State v. Shaw

State v. Shaw  (96-546); 168 Vt. 412; 721 A.2d 486

[Opinion Filed 25-Sep-1998]
[Motion for Reargument Denied 15-Oct-1998]


       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. 96-546


State of Vermont                          Supreme Court

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

Patrick Thomas Shaw                       February Term, 1998


Matthew I. Katz, J.

       William H. Sorrell, Attorney General, David Tartter, Assistant
  Attorney General, Montpelier, and John Quinn, Addison County State's
  Attorney, Middlebury, for Plaintiff-Appellee.

       Robert Appel, Defender General, William A. Nelson and Anna Saxman,
  Appellate Attorneys, and Karen Misbach and Robert Hubbard, Law Clerks (On
  the Brief), Montpelier, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Defendant appeals his conviction for second-degree
  murder, claiming error in the district court's failure to instruct the jury
  on the doctrine of imperfect self-defense. Defendant contends that the
  court's jury instruction on complete self-defense and "heat of passion"
  manslaughter did not place his defense theory squarely before the jury.  We
  hold that the doctrine of imperfect self-defense is not recognized in
  Vermont and thus affirm.

       Defendant Patrick Shaw and the victim, John Hallock, both residents of
  the Town of Orwell, were neighbors who had developed an antagonistic
  relationship.  Defendant testified that on several occasions before the
  shooting, he and Hallock had hostile confrontations.  Defendant also
  understood the victim to have threatened to shoot a number of people in
  town.

       On a September morning in 1995, defendant left his auto body shop,
  drove to the woods near Hallock's house, and parked his truck about 500
  yards away from  the house.  Defendant

 

  walked through the woods with a loaded .22 gauge rifle, allegedly to hunt
  squirrel and scout for deer.  At the base of a hill located approximately
  300 yards from Hallock's home, defendant  claims to have fired his rifle
  twice at a squirrel.  Defendant then heard Hallock yelling, "Get the f___
  out of here or I will  put a bullet in you."  Defendant was perched on a
  rock ledge some  twenty to thirty feet above Hallock and could see that
  Hallock was approximately forty to sixty yards away.  He testified that he
  felt exposed and vulnerable on the rock shelf, and believed that Hallock
  would shoot him. According to defendant's testimony,  in an effort to scare
  Hallock, defendant turned and fired a shot at Hallock before running to his
  truck.  Defendant testified that he returned to the auto body shop unaware
  that the shot he fired had hit Hallock, and told no one of the incident. 
  Hallock's body  was found approximately one hundred yards from his home the
  day after the shooting.  Hallock had died from a single gun-shot wound to
  his head.  The State charged defendant with second-degree murder.

       At trial, defendant argued that he fired at Hallock in self-defense. 
  The court instructed the jury on complete and lawful self-defense, see 13
  V.S.A. § 2305 (justifiable homicide), but denied defendant's request for an
  instruction on imperfect self-defense.  The court also instructed the jury
  that it could convict defendant of the lesser-included offense of voluntary
  manslaughter if it found that (1) defendant shot Hallock "out of passion or
  provocation brought about by adequate cause and before defendant had
  reasonable time to calm down," or (2) defendant did not intend to kill
  Hallock but nonetheless "acted with unreasonable disregard for life."  It
  charged the jury that a conviction of second-degree murder could be based
  on defendant's "wanton disregard of the likelihood that his conduct would
  naturally cause death or great bodily harm."  The jury found defendant
  guilty of murder in the second degree.

       Defendant urges us to recognize the doctrine of imperfect self-defense
  under which a charge of murder will be reduced to manslaughter where a
  defendant had an honest but unreasonable belief that he faced immediate and
  grave physical danger and that he had to use deadly force upon the
  adversary to prevent the danger.  See 2 W. LaFave & A. Scott,

 

  Substantive Criminal Law § 7.11(a) (1986).

