State v. Wheelock

Annotate this Case

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

No. 89-475

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit

William F. Wheelock III September Term, 1991

Robert Grussing III, J.

M. Patricia Zimmerman, Windsor County State's Attorney, White River
Junction, for plaintiff-appellee

Charles Martin of Martin & Paolini, Barre, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J. Defendant appeals his conviction of second-degree murder
for shooting and killing James Brillon during a drug and alcohol binge.
Defendant claimed he shot the victim because the victim was attacking him
with a knife. He raises three issues, all concerning the trial court's
instructions to the jury. Defendant first contends that the trial court
erred in its self-defense charge when it instructed the jury to assess the
reasonableness of his belief without taking into account his intoxication.
Second, he assigns error to the court's refusal to instruct the jury on the
theory of "imperfect self-defense." Third, he claims error based on the
trial court's failure to instruct the jury that it could draw inferences,
favorable to the defense, from the state's failure to dust for fingerprints
on knives in the kitchen at the crime scene and to test defendant for
intoxication when he was arrested. We affirm.
Defendant killed Brillon with a single round from a shotgun fired at
close range. The shooting occurred in the early morning at the apartment of
the victim's girlfriend. Both defendant and the victim had ingested
alcohol, cocaine, valium and marijuana prior to the shooting. Confronta-
tions between the two punctuated the night. The killing occurred when the
victim entered the living room; defendant, who testified he believed the
victim had a knife, shot him in the chest. During the investigation, police
found no knife near the body, and did not search for one in the apartment.
When defendant was apprehended, he possessed a bottle of partially consumed
scotch. Police did not administer a test to determine the level of alcohol
or presence of drugs in defendant's blood.
I.
Defendant requested the court to instruct the jury on self-defense, in
relevant part:
[O]ne may use deadly force in defense of his life, limb,
or in fear of bodily injury if it reasonably appeared to
the accused that it was necessary to use the force which
he did use.

The trial court's instruction on self-defense was as follows:

[T]he defendant must have a reasonable expectation of
immediate harm. That is, the expectation of harm must
be based upon reason and not upon fancied or unfounded
fear. Also it must be such an expectation as a reason-
able person might entertain under the prevailing circum-
stances. Therefore, you should measure the expectation
of harm by a standard of what a hypothetical reasonable
ordinary person might expect in the same situation as
you find existed and which the defendant was in. You
should determine again taking into account all of those
circumstances if such a person would have a reasonable
expectation of harm.

In doing so you should take into consideration such
factors as shown by the evidence as a reasonable person
in the defendant's shoes -- such as what he knew with
the victim, what their relationship was or had been,
what their prior interaction had been, including hostile
or aggressive conduct, if any, by the victim and any
other factors supported by the evidence that you con-
sider relevant. You should not measure the expectation
of harm by a standard of what a drug or alcohol-impaired
person might expect. You should measure the expectation
by what a non-impaired -- that is a reasonable person --
might expect, not however, by what such a person in the
defendant's shoes and position might expect.

During a lengthy charge conference, defendant expressed dissatisfaction with
the instruction as proposed, saying in part that
there is no reasonable person standard in Vermont in
terms of self-defense. And that's our primary objection
I would say. There's a secondary problem here that I
think we need to discuss. . . . I think that the intent
of this charge here is that you are saying you can't
consider someone's state of intoxication in determining
the reasonableness of their expectation. I think what
you're saying here, basically, [is] "If I'm drunk, I am
still charged with the responsibility of accurately
perceiving events in order to invoke self-defense."

