State v. Howland

• Decision Date: 23 May 1979
• Docket Number: No. 79-014,79-014
• Citation: 402 A.2d 188,119 N.H. 413
• Parties: The STATE of New Hampshire v. Russell HOWLAND.
• Court: New Hampshire Supreme Court

Page 188

402 A.2d 188

119 N.H. 413

The STATE of New Hampshire v. Russell HOWLAND.

No. 79-014.

Supreme Court of New Hampshire.

May 23, 1979.

Thomas D. Rath, Atty. Gen. (Peter W. Heed, Asst. Atty. Gen., orally), for the State.

William P. Shea, Sanbornville (Edward J. Mertens, II, Sanbornville, orally), for defendant.

GRIMES, Justice.

The issue in this case involving an indictment for murder in the second degree, RSA 630:1-b, is whether it was error for the court to charge manslaughter, RSA 630:2, as a lesser included offense. We hold it was not.

Defendant was indicted for murder in the second degree for causing the death of his mother. At the State's request, but over defendant's objection, the trial judge, in addition to charging the jury on murder, charged the jury on manslaughter as a lesser included offense. Defendant was convicted of manslaughter and his exceptions were transferred by Bean, J.

RSA 630:1-b defines murder in the second degree as follows:

630:1-b Second Degree Murder.

I. A person is guilty of murder in the second degree if:

(a) He knowingly causes the death of another; or

(b) He causes such death recklessly under circumstances manifesting an extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor causes the death by the use of a deadly weapon in the commission of, or in an attempt to commit, or in immediate flight after committing or attempting to commit any class A felony.

RSA 630:2 defines manslaughter as follows:

630:2 Manslaughter.

I. A person is guilty of a class A felony when he causes the death of another

(a) Under the influence of extreme mental or emotional disturbance caused by extreme provocation but which would otherwise constitute murder; or

(b) Recklessly.

Both RSA 630:1-b I(b) and RSA 630:2 I(b) require proof of recklessness. The murder statute, RSA 630:1-b, in addition to proof of recklessness, requires proof that death was caused "under circumstances manifesting an extreme indifference to the value of human life."

The common element of recklessness is defined in RSA 626:2 II(c) as follows:

(c) "Recklessly." A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of having voluntarily engaged in intoxication or hypnosis also acts recklessly with respect thereto.

Defendant argues that the added requirement of the murder statute, that is, the requirement of extreme indifference to the value of human life, is really no different from the recklessness requirement, and, therefore, that manslaughter is not properly classified as a lesser included offense to murder in the second degree. We cannot agree.

( C)ircumstances manifesting an extreme indifference to the value of human life" means something more than merely being aware of and consciously disregarding a substantial and unjustifiable risk. See Report of the Comm. to Recommend Codification of Criminal Laws, Comments to § 575:2 (manslaughter) (1969). "If the advertence (to the risks involved) and the disregard are so blatant as to manifest extreme indifference to life, then the offense is murder. . . ." Id. Thus where the accused's behavior "constitutes a gross deviation" from law-abiding conduct, RSA 626:2 II(c), but does not manifest "an extreme indifference to the value of human life," RSA 630:1-b I(b), the jury may properly find only manslaughter. Where, however, the evidence supports the additional element of "extreme indifference," the jury may find murder in the second degree. The existence and extent of disregard manifested is a factual determination to be made by the jury. Manslaughter, therefore, is a lesser included offense to murder in the second degree. See generally State v. O'Brien, 114 N.H. 233, 317 A.2d 783 (1974); Sansone v. United States, 380 U.S. 343, 347-49, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).

This being so, the State is entitled to have the lesser included offense instruction submitted to the jury if the evidence justifies it. The defendant is not entitled to "force an all-or-nothing verdict" by objecting to instructions on lesser included offenses if the evidence warrants it. State v. Lopez, 160 N.J.Super. 30, 36, 388 A.2d 1273, 1276 (1978).

Defendant argues that even assuming that manslaughter is a lesser included offense, it should not have been submitted to the jury because there was no factual dispute regarding the distinguishing element. He contends that while he did contest the element of recklessness, he introduced no evidence on the additional element because his defense was a complete denial of culpability.

The real test whether a lesser included offense instruction should be given is whether the evidence furnishes a rational basis for a finding of guilt on the lesser offense but not on the greater offense. See Sansone v. United States, 380 U.S. at 350, 85 S.Ct. 1004; United States v....