       We first examine the law of complete or legal self-defense in Vermont. 
  Vermont law provides that a person who kills or wounds another  "[i]n the
  just and necessary defense of his own life . . . shall be guiltless."  13
  V.S.A. § 2305(1).  In State v. Wheelock, 158 Vt. 302, 307, 609 A.2d 972,
  975 (1992), we reiterated the longstanding requirement that, for
  self-defense to be "just and necessary," a defendant's belief that he faces
  imminent peril, and his belief in the need to employ deadly force to repel
  that peril must be reasonable.  "A defendant must have an honest belief of
  imminent peril, but that honest belief by itself is insufficient to invoke
  the defense.  The belief must be grounded in reason."  Id. at 308, 609 A.2d 
  at 976; see also State v. Darling, 141 Vt. 358, 361-62, 449 A.2d 928, 929
  (1982); State v. Doherty, 72 Vt. 381, 399, 48 A. 658, 664 (1900) (defendant
  entitled to justification of self-defense where circumstances are such as
  to reasonably lead him to believe he is in danger of being killed or
  inflicted with great bodily harm).

       In jurisdictions where it is recognized, imperfect self-defense
  applies where the defendant's belief in the need to use force is
  unreasonable.  See, e.g., State v. Faulkner, 483 A.2d 759, 763 (Md. 1984)
  (imperfect self-defense requires no more than defendant's subjective belief
  that his actions were necessary for his safety, even though the belief was
  objectively unreasonable).  Courts that recognize imperfect self-defense
  reason that a defendant who commits a homicide while honestly believing he
  is threatened with death or serious bodily harm does not act with malice
  and that, absent malice, he cannot be convicted of murder.  See id. at 769;
  People v. Flannel, 603 P.2d 1, 7 (Cal. 1980) ("It is the honest belief of
  imminent peril that negates malice in a case of complete self-defense; the
  reasonableness of the belief simply goes to the justification for the
  killing.").  Because the defendant's belief in an imperfect self-defense is
  unreasonable, he is nevertheless to blame for the homicide and is not
  entitled to full exoneration.  See Faulkner, 483 A.2d  at 769.

       We have not yet addressed whether to recognize imperfect self-defense
  as articulated in

 

  Faulkner.  In State v. Wheelock, 158 Vt. 302, 609 A.2d 972 (1992), the
  defendant requested a jury instruction on imperfect self-defense, but the
  court declined to give a separate imperfect self-defense instruction, and
  the defendant was convicted of second-degree murder.  He appealed, claiming
  that the trial court erred by failing to charge the jury on imperfect
  self-defense.  We concluded that "imperfect  self-defense was put before
  the jury in the guise of a well-established defense that mitigates murder
  to manslaughter, diminished capacity."  See id. at 310, 609 A.2d  at 977.  
  Imperfect self-defense, however, is different from the diminished capacity
  defense or any other commonly recognized mitigation defense.  See Faulkner,
  483 A.2d  at 762.  To the extent Wheelock suggests that diminished capacity
  falls under the umbrella of imperfect self-defense, we now clarify that it
  does not.

       Defendant asserts three reasons why we should now adopt the doctrine
  of imperfect self-defense.  First, defendant contends that the doctrine is
  not a novel defense, but rather comprises a part of the common law of
  homicide that has been recognized in decisions of this Court.  Second, he
  argues that as a matter of basic justice and equity, a person who believes
  sincerely, though unreasonably, that he must use deadly force to save his
  life should not be convicted of murder. Third, defendant contends that,
  unlike the defendant in Wheelock, his theory of defense was never put
  squarely before the jury.  We consider these arguments in turn.

                               I.  Common Law

       Defendant argues that imperfect self-defense comprises a class of
  voluntary manslaughter that has been recognized at common law for centuries
  and in this Court's earlier cases. Manslaughter, according to defendant, is
  a catch-all concept that encompasses a variety of homicides that are
  between murder and innocence.  The element that distinguishes murder from
  manslaughter is the presence or absence of malice.  See State v. Long, 95
  Vt. 485, 496, 115 A. 734, 739 (1922). In Vermont, there are at least two
  ways in which malice may be negated in the context of a homicide
  prosecution.  The first is by reason of sudden passion or provocation;  the
  second is by reason of a defendant's diminished capacity.  See State v.
  Duff, 150 Vt. 329, 

 

  331, 554 A.2d 214, 215 (1988).

