State v. Hatcher

• Decision Date: 24 October 1997
• Docket Number: No. 95-279,95-279
• Citation: 706 A.2d 429,167 Vt. 338
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Mark HATCHER.

Page 429

706 A.2d 429

167 Vt. 338

STATE of Vermont v. Mark HATCHER.

No. 95-279.

Supreme Court of Vermont.

Oct. 24, 1997.

Motion for Reargument Denied December 19, 1997.

Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for plaintiff-appellee.

Charles S. Martin and Reggie Oh, Law Clerk (on the Brief), of Martin & Associates, Barre, and Mark Hatcher, pro se, Swanton, for defendant-appellant.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned

MORSE, Justice.

Defendant Mark Hatcher appeals his conviction by jury of second-degree murder, in violation of 13 V.S.A. § 2301. He claims that the trial court: (1) erroneously denied his motion for judgment of acquittal based on double jeopardy principles and insufficient evidence; (2) improperly instructed the jury on the elements of second-degree murder and voluntary manslaughter; and (3) wrongly refused to instruct on mutual combat and imperfect self-defense. He also alleges prosecutorial misconduct during closing argument. We affirm.

On the morning of May 19, 1992, Kelli Baer's body was discovered in the living room of her Burlington apartment by a repairman. A large kitchen knife covered with blood was nearby. An autopsy revealed that the victim's throat had been slit and that she had suffered numerous additional incision wounds to her hands and fingers. She had also suffered bruises and abrasions to her jaw and upper chest, and smaller incisions and scratches on her neck, chest, and arms. The living room was in disarray, showing signs of a struggle. In the adjacent bedroom, a large bloodstain was found on the bed and numerous additional bloodstains and drops covered the walls, floors, lightswitches, and doors.

A neighbor of the victim had observed a man angrily pounding on the victim's door earlier that morning. He heard the man shout, "I know you're in there; open the door, you fucking bitch." Shortly thereafter, the neighbor heard loud noises and a general commotion coming from the victim's apartment. The disturbance lasted about fifteen minutes. The neighbor later identified defendant from a photographic line-up as the man he had observed pounding on the victim's door. Later that same morning, a cashier at a general store in West Addison, some forty-five miles from Burlington, sold two sodas to a man meeting defendant's description. The man had dried blood on his hands which he said came from cutting himself with a knife; he denied an offer of medical assistance.

Defendant testified at trial. He stated that he had been a casual acquaintance of the victim. During the early morning hours of the day in question, he and the victim had drinks at a local bar and then returned to her apartment. At some point, the victim went into the bathroom with a knife in her hand and shut the door. After a few moments, he knocked on the door and she emerged with the knife. Defendant put his hand on hers and asked for the knife, whereupon she slashed his hand and tried to stab him. According to defendant, a desperate struggle for the knife then ensued during which she repeatedly attempted to stab him while he tried to wrest away the knife. Finally, as they struggled face to face, he forced the knife into her throat, pulled her to the floor, and sat on her until she expired. Defendant claimed that he had killed the victim to avoid being killed or seriously harmed himself. He never called an ambulance because he knew that she was dead and he didn't trust the police. Defendant stated that he was five feet ten inches-tall and weighed 160 pounds. The medical examiner described the victim as five feet five-inches tall and 110 pounds.

Defendant also presented evidence that the victim had suffered from a bipolar disorder, characterized by both manic and depressive moods, that she had been hospitalized on several occasions as a result of her illness, had suffered panic attacks, and had made several suicidal statements. She was not taking medication. No physician involved in her treatment, however, had ever observed the victim exhibit any violent or dangerous behavior toward herself or others. A mental health worker who met with the victim the day before her death testified that she appeared to be doing well, and was neither depressed nor manic. The same witness testified that the onset of a manic or depressive cycle is generally not abrupt, but occurs over several days or weeks.

I.

Defendant first contends that double jeopardy principles bar his conviction of second-degree murder.

Defendant was charged in an information with one count of first-degree murder. At the close of the prosecution's case-in-chief, defendant moved for judgment of acquittal. The trial court granted the motion as to first-degree murder, finding that there was insufficient evidence of premeditation and deliberation, but allowed the trial to continue on the lesser-included offense of second-degree murder.

