State v. Doucette, 52-80

• Citation: 143 Vt. 573,470 A.2d 676
• Decision Date: 01 November 1983
• Docket Number: No. 52-80,52-80
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Gerald P. DOUCETTE.

Page 676

470 A.2d 676

143 Vt. 573

STATE of Vermont v. Gerald P. DOUCETTE.

No. 52-80.

Supreme Court of Vermont.

Nov. 1, 1983.

John J. Easton, Jr., Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., Jay Hindman, Law Clerk, Montpelier (on the brief), and James D. McKnight, Orange County State's Atty., Chelsea, for plaintiff-appellee.

Welch and Graham, White River Junction, Andrew B. Crane, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before BILLINGS, C.J., HILL and UNDERWOOD, JJ., and KEYSER and LARROW, JJ. (Ret.), Specially Assigned.

HILL, Justice.

Defendant Gerald P. Doucette appeals his second degree murder, felony murder, and grand larceny convictions for the slaying of Wayland Austin and the larceny of Mr. Austin's truck. We affirm his convictions.

Wayland Austin's body was found buried under some hay in a remote, wooded area of Tunbridge, Vermont. Austin's death was caused by three gunshot wounds from bullets fired at close range into the back of his head. Austin was driving his truck when he was last seen alive, and the defendant was his passenger at the time. Later that same day, the defendant arrived with Austin's truck at his sister's home in Massachusetts. The murder weapon was identified by the defendant's friend Mark Marini as the gun Marini had loaned to the defendant. The gun was in the defendant's possession while he was in Vermont, and was recovered from the defendant's sister's home pursuant to a search warrant executed in Massachusetts.

I.

We first address the defendant's contention that Vermont's felony murder rule violates his right to due process under the Fourteenth Amendment of the United States Constitution and Chapter I, Article 10 of the Vermont Constitution. Vermont's felony murder rule is contained in the statute covering murder, 13 V.S.A. § 2301. The rule provides that a murder "committed in perpetrating or attempting to perpetrate arson, sexual assault, aggravated sexual assault, robbery or burglary" is murder in the first degree. The defendant claims that the felony murder rule allows the prosecution to avoid proving two essential elements of the crime of first degree murder, premeditation and malice aforethought, by creating an irrebuttable presumption imputing those elements. The creation of this presumption, claims the defendant, violates the due process requirements established by the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In Mullaney the Court held that a defendant is denied due process if the State is relieved of the burden of proving the element of malice aforethought beyond a reasonable doubt in a murder prosecution. Id. at 704, 95 S.Ct. at 1892. See State v. Dusablon, 142 Vt. 95, 97-98, 453 A.2d 79, 81 (1982); State v. Gokey, 136 Vt. 33, 38, 383 A.2d 601, 604 (1978).

This Court has never addressed the issue of the State's burden of proof in a prosecution for felony murder under 13 V.S.A. § 2301. The felony murder doctrine has had a long and controversial history both in the United States and in England, where it originated. We will examine the doctrine's history as well as its rationale in order to address the issue raised by the defendant in this case.

A. History of the Felony Murder Doctrine in England

At early common law, a person who caused a death while perpetrating a felony was guilty of murder, regardless of the actual intent of the offender, the dangerousness of the felony or the likelihood that death might result. W. LaFave & A. Scott, Criminal Law 545 (1972). At the time the felony murder rule developed, very few crimes were felonies, and those that were felonies were punishable by death; therefore, it made no difference whether a person was sentenced to death for the homicide or for the underlying felony. See Commonwealth v. Redline, 391 Pa. 486, 494, 137 A.2d 472, 476 (1958); W. LaFave & A. Scott, supra, at 546 n. 4. For this reason, the felony murder rule went unchallenged during the early part of its history. People v. Aaron, 409 Mich. 672, 695-96, 299 N.W.2d 304, 310 (1980).

As the common law developed, many more crimes became felonies, and many of these, such as tax evasion, larceny, and embezzlement, were not violent and did not involve a likelihood of causing death. W. LaFave & A. Scott, supra, at 545-46. Nevertheless, the common law felony murder doctrine imputed an intent to murder if a homicide occurred, even accidentally, during the perpetration of any of these felonies. Id. By the nineteenth century, English commentators were criticizing the felony murder rule as too severe, see People v. Aaron, supra, 409 Mich. at 697, 299 N.W.2d at 309-12, and English case law was restricting the rule. Id., 299 N.W.2d at 311-12. Finally, in 1957, England abolished the felony murder rule. English Homicide Act, 1957, 5 and 6, Eliz. 2, c. 11, § 1.

B. Felony Murder in the United States

Two states--Hawaii and Kentucky--have specifically abolished the felony murder rule. Hawaii Rev.Stat. § 707.701 (1976); Ky.Rev.Stat. § 507.020 (Supp.1982). In addition, Ohio has effectively abolished the rule by defining as involuntary manslaughter a death caused by the commission or attempted commission of a felony. Ohio Rev.Code Ann. §§ 2903.01, 2903.04 (Page 1982). Manslaughter, by definition, does not require malice. Since the felony murder rule's main function is to supply malice, the rule is useless in Ohio. The majority of the other states, including Vermont, have attempted to ameliorate the harshness of the rule by limiting its applicability to "violent" felonies involving a risk that death will occur during the natural course of the felony. W. LaFave & A. Scott, supra, at 547. Thus, Vermont has limited its felony murder rule to the crimes of robbery, sexual assault, aggravated sexual assault, arson and burglary. 13 V.S.A. § 2301.

Some state legislatures have imposed additional restrictions. Several states have reduced the punishment for felony murder by downgrading the crime from first degree murder to second or third degree murder. See, e.g., Alaska Stat. § 11.41.110(a)(3) (1978); N.Y.Penal Law § 125.25(3) (McKinney 1975); Pa.Stat.Ann. tit. 18, § 2502(b) (Purdon 1983); Wis.Stat.Ann. § 940.02(2) (West 1982). Other statutes require that the defendant have some degree of culpable mental state beyond the intent to commit the underlying felony. See, e.g., Ark.Stat.Ann. § 41.1501(1)(a) (1977) (defendant must manifest "extreme indifference to the value of human life" in causing the death); Del.Code Ann. tit. 11, § 636(a)(6) (Supp.1982) (requires "criminal negligence"); La.Rev.Stat.Ann. § 14:30 (West Supp.1983) (requires "specific intent to kill or to inflict great bodily harm"); N.H.Rev.Stat.Ann. §§ 630:1-a, 630:1-b (1974) (to constitute first degree murder, death must be caused "knowingly," and to constitute second degree murder, death must be caused "recklessly under circumstances manifesting an extreme indifference to the value of human life"). Some legislatures also have established affirmative defenses to the felony murder rule. See, e.g., Alaska Stat. § 11.41.115(b) (1978); Colo.Rev.Stat. § 18-3-102(2) (1978); Conn.Gen.Stat.Ann. § 53a-54c (West Supp.1983); Me.Rev.Stat.Ann. tit. 17-A, § 202 (West 1983); N.J.Rev.Stat.Ann. § 2C:11-3a (1982); N.Y.Penal Law § 125.25(3) (McKinney 1975); N.D.Cent.Code § 12.1-16-01(3) (Supp.1981); Or.Rev.Stat. § 163.115 (1981); Wash.Rev.Code Ann. § 9A.32.030(c) (1977) (affirmative defense that defendant did not commit or cause homicidal act; was not armed with deadly weapon; or had no reasonable grounds to believe co-felon was armed or intended to engage in conduct likely to result in death or serious injury).

In addition to legislative action, judicial decisions in many jurisdictions have limited the scope of the common law felony murder rule. Such limitations have included requirements that the felony be inherently dangerous, see, e.g., Wade v. State, 581 P.2d 914 (Okl.Ct.App.1978); Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973); People v. Phillips, 64 Cal.2d 574, 414 P.2d 353, 51 Cal.Rptr. 225 (1966), that the killing be a proximate cause of the felonious act, see, e.g., Wade v. State, supra; State v. Mauldin, 215 Kan. 956, 958, 529 P.2d 124, 126 (1974); People v. Scott, 29 Mich.App. 549, 185 N.W.2d 576 (1971), that the time period during which the felony is in the process of being committed be narrowly construed, see, e.g., State v. Montgomery, 191 Neb. 470, 215 N.W.2d 881 (1974); State v. Opher, 38 Del. 93, 188 A. 257 (1936); People v. Walsh, 262 N.Y. 140, 186 N.E. 422 (1933), and that the underlying felony be independent of the homicide, see, e.g., People v. Ireland, 70 Cal.2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (1969); People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927). See also Aaron, supra, 409 Mich. at 699-701, 299 N.W.2d at 312-13; ALI Model Penal Code § 201.2, comment 4, at 37 (Tent.Draft No. 9, 1959). Many of these court-imposed limitations on the common law felony murder rule have subsequently been codified by statute. See, e.g., Ill.Ann.Stat. ch. 38, § 9-1 (Smith-Hurd Supp.1983); Iowa Code Ann. § 707.2 (West 1979); Minn.Stat.Ann. § 609.185 (West Supp.1983) (underlying felony must be "forcible" or violent); Ohio Rev.Code Ann. § 2903.04 (Page 1982) (felon's act must be proximate cause of death); Me.Rev.Stat.Ann. tit. 17-A, § 202 (1983) (death must be a reasonably foreseeable consequence of commission of felony); see generally Aaron, supra, 409 Mich. at 705, 299 N.W.2d at 315.

C. Criticism of the Felony Murder Rule

The rationale for the felony murder rule, according to LaFave and Scott, is that the defendant is a "bad person" because he or she is committing a felony, so society should not concern itself with the fact that the result accomplished (a death) may have been very different from the result the person actually intended. W. LaFave & A. Scott, supra, at 560. This rationale, however,...