        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                      April 14, 2015

                STATE OF TENNESSEE v. MICHAEL BONSKY

                  Appeal from the Criminal Court for Shelby County
                    No. 12-02445   James M. Lammey, Jr., Judge


                No. W2014-00675-CCA-R3-CD - Filed April 27, 2016




JAMES CURWOOD WITT, JR., J., concurring.

               In this case, the jury eschewed the charge of first degree murder and
convicted the defendant of the lesser included offense of second degree murder. I write
separately because I thought it worth pointing out why this circumstance did not cause
the instructional error to be harmless.

               Formerly, at common law, a defendant could assert that a mental debility
that did not rise to the level of an affirmative defense would operate nevertheless to block
the fact-finder from convicting him or her of an offense of which specific intent was a
necessary element. A typical theater for playing out this rule involved the claim of the
defendant=s voluntary intoxication at the time the crime was committed. Although
involuntary intoxication theoretically constituted a complete defense, see R. Perkins,
Criminal Law 894-98 (2d ed. 1969), voluntary intoxication was an “imperfect” defense
(of a type that would later be denoted, albeit erroneously, as diminished capacity) in that
it theoretically could be efficacious in warding off a criminal charge that required specific
intent to commit the crime as a necessary element, id. at 900; James Curwood Witt, Jr.,
Comment, Instructing the Jury of the Defense of Voluntary Intoxication in Tennessee, 39
Tenn. L. Rev. 479 (1972). Voluntary intoxication was deemed to have no legal effect
upon one=s ability to form general intent under the common law.

              Certainly, the employment of the term “premeditation” in the statutory
proscription of first degree murder illustrates well the concept of specific intent. If the
specific-intent/general-intent regimen were still operative following the enactment of the
1989 criminal code, the requirement of a knowing killing for purposes of a second degree
murder conviction would not appear to import specific intent.
               In more modern times, we know that the term “diminished capacity” has
gained currency, and the term has been generally understood to refer to a mental disease
or defect that precludes the offender from forming the culpable mens rea required by the
proscriptive statute. In what amounts to the threshold treatment of diminished capacity
in Tennessee, this court, in applying the common law proscription of premeditated first
degree murder, referred handily to the limitation used in voluntary-intoxication cases that
the claim could only be effective to negate specific intent. State v. Phipps, 883 S.W.2d
138 (Tenn. Crim. App. 1994). After noting that the concept of diminished capacity was
in reality an issue of evidence impinging upon the State’s burden of proving the required
mens rea for a criminal offense, see id., § 39-11-201(a)(2) (providing that “[n]o person
may be convicted of an offense unless . . . [t]he culpable mental state required . . . is
proven beyond a reasonable doubt”); Tenn. R. Evid. 402 (providing for the admissibility
of evidence as relevant when it tends to make the existence of, for instance, a necessary
statutory element more probable or less probable), the court said that “the passage of the
1989 criminal code and the abolition of common-law defenses within that code does not
affect the rationale and conclusions reached in the pre-Act Tennessee cases pertaining to
the use of diminished capacity evidence.” Id. at 149. The court “conclud[ed] that
evidence, including expert testimony, on an accused=s mental state, is admissible in
Tennessee to negate the elements of specific intent, including premeditation and
deliberation in a first-degree murder case.” Id. Earlier in the opinion, the court had said,
“Diminished capacity is based on the presentation of evidence aimed at negating specific
intent,” id. at 144, and it noted that for the most part other jurisdictions “have held that
expert testimony pertaining to the capacity to form a specific intent is admissible for
consideration by the jury,” id. The Phipps court, however, acknowledged a “second type
of diminished capacity [that] allows a defendant to show a lack of not only the specific
intent required to commit the offense, but a lack of total capacity to form any mens rea as
well. Because only extraordinary circumstances exist in which a defendant would not
have the capacity to form any mens rea, this type of diminished capacity is more
academic than functional.” Id. at 143. Additionally, the court said in a footnote,

              Given the facts of this case and in view of Tennessee’s
              restriction of evidence of voluntary intoxication to specific
              intent cases, it is not necessary for this court to determine
              whether such testimony is admissible to negate mental states
              other than specific intent or to determine its applicability to
              non-murder cases.

Id. at 149 n.19. These statements notwithstanding, the prevalence in Phipps of a specific-
intent limitation in addressing an offense tried under the common law employment of the
specific-intent/general-intent regimen propagated the belief in some legal quarters that a
claim of diminished capacity could only be efficacious when the culpable mental element
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was akin to specific intent. The Tennessee Supreme Court later approved the “general
holding” of Phipps. State v. Abrams, 935 S.W.2d 399 (Tenn.1996).

              In State v. Hall, 958 S.W.2d 679 (Tenn. 1997), our supreme court
determined that “assuming that [evidentiary] standards are satisfied, psychiatric evidence
that the defendant lacks the capacity, because of mental disease or defect, to form the
requisite culpable mental state to commit the offense charged is admissible under
Tennessee law.” Id. at 689. The term “culpable mental state” emanates from Tennessee
Code Annotated section 39-11-201(a)(2) which requires the prosecution in a criminal
case to prove beyond a reasonable doubt the “culpable mental state required.” The shift
to applying a diminished capacity-type claim to negate generally “the requisite culpable
mental state,” however, was somewhat masked by the holding in Hall, a first degree
murder case, that the proffered expert testimony did not satisfy evidentiary standards.
Rather, an express expansion of the doctrine beyond cases involving a mental element
akin to specific intent occurred in a spate of unpublished cases. See, e.g., State v. Derek
T. Payne, No. W2001-00532-CCA-R3-CD (Tenn. Crim. App., Jackson, Nov. 20, 2002);
State v. Byron A. Peete, No. W1998-02116-CCA-R3-CD (Tenn. Crim. App., Jackson,
Mar. 2, 2000); State v. Calvin Lee Sneed, No. 03C01-9611-CR-00444 (Tenn. Crim. App.,
Knoxville, June 12, 1998); State v. Stacy Dewayne Ramsey, No. 01C01-9412-CC-00408
(Tenn. Crim. App., Nashville, May 19, 1998). This line of cases demonstrates beyond
contradiction that the assertion of a diminished capacity may indeed be efficacious to
negate the knowing mens rea of second degree murder.

               Accordingly, the verdict of guilty of second degree murder in the present
case could have been impacted improperly by the instructional error. The result is that
the error is not harmless.



                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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