According to V.R.Cr.P. 30, as interpreted in our cases, failure to
object to an instruction after it is given to the jury is considered a
waiver of any error even if the substance of the objection is made known
before the jury charge. State v. Roberts, 154 Vt. 59, 71-72, 574 A.2d 1248,
1253-54 (1990); State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986).
In this case, however, the court, after instructing the jury, told the
parties that any objection made before the jury charge would be considered
preserved. We shall, therefore, reach the issue, but caution that such
advice is contrary to the rule, and the court should require that any
objections be placed on the record after the charge is given to the jury.
The primary reason for the rule is to give the trial court one last
opportunity to avoid an error. In addition, our review is made easier by
such a practice because objections during a charge conference often are
vaguely worded and are interspersed during lengthy discussion. Here, for
example, the charge conference consumed over a hundred pages of the
transcript. By requiring post-charge objections, counsel is forced to
focus on a succinct recitation of specific itemized objections enabling this
Court to understand what defendant intended to preserve for appeal. Review
on appeal also may be hampered by the absence in the record of the proposed
instructions given to counsel to discuss at a charge conference, as in this
case.
Defendant's apparent concern with the court's proposed instruction was
that the jury might find his claim of self-defense unreasonable because he
had been intoxicated at the time and his memory of the killing was poor.
Defendant did not want the jury to conclude that an intoxicated person may
never be capable of acting reasonably in self-defense. In his motion for a
new trial, defendant reiterated his concern:
Defendant submits that the court's jury instructions
upon the issue of self defense were at variance with
Vermont law. The court instructed the jury to measure
the self defense claim by a "hypothetical reasonable
ordinary person" standard. In so doing, the Court
instructed the jury to ignore evidence of drug and
alcohol impairment. Vermont does not measure self
defense by the hypothetical reasonable ordinary person
standard.

The well-established doctrine of self defense provides that a defendant
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). Our case law
requires that self-defense is "just and necessary" when the defendant's
belief of imminent peril and of the need to repel that peril with deadly
force is reasonable. State v. Darling, 141 Vt. 358, 361, 449 A.2d 928, 929
(1982).
The right of self-defense does not require that one be actually
assaulted, so long as the defendant's belief that he is in danger is founded
on reasonably perceived circumstances. State v. Wood, 53 Vt. 560, 561, 567
(1881). In State v. Doherty, 72 Vt. 381, 396-97, 48 A. 658, 663 (1900),
the reasonableness of defendant's belief was described as follows:

[A]lthough it might not have been necessary to have
killed [the victim], if in view of his fear, fright,
nervousness, or cowardice, it reasonably seemed to him,
he could not be convicted of murder. . . . It is not
whether the necessity actually existed, but whether in
fact it reasonably seemed so to the respondent, under
all the circumstances of the case, and . . . the court
[properly instructed] "If the circumstances were such as
reasonably to lead the respondent to think that he was
in danger of being killed or of great bodily harm by an
assault from [the victim], he had a right to defend
himself . . . ."