       Heat-of-passion manslaughter is "the unlawful killing of another,
  without malice . . . as when the act is committed with a real design and
  purpose to kill, but through the violence of sudden passion occasioned by
  some great provocation . . . ."  State v. Turgeon, 165 Vt. 28, 32, 676 A.2d 339, 341 (1996) (emphasis omitted) (quoting State v. McDonnell, 32 Vt. 491,
  545 (1860) overruled on other grounds by State v. Burpee, 65 Vt. 1, 36, 25 A. 964, 974 (1892)).  In more modern terms, heat-of-passion manslaughter
  has been found where there was "(1) adequate provocation; (2) inadequate
  time to regain self-control or `cool off'; (3) actual provocation; and (4)
  actual failure to `cool off.'" Turgeon, 165 Vt. at 32, 676 A.2d  at 342.  An
  objective test determines whether provocation is legally adequate to reduce
  murder to manslaughter:  the loss of self-control must be reasonable under
  the circumstances.  See id. at 32-33, 676 A.2d  at 342.  An objective test
  is also required for mitigation with respect to the timing of the killing. 
  Mitigation from murder to manslaughter will be considered only where the
  defendant strikes before he had an opportunity to cool off.  See id at 33,
  676 A.2d  at 342.

       Voluntary manslaughter may also be based on a defendant's diminished
  capacity at the time of the killing.  See Duff, 150 Vt. at 331, 554 A.2d  at
  215.  Diminished capacity is predicated on finding that the defendant
  suffered from mental disabilities which prevented him from forming the
  state of mind -- in this case, malice -- which is an essential element of
  the greater offense charged. See id.  Thus, sudden passion or great
  provocation is not an essential element of voluntary manslaughter.  See id.
  150 Vt. at 333, 554 A.2d  at 216.

       We summarized the law of manslaughter in Wheelock by observing that
  "extenuating circumstances affecting a defendant's state of mind negate
  malice in voluntary manslaughter." 158 Vt. at 310, 609 A.2d  at 977; see
  also State v. Johnson, 158 Vt. 508, 518-19 n.4, 615 A.2d 132, 138 n.4
  (1992) ("In straightforward terminology, voluntary manslaughter is an
  intentional killing committed under extenuating circumstances that would
  mitigate, but not justify, the killing, such as provocation that would
  cause a reasonable person to lose self control."); see also 

 

  2 Wharton's Criminal Law § 157, at 350 (15th ed. 1993) (to reduce murder to
  manslaughter, provocation must be adequate in the sense that it would
  deprive a reasonable person of self-control and cause her to act out of
  passion rather than reason).  Defendant contends that his actual and honest
  self-defense motive was an extenuating circumstance that should mitigate
  murder to voluntary manslaughter, just as heat of passion or diminished
  capacity are extenuating circumstances that mitigate murder to
  manslaughter.

       Defendant asserts that prior Vermont cases, such as State v. Doherty,
  72 Vt. 381, 48 A. 658 (1900), have implicitly recognized imperfect
  self-defense.  In State v. Doherty, the defendant and the victim had agreed
  to settle their differences by mutual combat.  According to the defendant,
  when the victim removed his overcoat in preparation for the fight, the
  defendant became frightened of the victim and shot him.  The trial court
  instructed the jury that "if the shooting of Murphy was the result of the
  fear, fright, nervousness, or terror that seized the [defendant], after he
  went out of the barn, it was manslaughter not murder."  Id. at 393, 48 A.  at 662.  It also instructed the jury that if it reasonably seemed to the
  defendant that he was in danger of being killed or of great bodily harm, he
  had a right to defend himself.  See id. at 397, 48 A.  at 663.  Nonetheless,
  the defendant was convicted of first degree murder.

       On appeal, the defendant claimed that the court erred by failing to
  instruct the jury that if he acted unreasonably in defending himself, he
  was guilty only of manslaughter.  See id.  The Court rejected this claim,
  ruling that the jury charge correctly stated the law on manslaughter and on
  self-defense.  "That is, the charge placed the elements of fear, fright,
  nervousness and cowardice on the same plane with anger and heat of blood." 
  Id. at 395. 48 A.  at 663.  Thus, the Court held that the instruction was
  correct in stating that heat-of-passion manslaughter could be shown by fear
  as well as anger.  The Court also approved the trial court's self-defense
  instruction that an acquittal required a finding that the defendant
  reasonably have believed that he was in danger of being killed or of
  suffering great bodily harm from the victim.  See id. at 397, 48 A.  at 663.

