State v. Hatcher

State v. Hatcher  (95-279); 167 Vt. 338; 706 A.2d 429

[Opinion Filed 24-Oct-1997]

[Motion for Reargument Denied 19-Dec-1997]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.



                            No. 95-279



State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                       District Court of Vermont,
                                             Unit No. 2, Chittenden Circuit

Mark Hatcher                                 April Term, 1997



Matthew I. Katz, J.

       Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Charles S. Martin and Reggie Oh, Law Clerk (On the Brief), of Martin &
  Associates, Barre, and Mark Hatcher, pro se, Swanton, for
  defendant-appellant

  PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
            (Ret.), Specially Assigned



       MORSE, J.   Defendant Mark Hatcher appeals his conviction by jury of
  second-degree murder, in violation of 13 V.S.A. § 2301.  He claims that the
  trial court: (1) erroneously denied his motion for judgment of acquittal
  based on double jeopardy principles and insufficient evidence; (2)
  improperly instructed the jury on the elements of second-degree murder and
  voluntary manslaughter; and (3) wrongly refused to instruct on mutual
  combat and imperfect self-defense.  He also alleges prosecutorial
  misconduct during closing argument.  We affirm.

       On the morning of May 19, 1992, Kelli Baer's body was discovered in
  the living room of her Burlington apartment by a repairman.   A large
  kitchen knife covered with blood was nearby.  An autopsy revealed that the
  victim's throat had been slit and that she had suffered

 

  numerous additional incision wounds to her hands and fingers.  She had also
  suffered bruises and abrasions to her jaw and upper chest, and smaller
  incisions and scratches on her neck, chest, and arms.  The living room was
  in disarray, showing signs of a struggle.  In the adjacent bedroom, a large
  bloodstain was found on the bed and numerous additional bloodstains and
  drops covered the walls, floors, lightswitches, and doors.

       A neighbor of the victim had observed a man angrily pounding on the
  victim's door earlier that morning.  He heard the man shout, "I know you're
  in there; open the door, you fucking bitch."  Shortly thereafter, the
  neighbor heard loud noises and a general commotion coming from the victim's
  apartment.  The disturbance lasted about fifteen minutes.  The neighbor
  later identified defendant from a photographic line-up as the man he had
  observed pounding on the victim's door.  Later that same morning, a cashier
  at a general store in West Addison, some forty-five miles from Burlington,
  sold two sodas to a man meeting defendant's description.  The man had dried
  blood on his hands which he said came from cutting himself with a knife; he
  denied an offer of medical assistance.

       Defendant testified at trial.  He stated that he had been a casual
  acquaintance of the victim.  During the early morning hours of the day in
  question, he and the victim had drinks at a local bar and then returned to
  her apartment.  At some point, the victim went into the bathroom with a
  knife in her hand and shut the door.  After a few moments, he knocked on
  the door and she emerged with the knife.  Defendant put his hand on hers
  and asked for the knife, whereupon she slashed his hand and tried to stab
  him.  According to defendant. a desperate struggle for the knife then
  ensued during which she repeatedly attempted to stab him while he tried to
  wrest away the knife.  Finally, as they struggled face to face, he forced
  the knife into her throat, pulled her to the floor, and sat on her until
  she expired.  Defendant claimed that he had killed the victim to avoid
  being killed or seriously harmed himself.  He never called an ambulance
  because he knew that she was dead and he didn't trust the police. 
  Defendant stated that he was five feet ten inches-tall and weighed 160
  pounds.  The medical examiner described

 

  the victim as five feet five-inches tall and 110 pounds.

       Defendant also presented evidence that the victim had suffered from a
  bipolar disorder, characterized by both manic and depressive moods, that
  she had been hospitalized on several occasions as a result of her illness,
  had suffered panic attacks, and had made several suicidal statements.  She
  was not taking medication.  No physician involved in her treatment,
  however, had ever observed the victim exhibit any violent or dangerous
  behavior toward herself or others. A mental-health worker who met with the
  victim the day before her death testified that she appeared to be doing
  well, and was neither depressed nor manic.  The same witness testified that
  the onset of a manic or depressive cycle is generally not abrupt, but
  occurs over several days or weeks.

                                I.

       Defendant first contends that double jeopardy principles bar his
  conviction of second degree murder.

