State v. Corliss

Annotate this Case
State v. Corliss  (96-035); 168 Vt. 333; 721 A.2d 438

[Opinion Filed 6-Feb-1998]
[Motion for Reargument Denied 15-Sep-1998 and 25-Sep-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-035

                               MAY TERM, 1998


State of Vermont                     }       APPEALED FROM:
                                     }
                                     }
     v.                              }       District Court of Vermont,
                                     }       Unit No. 1, Windsor Circuit
Adam O. Corliss                      }
                                     }       DOCKET NO. 136-2-94Wrcr


       In the above-entitled cause, the Clerk will enter:

       Upon consideration of defendant's motion to reargue, the opinion
  issued February 6, 1998, in this case is amended by deleting the last
  sentence of the full paragraph on page 8 and the following paragraph, which
  ends on page 9, and substituting the following:

     Under the test enunciated in Geiger, a court should instruct a jury on
     a lesser-related offense when: (1) the lesser offense is closely related
     to that charged, (2) there is evidence of its commission, and (3)
     defendant's theory of the case is consistent with the lesser-related
     offense.  See id. at 1304; accord Moore, 776 P.2d  at 1239.

          We do not reach the question of whether it is ever appropriate
     to instruct the jury on a lesser-related offense because, even if we
     applied a standard permitting such instruction, defendant in this case
     would not be entitled to the instruction.  This case does not satisfy the
     three-prong Geiger test.  There was no evidence of the offense of
     compounding the felony presented at trial, nor was this offense
     consistent with defendant's theory of the case.

          The statute defendant relies upon requires that the person
     having knowledge of the commission of a felony take money "upon
     an agreement or understanding" to compound or conceal the felony.
     13 V.S.A. § 8.  "The agreement is essential" to the offense of
     compounding the felony at common law or under the typical
     compounding statute.  2 W. LaFave & A. Scott Jr., Substantive
     Criminal Law § 6.9(c), at 176 (1986).  In this case, defendant never
     claimed any agreement or understanding that the money was received
     as consideration for concealing the felony.  Rather, he testified that he
     did not realize that Durphy gave him money until after they had
     parted company.  Defendant's theory of the case and his testimony at
     trial was that he concealed Durphy's identity because Durphy
     threatened to kill defendant's girlfriend and her family.  Defendant
     testified repeatedly that he lied to the police because Durphy was
     threatening his girlfriend.



     Under defendant's theory, he committed no crime.  He
     concealed the felony under duress.  If the jury had believed his
     testimony, he would have been acquitted.  Neither the defense theory
     nor the evidence supported a charge for compounding the felony.
     See, e.g., People v. Boyd, 212 Cal. Rptr. 873, 880 (Cal. Ct. App.
     1985) (defendant's denial of any offense is completely inconsistent
     with an instruction on the claimed lesser-related offense); Ewish v.
     State, 871 P.2d 306, 311 (Nev. 1994) (defendant denies any
     culpability; consequently, instruction on lesser-related offense is not
     required).  Accordingly, there was no error in refusing to give the jury
     an instruction on this offense.

       In all other respects, defendant's motion to reargue fails to identify
  points of law or fact overlooked or misapprehended by this Court.  The
  motion is therefore denied.




     BY THE COURT:



     _______________________________________
     Jeffrey L. Amestoy, Chief Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice

     _______________________________________
     Marilyn S. Skoglund, Associate Justice

-----------------------------------------------------------------------------
       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. 96-035


State of Vermont                             Supreme Court

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

Adam O. Corliss                              September Term, 1997


Walter M. Morris, Jr., J.

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

       Michael Rose, St. Albans, for Defendant-Appellant.


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


       AMESTOY, C.J.   Defendant Adam Corliss appeals his first degree murder
  conviction for the killing of Jennifer Little.  He argues that the trial
  court erred by (1) limiting the scope of certain testimony linking another
  person to the murder, (2) denying defendant's request for a jury
  instruction that it may convict on a lesser-related offense, and (3)
  failing to follow statutory guidelines for sentencing in murder
  convictions.  We affirm.

       On the night of February 4, 1994, Jennifer Little was repeatedly
  stabbed in the front seat of her car in Springfield Vermont.  She later
  died in a nearby snowbank.  The defendant and the victim knew each other
  and were reportedly together that evening to purchase drugs from another
  individual.  Police found defendant's buck knife in the road near the
  victim's body, and found defendant's footprints in the snow next to her. 
  The medical examiner in the case testified that the victim had sustained
  nine stab wounds, of which three were made to the victim's hands as she
  raised them in defense.  Later that same evening, defendant purchased
  marijuana with bills soaked in the victim's blood.