(Emphases added). A jury, then, must assess the reasonableness of a
defendant's apprehension, taking into account not only the circumstances
with which he is confronted, but his individual attributes as well. Our law
does not hold a nervous coward and a fearless bully to an identical
reasonable person standard. See, e.g., State v. Rounds, 104 Vt. 442, 451,
160 A. 249, 251 (1932) (justification depends on whether jury finds that
necessity reasonably appeared to the defendant); State v. Tubbs, 101 Vt. 5,
23, 139 A. 769, 776 (1928) (defendant may lawfully take a life if it
"reasonably appear[s] to him" to be necessary); (McQuiggan v. Ladd, 79 Vt.
90, 105-06 64 A. 503, 507 (1906) (justification requires more than honest
belief; proper inquiry for jury is whether necessity "reasonably appeared to
[defendant]").
The trial court qualified the words, "measure the expectation of harm
by a standard of what a hypothetical reasonable ordinary person might expect
in the same situation," by placing defendant "in the same situation as you
find existed and which the defendant was in" at the time of the killing.
Later in the instruction the court stated, "You should take into
consideration such factors as shown by the evidence as a reasonable person
in the defendant's shoes [would]." (Emphasis added.) The jury was thereby
instructed to consider the physical and mental traits of the accused, as
well as the attendant situation and circumstances. Otherwise, "in the
defendant's shoes" has no instructional value.
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. The jury must first assess the honesty of the
belief, which is a purely subjective inquiry. It must then determine
whether the particular defendant had an objective, discernible reason for
such belief. As the trial court instructed, the "expectation of harm must
be based upon reason and not upon fancied or unfounded fear."
The court instructed the jury to disregard defendant's intoxication.
This was proper. Although individual attributes, such as age, size,
strength, stamina, courage and assertiveness, are relevant to whether
defendant's beliefs are reasonable, voluntarily induced states of mind such
as those caused by drug and alcohol ingestion are not. See generally W.
Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of
Torts, { 32, at 175-79 (5th ed. 1984) ("The person who is blind or deaf or
lame, or is otherwise physically disabled, is entitled to have allowance
made by others for his disability. . . but it is uniformly held that
voluntary or negligent intoxication cannot serve as an excuse for acts which
would otherwise be negligent.") Intoxication may be considered in reducing
the culpability of a crime from, for example, murder to manslaughter, but
under a claim of self-defense, it cannot excuse a defendant from any
criminal culpability. 1 W. LaFave and A. Scott, Jr., Substantive Criminal
Law { 4.10(d), at 558 (6th ed. 1986).
Even if it was error to interject the "hypothetical reasonable person"
language into the instruction on self-defense, it was harmless. The only
trait defendant claimed separated him from a reasonable person was his
intoxication. He did not suggest he was overly sensitive to perceptions of
danger or had any other character trait that would reasonably support his
action in shooting the victim.
II.
Defendant also maintains that the trial court's failure to instruct the
jury on the doctrine of "imperfect self-defense" was error and asks this
court to adopt that doctrine as articulated in State v. Faulkner, 301 Md.
482, 483 A.2d 759 (1984). Imperfect self-defense, by that formulation,
operates to mitigate murder to manslaughter when the jury finds that the
accused harbored an honest but unreasonable belief in the need to defend by
deadly force. Id. at 500, 483 A.2d at 769 ("Logically, a defendant who
commits a homicide while honestly, though unreasonably, believing that he is
threatened with death or serious bodily harm, does not act with malice.")
The defendant requested the following instruction:
If you find that the Defendant believed it was
necessary to kill the deceased in order to save himself
from death or great bodily harm, and the Defendant's
belief was reasonable because the circumstances at the
time were sufficient to create such a belief in the mind
of a person of ordinary firmness, but the accused,
although without murderous intent, was the aggressor or
used excessive force or had a reasonable opportunity to
retreat, the Defendant would have lost the benefit of
perfect self defense. However, in these situations the
accused may have acted and exercised the imperfect right
of self defense and would be guilty of voluntary man-
slaughter. Similarly, if the jury finds that the
Defendant honestly believed that the use of force was
necessary but because of his diminished mental capacity
his subjected belief was unreasonable under the circum-
stances, then your verdict would be one of guilty to
voluntary manslaughter as well.

Again, no objection was registered by defendant after the jury charge, but,
for reasons given previously, we reluctantly reach the issue. Imperfect
self-defense was not totally ignored, but was put before the jury in the
guise of a well-established defense that mitigates murder to manslaughter,
diminished capacity.
Manslaughter is defined in two categories. Voluntary manslaughter is
the intentional killing of another human being done with a state of mind of
"sudden passion or great provocation," or some other mental state caused by
"diminished capacity." Therefore, extenuating circumstances affecting a
defendant's state of mind negate malice in voluntary manslaughter. State v.
Duff, 150 Vt. 329, 331, 554 A.2d 214, 215 (1988) ("sudden passion" or
"great provocation" or "mental disabilities, not necessarily amounting to
insanity," operate "to preclude a capability of forming . . . malice")
(overruled on other grounds, State v. Powell, No. 89-627 (Vt. Apr. 13,
1992))
Involuntary manslaughter is the killing of another human being as a
result of criminal negligence. State v. Stanislaw, 153 Vt. 517, 525, 573 A.2d 286, 291 (1990). Malice is absent from involuntary manslaughter
because the defendant did not intend to bring about the death of another,
but instead failed to perceive risks apparent to a reasonable person
amounting to a "gross deviation" from reasonable care, a higher standard
than that required for civil liability. Id. (Emphasis in original.).
Here, defendant intended to kill the victim. He claimed he reasonably
believed that he had to shoot him to save himself, or, if his belief was
unreasonable, his diminished capacity from intoxication was the cause of his
unreasonable belief in apprehending the extent of danger posed by the
victim. Couching his defense in terms of imperfect self-defense was
essentially indistinguishable, for purposes of this case, from asserting the
defense of "aroused anger" or diminished capacity. Had the jury been
persuaded that defendant killed the victim in the "sudden heat of passion"
or as a result of "great provocation," he would have been found guilty of
voluntary manslaughter. The jury was given that opportunity. The court
instructed that acting "in sudden passion or from extreme provocation will
negate or disprove malice aforethought," making the crime voluntary
manslaughter. Similarly, the court instructed the jury that diminished
capacity reduces murder to voluntary manslaughter:
In general, diminished capacity refers to a mental
disability of the defendant at the time of the alleged
commission of the offense which precludes or prevents
the defendant from forming a specific intent or having
the required state of mind which is an essential element
of the offense. . . . [It] results in malice being
negated . . . .
. . . .
. . . [D]iminished capacity recognizes that voluntary
consumption of drugs or alcohol or both may impair a
person's mental functioning to such an extent as to
prevent that person from forming the specific intent or
intents that are a necessary element of the offenses.
. . . .
. . . [I]n considering diminished capacity, you should
look to the evidence as you find it to be with regard to
the extent of the Defendant's ingestion of alcohol and
or drugs and the evidence as to the observed effects
upon him and determine to what degree his mental ability
to form the specific intent was impaired.