       Defendant was charged in an information with one count of first-degree
  murder.  At the close of the prosecution's case-in-chief, defendant moved
  for judgment of acquittal.  The trial court granted the motion as to
  first-degree murder, finding that there was insufficient evidence of
  premeditation and deliberation, but allowed the trial to continue on the
  lesser-included offense of second-degree murder.

       The court's decision to submit the reduced charge to the jury was well
  within its authority and did not violate the double jeopardy clause.  A
  defendant charged with first-degree murder may be convicted of the
  lesser-included offenses of second-degree murder or manslaughter.  In re
  Murray, 131 Vt. 4, 7, 298 A.2d 835, 838 (1972).  Indeed, our statute
  specifically provides that "[u]pon indictment or information for an offense
  under this chapter [homicide], a person may be convicted of a lesser
  included offense, as the case may be, upon the proofs."  13 V.S.A. §
  2310(a).  A court may thus, as here, submit to the jury the lesser offense
  if it determines that the evidence is insufficient to establish an element
  of the greater offense.  See State v. Olsen, ___ Vt. ___, ___, 680 A.2d 107, 109 (1996); United States v.

 

  LoRusso, 695 F.2d 45, 52 (2d Cir. 1982), cert. denied, 460 U.S. 1070
  (1983); United States v. Blackwell, 515 F.2d 125, 126-27 (4th Cir. 1975).

       Defendant nevertheless asserts that because the information charged
  only one count of first-degree murder, the judgment of acquittal
  necessarily dismissed -- and jeopardy necessarily attached to -- the entire
  count.  The argument fails to apprehend that in charging the greater
  offense the information necessarily charged all lesser-included offenses. 
  LoRusso, 695 F.2d  at 52 n.3; Blackwell, 515 F.2d  at 126-27.  Thus the trial
  court could determine that the evidence was insufficient to support an
  element of first-degree murder and submit the reduced charge of
  second-degree murder to the jury, without eliminating the entire murder
  count and having jeopardy attach.  See LoRusso, 695 F.2d  at 54 ("[T]he
  reduction instead of the elimination of count 2 . . . submitted in the
  normal course of the trial to the original jury . . . did not violate
  principles of double jeopardy.").   That is precisely what occurred here. 
  As the court explained, it had determined to "dismiss the charge of
  premeditated murder for failure to demonstrate premeditation . . . and
  [allow] the trial [to] continue on the lesser included charge of second
  degree murder."  The judgment of acquittal did not eliminate the count, as
  defendant argues, but merely reduced the charge to be submitted to the
  jury.

       Defendant's reliance on United States v. Blount, 34 F.3d 865 (9th Cir.
  1994) is misplaced.  There, in contrast to the case at bar, the trial court
  dismissed two felony counts for insufficient evidence of a required element
  "without any reservation of the [lesser-included] . . . charges."  Id. at
  868.  Indeed, before ruling, the court explicitly offered to charge a
  lesser-included misdemeanor, but the government refused that concession
  and took an all-or-nothing approach.  The court thereupon informed the jury
  that the felony counts were no longer a part of the case.  The next day,
  after trial had resumed, the court changed its mind and reinstated the
  counts as lesser included misdemeanors.  On appeal, the Ninth Circuit
  concluded that having granted the motion for acquittal and informed the
  jury of its decision, "preserving no element

 

  of those charges for submission to the jury, [the court's] ruling of
  acquittal ended [defendant's] jeopardy on the charged felony and any lesser
  included offenses."  Id.  Here, in granting the judgment of acquittal the
  trial court expressly reserved the lesser-included offense for submission
  to the jury.  Hence jeopardy did not attach to the charge of second-degree
  murder.

                                II.

       Defendant next contends that the trial court was estopped from
  submitting the second-degree murder charge to the jury because it had
  concluded that there was insufficient evidence of deliberation.

       Defendant assumes, incorrectly, that deliberation is an essential
  element of second-degree murder.  Although some decisions of this Court
  have implied otherwise, see, e.g., State v. Delisle, 162 Vt. 293, 308, 648 A.2d 632, 641 (1994) (evidence was sufficient to show that defendant,
  convicted of second-degree murder, acted with deliberation); State v.
  Brunell, 159 Vt. 1, 6-7, 615 A.2d 127, 130 (1992) (instruction on intent
  element of second-degree murder was adequate where court charged that
  defendant acted "willfully and deliberately"), we have never held that
  deliberation is an element of second-degree murder.  It plainly is not.