The court's decision to submit the reduced charge to the jury was well within its authority and did not violate the double jeopardy clause. A defendant charged with first-degree murder may be convicted of the lesser-included offenses of second-degree murder or manslaughter. In re Murray, 131 Vt. 4, 7, 298 A.2d 835, 838 (1972). Indeed, our statute specifically provides that "[u]pon indictment or information for an offense under this chapter [homicide], a person may be convicted of a lesser included offense, as the case may be, upon the proofs." 13 V.S.A. § 2310(a). A court may thus, as here, submit to the jury the lesser offense if it determines that the evidence is insufficient to establish an element of the greater offense. See State v. Olsen, 165 Vt. 208, 212, 680 A.2d 107, 109 (1996); United States v. LoRusso, 695 F.2d 45, 52 (2d Cir.1982), cert. denied, 460 U.S. 1070, 103 S.Ct. 1525, 75 L.Ed.2d 948 (1983); United States v. Blackwell, 515 F.2d 125, 126-27 (4th Cir.1975).

Defendant nevertheless asserts that because the information charged only one count of first-degree murder, the judgment of acquittal necessarily dismissed--and jeopardy necessarily attached to--the entire count. The argument fails to apprehend that in charging the greater offense the information necessarily charged all lesser-included offenses. LoRusso, 695 F.2d at 52 n. 3; Blackwell, 515 F.2d at 126-27. Thus the trial court could determine that the evidence was insufficient to support an element of first-degree murder and submit the reduced charge of second-degree murder to the jury, without eliminating the entire murder count and having jeopardy attach. See LoRusso, 695 F.2d at 54 ("[T]he reduction instead of the elimination of count 2 ... submitted in the normal course of the trial to the original jury ... did not violate principles of double jeopardy."). That is precisely what occurred here. As the court explained, it had determined to "dismiss the charge of premeditated murder for failure to demonstrate premeditation ... and [allow] the trial [to] continue on the lesser included charge of second degree murder." The judgment of acquittal did not eliminate the count, as defendant argues, but merely reduced the charge to be submitted to the jury.

Defendant's reliance on United States v. Blount, 34 F.3d 865 (9th Cir.1994), is misplaced. There, in contrast to the case at bar, the trial court dismissed two felony counts for insufficient evidence of a required element "without any reservation of the [lesser-included] ... charges." Id. at 868. Indeed, before ruling, the court explicitly offered to charge a lesser-included misdemeanor, but the government refused that concession and took an all-or-nothing approach. The court thereupon informed the jury that the felony counts were no longer a part of the case. The next day, after trial had resumed, the court changed its mind and reinstated the counts as lesser-included misdemeanors. On appeal, the Ninth Circuit concluded that having granted the motion for acquittal and informed the jury of its decision, "preserving no element of those charges for submission to the jury, [the court's] ruling of acquittal ended [defendant's] jeopardy on the charged felony and any lesser included offenses." Id. Here, in granting the judgment of acquittal the trial court expressly reserved the lesser-included offense for submission to the jury. Hence jeopardy did not attach to the charge of second-degree murder.

II.

Defendant next contends that the trial court was estopped from submitting the second-degree murder charge to the jury because it had concluded that there was insufficient evidence of deliberation.

Defendant assumes, incorrectly, that deliberation is an essential element of second-degree murder. Although some decisions of this Court have implied otherwise, see, e.g., State v. Delisle, 162 Vt. 293, 308, 648 A.2d 632, 641 (1994) (evidence was sufficient to show that defendant, convicted of second-degree murder, acted with deliberation); State v. Brunell, 159 Vt. 1, 6-7, 615 A.2d 127, 130 (1992) (instruction on intent element of second-degree murder was adequate where court charged that defendant acted "willfully and deliberately"), we have never held that deliberation is an element of second-degree murder. It plainly is not.

13 V.S.A. § 2301 provides that murder committed by lying in wait, in the course of certain felonies, or "by wilful, deliberate and premeditated killing ... shall be murder in the first degree. All other kinds of murder shall be murder in the second degree." The plain import of § 2301 is that first-degree murder is murder plus the elements of willfulness, deliberation and premeditation, and that murder without these elements is second-degree murder. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.7, at 245 (1986) ("[I]ntent-to-kill murder without the added ingredients of premeditation and deliberation is second degree murder."). Defendant's construction of the statute would render...