Diminished Capacity

Diminished capacity is among the most commonly asserted defenses, particularly in first-degree murder cases, but I realized yesterday that I had never blogged about it. Today, I will remedy that. Here’s what you need to know.

Generally, negates specific intent. Diminished capacity, first recognized in the case of State v. Shank, 322 N.C. 243 (1988), negates specific intent, typically on the basis that the defendant was severely intoxicated and/or suffered from some mental defect that rendered him unable to form the requisite intent. In a first-degree murder case, it negates the specific intent to kill that is required to establish premeditated murder. See, e.g., State v. McDowell, __ N.C. App. __, 715 S.E.2d 602 (2011) (“The diminished capacity defense to first-degree murder on the basis of premeditation and deliberation requires proof of an inability to form the specific intent to kill.”). But it may be used in non-homicide cases as well. For example:

  • It may negate the specific intent required to commit the offense of taking indecent liberties with a child. State v. Connell, 127 N.C. App. 685 (1997) (finding plain error in trial court’s failure to instruct on diminished capacity).
  • It may negate the specific intent to kill that is an element of AWDWIKISI. State v. Williams, 116 N.C. App. 225 (1994) (“The defense of diminished capacity applies to the element of specific intent to kill which is an essential element of assault with a deadly weapon with intent to kill inflicting serious injury.”).
  • It may negate the intent to commit larceny or a felony that is an element of burglary. Cf. State v. Gay, 334 N.C. 467 (1993) (apparently concluding that diminished capacity may be a defense to burglary, but finding no error in trial court’s failure to instruct on it in this particular case).

No defense to general intent crimes. Diminished capacity isn’t a defense to general intent crimes, because there is no specific intent to negate in such cases. See, e.g., State v. Page, 346 N.C. 689 (1997) (diminished capacity isn’t a defense to AWDWLEO because it is a general intent crime).

Application to felony murder. In a felony murder case, diminished capacity is a defense only if it is a defense to the underlying felony, i.e., only if the underlying felony is a specific intent crime. Compare State v. Roache, 358 N.C. 243 (2004) (trial judge properly instructed jury on diminished capacity in connection with armed robbery and first-degree burglary, the predicates for felony murder in this case, as each was a specific intent felony), with State v. Carroll, 356 N.C. 526 (2002) (approving of instruction that “[t]he law does not require any specific intent to kill for the defendant to be guilty of the crime of first degree murder on the basis of felony murder or second degree murder” and that therefore “the defendant’s intoxication or drug condition can have no bearing upon your determination of his guilt or innocence of these crimes”), and State v. Daughtry, 340 N.C. 488 (1995) (trial judge did not err in failing to instruct on diminished capacity in connection with first-degree sexual offense, as “[f]irst-degree sexual offense is not a specific-intent crime; the intent to commit the crime is inferred from the commission of the act”; submission of felony murder based on first-degree sexual offense was therefore also proper).

Pretrial notice. If the State provides discovery to the defense, “the court must, upon motion of the State, order the defendant to . . . [g]ive notice to the State of the intent to offer at trial a defense of . . . diminished capacity . . . Notice of defense must be given within 20 working days after the date the case is set for trial pursuant to G.S. 7A-49, or such other later time as set by the court.” If the defendant fails to provide the required notice, the trial judge has the discretion to impose reasonable sanctions, including, in a proper case, barring the defendant from asserting the defense. State v. McDonald, 191 N.C. App. 782 (2008).

Burdens. When a defendant claims diminished capacity, he has the burden of production, i.e., the burden of coming forward with evidence of diminished capacity. If he does so, he will be entitled to a jury instruction on the defense. However, the ultimate burden of proving the defendant’s specific intent always remains with the State. State v. Shareef, __ N.C. App. __, 727 S.E.2d 387 (2012) (citing State v. Mash, 323 N.C. 339 (1988)).

Evidence. Defendants who assert diminished capacity often present expert testimony in support of the defense, but such testimony likely is not required if other evidence is sufficient to raise genuine questions about the defendant’s capacity. Cf. State v. Hunt, __ N.C. __, 722 S.E.2d 484 (2012) (ruling that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts”); State v. Cummings, 329 N.C. 249 (1991) (expert testimony not required to submit capital mitigating circumstance of impaired capacity; evidence from the defendant and his family was sufficient); State v. Mayhand, 298 N.C. 418 (1979) (lay witness may testify on the issue of the defendant’s sanity).

State’s right to examination. At least when the defendant intends to present expert testimony in support of a defense of diminished capacity, the State is entitled to have a mental health expert examine the defendant. State v. Clark, 128 N.C. App. 87 (1997).

Jury instructions. There is a pattern jury instruction for diminished capacity, but it is specific to first-degree murder cases. See N.C.P.I. – Crim. 305.11. There is also a pattern jury instruction for voluntary intoxication that addresses the defendant’s ability to form specific intent. See N.C.P.I. – Crim. 305.10. Either of the instructions could be adapted to instruct the jury about diminished capacity generally in a trial for an offense other than first-degree murder.

Distinct from capital mitigating factor. Under G.S. 15A-2000(f)(6), it is a mitigating circumstance in a capital murder case if “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.” This is distinct from the diminished capacity defense.

Further reading. My colleague John Rubin wrote a paper on diminished capacity in 1992 that may still be of interest.

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