       13 V.S.A. § 2301 provides that murder committed by lying in wait, in
  the course of certain felonies, or "by wilful, deliberate and premeditated
  killing . . . shall be murder in the first degree.  All other kinds of
  murder shall be murder in the second degree."  The plain import of § 2301
  is that first-degree murder is murder plus the elements of willfulness,
  deliberation and premeditation, and that murder without these elements is
  second-degree murder.  See 2 W. LaFave & A. Scot, Substantive Criminal Law
  § 7.7, at 245 (1986) ("[I]ntent-to-kill murder without the added
  ingredients premeditation and deliberation is second degree murder.").
  Defendant's construction of the statute would render the deliberation
  element of first-degree murder mere surplusage, a result which we have
  repeatedly cautioned against.  See, e.g., Trombley v. Bellows Falls Union
  High School, 160 Vt. 101, 104, 624 A.2d 857, 860 (1993) (statute should not
  be construed so as to render part of it surplusage).

 

       Requiring a showing of deliberation, moreover, would introduce a
  state-of-mind element that we have never applied to second-degree murder. 
  As we explained in State v. Johnson, 158 Vt. 508, 515, 615 A.2d 132, 136
  (1992), murder without the first-degree elements, i.e., second-degree
  murder, consists simply of the "unlawful killing of a person with `malice
  aforethought.'" We have defined the latter term as "an intention to kill,
  an intention to do great bodily harm, or a wanton disregard of the
  likelihood that one's behavior may naturally cause death or great bodily
  harm."  State v. Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983). 
  Thus deliberation forms no part of the offense of second-degree murder.

       Accordingly, defendant's conviction of second-degree murder was not
  barred by the court's finding that there was insufficient evidence of
  deliberation.

                               III.

       Defendant next claims that the court erred in denying his motion for
  judgment of acquittal at the close of the evidence.  He asserts that the
  State's evidence failed to establish the requisite mental state for
  second-degree murder or negate his claim that he acted out of passion or
  provocation.

       The standard of review governing the denial of a motion for judgment
  of acquittal is "whether `the evidence, when viewed in the light most
  favorable to the State and excluding any modifying evidence, fairly and
  reasonably tends to convince a reasonable trier of fact that the
  defendant[] [is] guilty beyond a reasonable doubt.'"  Delisle, 162 Vt. at
  307, 648 A.2d  at 641 (quoting State v. McBurney, 145 Vt. 201, 204, 484 A.2d 926, 928 (1984)).

       As earlier noted, to support a conviction of second-degree murder it
  is sufficient to prove "an intention to kill, an intention to do great
  bodily harm, or a wanton disregard of the likelihood that one's behavior
  may naturally cause death or great bodily harm."  Doucette, 143 Vt. at 582,
  470 A.2d  at 682.   A defendant's mental state may be inferred from the
  facts and circumstances surrounding the killing, as well as the manner of
  death.  Olsen, ___ Vt. at ___, 680 A.2d  at 109; Delisle, 162 Vt. at 308,
  648 A.2d  at 642.  The evidence here established that

 

  shortly before the killing, defendant was observed shouting and pounding
  angrily on the door of the victim.  An autopsy revealed that the victim had
  suffered numerous incisions on both of her hands typical of defensive
  wounds, bruises caused by blunt trauma to the chest and jaw, as well as
  bruises under the scalp consistent with someone pulling on her hair.  She
  had also incurred smaller incisions on the neck, earlobe and left forearm,
  and a massive, eight-inch long, one and a half-inch deep slit to her throat
  consistent with having been inflicted from behind. The defendant, in
  contrast, suffered an incision wound to three fingers for which he never
  sought medical treatment.  Given these circumstances and the nature and
  severity of the victim's injuries, the jury could have concluded beyond a
  reasonable doubt that defendant possessed any one of the enumerated mental
  states sufficient to support a conviction of second-degree murder, and
  could reasonably have rejected defendant's claim that he acted out of
  passion or provocation in response to an attack by the victim.

                               IV.

       Defendant next contends the court erred in instructing the jury on the
  elements of second-degree murder and voluntary manslaughter.  He claims
  that the court failed adequately to inform the jury of the State's burden
  to disprove that the murder occurred in the heat of passion or upon
  reasonable provocation in order to obtain a conviction of second-degree
  murder.  He also contends that the instructions erroneously placed the
  burden on the defense to establish the existence of passion or provocation
  in order to obtain a verdict of voluntary manslaughter.