 

       At trial defendant testified that another individual, Justin Durphy,
  had committed the murder.  He contended that Durphy had been in the front
  seat of the car and had stabbed the victim while defendant sat in the back. 
  Defendant explained that he had lied to police about the details of the
  murder and provided them with false leads because Durphy had threatened him
  with harm if he did not do so.  There was no physical evidence linking
  Justin Durphy with the murder, and no testimony placed Justin Durphy with
  the victim on the night of the murder, except that of defendant.

       To support his theory that Justin Durphy had committed the murder,
  defendant sought to have nine witnesses testify that Durphy had expressed a
  desire to kill the victim or claimed to have killed her.  The State filed a
  motion in limine to exclude the testimony.  The trial court permitted the
  witnesses to testify about Durphy's admissions, but limited the scope of
  three of the witnesses so that they would not disclose to the jury certain
  factual circumstances in which Durphy's admissions were made.

       Defendant requested from the court a lesser-related offense
  instruction for compounding a felony.  Defendant based the request on his
  testimony that he had provided police with false information about the
  killing because Justin Durphy threatened him with harm if he did not. When
  the court denied the request, defendant waived his right to have the court
  instruct the jury on any lesser-included offenses.  The jury returned a
  verdict of first degree murder and the court sentenced defendant to fifty
  years to life imprisonment.

                                     I.

       Defendant first challenges the trial court's decision to limit the
  scope of testimony from certain defense witnesses whose testimony was
  offered to establish that Durphy had committed the murder.  Two witnesses
  testified that, before the murder, they had heard Durphy express anger at
  Jennifer Little and say he wanted to kill her.  The trial court allowed
  both of these witnesses to testify fully on these matters at trial.  Seven
  other witnesses testified that, after Jennifer Little was killed, Durphy
  had claimed responsibility for the murder.  The court allowed

 

  each of them to testify but limited the scope of testimony of six of the
  witnesses.  Defendant takes issue with the trial court's rulings with
  respect to three of the witnesses.

       The first witness at issue, Christina Sanborn, testified in camera
  that Durphy made a sexual advance toward her, rubbed against her, and
  threatened to kill her as he had the victim if she did not do as he told. 
  Sanborn reported that Durphy had similarly threatened her on five or six
  other occasions.  Another witness, Tammy Sinclair, testified that after
  Durphy had allegedly beaten a friend of hers, she confronted Durphy.  She
  alleged that Durphy threatened to kill her as he had Jennifer Little if she
  didn't leave him alone.   A third witness, police lieutenant Barbara
  Higgins, testified that a thirteen year old girl had reported an identical
  threat in the course of Durphy's alleged sexual assault of the girl.

       The trial court found that the proffered testimony was relevant in
  that it tended to show that Durphy, not defendant, had committed the
  murder.  The court found that, although the proffered testimony was
  hearsay, each of the threatening statements in which Durphy claimed to have
  killed the victim qualified as a hearsay exception because, at the time it
  was uttered, the statement "so far tended to subject him to . . . criminal
  liability . . . that a reasonable man in his position would not have made
  the statement unless he believed it to be true."  V.R.E. 804(b)(3).(FN1) The
  court also considered the requirement that "[a] statement tending to expose
  the declarant to criminal liability and offered to exculpate the accused is
  not admissible unless corroborating circumstances indicate the
  trustworthiness of the statement."  Id.  Satisfying this

 

  condition requires defendant to establish that the other person had both
  motive and opportunity to commit the crime.  See State v. Gilman, 158 Vt.
  210, 214, 608 A.2d 660, 663 (1992).

       Defense counsel conceded that, apart from the hearsay testimony, the
  only other evidence of Durphy's connection to the crime would come from
  defendant's testimony.(FN2) The trial court concluded that the defense had
  not technically met its burden to provide corroborating evidence of
  Durphy's commission of the crime, and that the testimony was thus
  excludable.  The court nonetheless found the testimony credible and decided
  to allow its admission.  The court limited the scope of certain witness
  testimony to exclude matters deemed irrelevant or otherwise inadmissible
  under the rules of evidence.

