State v. Shabazz

State v. Shabazz (98-276); 169 Vt. 448; 739 A.2d 666

[Filed 06-Aug-1999]


       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. 98-276


State of Vermont	                         Supreme Court

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

Bahiyod Shabazz                     	         June Term, 1999


Robert Grussing III, J.

       William H. Sorrell, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier,  for Plaintiff-Appellee.

       Charles S. Martin of Martin & Associates, Barre, for
  Defendant-Appellant.


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


       SKOGLUND, J.  Defendant appeals from a voluntary manslaughter
  conviction, claiming  the district court erred by instructing the jury that
  either of two forms of implied intent to kill, the  intent to do serious
  bodily injury and the extreme indifference to human life, satisfy the
  intent  element of voluntary manslaughter.  We affirm.  

       The incident occurred in the early morning hours of November 11, 1996,
  when Joel  Martin, ultimately the victim, knocked on the door to Mary
  Brooks's apartment.  Defendant is  Mary Brooks's brother and was inside her
  apartment at the time.  When Brooks answered the  door, Martin, disguised
  with a mask and a wig, pulled out what appeared to be a gun and  demanded
  either crack cocaine or money - according to differing testimony at trial. 
  Brooks and  defendant left the apartment with Martin, ostensibly to go to
  another apartment to retrieve crack  cocaine or money.  Defendant picked up
  a knife as they left the apartment.  A struggle ensued in  the hallway,
  moving eventually outside into the parking lot.  During the scuffle,
  Martin's mask  fell off.  Brooks and defendant both knew Martin.  Again,
  testimony varied regarding whether 

 

  defendant first stabbed Martin before or after Brooks managed to grab the
  gun and figure out that  it was a plastic, toy gun.  Brooks began hitting
  Martin with the gun and yelling that someone  should call the police.  By
  this point, defendant was on top of Martin in the parking lot.  Martin  was
  saying "let me up and I'll leave," and, when Brooks said to let him go,
  defendant got off   him.  Martin stood up, ran approximately twenty yards
  and then fell down.  At the emergency  room, no pulse could be detected,
  and Martin was declared dead.  A subsequent autopsy revealed  that he died
  from a stab wound to the heart.

       Defendant was charged with murder.  At trial, he argued that he
  stabbed Martin in self  defense.  The State argued that defendant stabbed
  Martin after learning the gun was plastic  because he wanted to send a
  message not to try to rob crack dealers.  In addition to instructing  the
  jury on the doctrine of self defense, the trial judge gave the following
  charge on the lesser  included offense of voluntary manslaughter.

          The question is whether, as a result of that provocation, the 
     defendant actually intended to kill Joel Martin.  That is what we refer 
     to as an expressed intent.  And an intent to kill may also consist of 
     what is called an implied intent.  It may be shown by proof that the 
     defendant acted with intent to cause great bodily harm, or it may be 
     proven that he acted in wanton disregard of the likelihood that his 
     behavior might naturally cause death or great bodily harm.

          So that there are three ways that the State may prove or - and must 
     prove intent.  The - those are an actual intent to kill or an intent 
     to cause great bodily harm or a wanton disregard that the likelihood that 
     his acts would cause death or great bodily harm.  Now, wanton disregard 
     means that the State must prove that the defendant actually knew that the 
     likelihood - of the likelihood that his conduct might naturally cause 
     death or great bodily harm, and nonetheless, engaged in the act of 
     stabbing Joel Martin with a knife.

          The defendant - for this to be proven, the defendant must actually 
     or subjectively be aware that his conduct posed a very high risk of 
     death or serious bodily injury to the victim.  This intent element 
     pertains to the state of mind or thoughts of the defendant's mind at or 
     about the time of the alleged acts in question.  Consideration of the 
     mental elements requires you to examine and determine what was going on 
     in the mind of the defendant at the time of the events in question, and 
     then to decide whether the State has convinced you beyond a reasonable 
     doubt that the defendant did, in fact, have the required intent at that 
     time.

 

  Defendant properly preserved his objection to the instruction, and the
  instant appeal followed. 
 
       On appeal, defendant claims that only involuntary manslaughter may be
  premised on an  intent implied either from an indifference to human life or
  an intent to do serious bodily injury.  He asserts that voluntary
  manslaughter requires an actual, express intent to kill.  

