State v. Brunell, 89-628

• Decision Date: 22 May 1992
• Docket Number: No. 89-628,89-628
• Citation: 615 A.2d 127,159 Vt. 1
• Parties: STATE of Vermont v. David BRUNELL.
• Court: Vermont Supreme Court

Page 127

615 A.2d 127

159 Vt. 1

STATE of Vermont v. David BRUNELL.

No. 89-628.

Supreme Court of Vermont.

May 22, 1992.

Motion for Reargument Denied

July 9, 1992.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Michael Rose, St. Albans, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

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. Defendant 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 manslaughter (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. ^* 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, 448, 479 A.2d 144, 146 (1984) ("murder, whether first or second degree, requires an intent to kill, and the 'wilful' 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...