SUPERIOR COURT CRIMINAL ACTION Docket No. CR-12-534 SUPERIOR COURT CRIMINAL ACTION Docket No. CR-12-942 SUPERIOR COURT CRIMINAL ACTION Docket No. CR-08-480
STATE OF MAINE
Before the court is Defendant's amended motion to withdraw his plea of guilty. On December 9, 2012, Defendant pled guilty to burglary and theft counts in docket number CR-12-534, to a violation of conditions of release in CR-12-942 and admitted to a probation revocation motion in CR-02-480. The matter was continued for sentencing and the completion of a third Title 15 type evaluation. In the Defendant's motion, he cites language from a January 14, 2013 report of Andrew Wisch, Ph.D. that, "Mr. Giroux's lifelong pattern of stealing, including his thefts at the time of the index offenses, appears to be the direct result of his Kleptomania and his personality disorder."
In Defendant's motion he argues that this DSM IV diagnosis is sufficient to allow the Defendant to defend the necessary elements associated with the mental state required to be proven beyond a reasonable doubt against him, suggesting the introduction of an argument for an abnormal state of mind. The Defendant argues that he should be allowed to withdraw his plea so that he can proceed to a contested trial utilizing the psychological evaluation conclusion. Therefore, before the court is the issue of whether the diagnosis of kleptomania could present a defense to a theft charge.
Kleptomania is an irresistible desire to steal. State v. McCullough, 114 Iowa 532, 87 N.W. 503, 504 (Iowa 1901). It is a "weakening of the will power to such an extent as to leave the afflicted one powerless to control his impulse to appropriate the personal property of others, without regard to whether such impulse is inspired by avarice, greed, or idle fancy." Id.
As defined above, kleptomania appears to be a valid defense to a charge of theft or larceny in those jurisdictions that either recognize the doctrine of irresistible impulse or include a volitional prong in their insanity defense statutes. Considering that in most instances kleptomaniacs acknowledge that their acts of theft are wrong, this defense will be inapplicable in jurisdictions with insanity defense statutes that only include a cognitive prong. In Maine, the relevant statute is 17-A M.R.S.A. §§ 38-39. In 1986, section 39 was specifically amended to eliminate the control prong of the American Law Institute ("A.L.I.") test by deleting the following portion of the earlier version of the statute: "an accused is not criminally responsible if . . . he either lacked substantial capacity to conform his conduct to the requirements of the law . . ." and limiting Maine insanity standard to the A.L.I, cognitive prong alone. Thus, due to this change in law, Maine courts do not treat kleptomania as the kind of insanity defined in 17-A M.R.S.A. § 39.
See, e.g., Attorney Grievance Comm'n of Maryland v. Nothstein, 300 Md. 667 (Md. 1984) (holding that diagnosis of kleptomania is a factor in making a determination on whether defendant was able to control his behavior and thus, should be relieved from punishment).
See, e.g., State v. Darnell, 858 S.W.2d 739 (Mo. 1993) (where defendant diagnosed with kleptomania, after committing theft, apologized profusely for her actions and admitted it was wrong and against the law). See also 2 Mod. Sci. Evidence § 9:45 (2012-2013 Edition) ("Persons who have kleptomania "know" that stealing is illegal and do not feel justified in their actions, just as persons who suffer from pyromania "know" that it is illegal and wrong to set fires that destroy property or harm others.")
The A.L.I, test reads as follows: (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; (2) As used in this Article, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct. Wayne R. LaFave, Substantive Criminal Law § 7.5 (2d ed. 2012).
Section 38 provides that evidence of a mental abnormality may raise a reasonable doubt whether a defendant had the required culpable mental state to commit a crime. State v. Abbott, 622 A.2d 723, 725 (Me. 1993). In other words, evidence of a defendant's mental deficiency that does not amount to legal insanity may nevertheless be admissible to show his lack of capacity to entertain the mental state required for commission of a crime. See 2 Wharton's Criminal Law § 107 (15th ed.); 2 Subst. Crim. L. § 9.2 (2d ed.).
There are no reported Maine cases that directly address the issue of whether kleptomania is the type of mental abnormality that would negate the intent element of theft under 17-A M.R.S.A. § 353. Maine decisions, however, hold that compulsion "does not tend to negate a conscious purpose to cause the result nor show that defendant lacked conscious awareness of the circumstances of his actions." Abbott, 622 A.2d at 725 (quoting State v. Mishne, 427 A.2d 450, 455 (Me. 1981)). In Mishne, where the defendant was charged with robbery, kidnapping, and theft, the Law Court affirmed the trial court's decision to exclude evidence of defendant's "compulsion" to obtain drugs offered to generate doubt that Mishne's conduct was intentional. Id.
A person is guilty of theft if the person obtains or exercises unauthorized control over the property of another with intent to deprive the other person of the property. 17-A M.R.S.A. § 353.
The court is satisfied that appropriate analysis of Maine statutes and decisions will not support the use of kleptomania as a defense to the crime of theft. As noted in Mishne, 427 A.2d 450, "inability to control one's actions does not negate the existence of culpable mental state; rather, it serves as an excuse." (citing State v. Ellingwood, 409 A.2d 641, 646 (Me. 1979) and State v. Page, 415 A.2d 574, 577 (Me. 1980)).
Pursuant to M.R. Crim. P. 32(d), a motion to withdraw a plea of guilty may be made before sentence is imposed. However, the court is not satisfied that the defendant has a right to withdraw his plea of guilty to assert a defense of a mental state not recognized as a defense to the criminal charge under Maine law.
Accordingly, the entry will be:
Defendant's amended motion to withdraw a plea of guilty is DENIED.
The clerk may docket by reference. DATED: September 23, 2013
Donald H. Marden
Superior Court Justice