       In reviewing jury instructions, the relevant inquiry is whether the
  instructions as a whole  were misleading or inadequate to aid the jury's
  deliberations.  We will assign error only where  the instructions undermine
  our confidence in the verdict.  See State v. Brooks, 163 Vt. 245, 250,  658 A.2d 22, 26 (1995).  

       The manslaughter statute does not provide a definition for the
  offense, whether voluntary  or involuntary.  See 13 V.S.A. § 2304; see also
  State v. Stanislaw, 153 Vt. 517, 522-24, 573 A.2d 286, 289-90 (1990)
  (noting statute only establishes punishment for manslaughter, remaining 
  silent on mens rea).  We have long described the difference between
  voluntary and involuntary  manslaughter as:

     Manslaughter is the unlawful killing of another, without malice, and may 
     be either voluntary, 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, which . . . the law considers sufficient to 
     palliate the offenee; or involuntary, as when the death of another is 
     caused by some unlawful act, not accompanied with any intention to take 
     life.
 
  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)) (internal quotation
  omitted).  Recently, we have expounded that  voluntary manslaughter is
  composed of:  adequate provocation; inadequate time to regain self-control
  ("cool off"); actual provocation; and actual failure to cool off.  See 
  State v. Shaw, ___  Vt. ___, ___, 721 A.2d 486, 490 (1998); State v.
  Turgeon, 165 Vt. 28, 32, 676 A.2d 339, 342  (1996) (citing 2 W. LaFave & A.
  Scott, Substantive Criminal Law § 7.10, at 255 (1986)).  And  contemporary
  comparisons of voluntary and involuntary manslaughter have tended to
  juxtapose  sudden passion as exemplary of the state of mind proper to
  voluntary manslaughter with the  failure to perceive a reasonably apparent
  risk of causing death or great bodily harm as the state 

 

  of mind for involuntary manslaughter.  See State v. Johnson, 158 Vt. 508,
  518-19 n. 4, 615 A.2d 132, 138 n. 4 (1992); State v. Wheelock, 158 Vt.
  302, 310, 609 A.2d 972, 977 (1992).  Yet, we  have not had occasion to
  examine carefully the mens rea negated by sudden passion, great 
  provocation, or diminished capacity in voluntary manslaughter.  

       Prior voluntary manslaughter cases have not delved into the "intent to
  kill" description of  voluntary manslaughter but have instead elaborated
  the mitigation aspect of the offense, commonly  known as heat of passion or
  adequate provocation and sometimes also referred to as the state of  mind
  for voluntary manslaughter.  See Turgeon, 165 Vt. at 33, 676 A.2d  at 342
  (voluntary  manslaughter is time sensitive doctrine, meaning that
  adequately provoked individual must not  have had time to cool off before
  acting); Johnson, 158 Vt. at 518-19 n.4, 615 A.2d  at 138 n. 4  (in
  straightforward terminology, voluntary manslaughter is intentional killing
  committed under  extenuating circumstances that would mitigate, but not
  justify killing, such as provocation that  would cause reasonable person to
  lose self control).  In Johnson, we discussed the changeover in  homicide
  terminology from "malice aforethought" to specific states of willfulness
  for each type  of murder, and, because the term "malice"created a potential
  source of confusion for jurors, we  indicated trial courts should no longer
  use the word in their jury instructions.  See 158 Vt. at 515-19, 615 A.2d 
  at 136-38.  Our one recent, brief discussion of "intent to kill" in
  voluntary  manslaughter noted the effect this changeover in terminology had
  on the description of the  offense.  See State v. Hatcher, 167 Vt. 338,
  345, 706 A.2d 429, 433 (1997).  Whereas voluntary  manslaughter had
  traditionally been characterized as an intentional killing committed under 
  extenuating circumstances occasioning sudden passion or great provocation
  that negate "malice,"  see State v. Duff, 150 Vt. 329, 331, 554 A.2d 214,
  215 (1988), overruled on other grounds by  State v. Powell, 158 Vt. 280,
  286, 608 A.2d 45, 48 (1992); In re Estate of Mahoney, 126 Vt. 31,  35, 220 A.2d 475, 478 (1966) (voluntary manslaughter is distinguished by absence of
  malice, with  intent caused by heat of passion), in Hatcher we simply
  substituted the word "willfulness" for  malice, see 167 Vt. at 345, 706 A.2d  at 433.  We did not, however, further analyze the mens rea 

 

  or intent element.

