COURT OF APPEALS DECISION DATED AND FILED December 22, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of Plaintiff-Respondent, v. Clint Scott
Mosay, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Clint Mosay appeals a judgment of conviction for first-degree reckless homicide in violation of Wis. Stat. § 940.02(1) (2003‑2004).[1] He claims the circuit court erred when it concluded he failed to substantiate his Wis. Stat. § 971.15 defense because his psychosis was caused by voluntary substance abuse. We conclude the circuit court properly rejected Mosay’s § 971.15 defense and affirm his conviction.
BACKGROUND
¶2 The parties have stipulated to the relevant facts. Mosay was released from prison on May 1, 2005,
after serving a sentence for a prior conviction. On July 3, 2005, he was taken into custody
after contacting
¶3 Upon his release, Mosay visited several relatives’ homes. According to one relative, Mosay believed he was being watched by sewer workers and claimed airplanes took pictures of him as they flew overhead. Mosay did not sleep the night of his release and left the next morning to attend a tribal Pow-Wow with several relatives. Following Mosay’s return in the evening of July 16, Mosay’s mother, Renee, observed bizarre and paranoid behavior. At approximately 1 a.m. on July 17, Renee and her friend Ranell Johnson were leaving to purchase crack cocaine when Mosay entered Ranell’s van. Although Renee and Ranell initially objected, they relented and permitted Mosay to accompany them after he repeatedly told his mother, “I can’t stay here.”
¶4 Mosay became agitated during the trip and expressed concern that someone else was in the vehicle. He became loud and repeatedly insisted the women stop the van. As Mosay moved an object in his hand toward the women in the front seat, Renee pleaded with him to calm down. Mosay responded, “I don’t know what is going on.” He yelled at Ranell to stop the van and began punching her from the back seat. Ranell eventually stopped and Renee directed Mosay to look at her, asked him what he wanted, and stated she was his mother. Mosay responded, “I don’t know who you are,” and stabbed Renee in the neck. Mosay exited the van, moved to the driver’s side of the vehicle, and repeatedly stabbed Ranell as Renee tried to pull her to the passenger side of the van and away from Mosay. After the women managed to get out of the vehicle, Mosay took the keys and fled. Ranell was alive at the time police discovered her, but died at the scene. Renee was admitted to the hospital and recovered from the stab wound.
¶5 Mosay was arrested at approximately 11 a.m. on July 17. Police detectives interviewed him later that day and Mosay responded to their questions with cryptic and bizarre statements before requesting an attorney, at which time the police ceased their questioning.[2] Mosay later described his experiences on the days preceding the killing in mental health interviews with four examiners whose reports are attached to the stipulation. Mosay stated he frequently saw police, military, and “guys in suits” on July 16. During the Pow-Wow that day, Mosay heard someone announce over the intercom “the money man’s here, the money man’s here,” and he saw several hundred people stop and look at him. Mosay stated he feared his friends and relatives on July 16 because he thought they were conspiring to kill him.
¶6 Mosay also described his frequent narcotic use to mental health examiners. Mosay claimed he voluntarily consumed methamphetamine every day between his release from prison on May 1, 2005 and his reincarceration on July 3, 2005, a period of sixty-four consecutive days. He slept little during this time. Mosay’s drug use in the two days preceding the homicide is less clear. In interviews with mental health professionals, Mosay variously denied using methamphetamine, stated he had used a small amount within an hour of being released from jail, and stated he used a small amount but not shortly after his release. Although no one personally observed Mosay using drugs or heard him admit to using drugs, everyone who had contact with Mosay on July 15 and 16 believed he was under the influence of methamphetamine. A drug test administered at 1:15 p.m. on July 18, approximately thirty-one hours after the homicide, showed no trace of methamphetamine or amphetamine, but did report a positive result for cannabinoid. All four mental health examiners agreed Mosay was under a methamphetamine-produced psychosis at the time of the stabbing, and each agreed Mosay’s resulting mental state would not have been present absent the voluntary use of methamphetamine.
