39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976)
Gordon Patterson and his wife Roberta maintained a highly unstable marital relationship marked by recurring verbal arguments and physical assaults.1 As a result of one such incident, Roberta Patterson left her husband, instituted divorce proceedings, and resumed dating John Northrup, a neighbor to whom she had been engaged prior to her marriage to Patterson.2
On December 27, 1970, Patterson, carrying a borrowed rifle, went to his father-in-law's residence and observed his wife in a state of semiundress in Northrup's presence.3 Patterson entered the house and shot Northrup twice in the head, killing him.4 Patterson confessed to the killing; after a hearing the confession was held voluntary and admitted into evidence at trial.5 Roberta Patterson, an eyewitness to the crime, testified over defense objection that Patterson fired two shots at the victim from close range.6
At trial the defense called eleven witnesses, including Patterson, who testified in detail about his life and marriage.7 The defense maintained that the shooting was unintentional because the gun went off accidentally and that Patterson acted under the influence of extreme emotional disturbance.8 On June 7, 1971, the trial court instructed the jury that the People must prove intent to kill beyond a reasonable doubt but that Patterson bore the burden of proving by a preponderance of the evidence that he acted under extreme emotional disturbance.9 The jury convicted Patterson of murder.10
The Appellate Division unanimously affirmed the judgment of conviction.11 During the pendency of the appeal to the Court of Appeals, the United States Supreme Court decided Mullaney v. Wilbur.12 Patterson raised the due process claim for the first time in a supplemental brief.13 The Court of Appeals heard argument on January 15, 1976.14
Whether the defendant preserved for appellate review a due process challenge to the allocation of the burden of proof on the affirmative defense of extreme emotional disturbance?15
A failure to object to a jury charge generally does not preserve a question of law for review by the Court of Appeals. An exception exists where the claimed error affects the organization of the court or the mode of proceedings prescribed by law, such as a fundamental defect in the distribution of the burden of persuasion that goes to the essential validity of the trial.16
Yes. The allocation of the burden of proof on the affirmative defense of extreme emotional disturbance constitutes a fundamental defect in the mode of proceedings. It directly implicates whether the trial was conducted in accordance with the procedure mandated by CPL 70.20, which requires that every element of the offense be established beyond a reasonable doubt. In this case the defendant raised the claim for the first time in a supplemental brief after Mullaney v. Wilbur was decided.
Yet the Court of Appeals reviewed it on the merits because the error, if established, would have deprived Patterson of a properly conducted trial in the same way that an improperly composed jury would. The Appellate Division had already affirmed before Mullaney, and no timely objection was possible at trial in 1971 when the practice was considered valid under state law.17
The defendant preserved the due process claim for review.18
Whether the decision in Mullaney v. Wilbur applies retroactively to a conviction that predates it?19
A Supreme Court decision such as Mullaney v. Wilbur that is based on In re Winship must be applied retroactively to cases already tried. Winship itself was given retroactive effect because its purpose is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function.20
Yes. Mullaney rests directly on the constitutional rule announced in Winship that the prosecution must prove every element beyond a reasonable doubt.21 Winship was held retroactive in Ivan V. v. City of New York.22 Patterson's trial occurred in June 1971 and his conviction was affirmed by the Appellate Division in 1973, both well before Mullaney was decided in 1975. Yet the Court of Appeals applied Mullaney retroactively and reached the merits of the due process claim.
Mullaney v. Wilbur applies retroactively to Patterson's conviction.23
Whether placing the burden of persuasion on the defendant to prove by a preponderance of the evidence that he acted under the influence of extreme emotional disturbance violates due process in a murder prosecution?24
Due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. A state may constitutionally place the burden on the defendant to prove by a preponderance an affirmative defense that mitigates the degree of the offense without negating any element of the crime, provided the prosecution still bears the burden on all elements including intent.25
No. Under New York Penal Law sections 125.25 and 125.20 the prosecution must prove beyond a reasonable doubt that the defendant acted with intent to cause death.26 Intent may not be inferred from the mere fact of killing.27 The affirmative defense of extreme emotional disturbance does not negate intent but instead serves as a mitigating circumstance that reduces murder to manslaughter in the first degree when the defendant proves it by a preponderance.28 In Patterson's case the trial court correctly instructed the jury that the People had to prove intent beyond a reasonable doubt while Patterson bore the burden on the affirmative defense.29
The jury found the People had carried their burden on intent.30 This statutory scheme differs materially from the Maine law invalidated in Mullaney because New York has long required the prosecution to prove a design to effect death as an element rather than implying malice from the killing alone.31
Placing the burden of persuasion on the defendant does not violate due process.32
Related opinions on this issue
Chief Judge Breitel concurred separately to emphasize that affirmative defenses with the burden on the defendant by a preponderance serve salutary criminological purposes.33 They permit gradation of offenses at trial and avoid the legislative temptation to define crimes in unqualified general terms while leaving mitigation only to sentencing.34 He cautioned that such defenses must not unhinge the presumption of innocence or force defendants to testify.35
In the homicide context the defense of extreme emotional disturbance allows a defendant with superior access to evidence to establish mitigating circumstances without requiring the prosecution to negate them.36 This advances a more sophisticated approach to criminal liability.37
Judge Jones concurred to stress judicial restraint and respect for the legislative branch.38 He noted that the Legislature had carefully and thoughtfully revised the Penal Law and had recast what is now termed extreme emotional disturbance as an affirmative defense.39 In his view, absent an explicit determination by the Supreme Court that Mullaney requires striking down the provision, responsible judicial discipline counsels leaving the articulation of the federal constitutional rule to the Supreme Court rather than assuming to interpret it in a manner that would invalidate the considered legislative judgment.40
He concluded that until the Supreme Court speaks unequivocally, the Court of Appeals should refrain from invalidating the statute.41
Joined by Judges Wachtler And Fuchsberg
Judge Cooke dissented and would have reversed for a new trial on the authority of Mullaney v. Wilbur.42 He viewed the New York statutes as functionally identical to the Maine scheme. Both make the absence of emotional disturbance the sole factor distinguishing murder from manslaughter and life imprisonment from a lesser sentence.
This permits the state to redefine elements as affirmative defenses and undermine the interests protected by Winship. He concluded that due process requires the prosecution to prove the absence of extreme emotional disturbance beyond a reasonable doubt when the issue is presented.43
Whether the defendant's wife was properly permitted to testify as to the facts of the shooting and related conversation despite the marital privilege?44
The marital privilege does not protect communications or observations when the defendant has not relied upon a confidential relationship to preserve secrecy, as demonstrated by conduct immediately after the event that shows the communications were not intended to remain confidential.45
Yes. Although Patterson and Roberta Patterson remained legally married, the privilege did not apply because immediately after the shooting Patterson attempted to strangle his wife and then ordered her about while still holding the rifle.46 This conduct constituted strong evidence that Patterson himself was not relying on any confidential relationship.47 The trial court therefore properly admitted Roberta's testimony concerning the shooting and the subsequent conversation during the ride from the scene.48
The wife's testimony was properly admitted.49