       By contrast, we have had the opportunity to analyze in more depth the
  McDonnell  description of involuntary manslaughter.  In State v. Stanislaw,
  we stated that the common law  precedents characterizing involuntary
  manslaughter as a "killing caused by an unlawful act, but  not accompanied
  with any intention to take life," served, not to dispense with all mens rea 
  requirements, but merely to distinguish involuntary from voluntary
  manslaughter.  See 153 Vt.  at 522, 573 A.2d  at 289 (emphasis added).  We
  concluded that the phrase "not accompanied with  any intention to take
  life" did not enunciate "what level of intent, if any, in the commission of
  the  underlying unlawful act is necessary to sustain a conviction for
  involuntary manslaughter."  Id.  at 522, 573 A.2d  at 290.  Consequently, we
  went on to clarify that either recklessness or criminal  negligence, as
  defined by the Model Penal Code (MPC), satisfies the state of mind for
  involuntary  manslaughter.  See Brooks, 163 Vt. at 251, 658 A.2d  at 26-27
  (clarifying that, pursuant to MPC  definitions, recklessness consists of
  conscious disregard of risk of death or injury to another  whereas criminal
  negligence involves unreasonable disregard of risk); Stanislaw, 153 Vt. at
  525,  573 A.2d  at 291 (adopting MPC definition of criminal negligence);
  State v. Forbes, 147 Vt. 612,  617, 523 A.2d 1232, 1235 (1987) (either
  reckless or negligent conduct could sustain conviction  for involuntary
  manslaughter).  Both the recklessness and criminal negligence standards
  require  that, taking an objective view of the risk, disregard of it must
  rise to the level of a gross deviation  from the standard of care that a
  law-abiding person would observe in the actor's situation.  See  Brooks,
  163 Vt. at 251, 658 A.2d  at 26-27.

       Defendant first urges us to read the "intent-to-kill" description of
  voluntary manslaughter  as just that:  an actual, express intent.  We note
  however, as we did in Stanislaw, that the  description of voluntary
  manslaughter stemming from McDonnell has functioned more to  distinguish
  voluntary from involuntary manslaughter than to circumscribe a complete set
  of  possible voluntary manslaughter scenarios.  A descriptive definition
  should not be mistaken for  a prescriptive one.  Thus, we will not accept
  this description of the most commonly negated mens 

 

  rea for voluntary manslaughter as dictating the only possible one for the
  offense.  See 2 W.  LaFave & A. Scott, Substantive Criminal Law § 7.10, at
  253 (1986) ("Most killings which  constitute voluntary manslaughter are of
  the intent-to-kill sort - so much so that voluntary  manslaughter is often
  defined in the cases . . . as if intent to kill were a required ingredient. 
  But  . . . they might be of the intent-to-do-seriously-bodily-injury, or of
  the depraved-heart, types.").  Indeed, one court that insisted intent to
  kill was a required element of voluntary manslaughter  later overruled
  itself.  See State v. Pettit, 445 N.W.2d 890 (Neb. 1989) (overruled by
  State v.  Jones, 515 N.W.2d 654, 659 (Neb. 1994), overruled on other
  grounds by State v. Burlison, 583 N.W.2d 31 (1998)).  The better view of 
  the phrase "intent to kill" is that it serves as a short-hand  description
  of the fuller definition of the mental state for second degree murder,
  thereby also  encompassing intent to do serious bodily injury as well as
  extreme indifference to human life.  See  United States v. Paul, 37 F.3d 496, 499 (9th Cir. 1994); Comber v. United States, 584 A.2d 26,  42-43
  (D.C. Ct. App. 1990).     

