State v. Brunell

 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. 89-628


 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 David Brunell                                Unit No. 1, Rutland Circuit

                                              September Term, 1991


 Linda Levitt, J.

 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
    Attorney General, Montpelier, for plaintiff-appellee

 Michael Rose, St. Albans, for defendant-appellant


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


     MORSE, J.   Defendant was convicted by a jury for the second-degree
 murder of his 20-month-old daughter.  13 V.S.A. { 2301.  On appeal, he
 claims that plain error was committed when the trial court instructed the
 jury on second-degree murder and manslaughter.  He also contends his
 conviction was based upon insufficient evidence.  We affirm.
      On May 31, 1986, the day of the child's death, defendant's wife -- the
 child's mother -- took her to a flea market.  Although the child appeared
 unusually "whiny, fussy and clingy," she was otherwise alert, and the wife
 did not think that she was in need of medical attention at the time.  The
 wife testified that she remembered seeing a bruise on the child's head and
 insect bites on her face.
      After their return, the wife spent the rest of the day with the infant,
 feeding her and then putting her to bed.  The wife and her sister went out
 again that evening, leaving the child at the couple's apartment in the care
 of defendant.  Upon their return, they found defendant outside the apartment
 in his car with the child in the car seat, apparently unconscious.  Defend-
 ant explained that "she just stopped breathing," and that he was anxious to
 get the child to the hospital.  He later explained to his wife that he heard
 the child crying, went to the bedroom, shook her "a little bit" to stop her
 crying, and that it did not work.  He then put his hand over her mouth and
 it "took her breath away."
      The wife performed C.P.R. to no avail, as did the emergency medical
 technicians called to the scene and the emergency staff at the hospital.
 The child was pronounced dead at 11:00 that evening.
      At trial, the State called an upstairs neighbor, who testified that on
 the evening of the child's death she heard the child crying and defendant
 yelling.  She heard defendant shout profanities at the child and for her to
 "shut up."  She also heard banging and loud rumbling noises interspersed
 with the crying.  She stated at no time did she hear the wife's voice.
      The State called various medical experts on the cause of death.  The
 emergency room physician testified that the child had apparently fresh
 bruises on her head, as well as red facial spots which could indicate,
 among other things, suffocation.   The State also called the Deputy Chief
 Medical Examiner, who testified similarly as to suffocation, adding that the
 presence of other physical injuries, such as injuries to the brain and
 blunt trauma to the head, indicated either "shaken infant syndrome" or
 outside impact.  These physical injuries could have accelerated the number
 of minutes it would otherwise have taken for the child to die by
 suffocation.  The expert ruled out a childhood fall or play as the cause of
 the injuries, and instead attributed the cause of death to a combination of
 suffocation, shaken infant syndrome, and blunt trauma.  The expert believed
 that the injuries were inflicted within twenty-four hours of death, and
 could have been inflicted as soon as four hours prior to death, depending on
 the actual cause of the head trauma.  The State's third expert ruled out
 blunt trauma as a cause of death, concluding that the child died from
 suffocation and shaken infant syndrome.
      The defense offered an expert specializing in pathology, who opined
 that the death was caused solely by blunt trauma to the head that had
 occurred earlier in the day, accounting for the child's irritability while
 on the outing.  In this expert's opinion, the injuries indicated that the
 trauma was of a type that results from a fall.
      Defendant's theory, argued to the jury, was that his child died from
 the effects of a fall, not by anything he did to her.  The court told the
 jury, "The defense is that the defendant did not kill [his child]."
      The relevant instructions to the jury on second-degree murder were as
 follows:
           [Y]ou must find beyond a reasonable doubt that the
           defendant did an act or acts which directly caused the
           death of [the child]. . . .  Secondly, the State must
           prove beyond a reasonable doubt that the defendant
           killed [the child] unlawfully and that means there
           existed no lawful justification for such a killing such
           as self-defense and third, the State must prove beyond a
           reasonable doubt that the defendant acted willfully and
           deliberately; that is, the defendant acted on purpose by
           design, not by accident or mistake.  You must find that
           the defendant acted with a specific intent in mind to
           kill [the child]. . . .  Fourth, the State must also
           prove beyond a reasonable doubt that the defendant acted
           with  malice aforethought.  Malice aforethought means an
           intent at the time of the killing to take the life of
           another human being, or acting in wanton disregard of
           the value of human life.  Malice aforethought does not
           necessarily imply any specific ill will, spite, or
           hatred towards the person killed.