       Accordingly, the court ruled that Sanborn could testify to the jury
  about Durphy's actual threats, but not mention Durphy's unwelcome sexual
  advance along with which the threat was made.  The court found the incident
  irrelevant and remote in time to the murder of Jennifer Little and thus
  excludable under V.R.E. 402.  Moreover, the court reasoned, evidence of
  Durphy's "bad act" of an unwelcome sexual advance amounted to inadmissible
  character evidence.  See V.R.E. 608 (character evidence of witness who is
  not defendant or victim admitted only if probative of credibility; specific
  incidents of witness conduct may not be proved by extrinsic evidence).  The
  court similarly limited Tammy Sinclair's testimony to Durphy's claims that
  he murdered Jennifer Little, and excluded reference to Durphy's alleged
  beating of their mutual friend.  Lieutenant Higgins's testimony about the
  thirteen year old girl's reported sexual assault by Durphy was limited by
  the court to Durphy's threats, and not the alleged assault on the girl. 
  The trial court ruled that acts other than Durphy's threats -- to the
  extent they were relevant -- were substantially outweighed by the danger of
  unfair prejudice and confusion of the issues.  See V.R.E. 403.

 

  Defendant contends that the trial court's limitations on the scope of
  testimony by these three witnesses unfairly "sanitized" the testimony. 
  Defendant claims that without the latitude to explore the full factual
  context in which Durphy uttered the threats, he was deprived of his
  constitutional rights to present exculpatory evidence and confront
  witnesses against him.  We find on these facts no error in the court's
  evidentiary rulings.

       A defendant has a right to present exculpatory evidence to aid his
  defense and to confront witnesses brought against him.  U.S. Const. amend.
  VI; Vt. Const. ch. 1, art. 10.  Defendant's proffered evidence, however,
  must be relevant and otherwise admissible under the rules of evidence.  See
  Gilman, 158 Vt. at 214, 608 A.2d  at 663; State v. Kelley, 131 Vt. 582, 588,
  312 A.2d 906, 909 (1973).  A defendant does not have the right to introduce
  any and all evidence that he deems will aid his defense.  See State v.
  Patnaude, 140 Vt. 361, 369-70, 438 A.2d 402, 405 (1981) (defendant not
  entitled to weigh his Confrontation clause interest against interests of
  the State unless the evidence passes tests of logical and legal relevancy). 
  Thus, where evidence proffered by a defendant is irrelevant to the case
  being tried, it may be properly excluded.  See V.R.E. 402.  Where evidence
  is relevant, it may nonetheless be excluded if its probative value is
  substantially outweighed by the danger of unfair prejudice or other
  considerations.  See V.R.E. 403; State v. Larose, 150 Vt. 363, 368, 554 A.2d 227, 231 (1988).  Evidence of the character of a witness is admissible
  only to the extent it is relevant to the credibility of that witness.  See
  V.R.E. 608(b); State v. Blair, 155 Vt. 271, 275 n.1, 583 A.2d 591, 593 n.1
  (1990) (evidence of witness's character is relevant, if at all, if it
  relates solely to witness's character for truthfulness).  Even then, the
  witness's character for veracity or duplicity may be supported or impeached
  only in the form of opinion or reputation.  See V.R.E. 608(a).  Specific
  instances of conduct of a witness may be referenced only through cross
  examination of the witness, and may not be introduced by extrinsic
  evidence.  See V.R.E. 608(b), Reporter's Notes (Rule prevents
  cross-examination of prejudicial or unnecessarily embarrassing scope). 
  Resolving evidentiary questions where evidence is admissible for one
  purpose but excludable for another

 

  is given to the discretion of the trial court.  See State v. Davis, 165 Vt.
  240, 250, 683 A.2d 1, 7 (1996).  We will not reverse a trial court's
  evidentiary rulings unless there was an abuse of discretion.  See State v.
  Ives, 162 Vt. 131, 142, 648 A.2d 129, 135 (1994).

       The trial court's decision to admit testimony about Durphy's claims to
  have killed the victim, while limiting certain testimony about the
  circumstances in which the statements were made, properly balanced the risk
  of confusing issues and misleading the jury against the defendant's state
  and federal constitutional rights to present exculpatory evidence.  See
  State v. Kennison, 149 Vt. 643, 651, 546 A.2d 190, 195 (1987).

                                     II.

