State v. Shaw

• Decision Date: 25 September 1998
• Docket Number: No. 96-546.,96-546.
• Parties: STATE of Vermont v. Patrick Thomas SHAW.
• Court: Vermont Supreme Court

721 A.2d 486

STATE of Vermont v. Patrick Thomas SHAW.

No. 96-546.

Supreme Court of Vermont.

September 25, 1998.

Motion for Reargument Denied October 15, 1998.

William H. Sorrell, Attorney General, David Tartter, Assistant Attorney General, Montpelier, and John Quinn, Addison County State's Attorney, Middlebury, for Plaintiff-Appellee.

Robert Appel, Defender General, William A. Nelson and Anna Saxman, Appellate Attorneys, and Karen Misbach and Robert Hubbard, Law Clerks (on the brief), Montpelier, for Defendant-Appellant.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

Defendant appeals his conviction for second-degree murder, claiming error in the district court's failure to instruct the jury on the doctrine of imperfect self-defense. Defendant contends that the court's jury instruction on complete self-defense and "heat of passion" manslaughter did not place his defense theory squarely before the jury. We hold that the doctrine of imperfect self-defense is not recognized in Vermont and thus affirm.

Defendant Patrick Shaw and the victim, John Hallock, both residents of the Town of Orwell, were neighbors who had developed an antagonistic relationship. Defendant testified that on several occasions before the shooting, he and Hallock had hostile confrontations. Defendant also understood the victim to have threatened to shoot a number of people in town.

On a September morning in 1995, defendant left his auto body shop, drove to the woods near Hallock's house, and parked his truck about 500 yards away from the house. Defendant walked through the woods with a loaded .22 gauge rifle, allegedly to hunt squirrel and scout for deer. At the base of a hill located approximately 300 yards from Hallock's home, defendant claims to have fired his rifle twice at a squirrel. Defendant then heard Hallock yelling, "Get the f___ out of here or I will put a bullet in you." Defendant was perched on a rock ledge some twenty to thirty feet above Hallock and could see that Hallock was approximately forty to sixty yards away. He testified that he felt exposed and vulnerable on the rock shelf, and believed that Hallock would shoot him. According to defendant's testimony, in an effort to scare Hallock, defendant turned and fired a shot at Hallock before running to his truck. Defendant testified that he returned to the auto body shop unaware that the shot he fired had hit Hallock, and told no one of the incident. Hallock's body was found approximately one hundred yards from his home the day after the shooting. Hallock had died from a single gunshot wound to his head. The State charged defendant with second-degree murder.

At trial, defendant argued that he fired at Hallock in self-defense. The court instructed the jury on complete and lawful self-defense, see 13 V.S.A. § 2305 (justifiable homicide), but denied defendant's request for an instruction on imperfect self-defense. The court also instructed the jury that it could convict defendant of the lesser-included offense of voluntary manslaughter if it found that (1) defendant shot Hallock "out of passion or provocation brought about by adequate cause and before defendant had reasonable time to calm down," or (2) defendant did not intend to kill Hallock but nonetheless "acted with unreasonable disregard for life." It charged the jury that a conviction of second-degree murder could be based on defendant's "wanton disregard of the likelihood that his conduct would naturally cause death or great bodily harm." The jury found defendant guilty of murder in the second degree.

Defendant urges us to recognize the doctrine of imperfect self-defense under which a charge of murder will be reduced to manslaughter where a defendant had an honest but unreasonable belief that he faced immediate and grave physical danger and that he had to use deadly force upon the adversary to prevent the danger. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.11(a) (1986).

We first examine the law of complete or legal self-defense in Vermont. Vermont law provides that a person who kills or wounds another "[i]n the just and necessary defense of his own life ... shall be guiltless." 13 V.S.A. § 2305(1). In State v. Wheelock, 158 Vt. 302, 307, 609 A.2d 972, 975 (1992), we reiterated the longstanding requirement that, for self-defense to be "just and necessary," a defendant's belief that he faces imminent peril, and his belief in the need to employ deadly force to repel that peril, must be reasonable. "A defendant must have an honest belief of imminent peril, but that honest belief by itself is insufficient to invoke the defense. The belief must be grounded in reason." Id. at 308, 609 A.2d at 976; see also State v. Darling, 141 Vt. 358, 361-62, 449 A.2d 928, 929 (1982); State v. Doherty, 72 Vt. 381, 399, 48 A. 658, 664 (1900) (defendant entitled to justification of self-defense where circumstances are such as to reasonably lead him to believe he is in danger of being killed or inflicted with great bodily harm).