 Later, in response to a question from the jury on the willful element and on
 malice, the court instructed the jurors that "willfully means intentionally
 or purposefully, and intentionally means with resolve to do a particular
 act."  The court further defined malice as "a design to kill, or acting in a
 wanton disregard of life where there is no specific intent to kill.  It is
 acting in a depraved or wicked manner.  Malice may be somewhat similar to
 willful or deliberate, but malice implies a certain degree of immorality."
 (Emphasis added.)
      The court went on to define manslaughter in its instructions should the
 jury not be able to return a guilty verdict on second-degree murder.  First,
 instructions were given on voluntary manslaughter:
             The difference between second degree murder and
           voluntary manslaughter is malice aforethought.  If you
           find beyond a reasonable doubt that the defendant killed
           [his child], and that he did so unlawfully, and that he
           did so willfully and deliberately, but you do not find
           or have a reasonable doubt as to whether he acted with
           malice, then you may find the defendant guilty of
           voluntary manslaughter.  Malice may be absent by reason
           of sudden passion.

 And, in the event the jury were unable to find defendant guilty of that
 crime, the court next instructed on involuntary manslaughter:
             The difference between the voluntary manslaughter and
           involuntary manslaughter is that in the offense of
           involuntary manslaughter, the defendant acts without
           willfulness and deliberateness.  If you find beyond a
           reasonable doubt that the defendant killed [his child]
           and the death was caused by an unlawful act, such as
           using unreasonable force, but without an intent to take
           life, then you may find defendant guilty of involuntary
           manslaughter.