 

       Relying on a citation to Doherty in an early North Carolina case,
  State v. Thomas, 114 S.E. 834, 837 (N.C. 1922), defendant argues that
  Doherty recognizes an imperfect self-defense claim. We construe the
  decision in Doherty, however, as consistent with the majority of states
  that hold that only a reasonable mistake as to the need for deadly force
  would result in an acquittal on self-defense; the unreasonably mistaken
  actor would suffer as a murderer.  See R. Singer, The Resurgence of Mens
  Rea: II - Honest But Unreasonable Mistake of Fact in Self-defense, 28
  B.C.L.R. 459, 486-87 (1987) (analyzing Doherty as the case which placed
  Vermont in category of states that have adopted objective reasonableness
  test).

       Defendant's characterization of other Vermont caselaw as part of a
  common-law recognition of imperfect self-defense is similarly flawed.  For
  example, in State v. McDonnell, a mutual combat case, the Court set aside a
  murder verdict and granted a new trial to allow the jury to consider "the
  existence of any legal provocation such as a blow or blows inflicted by the
  deceased, and the occurrence of hot blood in consequence."  32 Vt. at 545. 
  Like Doherty, McConnell recognizes that sudden emotion arising from
  adequate provocation may reduce a murder conviction to manslaughter. See
  id.  Both Doherty and McDonnel recognize heat-of-passion manslaughter;
  neither case, however, allows mitigation of murder to manslaughter based on
  an unreasonable but honest belief that deadly force was necessary.

       The doctrine of imperfect self-defense has not been generally
  recognized at common law. See, e.g., State v. Bowens, 532 A.2d 215 (N.J.
  1987) (refusing to recognize doctrine of imperfect self-defense in part
  because of doctrine's incompatibility with common-law's requirement that
  defendant's actions be reasonable or constitute reasonable reaction to
  events); Singer, supra, at 486 n.151. ("In the early decades [of American
  common law], a defendant who lost the defense of self defense was treated
  as a murderer in most jurisdictions.  Only later did the notion of
  `imperfect self defense,' classifying the honest but unreasonable killer as
  a manslaughterer, occur . . . .").  Thus, the paucity of early cases from
  Vermont and other states supporting defendant's common-law claim of
  imperfect self-defense is not surprising, as the

 

  defense contravenes a fundamental principal found in both perfect
  self-defense and the doctrines which mitigate murder to manslaughter.  See
  also Model Penal Code § 3.04 cmt. 2(a), at 35 (1985) (observing that, at
  time of code's drafting, prevailing self-defense rules, both common law and
  statutory, usually had requirement of reasonable ground for belief that
  deadly force was necessary).

       We therefore disagree with defendant's contention that imperfect
  self-defense comprises part of Vermont's common law of homicide.  Both
  lawful self-defense and manslaughter, as they have been recognized in
  Vermont, require that the defendant perceive a situation in a reasonable
  manner, as in the case of perfect self-defense, or have some objectively
  identifiable reason for departing from reasonable behavior, as in
  heat-of-passion and diminished-capacity manslaughter.  We conclude that
  the doctrine of imperfect self-defense -- which requires no test of
  reasonableness nor any objective inquiry -- presents a marked departure
  from the established principles that underlie the rationale for permitting
  an acquittal due to self-defense, and the mitigation of murder to
  manslaughter.

                           II. Justice and Equity

       Defendant contends that basic justice and equity compel submission of
  an imperfect self-defense claim to the jury.  He argues that a person who
  believes sincerely, though unreasonably, that he must use deadly force to
  save his life does not act with malice and should not be convicted of
  murder.  He characterizes the mitigating defense as a middle ground between
  a murder conviction on the one hand, and the full justification and
  exoneration that comes with complete self-defense on the other.  According
  to defendant, commentators generally support the doctrine, and courts in
  several jurisdictions have adopted imperfect self-defense.

       We are not persuaded by defendant's justice-and-equity argument for
  three reasons.  First, if the doctrine of imperfect self-defense is adopted
  in Vermont, it should be done by the Legislature as has been done in some
  other states.  See Wheelock, 158 Vt. at 312, 609 A.2d  at 978 (Dooley, J.,
  concurring); see also State v. Thompson, 544 N.W.2d 8, 12-13 (Minn. 1996)

 

  (declining to adopt imperfect self-defense where Legislature has not
  mandated it).  Statutes in other jurisdictions present a variety of
  legislative options on homicides that are neither murder nor totally
  justified.  See 2 W.LaFave & A. Scott, Substantive Criminal Law § 7.11(a)
  n.6 (1986) (describing differences between statutes in five states).  And,
  the Model Penal Code treats imperfect self-defense as reckless or negligent
  homicide, an option that only two states have enacted.  See id.  Because
  the Legislature is in a better position to determine which, if any, of
  these options Vermont should recognize, we decline to adopt this new
  defense.  See also Model Penal Code and Commentaries § 210.3 cmt. 3 at 50
  (Model Penal Code treats issue as appropriate for legislation).

