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State v. Corey R. Kucharski, 2013AP557-CR, petition for review granted 9/24/14

On review of an unpublished court of appeals decision; case activity

Issues (composed from the State’s Petition for Review)

In granting Kucharski a new trial on the issue of mental responsiblity under the miscarriage of justice prong of § 752.35, did the court of appeals substitute its judgment for that of the trial court on issues that are within the sole province of the finder of fact, so that the appellate court’s decision conflicts with this court’s decision in State v. Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979)?

Should a defendant be entitled to a new trial on the affirmative defense of mental disease or defect under the miscarriage of justice prong of § 752.35 where the court of appeals does not find any error or unfairness in the defendant’s trial, but determines there is a substantial probability of a different result on retrial only by substitution its judgment for that of the fact-finder on issues that are the province of the fact-finder alone?

As described in our post on the case, the court of appeals granted a new trial on the issue of mental responsibility to Kucharski, who raised an NGI defense to homicide charges. The two psychiatrists who examined Kucharski agreed he was mentally ill when he committed the homicides and that he lacked substantial capacity to appreciate the wrongfulness of his actions and/or to conform his behavior to the requirements of law; a psychologist also examined Kucharski, and essentially joined in the conclusions of one of the psychiatrists. (¶¶4, 15-26).

In the face of this uncontroverted expert evidence, the trial court accepted that Kucharski had a mental illness, saying there is not “even a doubt, much less a reasonable doubt,” about that; but, the trial court said, it was “a close call” as to whether he lacked the capacity to appreciate the wrongfulness of his conduct or  conform his conduct to the requirements of law. (¶27). In concluding that Kucharski hadn’t met his burden, the trial court apparently couldn’t get past the fact that the experts were “speculating” about Kucharski’s state of mind at the time of the offense because “all we have is the Defendant’s behavior itself and a few statements made in varying degrees of closeness in time,” leaving Kucharski’s motives “hidden and a source of speculation.” Of course no one can read a defendant’s mind (cf. Wis. JI-Criminal 923: “You cannot look into a person’s mind to find out his intent. You may determine intent directly or indirectly from all the facts in evidence concerning this offense.”). To expect the experts to do so is, as the court of appeals aptly pointed out, to apply the wrong standard:

¶38    While the trial court discounted this evidence on the basis that it was speculative, in doing so, it appeared to conclude that because the psychiatrists could not know for certain what was going through Kucharski’s mind when he killed his parents, their opinions were invalid. However, this is not the standard to which we hold medical experts. See Pucci v. Rausch, 51 Wis. 2d 513, 518, 187 N.W.2d 138 (1971) (“The term ‘medical certainty’ is misleading if certainty is stressed to mean absolute certainty or metaphysical certainty. Medicine is not based upon such certitude but rather upon the empirical knowledge and experience in the area of cause and effect.”).

Thus, the State’s petition overstates the matter by saying the court of appeals didn’t find any error.

Note, though, there was a dissent in the court of appeals (¶¶45-50), arguing that, contrary to Sarinske, the majority was substituting its judgment for the trial court’s and rejecting the majority’s reliance on Kemp v. State, 61 Wis. 2d 125, 211 N.W.2d 793 (1973) (¶¶42-43), where the supreme court itself ordered a new hearing in the interest of justice. To the extent Sarinske and Kemp are inconsistent, as implied by the State’s petition (at 2-3), this case presents a vehicle for clarifying the discretionary reversal standard—which is to say, a vehicle for enforcing the ever-narrowing “exceptional cases” limitation on discretionary reversal, e.g., State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407, 826 N.W.2d 60. That is obviously a limit in dire need of enforcement, given this is the second time in 12 months the court of appeals has made a discretionary grant of relief to an NGI defendant, a fact pointed out by the State’s petition (at 4, 10), citing State v. Vento, 2012AP1763-CR (Wis. Ct. App. May 21, 2013), a case in which the State’s petition for review was denied.

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