Defendant does not quarrel with the adequacy of the instructions
regarding the degrees of homicide, the requirement of malice as a pre-
requisite to a murder conviction, or the doctrine of diminished capacity
mitigating the crime from murder to manslaughter. His defense theory that
he was guilty of a homicide no more severe than manslaughter was adequately
placed before the jury.

III.
Defendant's last point is that the trial court wrongly refused to
instruct the jury that it could draw inferences, favorable to the defend-
ant, from the state's failure to collect certain evidence during the
investigation. He argues that he was disadvantaged by the failure of police
investigators (1) to search at the crime scene for a knife bearing the
victim's fingerprints, with which, he claimed, the victim threatened him
just prior to the shooting, and, (2) to administer a test to determine his
blood-alcohol concentration immediately after his arrest. Defendant
contends that this evidence would have aided his defense: the knife by
corroborating his self-defense claim and the blood test by confirming the
degree of intoxication necessary to establish the defense of diminished
capacity.
There could arise situations in which negligent conduct of the police
is sufficiently prejudicial to the defense to warrant a corrective
instruction. The court, however, did not abuse its discretion in declining
the requested instruction. Any prejudice to defendant was practically nil.
No knife was found near the victim's body after the shooting and, because
numerous knives were in the kitchen on the fateful night, it would not have
been unusual for the victim's prints to have been on one or more of them.
Defendant was free, of course, to seek an analysis of the knives, and he
failed to do so. As to the other evidentiary point, defendant appeared
intoxicated to the police at the time of arrest, and the record is replete
with evidence of defendant's copious ingestion of drugs and alcohol.
Although blood-alcohol analysis probably would have confirmed his extreme
intoxication, this fact was not contested at trial. See State v. Seifert,
151 Vt. 66, 69-71, 557 A.2d 494, 497-98 (1989).
Affirmed.

FOR THE COURT:

Associate Justice

------------------------------------------------------------------------------
Dissenting

No. 89-475

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit

William F. Wheelock III September Term, 1991

Robert Grussing III, J.

M. Patricia Zimmerman, Windsor County State's Attorney, White River
Junction, for plaintiff-appellee

Charles Martin of Martin & Paolini, Barre, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