In jurisdictions where it is recognized, imperfect self-defense applies where the defendant's belief in the need to use force is unreasonable. See, e.g., State v. Faulkner, 301 Md. 482, 483 A.2d 759, 763 (Md.1984) (imperfect self-defense requires no more than defendant's subjective belief that his actions were necessary for his safety, even though the belief was objectively unreasonable). Courts that recognize imperfect self-defense reason that a defendant who commits a homicide while honestly believing he is threatened with death or serious bodily harm does not act with malice and that, absent malice, he cannot be convicted of murder. See id. at 769; People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, 7 (1979) ("It is the honest belief of imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing."). Because the defendant's belief in an imperfect self-defense is unreasonable, he is nevertheless to blame for the homicide and is not entitled to full exoneration. See Faulkner, 483 A.2d at 769.

We have not yet addressed whether to recognize imperfect self-defense as articulated in Faulkner. In State v. Wheelock, supra,

the defendant requested a jury instruction on imperfect self-defense, but the court declined to give a separate imperfect self-defense instruction, and the defendant was convicted of second-degree murder. He appealed, claiming that the trial court erred by failing to charge the jury on imperfect self-defense. We concluded that "[i]mperfect self-defense . . . was put before the jury in the guise of a well-established defense that mitigates murder to manslaughter, diminished capacity." See 158 Vt. at 310,

609 A.2d at 977. Imperfect self-defense, however, is different from the diminished capacity defense or any other commonly recognized mitigation defense. See Faulkner, 483 A.2d at 762. To the extent Wheelock suggests that diminished capacity falls under the umbrella of imperfect self-defense, we now clarify that it does not.

Defendant asserts three reasons why we should now adopt the doctrine of imperfect self-defense. First, defendant contends that the doctrine is not a novel defense, but rather comprises a part of the common law of homicide that has been recognized in decisions of this Court. Second, he argues that as a matter of basic justice and equity, a person who believes sincerely, though unreasonably, that he must use deadly force to save his life should not be convicted of murder. Third, defendant contends that, unlike the defendant in Wheelock, his theory of defense was never put squarely before the jury. We consider these arguments in turn.

I. Common Law

Defendant argues that imperfect self-defense comprises a class of voluntary manslaughter that has been recognized at common law for centuries and in this Court's earlier cases. Manslaughter, according to defendant, is a catch-all concept that encompasses a variety of homicides that are between murder and innocence. The element that distinguishes murder from manslaughter is the presence or absence of malice. See State v. Long, 95 Vt. 485, 496, 115 A. 734, 739 (1922). In Vermont, there are at least two ways in which malice may be negated in the context of a homicide prosecution. The first is by reason of sudden passion or provocation; the second is by reason of a defendant's diminished capacity. See State v. Duff, 150 Vt. 329, 331, 554 A.2d 214, 215 (1988).

Heat-of-passion manslaughter is "the unlawful killing of another, without malice... as when the act is committed with a real design and purpose to kill, but through the violence of sudden passion occasioned by some great provocation. . . .'" State v. Turgeon, 165 Vt. 28, 32, 676 A.2d 339, 341 (1996) (emphasis omitted) (quoting State v. McDonnell, 32 Vt. 491, 545 (1860), overruled on other grounds by State v. Burpee, 65 Vt. 1, 36, 25 A. 964, 974 (1892)). In more modern terms, heat-of-passion manslaughter has been found where there was "(1) adequate provocation; (2) inadequate time to regain self-control or `cool off; (3) actual provocation; and (4) actual failure to `cool off.'" Id. at 32, 676 A.2d at 342. An objective test determines whether provocation is legally adequate to reduce murder to manslaughter: the loss of self-control must be reasonable under the circumstances. See id. at 32-33, 676 A.2d at 342. An objective test is also required for mitigation with respect to the timing of the killing. Mitigation from murder to manslaughter will be considered only where the defendant strikes before he had an opportunity to cool off. See id. at 33, 676 A.2d at 342.

Voluntary manslaughter may also be based on a defendant's diminished capacity at the time of the killing. See Duff, 150 Vt. at 331, 554 A.2d at 215. Diminished capacity is predicated on finding that the defendant suffered from mental disabilities which prevented him...