       Defendant next asserts that the trial court erred by denying his
  request for a jury instruction on the lesser-related offense of
  "compounding a felony."(FN3) The trial court first considered defendant's
  request under the "elements test" for providing jury instruction on lesser-
  included offenses.  See State v. Williams, 154 Vt. 76, 82, 574 A.2d 1264,
  1267 (1990) (jury instruction on lesser-included offense appropriate only
  where each element of the lesser offense is a necessary element of the
  charged offense).  It found that the elements of compounding a felony do
  not overlap with the elements of first degree murder.  The trial court
  denied defendant's request for the lesser-related offense instruction,
  because, while statute and case law mandate a lesser-included offense
  charge, neither the Legislature nor the Vermont courts have required such
  an instruction.  We find no error in the trial court's decision not to
  instruct the jury on the lesser-related offense.

       A defendant is entitled to have the court present to the jury issues
  raised by the defense based on the evidence "that they might confront it,
  consider it, and resolve its truth or falsity

 

  by their verdict."  State v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 257-58
  (1955); see State v. Drown, 148 Vt. 311, 312, 532 A.2d 575, 576 (1987). 
  Consistent with this premise is the longstanding practice of affording a
  criminal defendant with jury instructions on lesser-included offenses.  See
  State v. Bolio, 159 Vt. 250, 252, 617 A.2d 885, 886 (1992); State v. Bourn,
  139 Vt. 14, 15, 421 A.2d 1281, 1281-82 (1980); State v. Long, 95 Vt. 485,
  496, 115 A. 734, 739 (1922); 13 V.S.A. § 2310; V.R.Cr.P. 31(c).  Further,
  an offense will be treated as a lesser-included offense only if each of
  its elements is "`always a necessary element' of the greater offense." 
  State v. Forbes, 147 Vt. 612, 617, 523 A.2d 1232, 1235 (1987) (quoting
  Illinois v. Vitale, 447 U.S. 410, 419 (1980)).  Where a jury is convinced
  that a defendant has committed some crime, but is not fully convinced the
  defendant is guilty of the charged offense, instruction on a
  lesser-included offense "ensures that the jury will accord the defendant
  the full benefit of the reasonable-doubt standard."  Beck v. Alabama, 447 U.S. 625, 634 (1980).

       This Court has never expressly addressed whether a trial court must,
  upon request from the defendant, instruct the jury on a lesser-related
  offense.  See, e.g., State v. Kelley, 163 Vt. 325, 328, 664 A.2d 708, 710
  (1995).  The practice is followed in only a minority of jurisdictions. 
  See, e.g., People v. Geiger, 674 P.2d 1303, 1309, 1315-16 (Ca. 1984)
  (confining lesser-offense instruction to strict confines of statutory
  elements of charged offense described as "mechanical"; instruction on
  lesser-related offense deemed more responsive to underlying purpose of
  lesser-included offense doctrine); Moore v. State, 776 P.2d 1235, 1238
  (Nev. 1989).(FN4)

 

       Those jurisdictions that have recognized lesser-related offense
  instruction caution against the danger of misapplication of the rule.  The
  lesser-related offense must have an "`inherent' relationship between the
  greater and lesser offenses," in order to avoid the situation where
  "defense counsel might be tempted to press the jury for leniency by
  requesting lesser-included offense instructions on every lesser crime that
  could arguably be made out from any evidence that happened to be introduced
  at trial."  Geiger, 674 P.2d  at 1308-09 (quoting United States v. Whitaker,
  447 F.2d 314, 319 (D.C. Cir. 1971)).  Under the test enunciated in Geiger,
  a trial court should instruct a jury on a lesser-related offense when the
  following conditions are satisfied: (1) the jury must have an evidentiary
  basis for acquitting on the charged offense; (2) the lesser offense must be
  closely related to the charged offense and have evidentiary support at
  trial; (3) conviction on the lesser offense must be consistent with
  defendant's theory of the case.  See Id. at 1315-16; accord Moore, 776 P.2d 
  at 1239.