ALLEN, C.J., dissenting. I dissent because the majority opinion fails
to address defendant's primary objection to the jury instruction on self-
defense. Defendant argues that the court erred when it instructed the jury
to measure the reasonableness of defendant's belief in the need to use
deadly force against the standard of the hypothetical reasonable person. I
agree with defendant because the instruction is contrary to our cases on
the law of self-defense. I write also to state my disagreement with the
majority's interpretation of V.R.Cr.P. 30.
I.
It is unclear whether the majority is holding that the self-defense
instruction in this case was a proper statement of the law or was harmless
error. I believe it was neither. The charge both incorrectly stated the
law and tended to mislead and confuse the jury.
The majority fails to address defendant's primary objection because it
assumes that defendant's two distinct objections to the charge on self-
defense are really one objection. Defendant objected to the proposed
instructions by stating that "there is no reasonable person standard in
Vermont in terms of self-defense. And that's our primary objection I would
say." He requested the court to instruct the jury that one may use self-
defense "if it reasonably appeared to the accused that it was necessary."
(Emphasis added.) Defendant also said, "there's a secondary problem here
that I think we need to discuss. . . . I think . . . you are saying [the
jury] can't consider someone's state of intoxication in determining the
reasonableness of their expectation." These separate concerns are
apparently misunderstood by the majority, which writes that "[d]efendant's
apparent concern with the . . . instruction was that the jury might find his
claim of self-defense unreasonable because he had been intoxicated at the
time and his memory of the killing was poor." (Emphasis added.) Because
defendant expressly stated two distinct objections, there is no need to
search for his apparent concern.
While I agree with the majority that the court did not err when it
instructed the jury to disregard defendant's intoxication when assessing the
reasonableness of his belief in the need to use deadly force, I believe that
the court did err when it instructed on the "hypothetical reasonable person"
standard. Defendant was entitled to have the jury receive a clear and
correct statement of the law that was neither confusing nor misleading. See
State v. Gokey, 136 Vt. 33, 36, 383 A.2d 601, 602-03 (1978) (incorrect
statement of law in jury instruction that tends to mislead and confuse the
jury warrants reversal); State v. Hanson, 134 Vt. 227, 232, 356 A.2d 517, 520 (1976) (instruction that is apt to confuse or mislead the jury is
erroneous); State v. Audette, 128 Vt. 374, 378, 264 A.2d 786, 789 (1970)
(court has primary duty to instruct clearly on applicable law).
The court called upon the jury to "measure the expectation of harm by a
standard of what a hypothetical reasonable ordinary person might expect in
the same situation as you find existed and which the defendant was in." The
court also instructed the jury to consider the "reasonable person" as if "in
the defendant's shoes." Later, the court stated that "[y]ou should measure
the expectation by what a non-impaired -- that is a reasonable person --
might expect, not, however, by what such a person in the defendant's shoes
and position might expect." Twice, then, the court asked the jury to place
the hypothetical reasonable person in defendant's situation or "shoes."
Later, it instructed that they not consider his "shoes and position."
The "hypothetical reasonable ordinary person" has no place in the law
of self-defense in Vermont. Dating back to State v. Doherty, 72 Vt. 381, 48 A. 658 (1900), this Court consistently has made clear that a legal right to
use deadly force rests on the reasonableness of the accused's, not a
hypothetical reasonable person's, apprehension of danger. The Court wrote:
[A]lthough it might not have been necessary to have
killed [the victim], if in view of his fear, fright,
nervousness, or cowardice, it reasonably seemed to him,
he could not be convicted of murder. . . . It is not
whether the necessity actually existed, but whether in
fact it reasonably seemed so to the respondent, under
all the circumstances of the case . . . .

