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77.11 Mayhem

    77.11.3 Mayhem: Defenses And Defense Theories

    77.11.3.1 Mayhem/Disfigurement: Defense Theory That Victim Was Not Permanently Disabled Or Disfigured
    77.11.3.2 Mayhem: Lack Of Intent To Permanently Disfigure As Defense Theory
    77.11.3.3 Mayhem: Defense Theory That Intent To Kill Is Not Sufficient
    77.11.3.4 Applicability Of Self Defense To Mayhem
    77.11.3.5 Mayhem: Imperfect Self Defense As Defense Theory
    77.11.3.6 Mayhem: Heat Of Passion/Provocation As Defense Theory
    77.11.3.7 Mayhem: Battered Person Syndrome
    77.11.3.8 Mayhem: Accident
    77.11.3.9 Mayhem: Additional Defenses And Defense Theories

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RATIONALE: When appropriate the instructions should assure that the jury understands the permanent disability or disfigurement element of a mayhem or disfigurement charge.

POINTS AND AUTHORITIES: It is well established that mayhem "requires evidence showing that the disability or disfigurement in question is permanent. [Citation]." (People v. Dalton (CA 1962) 201 CA2d 396, 402 [20 CR 51]; see also U.S. v. Cook (DC 1972) 462 F2d 301, 303-304; Adams v. State (AK 1979) 598 P2d 503, 509; Hammond v. State (MD 1991) 588 A2d 345, 352 [error to instruct that intent need not be to disfigure or disable permanently]; State v. Taylor (VA 1928) 142 SE 254, 255.)

    Thus, "[n]ot every visible scarring wound can be said to constitute the felony crime of mayhem ...." (Goodman v. Superior Court (CA 1978) 84 CA3d 621, 625 [148 CR 799]; People v. Pitts (CA 1990) 223 CA3d 1547, 1559 [273 CR 389]; People v. Newble (CA 1981) 120 CA3d 444, 453 [174 CR 637]; Perkins v. U.S. (DC 1982) 446 A2d 19, 26 [to be permanently disfigured in the context of the crime of "malicious disfigurement" means that the person is appreciably less attractive or that a part of its body is to some appreciable degree less useful or functional than it was before the injury].) For example, a wound which will heal "without serious scarring" is not mayhem even if the wound required several stitches. (See Goodman v. Superior Court, 84 CA3d at 624.)

    Accordingly, the jury instructions should assure that the jury determines whether it was proven that the wounds were sufficiently serious to constitute "permanent disfigurement."

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: Relevance of Possible Alleviation By Medical Attention: In People v. Hill (CA 1994) 23 CA4th 1566, 1574, n 4 [28 CR2d 783], the Court of Appeal held that the defendant may not avoid conviction for mayhem based on the availability of "extraordinary medical efforts" which might in the future mitigate the disfigurement. (Hill, 23 C4th at 1574.) Hence, the court approved the prosecution's instruction which informed the jury that mayhem may be committed "notwithstanding the possibility that alleviation of the injury is medically possible."

    However, this holding could implicate federal constitutional due process and compulsory process/right to defend principles (5th, 6th and 14th Amendments) if it is read to preclude the defense from presenting evidence of, and obtaining a jury resolution of, the requisite element of permanence. (See FORECITE National™ 250.1.4 [Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction]; see also  FORECITE National™ 300.6.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].)

LaFave & Scott, Substantive Criminal Law (West, 1986) Crimes Against The Person, Mayhem § 7.17, p. 323.

See also generally, FORECITE National™ 305.13.2 [Mayhem].

    Mayhem requires that one person unlawfully and by means of physical force cause another person to sustain permanent disability or disfigurement.

    The words "maim," "disfigure" and "disable" as used in the charge in this case, mean a permanent maiming, disfigurement and disabling of _______________ (name of alleged victim), and not such a wound as may be only temporary.

[See State v. Stalnaker (WV 1953) 76 SE2d 906, 911.]

    Not every visible scarring wound can be said to constitute the crime of mayhem. There must be serious permanent scarring.

    If you have a reasonable doubt whether the victim has suffered serious permanent scarring, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of mayhem.

    The essential elements of the offense of malicious disfigurement, each of which the Government must prove beyond a reasonable doubt, are:

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    77.11.3.2    Mayhem: Lack Of Intent To Permanently Disfigure As Defense Theory

RATIONALE: Because serious disfigurement can result from a relatively minor assault, intent to cause permanent disfigurement serves to separate the less serious, though criminal, act which results in a permanent injury from the calculated and truly heinous act of mayhem. Hence, the jury should be instructed on the necessary intent to maim or disfigure permanently.

POINTS AND AUTHORITIES: It is well established that mayhem "requires evidence showing that the disability or disfigurement in question is permanent. [Citation]." (People v. Dalton (CA 1962) 201 CA2d 396, 402 [20 CR 51]; see also People v. Hill (CA 1994) 23 CA4th 1566, 1571 [28 CR 783]; Perkins v. U.S. (DC 1982) 446 A2d 19, 25.) This may be so even if the statute does not specifically mention this requirement. (See e.g., Hill, 23 CA4th at 1574, n4.)

