State v. McLaren

• Decision Date: 07 June 1977
• Docket Number: No. 130-76,130-76
• Citation: 376 A.2d 34,135 Vt. 291
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Harland McLAREN.

Page 34

376 A.2d 34

135 Vt. 291

STATE of Vermont v. Harland McLAREN.

No. 130-76.

Supreme Court of Vermont.

June 7, 1977.

John S. Liccardi, Rutland County State's Atty., and Stephen Alan Dardeck, Deputy State's Atty., Rutland, for plaintiff.

James L. Morse, Defender Gen., and Charles S. Martin, Appellate Defender, Montpelier, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

In the early morning hours of November 24, 1974, a college co-ed, walking along a street in the Town of Poultney, was approached by four young men in an automobile. One of the men alighted from the motor vehicle, pointed a rifle in the young lady's direction, and ordered her to get into the automobile. When she refused, the man grabbed her and tried to drag her into the vehicle. A struggle ensued, during which the woman managed to escape. Law enforcement authorities were notified of this incident and, following an investigation into the matter, an information was brought by the Rutland County State's Attorney charging the appellant, Harold McLaren, with separate counts of attempted kidnapping, 13 V.S.A. § 9, 13 V.S.A. § 2401; reckless endangerment, 13 V.S.A. § 1025; and simple assault, 13 V.S.A. § 1023(a)(1). A trial by jury in the District Court of Vermont, Unit No. 1, Rutland Circuit, resulted in a verdict of guilty on the attempted kidnapping and reckless endangerment charges; a verdict of not guilty was returned on the simple assault charge. From the district court's denial of his motion for judgment of acquittal or new trial, the defendant appeals.

The three principal claims of error briefed by the defendant relate to the failure of the trial court to properly instruct the jury on the hold to service element of the kidnap offense with which he was charged, the court's instruction to the jury on the reckless endangerment charge which prevented it from considering the operative nature of the firearm, and the use at trial of testimony obtained by the State at an inquest held subsequent to the filing of the information against the defendant. Upon a review of the record, we are convinced that prejudicial error exists as to each count, thus requiring a reversal of the judgment and a new trial on both counts.

Because we are overruling the decision of the Court in State v. Cushman, 133 Vt. 121, 329 A.2d 648 (1974), our discussion will begin with the reckless endangerment charge, Count II of the information.

The defendant urges this Court to reverse his conviction on the reckless endangerment charge because of the court's instructions to the jury regarding the effect of the inoperative nature of the rifle which was used at the time of the incident. Our reckless endangerment statute, 13 V.S.A. § 1025, provides that:

A person who recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury shall be imprisoned for not more than one year or fined not more than $1,000.00 or both. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.

In State v. Cushman, supra, the majority opinion of a divided Court held that whether a weapon is loaded or unloaded is irrelevant under 13 V.S.A. § 1025. Id. at 123-24, 329 A.2d 648. In the present case, the trial court, in accordance with the holding in Cushman, instructed the jury that whether the rifle which was allegedly used by the defendant was loaded or not was of no importance. By so instructing the jury, the court removed from its consideration evidence that the rifle in question was unloaded and that it lacked a bolt, thereby rendering it inoperative as a firearm.

13 V.S.A. § 1025 proscribes conduct which places or may place a person in danger of death or serious bodily harm. We fully recognize, as did both the majority and dissenting opinions in Cushman, that the statutory presumption renders irrelevant the state of mind of the actor as it relates to the loaded nature of the firearm. We cannot agree, however, with the view expressed by the majority in Cushman that the presumption can be likewise construed to make irrelevant the actual dangerous nature of the firearm itself. We therefore overrule Cushman and hold that the Legislature, when it enacted 13 V.S.A. § 1025, intended to proscribe conduct which would place the victim in actual danger of death or serious bodily injury, not mere apparent danger.

Whether the firearm was unloaded or was otherwise inoperative is an essential issue in determining whether the victim was placed in an objective state of danger of death or serious bodily harm. See Annotation, "Unloaded Gun- Criminal Responsibility", 79 A.L.R.2d 1412, 1423-26 (1961); Annotation, "Unloaded Firearm as Dangerous Weapon", 74 A.L.R. 1206 (1931). The ultimate determination as to whether the weapon was loaded is properly within the province of the jury. State v. Cushman, supra, 133 Vt. at 126, 329 A.2d 648 (dissenting opinion). The evidence in this case presented a factual issue for the jury's determination as to whether the victim had been placed in an objective state of danger of death or serious bodily harm. The trial court's instruction to the jury regarding the loaded nature of the firearm, while it correctly stated the controlling law at the time, was nevertheless erroneous and requires that the conviction on the reckless endangerment count be reversed.

The defendant also challenges the trial court's instructions as they related to Count I, the attempted kidnapping charge. No objections are raised regarding the court's instructions to the jury regarding the "intent" element of this crime, nor of its instructions with respect to the "attempt" element of the alleged crime.

As was noted in State v. Barr, 126 Vt. 112, 119, 223 A.2d 462 (1966), our kidnapping statute, 13 V.S.A. § 2401, provides different ways in which the proscribed crime may be committed. Under the statute, a person who, without legal authority,

forcibly or secretly confines or imprisons another person within this state against his will, or forcibly carries or sends such person out of the state, or forcibly seizes or confines or inveigles or kidnaps another person with intent to cause him to be secretly confined or imprisoned in this state against his will, or to cause him to be sent out of this state against his will, or in any way held to service against his will, shall be imprisoned not more than twenty-five years or fined not more than $10,000.00, or both.

The State, by amended information, charged that the defendant, did, without legal authority:

forcibly attempt to seize (the victim), age 18, with intent to hold her to service against her will by pointing a rifle at her and threatening to shoot her unless she entered a motor vehicle, by grabbing her and ordering her into the motor vehicle while holding the barrel of the rifle against the back of her head, and by attempting to physically drag her into the motor vehicle.

The defendant contends that he was entitled to an instruction setting forth the meaning of the "held to service" element of that portion of the kidnap statute with which he was charged.

The Legislature, in enacting 13 V.S.A. § 2401, did not define the phrase "held to service". There is no case law in this jurisdiction which would supply a definition, and we note that, while several of our sister states have kidnap statutes which contain this phrase, our research has failed to disclose case law from those jurisdictions which would facilitate our inquiry. However, reference to standard dictionaries, when combined with a study of the historical development of our kidnap statute, does shed light upon the peculiar nature of the "held to service"...