between the insanity defense and the more limited mens rea defense. Under the insanity defense evidence of mental state was relevant and admissible even though it did not negate any particular element of the crime. See Marc Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J.L. & Pub. Pol'y 253, 260 (Winter 1999). The mens rea defense, on the other hand, only allows evidence of a mental disease or defect that negates the mental state element of the crime charged. See State v. White, 279 Kan. at 333-34. As explained by Marc Rosen in Insanity Denied: Abolition of the Insanity Defense in Kansas:
"'[The mens rea] approach permits a defendant to introduce expert psychiatric witnesses or evidence to litigate the intent elements of a crime. If the evidence negates the requisite intent, the defendant is entitled to an acquittal. However, there is one major limitation on the defendant's ability to introduce evidence corroborating or showing the existence of a mental disease or defect. Such evidence is only admissible as it specifically relates to the requisite mens rea of the offense. Therefore, the defense cannot introduce evidence as to the existence of a mental disease or defect to litigate the defendant's mental condition in general. The evidence must relate specifically to the defendant's ability to possess the requisite mens rea of the offense.'" (Emphasis added.) State v. Jorrick, 269 Kan. 72, 82, 4 P.3d 610 (2000) (quoting Rosen, 8 Kan. J.L. & Pub. Pol'y at 254-55).
As the panel majority in this case noted, two unpublished Court of Appeals cases support the district court's ruling: State v. Monreal, No. 89,304, filed December 24, 2003, rev. denied March 30, 2004, and State v. Jones, No. 84,149, filed December 22, 2000, rev. denied March 20, 2001.
In Monreal, a court-ordered competency evaluation resulted in a report that stated the defendant was suffering from "severe major depressive disorder with psychotic symptoms" including auditory and visual hallucinations. Monreal, slip op. at 6, 8. The report stated that the defendant had been suffering from that condition for 2 years. The report, however, concluded that the defendant was competent to stand trial.
Based on this report, the defendant filed a motion to raise a mental disease or defect defense. The district court granted the State's motion in limine and prohibited the defendant from introducing expert testimony or mental health evaluations regarding the defendant's mental state at the time of the crime. On appeal, the panel affirmed, holding:
"Although the report supports an inference that the defendant was possibly suffering from depression accompanied by hallucinations at the time of the offense, the report indicated that such hallucinations continued at the time of the competency evaluation and the depression and hallucinations did not affect the defendant's ability to comprehend the gravity of the situation and respond appropriately.
"Relevant evidence is evidence 'having any tendency in reason to prove any material fact.' K.S.A. 60-401(b). In order to be relevant, the evidence regarding the defendant's depression and hallucinations must tend to demonstrate that the defendant's mental condition prevented her from forming the intent to kill her baby. See K.S.A. 22-3220. The Area Mental Health Center report does not support such a conclusion. Even if the defendant suffered from auditory and visual hallucinations which commanded her to kill the child at the time of the offense, the report indicated that the defendant still was capable of forming the intent to kill and of understanding the consequences of her actions. Thus, evidence that the defendant was suffering from a depressive condition is not relevant to a determination of whether the defendant committed intentional second-degree murder." Monreal, slip op. at 9.
In Jones, the defense psychologist, Dr. Logan testified at a pretrial hearing that the defendant was suffering from post-traumatic stress disorder on the date of the crimes. However, Dr. Logan testified that the defendant's post-traumatic stress disorder did not directly affect the defendant's ability to form a specific intent to kill. The trial court excluded the testimony, ruling that the post-traumatic stress disorder evidence was irrelevant because the doctor had testified it had no effect on the defendant's crimes. Slip op. at 3.
The Court of Appeals affirmed, holding that because the doctor concluded that the defendant's mental disease or defect did not affect his ability to form an intent to kill or have premeditation, the testimony was irrelevant, and the trial court did not abuse its discretion in excluding it. Slip op. at 5.
In a notice of supplemental authority, Pennington asserts that White supports his claim that excluding Dr. Barnett's testimony constitutes reversible error. We disagree.
In White, the district court prohibited the defense expert's testimony because the expert refused to express an opinion on the ultimate question of whether the defendant lacked the capacity to form the requisite intent because of his mental disease or defect. White, 279 Kan. at 335-37. On appeal, this court held that as long as the appropriate standard is met, the expert opinion need not be expressed in "magic words." White, 279 Kan. at 341. Because the expert would have testified that the defendant had a mental disease or defect, that people with that disease or defect can lack the ability to premeditate and form intent, and that the defendant's conduct on the date of the shooting was consistent with somebody acting under that disease or defect, the standard was met and it was error to exclude the testimony. White, 279 Kan. at 341.
White is distinguishable. Unlike the expert in White, Dr. Barnett did have an opinion on the ultimate question. More importantly, although the expert in White would not use the "magic words," the evidence met the standard for the mental disease or defect defense because the expert would have testified that the defendant was suffering from a mental disease or defect that can cause people to lack the capacity to form intent. In contrast, Dr. Barnett's testimony did not meet the standard because he specifically concluded that Pennington was capable of forming intent.
In summary, we agree with the district court and the panel majority that, because Dr. Barnett's testimony regarding Pennington's mental condition did not tend to demonstrate that he was unable to form the requisite intent to commit the crimes charged, the testimony did not, as a matter of law, support the mental disease or defect defense and was therefore irrelevant. Dr. Barnett's testimony regarding Pennington's mental condition was not admissible to litigate his mental state in general.
The dissent contends our holding is flawed in that it fails to take into account the varying mental states involved in the crimes charged. The dissent suggests that the admissibility of mens rea evidence should vary depending on the type of mental state at issue. Under this floating standard, evidence supporting a mental disease or defect defense may be more or less admissible depending on whether the crime charged requires general intent or specific intent, and may even vary depending on the type of specific intent required. Indeed, under this floating standard, admissibility could vary as to the different crimes with which the defendant was charged.
In response, we note that the enactment of the mens rea defense eliminated the confusion inherent in applying one standard for a mental disorder defense (insanity) and another which applied only to specific intent crimes (diminished capacity). As Professor Spring explained in his article, Farewell to Insanity: A Return to Mens Rea:
"By focusing on mens rea jury confusion should be eliminated or at least reduced substantially. . . . [Jurors] will . . . no longer be treated to one definition of the mental state required for the crime, another with respect to insanity, and perhaps a third with respect to diminished capacity and its limited application to issues of special intent. Like insanity, diminished capacity disappears as a separate defense. Mens rea simply carries diminished capacity to the logical extreme. With