       We do not reach the question of whether it is ever appropriate to
  instruct the jury on a lesser-related offense because, even if we applied a
  standard permitting such instruction, defendant in this case would not be
  entitled to the instruction.  Compounding a felony is not closely related
  to murder in the first degree.  Defendant asserts that the relationship
  between the two offenses is established by the fact that defendant could be
  convicted of either crime.  We find defendant's logic unpersuasive.  There
  is, in fact, no commonality in the elements of the crimes of murder and
  compounding a felony.  The only connection between the two crimes is that
  defendant's version of the evidence, if believed, could support a
  conviction for compounding

 

  a felony -- and, if disbelieved, could support a conviction for the
  unrelated crime of first degree murder.(FN5)

       Moreover, defendant's "all or nothing" strategy of declining to have
  any lesser-included offenses instructed to the jury belies his contention
  that his request for a lesser-related offense instruction was intended to
  avoid confronting the trier of fact with no option other than conviction or
  acquittal when the evidence shows that the defendant is guilty of some
  crime but not necessarily the one charged.  See Geiger, 674 P.2d  at 1307
  ("`defendant has no legitimate interest in compelling an all or nothing
  approach to the issue of guilt.  Our courts are not gambling halls but
  forums for the discovery of truth.'") (quoting People v. St. Martin, 463 P.2d 390, 394 (Cal. 1970)).  The trial court committed no error in its
  refusal to instruct on a lesser-related offense.

                                    III.

       Defendant lastly claims error in the court's application of the
  guidelines for sentencing individuals convicted of murder set forth in 13
  V.S.A. § 2303.   He maintains that the court erred by (1) finding the
  murder of the victim "particularly severe, brutal or cruel," 13 V.S.A. §
  2303(d)(5); (2) considering the common law sentencing factors of
  deterrence, rehabilitation, and punishment; and (3) failing to "enter
  specific written findings of fact, summarizing the offense and the
  defendant's participation in it . . . [and] concerning aggravating and
  mitigating factors."  13 V.S.A. § 2303(c).  We address these three
  arguments in turn.

       Trial courts have wide discretion in imposing penalties and we will
  not reverse unless the court strays from statutory limits or abuses its
  discretion.  See State v. Neale, 145 Vt. 423, 435, 491 A.2d 1025, 1033
  (1985); State v. Cyr, 141 Vt. 355, 358, 449 A.2d 926, 927 (1982). Under the
  statutory scheme for sentencing an individual convicted of murder, the
  court is to

 

  consider aggravating and mitigating factors as specifically set forth in
  the statute, see 13 V.S.A. § 2303(d)(1)-(7), (e)(1)-(7), or as suggested by
  the parties, see id. § 2303(d)(8), (e)(8).  The court retains discretion to
  apply or reject the factors and to interpret the meaning of individual
  factors.  See State v. Kelley, 163 Vt. 325, 330-31, 664 A.2d 708, 711-12
  (1995).  We will uphold the trial court's determination of aggravating and
  mitigating factors unless it is clearly erroneous.  See State v. Verrinder,
  161 Vt. 250, 270, 637 A.2d 1382, 1394 (1993).  Findings made by the court
  will not be disturbed if they are supported by credible evidence, even
  where there may be substantial evidence in the record to the contrary.  See
  State v. Harvey, 145 Vt. 654, 657, 497 A.2d 356, 357 (1985).

       Defendant first argues that the court erred in finding the murder
  "particularly severe, brutal, or cruel."  13 V.S.A. § 2303(d)(5).  In so
  finding, the trial court observed that defendant was a trusted friend of
  the victim, and that he repeatedly stabbed her after he had inflicted the
  fatal wound to her carotid artery.  Moreover, the court observed that
  several of the stabbings were to the victim's hands as she raised them up
  in defense.  We find no abuse of discretion in the court's conclusion drawn
  from the evidence.  See State v. Allain, No. 94-164 (Vt. July 19, 1995)
  (mem.) (trial court did not abuse its discretion in finding murder
  particularly brutal, severe, or cruel where attack was unprovoked, entirely
  random, and involved a shotgun blast to the head at close range); State v.
  Hurley, 876 S.W.2d 57, 69 (Tenn. 1993) (shotgun killing of victim at
  point-blank range was heinous, atrocious and cruel).

       Defendant next claims error in the court's consideration of
  traditional common law factors beyond the specific aggravating and
  mitigating factors set forth in the statute.  The court reasoned that the
  Legislature has not "deprived the courts of our common law sentencing
  authority . . . [or] traditionally recognized sentencing objectives and the
  requirement that the Court consider those."