       The element that has traditionally distinguished murder from
  manslaughter is "malice." State v. Duff, 150 Vt. 329, 331, 554 A.2d 214,
  215 (1988).  Because of its tendency to confuse, however, the term malice
  or malice aforethought has been replaced by the specific states of mind or
  willfulness required for each type of murder.  Johnson, 158 Vt. at 519, 615 A.2d  at 138.  Voluntary manslaughter is an intentional killing committed
  under extenuating circumstances that may negate willfulness, such as sudden
  passion or provocation that would cause a reasonable person to lose
  control.  State v. Turgeon, ___ Vt. ___, ___, 676 A.2d 339,

 

  342 (1996); State v. Wheelock, 158 Vt. 302, 310, 609 A.2d 972, 977 (1992). 
  Where passion or provocation is implicated, the court must instruct the
  jury that to establish murder the State must prove beyond a reasonable
  doubt that the accused did not kill under the influence of passion or
  provocation.  Duff, 150 Vt. at 333, 554 A.2d  at 216.

       The trial court here adequately informed the jury of the State's
  burden.  In defining the requisite mental state for a conviction of
  second-degree murder, the court instructed:

  In considering the mental element, you should also consider the passion and
  provocation instruction I will give you . . . .  It is the prosecution's
  burden to prove beyond a reasonable doubt this mental element.  And the
  absence of passion and provocation upon which defendant acted in order to
  secure a conviction for murder.

       Although somewhat less than artful, the court's instruction adequately
  explained that it was the "prosecution's burden to prove beyond a
  reasonable doubt . . . the absence of passion and provocation . . . in
  order to secure a conviction for murder."  The case is thus distinguishable
  from State v. Bishop, 589 A.2d 625 (N.J. Super. Ct. App. Div. 1991), cited
  by defendant, where the court made no mention whatsoever of passion or
  provocation in connection with the second-degree murder instructions.  See
  id. at 628 ("At no time during the initial charge on murder was the jury
  told to consider passion/provocation which could reduce the murder to
  manslaughter unless the State proved beyond a reasonable doubt that
  defendant did not kill in the heat of passion.")

       Defendant further asserts that any instructional error was compounded
  by (1) the court's failure to discuss passion or provocation when informing
  the jury that defendant had been acquitted of first-degree murder but that
  the trial would proceed on the second-degree murder charge, and (2) the
  prosecutor's failure to discuss provocation or passion as an element of
  second-degree murder in his closing argument.  Defendant failed to object
  to either point below. In view of the adequacy of the court's instruction
  on the State's burden, neither omission constitutes plain error.

       Defendant further contends that the court's voluntary-manslaughter
  instruction confused

 

  the State's burden of proof in several respects.  He focuses first on the
  court's comment that "the crime of murder may be reduced to voluntary
  manslaughter if the defendant acted out of passion or provocation."  Citing
  State v. Erazo, 594 A.2d 232 (N.J. 1991), he contends that the statement
  improperly shifted to defendant the burden of proving passion or
  provocation. Although the court did not repeat that it was the State's
  burden to disprove passion or provocation, its earlier instruction had made
  this clear, and the statement in question would not have led a reasonable
  jury to conclude otherwise.  Erazo, moreover, is distinguishable.  There
  the trial court explicitly placed the burden of proof on the defense,
  instructing that a manslaughter conviction could be returned if the jury
  was "satisfied beyond a reasonable doubt that [the killing] was committed
  in the heat of passion."  Id. at 237.

       Defendant also asserts that the court's manslaughter instruction
  erroneously suggested that passion or provocation was an essential element
  of that offense.  As defendant notes, we have held that passion or
  provocation is not an indispensable element of voluntary manslaughter, and
  to imply otherwise is apt to confuse the jury because the State has no
  interest in proving this element when seeking a murder conviction.  Duff,
  150 Vt. at 333, 554 A.2d  at 216.  As noted, the court's instructions stated
  plainly, and correctly, that to the extent passion or provocation was
  implicated, it was the "prosecution's burden to prove beyond a reasonable
  doubt . . . the absence of passion and provocation . . . in order to secure
  a conviction for murder."  We thus perceive no likelihood that the jury was
  misled into believing otherwise.

                               V.