    Hence, "the intent to disable...must be understood as of a permanent disability, and not merely one that may be temporary." (Lee v. Commonwealth (VA 1923) 115 SE 671, 673; see also Wharton's Criminal Law (15th Ed. 1993) § 202, p. 481; Ford v. State (MD 1993) 625 A2d 984, 994; Hammond v. State (MD 1991) 588 A2d 345, 346-52 [mental state must be to deprive permanently, not temporarily]; but see Peoples v. U.S. (DC 1994) 640 A2d 1047, 1052 [specific intent to main not an element of mayhem].)

    Conduct which is simply reckless or unlawful will not satisfy the mental state for mayhem absent special wording in the statute. (LaFave & Scott, Substantive Criminal Law (West, 1986) Vol. 2 Mayhem § 7.17, p. 324.)

    See also FORECITE National™ 77.11.3.1 [Mayhem/Disfigurement: Defense Theory That Victim Was Not Permanently Disabled Or Disfigured].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.2 [Mayhem].

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    77.11.3.3    Mayhem: Defense Theory That Intent To Kill Is Not Sufficient

RATIONALE: Without special instruction the jury may improperly assume that an intent to kill is sufficient to prove mayhem.

POINTS AND AUTHORITIES: In California mayhem requires that the defendant "intentionally causes permanent disability or disfigurement of another human being." (See People v. Ferrell (CA 1990) 218 CA3d 828, 833 [267 CR 283]; see also FORECITE National™ 77.11.3.2 [Mayhem: Lack Of Intent To Permanently Disfigure As Defense Theory].)

    The requirement of an independent intent to maim was explained in People v. Lee (CA 1990) 220 CA3d 320 [269 CR 434], and the cases discussed therein. Lee reasoned that an "indiscriminate attack" on the body of the victim is insufficient to prove specific intent to commit mayhem. (Lee, 220 CA3d at 325.) Hence, even though the indiscriminate attack might clearly indicate an intent to kill as in People v. Anderson (CA 1965) 63 C2d 351, 358-59 [46 CR 763], such an attack would not be sufficient to establish specific intent to maim.

    Therefore, when the evidence might be interpreted by the jury to show an intent to kill, but not necessarily an intent to maim, the jury should be instructed that intent to permanently disable or disfigure must be found independent of the intent to kill.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.2 [Mayhem].

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PRACTICE NOTE: See Coleman v. Commonwealth (KY 1939) 133 SW2d 555, 558 ["self-defense can always be set up as a defense in a trial of an indictment for mayhem..."]; see also Green v. State (AL 1907) 44 So 194; Keith v. State (TX 1921) 232 SW 321, 325 ["The principle of self-defense is not limited to cases of homicide. It may be a defense to maiming"].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.2 [Mayhem].

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    77.11.3.5    Mayhem: Imperfect Self Defense As Defense Theory

PRACTICE NOTE: In People v. McKelvey (CA 1987) 194 CA3d 694, 701-07 [239 CR 782], the lead opinion of Kline, P.J. declared that an actual but unreasonable belief in the need for self defense negated the malice required for a conviction of mayhem (California Penal Code § 203), mitigating the crime to assault or battery. The opinion concluded that a Flannel-type instruction (People v. Flannel (CA 1979) 25 C3d 668 [160 CR 84]) should be given sua sponte in mayhem cases where there was more than minimal evidence of self defense.

    However, People v. Sekona (CA 1994) 27 CA4th 443, 452-53 [32 CR2d 606], disagreed with the McKelvey lead opinion and held that the malice required for mayhem is different from the malice required for murder. Accordingly, Sekona held that mayhem-malice cannot be negated based on imperfect self defense. (See also Bryant v. State (MD 1990) 574 A2d 29, 32 [imperfect self defense limited to homicide].)

    Despite Sekona's extensive discussion of the technical aspects of the issue, it fails to adequately explain why imperfect self defense should apply when the victim is killed but not when some lesser injury is inflicted upon the victim.

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.2 [Mayhem].

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RATIONALE: In jurisdictions that require malice for mayhem, heat of passion based on provocation may be a defense theory upon which the jury should be instructed.

POINTS AND AUTHORITIES: In jurisdictions which include malice as an element of the crime of mayhem it has been recognized that to distinguish between malicious wounding and unlawful wounding the jury must be given a complete definition of malice including a consideration of the concepts of heat of passion and control of reason. (Mason v. Commonwealth (VA 1988) 373 SE2d 603, 608.)

    Malice may require proof of a subjective mental state and the absence of self defense or heat of passion. (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.14, comment [Mayhem] p. 266 (Bar Association of the District of Columbia, 4th ed. 1993).) If the malice required for mayhem is negated, the conviction should be for the lesser included offense of assault. (Id. at 267; but see LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.17, p. 324.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.2 [Mayhem].

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     See FORECITE National™ 253.1 [Battered Person’s Syndrome]. 

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    See FORECITE National™ 252.2 [Accident].

    See also FORECITE National™ 77.11.3.2 [Mayhem: Lack Of Intent To Permanently Disfigure As Defense Theory].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)