      Defendant argues that these instructions (1) confused the requisite
 states of mind for second-degree murder (malice) and involuntary man-
 slaughter (criminal negligence), (2) improperly included the word
 "immorality" to  describe malice, and (3) insufficiently defined what
 constitutes awareness of the deadly risks in distinguishing involuntary
 manslaughter from second-degree murder.
      The unchallenged instructions were given in substantial conformity to
 defendant's requests. (FN1) Defendant nevertheless claims reversal is required
 under the plain error doctrine.  Although we agree the challenged charge
 could have been clearer, we cannot conclude that it constituted plain error.
      Analyzing defendant's first argument that the court's description of
 the requisite states of mind for the various types of homicide was so
 confused as to require reversal, we are persuaded that any deficiencies in
 the charge did not amount to plain error.
      The court defined the third, or willful, element of second-degree
 murder as "a specific intent in mind to kill" and the fourth, or malice,
 element as either intent to kill or "wanton disregard [for] the value of
 human life."  Confusion over these concepts may have derived from our case
 law where in dictum the terms "malice" and "willful" are overlapped.
 Compare In re Dunham, 144 Vt. 444, 447-48, 479 A.2d 144, 146 (1984)
 ("murder, whether first or second degree, requires an intent to kill, and
 the 'willful' element of 13 V.S.A. { 2301 denotes that intent"), with State
 v. Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983) ("malice" element of
 murder denotes an "intention to kill").
      Although confusion may occur when courts define the concept of "malice"
 as an element intertwined with another element, in this case, the charge on
 the elements of second-degree murder is not cause for reversal.  Given the
 defense theory that the child died as a result of an injury inflicted, not
 by defendant, but by a fall the day before death, any shortcomings in the
 instructions on defendant's mental state were less significant.  See State
 v. Wright, 154 Vt. 512, 520-21, 581 A.2d 720, 726 (1989) (no plain error
 where error not obvious and did not have significant impact on defense
 theory of innocence).  Further, the challenged language was only part of a
 charge which emphasized that, in addition to malice aforethought, the State
 must prove beyond a reasonable doubt that defendant acted "wilfully and
 deliberately . . . by design, not by accident or mistake."  Considering the
 charge in its entirety, we cannot say that it adversely affected defendant's
 substantial rights.  State v. Roy, 151 Vt. 17, 24, 557 A.2d 884, 889 (1989).
      Nor do we find the court's use of the word "immorality" to have had any
 significant impact on the instructions.  Defendant has isolated one word out
 of the entire charge in claiming that the court invited the jury to convict
 on the basis that he was an immoral person.  By taking this word out of
 context, defendant gives it undue emphasis.  Taken as a whole, we do not
 conclude that the instructions were so misleading as to amount to plain
 error.  See State v. Valley, 153 Vt. 380, 398, 571 A.2d 579, 588 (1989).
      Defendant also argues that the phrase "wanton disregard of the value of
 human life" in the second-degree murder instruction was too vague to ade-
 quately explain that the jury must find that defendant actually appreciated
 the gravity of the risk of his actions to the child's well-being, and that
 this instruction was insufficient to distinguish between murder and man-
 slaughter.  He claims the jury could have viewed wanton disregard as
 criminal negligence, the state of mind permitting conviction of involuntary
 manslaughter only.  He further argues that the evidence on his state of mind
 was insufficient to convict him of second-degree murder.  Based on the
 testimony of the expert for the defense, defendant contends that he could
 have been unaware of the danger caused by shaking the child, and that "this
 was not a case in which the cause of death was an agent commonly known to be
 deadly."
      The difference between the implied intent to kill ("depraved heart")
 required for second-degree murder, and the criminally negligent conduct for
 involuntary manslaughter, is the defendant's awareness of the risk and the
 degree of that risk.  To be convicted of second-degree murder, the defendant
 must subjectively be aware of the deadly risk to the victim.  See People v.
 Dellinger, 49 Cal. 3d 1212, 1217, 783 P.2d 200, 202-03, 264 Cal. Rptr. 841,
 843 (1989) (defendant's conviction of second-degree murder based on implied
 malice required a finding that he "'actually appreciated the risk [to human
 life] involved, i.e., a subjective standard'") (quoting People v. Watson, 30 Cal. 3d 290, 296-97, 637 P.2d 279, 283, 179 Cal. Rptr. 43, 47 (1981)
 (emphasis in original)); State v. Fontana, 680 P.2d 1042, 1047 (Utah 1984)
 (second-degree murder conviction under "depraved indifference" provision of
 criminal code required state to prove that the defendant knew that his con-
 duct created grave risk of death to another).  On the other hand, defendant
 need not be actually aware of the risk to the victim to be guilty of
 involuntary manslaughter.  State v. Stanislaw, 153 Vt. 517, 525, 573 A.2d 286, 291 (1990).  The test is an objective one, focusing on what a reason-
 able person would appreciate the risk to be under all the facts and
 circumstances.  Id.
      In addition, for second-degree murder, the extent of risk must be
 something more than that required for criminal negligence.  The actual risk
 required for criminal negligence is greater than the negligence standard of
 care in a civil case.  State v. Beayon, 3 Vt. L. W. 61, 62 (Feb. 14, 1992);
 Stanislaw, 153 Vt. at 525, 573 A.2d  at 291.  For second-degree murder,
 however, "the degree of risk of death or serious bodily injury must be more
 than a mere unreasonable risk, more even than a high degree of risk."  2 W.
 Lafave & A. Scott, Substantive Criminal Law { 7.4, at 200 (1986); see State
 v. Dunbar, 117 Wash. 2d 587, ___, 817 P.2d 1360, 1363 (1991) ("depraved
 mind" murder requires an "extreme form of recklessness which sets the crime
 apart from first degree manslaughter"); cf. State v. Crocker, 435 A.2d 58,
 67 (Me. 1981) (although depraved-indifference murder and criminal
 negligence both have an objective mental element, the former is
 distinguished by requiring a very high degree of risk that death will
 result).
      We again must employ plain-error analysis to evaluate defendant's
 attack on the sufficiency of defining the mental element required for murder
 in the second degree and involuntary manslaughter.  We believe that a
 reasonable juror would understand the charge to mean that one must actually
 appreciate the risk to human life in order to disregard it.
      As for the sufficiency of the evidence, the jury could reasonably have
 found that defendant was aware of the deadly risk of shaking and covering
 the mouth of a 20-month-old infant.  Defendant admitted this conduct to his
 wife, who related his statements to the jury.  The State introduced expert
 and medical testimony on the victim's injuries that confirmed the conduct.
      Defendant's reliance on the lack of "an agent commonly known to be
 deadly" is not persuasive.  The absence of a deadly weapon in the tradition-
 al sense does not necessarily preclude an awareness of deadly risk.  See
 United States v. Eder, 836 F.2d 1145, 1148-49 (8th Cir. 1988) (evidence
 supported defendant's second-degree murder conviction of his three-year-old
 daughter where the defendant's conduct was so "reckless and wanton" that the
 jury could infer he was aware of the serious risk of death); Bishop v.
 People, 165 Colo. 423, 430, 439 P.2d 342, 346 (1968) (intent to kill can be
 implied where "an assault with the hands . . . is committed on an infant of
 tender years"); 2 LaFave & Scott, supra, { 7.2 at 195 (inference of intent
 to kill may properly be drawn in cases where children are attacked solely
 with hands).  Therefore, we see no merit in defendant's argument that his
 failure to use a "deadly weapon" reduced his ability to perceive the risk of
 death to the infant.  Given the circumstances, the jury had enough evidence
 before it to conclude that the danger to the victim was readily apparent.
      Affirmed.