       Second, contrary to defendant's assertion that courts and commentators
  generally advocate in favor of the doctrine, courts in other jurisdictions
  have been reluctant to recognize imperfect self-defense. See, e.g., State
  v. Eagle Thunder, 266 N.W.2d 755, 757 (Neb. 1978) (reading reasonableness
  requirement into statute that does not explicitly require reasonableness
  because nothing in statute shows intent to change common-law rule). 
  "[T]here has been little more than a thin line of academic criticism"
  against the requirement of reasonable belief for justification defenses. 
  Id. Model Penal Code and Commentaries § 3.09 cmt. 2, at 151.  Far from
  commanding universal support as a doctrine essential to basic justice and
  equity, the imperfect self-defense doctrine has been criticized for
  injecting "a subjective element into an otherwise objective part of the
  law."  C. Hobson, Reforming California's Homicide Law, 23 Pepp. L. Rev.
  495, 550 (1996). Moreover, the doctrine has been considered "problematic
  because it allows unscrupulous defendants to manipulate the assessment of
  their culpability by providing an after-the-fact justification for murder." 
  C. Lee, Race and Self-defense:  Toward a Normative Conception of
  Reasonableness, 81 Minn. L. Rev. 367, 396 (1996).  We reject the
  implication that defendant's justice-and-equity argument has been broadly
  accepted elsewhere.

       Our third objection stems from operation of the doctrine.  As
  defendant stresses, imperfect self-defense operates chiefly by negating
  malice.  See Faulkner, 483 A.2d  at 761;

 

  Flannel, 603 P.2d  at 7.  In Vermont, the requisite mental state of malice
  needed to support a murder conviction can be established by showing that a
  defendant's conduct demonstrates "wanton disregard of the likelihood that
  [his] behavior may naturally cause death or great bodily harm."  State v.
  Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983).  As defendant himself
  contended in his proposed jury instructions, the "wanton disregard" may
  refer to "extremely negligent conduct."  See also W. LaFave, Substantive
  Criminal Law, § 7.4, at 199-200 (1986) ("Extremely negligent conduct . . .
  though unaccompanied by any intent to kill or do serious bodily injury . .
  . may constitute murder.").  So framed, the line becomes blurred between
  the "unreasonable but honest" state of mind which will allow invocation of
  imperfect self-defense, and the "extremely negligent conduct," which would
  support murder.  We are wary of the task of instructing juries to, on the
  one hand, find murder based on one type of negligent conduct, while
  instructing them to mitigate murder to manslaughter based on another type
  of negligent conduct.

                     III. Defendant's Theory of Defense

       Defendant claims the court's instructions prevented the jury from
  considering a manslaughter conviction because the court instructed it not
  to consider manslaughter if the State had proven the elements of murder and
  had proven also that defendant was not entitled to complete self-defense.
  This contention is without merit because the court's instructions on murder
  specifically stated: "In considering the mental element [to support murder]
  you should also consider the `passion and provocation' instruction I will
  give you in a few minutes."  Thus, the court made clear that, as part of
  its deliberation on murder, the jury should consider the possible
  mitigating effect of passion and provocation.

       Finally, defendant claims that the court's jury instructions failed to
  place his theory of defense before the jury.  Jury instructions should be
  "full, fair, and correct on all the issues, theories, and claims within the
  pleadings, so far as the evidence requires."  State Ciocca, 125 Vt. 64,
  74-75, 209 A.2d 507, 515 (1965).  Here, the court instructed the jury on
  lawful self-

 

  defense as well as voluntary and involuntary manslaughter.  Defendant's
  theory that he was not guilty by reason of self-defense, or guilty of a
  homicide no more serious than manslaughter, was adequately placed before
  the jury. Thus, to the extent that defendant's theory of the case presented
  justification for the homicide or mitigating circumstances, the jury had
  the opportunity to acquit defendant or convict him of manslaughter. 
  Defendant's claim that the court erred in refusing to instruct the jury to
  consider a defense that neither this Court nor the Legislature has
  recognized must fail.

       Affirmed.



                                       _______________________________
                                       Chief Justice