       We find no error in the court's consideration of traditional common
  law factors such as punishment, deterrence, or rehabilitation.  The
  Legislature has not divested the court of its

 

  traditional considerations in sentencing, but has rather provided guidance
  for a process to consider factors pertaining particularly to the crime
  committed and the individual convicted of that crime.  See 13 V.S.A. §
  2303(d).

       Lastly, defendant contends that the court erred by failing to "enter
  written findings of fact, summarizing the offense and the defendant's
  participation in it . . . [and] specific written findings concerning
  aggravating and mitigating factors."  13 V.S.A. § 2303(c).  We agree that
  the trial court should have entered its finding in writing, but find that
  the error was harmless. See V.R.Cr.P 52(a) (errors that do not affect
  substantial rights shall be disregarded).  In this case the court observed
  orally that

  [t]he statute requires a finding relating to the Defendant's
  involvement in the offense . . . . In consideration of the aggravating
  circumstances and the mitigating circumstance[s], for purposes of movement
  from the presumptive sentence given by the Legislature, we find and
  conclude that the aggravating factors established by the evidence
  substantially outweigh the mitigating factor. We also consider all
  pertinent sentencing evidence and factors.
  
       We find that the court's clear articulation of its findings and
  conclusions on the record protected defendant's substantive rights.  See
  State v. Allen, 145 Vt. 593, 598, 496 A.2d 168, 170-71 (1985) (in probation
  revocation hearing, record and transcript enable reviewing court to
  determine basis of trial court's decision).

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice


       ------------------------------------------------------------------------------------------
                                  Footnotes



FN1.  Under V.R.E. 804(b)(3), a hearsay statement is admissible only
  if the declarant, in this case Durphy, is unavailable as a witness.  While
  the record is unclear on this point, the district court appears to have
  determined that Durphy would invoke his privilege under the United States
  and Vermont Constitutions to forego testifying against himself, and thereby
  be "unavailable" as a witness.  See V.R.E. 804(a)(1) (declarant considered
  "unavailable" as a witness where he invokes a privilege from testifying
  about the subject matter of his statement).  At trial, Durphy testified
  about some, but not all of the statements attributed to him.  For those
  statements on which Durphy testified, the district court could have
  excluded the hearsay statements from other witnesses because the declarant
  was available to testify.


FN2.  At trial, a witness testified that she had learned from Durphy
  that Jennifer Little owed Durphy money, thus arguably establishing a motive
  for Durphy to kill Little.  No evidence, however, was introduced to rebut
  the statements of witnesses and Durphy who testified that he was elsewhere
  on the night of the murder and did not have the opportunity to commit the
  crime.


FN3.  "A person having knowledge of the commission of a felony who
  takes money, or a gratuity or reward, or an engagement therefor, upon an
  agreement or understanding, expressed or implied, to compound or conceal
  such felony or not to prosecute therefor, or not to give evidence thereof,
  shall be imprisoned not more than ten years or fined not more than
  $1,000.00, or both."  13 V.S.A. § 8.


FN4.  See also State v. Gopher, 633 P.2d 1195, 1196-97 (Mont. 1981);
  State v. Purnell, 601 A.2d 175, 181 (N.J. 1992) (all forms of homicide
  rationally supported by the evidence, whether they be lesser-included or
  alternative offenses, should be placed before the jury).  The majority of
  state jurisdictions, however, do not instruct the jury on lesser-related
  offenses.  See, e.g., State v. Fisher, 686 P.2d 750, 770 (Ariz. 1984);
  State v. MacFarlane, 450 A.2d 374, 377 (Conn. 1982); State v. Laws, 661 S.W.2d 526, 530 (Mo. 1983); State v. Boone, 406 A.2d 113, 114 (N.H. 1979). 
  Federal courts do not provide instruction on lesser-related offenses
  because Federal Rules of Criminal Procedure expressly limit instruction to
  those lesser offenses "necessarily included" in the offense charged.  Fed.
  R. Crim. P. 31(c).  See also Schmuck v. United States, 489 U.S. 705, 716
  (1989) (instruction on lesser offense not given to jury unless elements of
  lesser offense are a subset of elements of greater offense; where lesser
  offense requires element not required for the greater, defendant not
  entitled to instruction).


FN5.  The State introduced evidence that defendant's theory of the
  case was a fabrication developed with the assistance of a fellow prison
  inmate.  The inmate testified that he and defendant created a fictitious
  version of events whereby Justin Durphy was portrayed as the murderer and
  defendant as a bystander.