Id. at 396-97, 48 A. at 663. (Emphases added.) The rule that a defendant's
belief must be reasonable to him, rather than to a reasonable person, has
been often repeated. See State v. Rounds, 104 Vt. 442, 451, 160 A. 249, 251
(1932) (justification depends on whether jury finds that necessity
reasonably appeared to defendant); State v. Tubbs, 101 Vt. 5, 23, 139 A. 769, 776 (1928) (defendant may lawfully take a life if it "reasonably
appear[s] to him" to be necessary); McQuiggan v. Ladd, 79 Vt. 90, 105, 64 A. 503, 507 (1906) (proper inquiry for jury is whether necessity "reasonably
appeared to [defendant]").
The trial court, when it instructed the jury to "measure the
expectation of harm by a standard of what a hypothetical reasonable ordinary
person might expect in the same situation," committed reversible error
because it did not clearly and accurately state the law of self-defense.
The jury should have been instructed to consider the physical and mental
traits of defendant, as well as the attendant circumstances. "[T]he jury's
consideration of the unique physical and psychological characteristics of
an accused allows the jury to judge the reasonableness of the accused's
actions against the accused's subjective impressions . . . rather than
against those impressions . . . that a hypothetical reasonable person would
have under similar circumstances." State v. Leidholm, 334 N.W.2d 811, 818
(N.D. 1983). Whether defendant differed from the hypothetical reasonable
person, and to what degree, are matters for the jury and do not diminish his
entitlement to a proper statement of the law.
Inconsistent statements within the instruction concerning whether the
jury should consider defendant's situation compound the error. Although
the final statement -- instructing the jury not to place the "reasonable
person" in defendant's shoes or position -- apparently addressed
defendant's intoxication, its broad language and direct contradiction of
earlier instructions serve to confuse and mislead. How could the jury not
be confused by directly contradictory statements? In conclusion, the self-
defense instruction in this case both failed to accurately state the law and
tended to confuse and mislead the jury. Cf. State v. Williams, 154 Vt. 76,
81, 574 A.2d 1264, 1267 (1990) (no error where charge as a whole "breathes
the true spirit and doctrine of the law," and there is no reasonable basis
to find that the jury was misled by it).
II.
The majority cautions that failure to specifically renew objections
after the charge, even where the trial judge states that objections made
prior to the charge would be preserved, could result in waiver under
V.R.Cr.P. 30. Specific objections after the charge, the majority argues,
will "aid our review." This cramped interpretation of Rule 30 creates a
trap for unwary counsel and is not supported by either the language of the
rule or case law.
Rule 30 requires parties to object to "any portion of the charge or
omission therefrom . . . before the jury retires to consider its verdict . .
. ." The rule does not specify, however, that the objection be made
immediately before the jury retires. Indeed, the purpose of the rule -- to
permit the court to correct its errors -- is better served by proper
objection at the charge conference. Moreover, I cannot imagine how an
objection on the record after the charge aids our review better than a
precise objection on the record before the charge where, as here, counsel
was fully aware of the text of the instruction when the objection was made.
Neither case relied upon by the majority supports the proposition for
which it is advanced. State v. Roberts, 154 Vt. 59, 72, 574 A.2d 1248,
1253-54 (1990), does not involve the proper timing of objection under
V.R.Cr.P. 30 but rather considers the issue of assertion of new grounds for
objection on appeal. In that case, we merely recognized that the rule
serves to "afford the trial court an opportunity to correct any error or
oversight . . ." Id. This opportunity is better provided by pre-charge
objections. State v. Hoadley, 147 Vt. 49, 52-53, 512 A.2d 879, 881 (1986),
involves the failure to specifically state the grounds for objection and the
failure to object at all. It does not address the proper timing of
objections.
The better approach is to provide opportunity for appropriate
objections at the pre-charge conference and then, after the charge, permit
counsel to note for the record that earlier objections are renewed. Any
new objections, of course, would have to be fully stated. The federal
circuit courts of appeals which have confronted the issue under the
identical federal rule have adopted this approach. The court of appeals for
the Ninth Circuit praised it as saving time. Las Vegas Merchant Plumbers
Ass'n v. United States, 210 F.2d 732, 744 (9th Cir. 1954). The court of
appeals for the Seventh Circuit noted that the language of the rule did not
prohibit the practice and concluded that it "clearly enables the trial
judge, in advance of instructing the jury, to have erroneous aspects pointed
out to him." United States v. Hollinger, 553 F.2d 535, 542 (7th Cir. 1977)
(emphasis in original). The court of appeals for the Tenth Circuit recently
aligned itself with the advocated approach: "We note parenthetically that
[our earlier case addressing Rule 30] does not require objection to the
court's instructions to be taken after the instructions are given to the
jury. To the extent that it has been so read it has been persuasively
criticized." United States v. Phillips, 869 F.2d 1361, 1369 (10th Cir.
1988) (explaining Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681
(10th Cir. 1966)) (emphasis in original). The court of appeals for the
Second Circuit has noted that Rule 30 "does not require a lawyer to become
a chattering magpie." United States v. Kelinson, 205 F.2d 600, 601-02 (2d
Cir. 1953) (reversing trial court for failing to give instruction that it
told counsel it would give, although no objection made at the conclusion of
charge). I agree with the approach adopted by these federal circuits.
I am authorized to say that Justice Gibson joins in this dissent.

Chief Justice

------------------------------------------------------------------------------
Concurring

No. 89-475

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit

William F. Wheelock III September Term, 1991

Robert Grussing III, J.

M. Patricia Zimmerman, Windsor County State's Attorney, White River
Junction, for plaintiff-appellee

Charles Martin of Martin & Paolini, Barre, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

DOOLEY, J., concurring. I fully concur in Justice Morse's opinion
for the Court. Because the issue will recur, I add that I do not believe
that we should adopt the doctrine of "imperfect self defense" to reduce
murder to manslaughter in any case. I note that a number of states that
have adopted this doctrine have done so by legislation. See 2 W. LaFave &
A. Scott, Substantive Criminal Law { 7.11(a) n.6 (1986). If the doctrine
is to be adopted, it should be done by the Legislature.

Associate Justice

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