                                         FOR THE COURT:



                                         ________________________________
                                         Associate Justice




FN1.    Defendant requested the court to instruct the jury that for defend-
 ant to be guilty of second-degree murder he must have killed his child
 unlawfully, willfully, and with malice.  He requested that "willful" be
 defined as "intentional, as distinguished from accidental."  He requested
 "malice" be defined as
     the evil intent which gives rise to an unlawful act.
     In common speech it means ill will against a person, but
     in its legal sense it means a wrongful act done inten-
     tionally without just cause or excuse.  It is an inten-
     tion to kill, or an intention to do great bodily harm,
     or the wanton disregard of the likelihood that one's
     behavior may naturally cause death or great bodily
     harm.  Malice may be indicated by evidence, if you so
     find, that the Defendant either (1) intentionally set in
     motion a chain of events which a reasonable person knew
     or should know was likely to cause death or great bodily
     injury, or (2) acted with extreme indifference to human
     life.
 As for manslaughter, defendant requested the following instructions:
      In the absence of malice, a homicide cannot be an
     offense higher than manslaughter.  Therefore, if you
     find that the death was willfully caused by the
     Defendant, but that the State has failed to prove beyond
     a reasonable doubt that Defendant acted with malice,
     then the Defendant is guilty of manslaughter and nothing
     more.
       Absence of malice, and hence voluntary manslaughter,
     is further defined as the intentional and unlawful
     killing of a human being with a real design and purpose
     to kill, but as a result of sudden passion or great
     provocation, and done before adequate time for cool
     reflection.
       A killing may also be involuntary [sic] manslaughter
     if the Defendant did not, at the time, have the mental
     capacity necessary to act with legal malice, in legal
     terms he is said to have "diminished capacity."