State v. Little

• Decision Date: 17 June 1983
• Docket Number: No. 82-128,82-128
• Citation: State v. Little, 462 A.2d 117, 123 N.H. 433 (N.H. 1983)
• Parties: The STATE of New Hampshire v. John E. LITTLE.
• Court: New Hampshire Supreme Court

Page 117

462 A.2d 117

123 N.H. 433

The STATE of New Hampshire v.John E. LITTLE.

No. 82-128.

Supreme Court of New Hampshire.

June 17, 1983.

Gregory H. Smith, Atty. Gen. (Paul Barbadoro, Asst. Atty. Gen., on the brief and orally), for the State.

Winer, Pillsbury & Bennett, Nashua (David K. Pinsonneault, Nashua, on the brief and orally), for defendant.

BOIS, Justice.

Following a jury trial, the defendant, John E. Little, was convicted of the second degree murder of his wife.SeeRSA 630:1-b.On appeal, he assigns as error the Trial Court's (Goode, J.) refusal to give a requested jury instruction: (1) that the jury was to use a subjective test in determining whether sufficient provocation existed to reduce his offense to manslaughter; and (2) that the jury could recommend that the court act with mercy in sentencing.He also questions the court's failure to instruct the jury on the element of malice.We overrule all exceptions and affirm the defendant's conviction.

The record reveals that, prior to the homicide, the defendant and his wife were having marital difficulties and had been living apart for several weeks.During this period, the defendant visited his estranged wife nearly every day in an attempt to effect a reconciliation.There was evidence that on several occasions he had made threats to kill her, and that a few days prior to the homicide, he had told a friend, while making stabbing motions with his hand, that: "If I can't have her nobody's going to have her."

The defendant testified that on March 16, 1981, he awakened with the intent of killing his wife and that while he was not thinking clearly, he was neither drunk nor out of control with rage.He stated that he placed a kitchen knife in his coat pocket and went to his wife's house intending to kill her.The meeting with his wife was quiet and calm and, at first, uneventful.He admitted that they had no argument and that he was not in a state of uncontrollable anger.He further testified that he went into another room to look for his wedding band and that after his wife said "You think you can go into any room in my house," his mind snapped, and he then stabbed her to death.

In an apparent suicide attempt, the defendant inflicted a nonfatal stab wound upon himself.Shortly thereafter, he went to a neighbor's house and calmly announced that he had killed his wife "[b]ecause she didn't love me anymore."

The defendant was indicted for second degree murder.At the close of the evidence, the court instructed the jury on the elements of second degree murder and of the lesser-included offense of manslaughter.SeeRSA 630:2 (Supp.1981).As previously mentioned, the jury found him guilty of second degree murder.

The requested instruction, which was denied by the trial judge, and upon which the defendant now focuses on appeal, reads as follows:

"In making your determination of whether the provocation in this case is sufficient to find the defendant guilty of manslaughter rather than second degree murder, ordinary human nature, or the nature of a man of fair, average mind, and disposition, should be taken as a standard, unless you find that the defendant is shown to have some peculiar weakness of mind or emotion not arising from wickedness of heart.

You have the right to recommend to this court that it act with mercy in sentencing the defendant."

The defendant argues that when the jury deliberated as to whether he was guilty of the lesser-included offense of manslaughter, it should have been permitted to use a subjective test in considering whether he was "under the influence of extreme mental or emotional disturbance caused by extreme provocation," as required by the manslaughter statute, RSA 630:2 (Supp.1981).The trial court instructed the jury that the test whether evidence of extreme provocation is legally sufficient to reduce murder to manslaughter is one of reasonableness.The court also instructed the jury that it should consider all the surrounding facts and circumstances in determining, as a question of fact, whether the provocation was sufficient to induce extreme mental or emotional disturbance in a reasonable man.

A review of the trial court's instruction reveals that it comports with our recent holding in State v. Smith, 123 N.H. 46, ---, 455 A.2d 1041, 1043(1983), wherein we recognized the continuing validity, under the Criminal Code, of the common-law rule which measures provocation under a reasonable-person standard.See generallyW. LaFave & A. Scott, Handbook on Criminal Law§ 76, at 573(1972).According to this rule, provocation is adequate only if it is so severe or extreme as to provoke a reasonable man to commit the act.Id.;2 Wharton's Criminal Law § 155, at 241-42(14th ed. C. Torcia1979).In light of our continued adherence to the common-law rule, we find no error in the trial court's instruction.

The defendant next asserts that the trial court should have...