       In support of his literal reading of the intent-to-kill description,
  defendant next argues that  all types of implied intent are subsumed under
  involuntary manslaughter, leaving no room for  implied intent in voluntary
  manslaughter.  Because the Legislature sets just one punishment for 
  manslaughter but furnishes no definition that would thereby distinguish
  between a voluntary and  an involuntary offense, we must derive the
  definition for the two distinct types of manslaughter  from common law
  precedents.  Although we adopted the MPC definition of recklessness in 
  Brooks, we observe that the MPC definition of manslaughter contains rough
  corollaries for  involuntary and voluntary but does not explicitly break
  manslaughter down in those terms.  


     Criminal homicide constitutes manslaughter when:

            (a) it is committed recklessly; or

            (b) a homicide which would otherwise be murder is 
     committed under influence of extreme mental or emotional 
     disturbance for which there is reasonable explanation or excuse.  
     The reasonableness of such explanation or excuse shall be 

 

     determined from the viewpoint of a person in the actor's situation 
     under the circumstances as he believes them to be.

See Model Penal Code § 210.3(1) (1962).  

       The fact that our Legislature has not adopted the MPC definition of
  manslaughter and that  the MPC definition is different from ours in
  significant respects, such as excluding any type of  negligence from the
  definition's purview, may have created the possibility for confusion. 
  While  the inexact MPC corollary for involuntary manslaughter, i.e., the
  reckless type, refers to a state  of mind defined elsewhere in the MPC, the
  approximate corollary to voluntary manslaughter, i.e.,  the
  extreme-emotional-disturbance type, is not similarly well-defined.  This
  may have caused  further confusion.  Hence, it is time for a clearer
  statement of the law.  

       The jury instruction at issue described the type of implied intent
  applicable to involuntary  manslaughter as "wanton disregard," which
  defendant appears to equate with the reckless  disregard pertaining to
  involuntary manslaughter.  It is true that "wanton" is often used together 
  with and indistinguishably from "willful" and "reckless" in describing
  gross negligence.  See,  e.g., Black's Law Dictionary 1034 (6th ed. 1990)
  (noting common usage of willful, wanton or  reckless negligence and that it
  has tended to merge with term gross negligence); see also Green  v.
  Sherburne Corp., 137 Vt. 310, 312-13, 403 A.2d 278, 280 (1979) (noting that
  differentiation  between willful and gross negligence is not part of our
  common law but is imported from guest-passenger statute which was since
  repealed, and that these terms have not persisted as definitions  effective
  at law).  As the MPC's definition of "recklessness" demonstrates, it has
  avoided blurring  the three terms (willful, wanton, and reckless), see
  Model Penal Code § 2.02(2)(c), Brooks,163  Vt. at 251, 658 A.2d  at 26
  (quoting definition), and we will do so as well.  

       "Wanton" is employed in a context apart from negligence where it
  retains a meaning  distinct from mere recklessness.  It was long used to
  define malice aforethought for the purposes  of criminal homicide:  "an
  intent willfully to act in callous and wanton disregard of the 
  consequences to human life."  Blacks Law Dictionary 957 (6th ed. 1990); see
  State v. Brunell,159 

 

  Vt. 1, 4, 615 A.2d 127, 129 (1992) (malice aforethought means wanton
  disregard of value of  human life); cf. Johnson, 158 Vt. at 515, 615 A.2d 
  at 126 (describing evolution of malice  definition).  And this is what
  "wanton" referred to in the jury instruction that the defendant  contests.
  We now clarify what has long been implicit in our voluntary manslaughter
  case law.  Whereas the recklessness pertaining to involuntary manslaughter
  is conduct that disregards the  possible consequence of death resulting,
  the wantonness pertaining to voluntary manslaughter is  extremely reckless
  conduct that disregards the probable consequence of taking human life.  
  
       In accordance with our direction in Johnson that jury instructions
  should use the mental  states themselves rather than the term malice, see
  158 Vt. at 519, 615 A.2d  at 138, the instruction  given to the jury here
  properly delineated the three types of mens rea that would ordinarily 
  constitute murder if not mitigated to voluntary manslaughter.  Thus, there
  was no error.  In light  of this conclusion, we need not further address
  defendant's claim that the instruction allowed the  jury to find him guilty
  of voluntary manslaughter based on the state of mind for a distinctly 
  separate crime, that is, involuntary manslaughter.  

       Affirmed.

                                       FOR THE COURT:
	


                                       _______________________________________
                                       Associate Justice