       Defendant raises a number of additional claims of instructional error. 
  First, he contends that the court committed plain error by failing to give
  the jury the option of finding him guilty of voluntary manslaughter. 
  According to the transcript, the court instructed the jury as follows,
  "Your verdict in this case will be one of the following, and there are four
  choices: Not guilty, guilty of murder, not guilty of voluntary
  manslaughter, guilty of involuntary manslaughter." The court reporter has
  informed the Court, however, that the transcript is incorrect, and that the

 

  actual instruction was as follows:  "Your verdict in this case will be one
  of the following, and there are four choices: not guilty, guilty of murder,
  guilty of voluntary manslaughter, guilty of involuntary manslaughter." 
  Hence, there was no error.

       Defendant also asserts that the court impermissibly endorsed the
  prosecution's theory of the case when it charged, in connection with
  voluntary manslaughter, that the State must prove the victim died "as a
  result of lethal knife wounds to the throat."  (Emphasis added.)  Defendant
  testified that he cut the victim's throat once in a "clean sweep"; the
  State introduced evidence inconsistent with defendant's testimony,
  suggesting instead that the victim had suffered either two wounds to the
  neck, or one jagged wound.   Thus, the trial court's reference to "wounds"
  in the plural was not necessarily an endorsement of the prosecution's case. 
  Moreover, the instruction did not presume the presence of multiple wounds,
  as defendant contends, but rather placed the burden on the State of
  demonstrating that the victim died as the result of them.  Thus there was
  no error.

       Relying on State v. McDonnell, 32 Vt. 491 (1860), defendant asserts
  that the trial court erred in refusing to instruct the jury on "mutual
  combat."   McDonnell merely referred to mutual combat as a species of
  provocation, not as a separate doctrine relating to manslaughter. Id. at
  541.  The jury was adequately instructed in this regard, and there was no
  error in refusing to instruct further on "mutual combat provocation."

       Defendant also contends the court erred by refusing to instruct on the
  doctrine of imperfect self-defense, which requires that murder be reduced
  to manslaughter if the jury finds that defendant harbored an honest but
  unreasonable belief in the need to defend by deadly force. We have not
  explicitly adopted this doctrine, see Wheelock, 158 Vt. at 309-10, 607 A.2d 
  at 976-77 (1992), nor need we do so here.  Defendant had requested the
  instruction on the ground that the jury might find all of the elements of
  self-defense except that defendant failed to exercise a reasonable
  opportunity to retreat.  He did not argue that defendant honestly but
  unreasonably believed in the need for deadly force.  Hence he did not
  preserve that issue for appeal.  See

 

  State v. Ringler, 153 Vt. 375, 378, 571 A.2d 668, 670 (1989) (appeal must
  be based upon same theory of objection raised at trial).  Nor does he offer
  any basis on appeal for a finding that the ruling constituted plain error.

       As for the duty to retreat, the court instructed that if defendant
  honestly and reasonably believed "it was immediately necessary to use
  deadly force to protect himself from an imminent threat of death or bodily
  injury, the law does not require him to retreat."  Thus the jury could have
  acquitted on the basis of self-defense even if it found that defendant
  failed to exercise an opportunity to retreat.

                               VI.

       Finally, defendant asserts that the prosecutor prejudicially misstated
  the law in two respects during closing argument.  Defendant failed to
  object in either instance; hence the issues are not cognizable on appeal
  absent plain error.  State v. Billado, 141 Vt. 175, 182, 446 A.2d 778, 782
  (1982).

       Defendant first contends the prosecutor erroneously informed the jury
  that defendant's self-defense claim somehow precluded a conviction of
  voluntary manslaughter.  The prosecutor did not assert that the two
  doctrines were mutually exclusive.  He argued, rather, that defendant's own
  testimony negated a finding of manslaughter based on his denial that he had
  acted out of rage or anger or lost control.  The prosecutor was entitled to
  recount and comment upon the evidence at trial and draw legitimate
  inferences therefrom.  State v. Blakeney, 137 Vt. 495, 504, 408 A.2d 636,
  642 (1979).

       Second, defendant asserts the prosecutor erroneously implied that
  sudden passion can result only from anger, rage or loss of control, to the
  exclusion of fear for one's life or adequate provocation.  The prosecutor's
  remarks did not carry this implication.  Furthermore, the trial court
  instructed the jury that the "emotional excitement" constituting heat of
  passion "must have been the result of something that would cause an
  ordinary person to act rashly. . . . The law does not say what things are
  enough to do this.  That is for you to decide."  The court's

 

  instruction was sufficiently broad to include fear and provocation.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice