State v. Duff

• Decision Date: 26 August 1988
• Docket Number: No. 86-243,86-243
• Parties: STATE of Vermont v. John M. DUFF.
• Court: Vermont Supreme Court

Page 214

554 A.2d 214

150 Vt. 329

STATE of Vermont v. John M. DUFF.

No. 86-243.

Supreme Court of Vermont.

Aug. 26, 1988.

Jeffrey L. Amestoy, Att. Gen., Susan R. Harritt, Asst. Atty. Gen., and Robert Katims, Law Clerk (on the brief), Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and William A. Nelson and Henry Hinton, Appellate Defenders, Montpelier, for defendant-appellant.

Before ALLEN, C.J., PECK, DOOLEY and MAHADY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

MAHADY, Justice.

Following a trial by jury, defendant was convicted of the first degree murder of his wife and of the attempted first degree murder of his stepdaughter. At trial, defendant relied principally upon the defense of diminished capacity. In this appeal, he challenges the trial court's jury instructions. We hold that the court's charge constituted plain error and reverse.

Defendant raises the following issues: (1) whether the trial court incorrectly charged the offenses of voluntary manslaughter and attempted voluntary manslaughter, both of which are lesser-included offenses to the charges filed by the State; (2) whether the trial court erred when it failed to charge the presumption of innocence as it applies to the determination of the degree of guilt; (3) whether the trial court erroneously instructed the jury to consider the most serious charge first and to proceed to the lesser-included offenses if they had a reasonable doubt as to the most serious charge; and (4) whether the trial court's charge unconstitutionally shifted the burden of proof on the issue of diminished capacity to defendant.

I.

At trial, defendant in effect admitted committing the homicide as well as the attempted homicide but claimed that he was guilty of only voluntary manslaughter and attempted voluntary manslaughter. His theory of the case was that his diminished capacity negated malice. He presented expert testimony to this effect.

"The element that distinguishes murder from manslaughter is malice." State v. Long, 95 Vt. 485, 496, 115 A. 734, 739 (1922). Therefore, the presence or absence of malice was crucial in this case.

In Vermont, there are at least two ways in which malice may be negated in the context of a homicide prosecution. First, a jury may find malice to be absent by reason of sudden passion or great provocation. See, e.g., State v. Averill, 85 Vt. 115, 128-29, 81 A. 461, 465-66 (1911). Second, a jury may find malice to be absent by reason of a defendant's diminished capacity. See, e.g., State v. Smith, 136 Vt. 520, 527-28, 396 A.2d 126, 130 (1978); State v. Pease, 129 Vt. 70, 76-77, 271 A.2d 835, 839-40 (1970); see also State v. Messier, 145 Vt. 622, 628-29, 497 A.2d 740, 743-44 (1985). The latter is predicated upon a finding by the jury that the defendant suffered from mental disabilities, not necessarily amounting to insanity, which operated to preclude a capability of forming a state of mind (in this case, malice) which is an essential element of the greater offense charged. Smith, 136 Vt. at 527-28, 396 A.2d at 130. The clear thrust of the defense in the instant case was diminished capacity, not that malice was negated by a situation of great provocation or sudden passion.

Defendant, relying upon this theory, requested the trial court to charge the jury on the subject of manslaughter as follows:

A person who intentionally kills another may be incapable of harboring malice aforethought because of a mental disease or defect yet that person may not necessarily be legally insane. In such a case the person is guilty of manslaughter and no greater offense. Malice aforethought is an essential element of both first and second degree murder and, therefore, the burden of proof rests upon the State to show beyond a reasonable doubt that the Defendant ... had such malice before you may find him guilty of either first or second degree murder.

In other words, in the absence of malice, a homicide cannot be an offense higher than manslaughter. Therefore, if you find ... that the State has failed to prove beyond a reasonable doubt that the Defendant acted with malice, then the Defendant is guilty of manslaughter and nothing more.

This request stated the law correctly and was consistent with defendant's theory of the case.

The trial court did charge diminished capacity in the context of its definition of first degree murder. However, the court subsequently instructed the jury as follows:

Voluntary manslaughter is 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. Thus, voluntary manslaughter is an intentional, unlawful killing without malice.

In order to prove voluntary manslaughter, the State must prove each of the following elements beyond a reasonable doubt:

No. 1: That John Duff killed Charmion Duff;

No. 2: The killing was intentional;

No. 3: The killing was unlawful; and

No. 4: That the killing resulted from sudden passion or great provocation.

In effect, the court told the jury that defendant could be convicted of voluntary manslaughter only if the State established beyond a reasonable doubt that defendant's acts resulted from sudden passion or great provocation. This was essentially the same charge the court gave on the offense of attempted manslaughter.

The deficiencies in this charge are manifest. We must begin with the obvious requirement that "it is the duty of the court to conduct a trial with the utmost impartiality and fairness. A charge should be full, fair, and correct on all issues, theories, and claims within the pleadings, so far as the evidence requires." State v. Ciocca, 125 Vt. 64, 74-75, 209 A.2d 507, 515 (1965); see also State v. McLaren, 135 Vt. 291, 296, 376 A.2d 34, 38 (1977); State v. Rebideau, 132 Vt. 445, 454, 321 A.2d 58, 64 (1974).

The trial court's charge was not correct as to a critical aspect of the case, the definition of voluntary manslaughter, the offense for which defendant agreed that a verdict of guilty would be appropriate. The existence of sudden passion or great provocation is simply not an essential element of voluntary manslaughter.

Moreover, the charge was not complete. While diminished capacity was discussed in other sections of the charge, it was not mentioned at this critical juncture in spite of the fact this was defendant's basic theory of the case for which he presented evidence. Cf. McLaren, 135 Vt. at 296, 376 A.2d at 38.

Nor was the charge fair. It clearly created the impression in the mind of the jury that it was the burden of the State to establish sudden passion or great provocation. Of course, the State did not have the slightest desire to do so when it was prosecuting defendant for murder and attempted murder in the first degree.

The charge also created the clear impression that those matters relating to mitigating circumstances had to be established beyond a reasonable doubt. If anything, the State was interested in disproving factors tending to make defendant less culpable. See, e.g., State v. Muscatello, 55 Ohio St.2d 201, 203-04, 378 N.E.2d 738, 740 (1978). The jury could well have been led to believe that defendant bore the burden of proving mitigating circumstances beyond a reasonable doubt. This was improper. Evidence of reduced mental capacity is not a defense on which a defendant bears a burden of proof. Messier, 145 Vt. at 629, 497 A.2d at 744. The mental state of a defendant must be proved by the State. Id. Defendant introduced evidence of reduced mental capacity to interject doubt as to one of the elements of murder, that is the mental capability to act with malice, which the State is required to prove beyond a reasonable doubt. Id.

"A defendant is entitled to have the court present a defense based on the evidence 'to the jury squarely, that they might confront it, consider it, and resolve its truth or falsity by their verdict.' " State v. Drown, 148 Vt. 311, 312, 532 A.2d 575, 576 (1987) (quoting State v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 257-58 (1955)). This defendant was effectively denied that entitlement. Furthermore, " '[o]f necessity instructions should lack tendencies to mislead, and any instruction is erroneous where it is obviously apt to confuse or mislead the jury.' " State v. Gokey, 136 Vt. 33, 36, 383 A.2d 601, 602 (1978) (quoting State v. Hanson, 134 Vt. 227, 232, 356 A.2d 517, 520 (1976)).

The charge as given for both offenses of voluntary manslaughter and attempted voluntary manslaughter was not correct, fair nor full as to a central issue raised by the evidence. It also was obviously apt to confuse and mislead the jury.

II.

Defendant requested the trial court to include the following among its instructions to the jury for both offenses of murder and attempted murder:

If you reach the point of determining what degree of homicide is involved in this case, the presumption of innocence is to be considered in that determination. We have already defined what that presumption is. Under it the defendant is first presumed innocent of any crime, but if you find by the required measure of proof beyond a reasonable doubt that he committed an unlawful homicide ... it is presumed to be a lesser degree, that is manslaughter.

If, however, the evidence weighed along with the presumption of innocence convinces you beyond a reasonable doubt that the homicide had the additional element of malice, it is murder, and if the evidence weighed along with the presumption of innocence convices you beyond a reasonable doubt that the act was also willful, deliberate, and premeditated, it is murder in the first degree rather than the second.

At the charge conference, defendant repeated this request. The trial judge at first indicated that she would include the requested charge in her instructions. Subsequently, she advised counsel that she would not do so, having...