¶7 Mosay was charged with, and pled no contest to, one count of first-degree reckless homicide. Mosay maintained, however, that he was not mentally responsible for the crime pursuant to Wis. Stat. § 971.15. He waived his right to a jury trial on the responsibility portion of the trial and the parties submitted a factual stipulation to the circuit court for determination of whether Mosay was mentally responsible for Ranell’s death. The circuit court determined Mosay suffered from a mental illness at the time of the homicide, but found Mosay failed to substantiate his § 971.15 defense because “his condition was temporary and was the product of his voluntary ingestion of drugs.”
DISCUSSION
¶8 On appeal, Mosay claims the circuit court erred when it
determined Mosay’s voluntary ingestion of drugs barred his Wis. Stat. § 971.15
defense. As an initial matter, we must
clarify the standard of review. “Mental disease or defect excluding
responsibility is an affirmative defense which the defendant must establish to
a reasonable certainty by the greater weight of the credible evidence.” Wis. Stat. § 971.15(3). Ordinarily,
“[t]he question of whether a defendant has met the burden of proving mental
disease or defect is one of fact for the jury rather than one of law for the
court.” State v. Leach, 124
¶9 Wisconsin Stat. § 971.15(1)
provides a person is not criminally responsible “if ... as a result of mental
disease or defect the person lacked substantial capacity [at the time of the
criminal act] either to appreciate the wrongfulness of his or her conduct or
conform his or her conduct to the requirements of law.” In Gibson v. State, 55
¶10 Mosay attempts to escape this rule by arguing we should apply State
v. Maik, 287 A.2d 715, 722 (N.J. 1972), overruled on other grounds by State
v. Krol, 344 A.2d 289, 305 (N.J. 1975), in which the New Jersey Supreme
Court agreed with the defendant’s argument that “when a psychosis emerges from
a fixed illness, we should not inquire into the identity of the precipitating
event or action.” In Maik,
the defendant, a longtime schizophrenic and occasional drug user, was
implicated in the stabbing death of a classmate, which he claimed he committed
during a schizophrenic episode.
¶11 Mosay’s reliance on Maik is misplaced for two
reasons. First, Mosay acknowledges Maik
requires evidence of an underlying mental condition unrelated to the
consumption of narcotics. Mosay asserts
he “had mental health issues unrelated to the use of drugs, and although he was
never a resident of a mental health institution there was testimony that his
psychosis at the time of the crime was evident before the crime and persisted
after he had ceased taking methamphetamine.”
However, Mosay has failed to cite any record entries containing the
pertinent testimony, and “we decline to embark on our own search of the record,
unguided by references and citations to specific testimony, to look for …
evidence to support [the asserted facts].” Tam v. Luk, 154
¶12 Mosay’s reliance on Maik is also problematic because our
supreme court distinguished that case in State v. Kolisnitschenko, 84
¶13 The court rejected Kolisnitschenko’s argument, concluding his
drug and alcohol ingestion was the “significant precipitating factor” for his
mental state at the time of the crime.
¶14 The parties assert, and we agree, this case falls somewhere
between the factual scenarios described in Maik and Kolisnitschenko. Although Mosay’s psychosis was undisputedly
the result of his voluntary methamphetamine consumption, we cannot say he was
under the “direct influence” of the drug at the time of the crime.[4] See Kolisnitschenko, 84
¶15 It is true the court in Kolisnitschenko left open the possibility
that voluntary drug use could result in insanity of sufficient permanence to be
considered a “mental disease or defect” under Wis. Stat. § 971.15. See Kolisnitschenko, 84
By the Court.—Judgment affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All other references to the Wisconsin
Statutes are to the 2007-08 version unless otherwise noted.
[2] Mosay believed the entire tribal community in which he lived was trying to set him up, and he claimed people in the community were acting like robots controlled by unseen forces.
[3] The only record entry Mosay cites is his brief before the circuit court, which contains the conclusory statement that “there is evidence in the experts’ reports and motion hearing testimony that Mr. Mosay had mental health issues unrelated to the use of drugs or alcohol prior to the crime, though he had been given no specific diagnosis.” Argument is not evidence.
[4] We note signs and symptoms of intoxication
can persist for hours or days beyond the time when the substance is detectible
in bodily fluids. American Psychological Association, Diagnostic and Statistical Manual of Mental Disorders
201 (4th ed., rev. 2000). This may be
due to low concentrations of the substance in certain areas of the brain or to
a “hit and run” effect where the substance alters a physiological process that
takes longer to recover from than the elimination of the substance.