State v. Smith

• Decision Date: 24 January 1983
• Docket Number: No. 82-028,82-028
• Citation: State v. Smith, 123 N.H. 46, 455 A.2d 1041 (N.H. 1983)
• Parties: The STATE of New Hampshire v. Carl H. SMITH, II.
• Court: New Hampshire Supreme Court

Page 1041

455 A.2d 1041

123 N.H. 46

The STATE of New Hampshire v.Carl H. SMITH, II.

No. 82-028.

Supreme Court of New Hampshire.

Jan. 24, 1983.

Gregory H. Smith, Atty. Gen. (Martha V. Gordon, Asst. Atty. Gen., on brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally for defendant.

BOIS, Justice.

The defendant, Carl H. Smith, II, appeals from a jury verdict in which he was found guilty of second-degree murder under RSA 630:1-b.His primary argument relates to the propriety of the Trial Court's (Bean, J.) instruction on manslaughter.We affirm his conviction.

The events giving rise to the indictment and prosecution of the defendant occurred at an after-hours "juice bar" in Portsmouth.On September 6, 1980, the defendant arrived at the bar with his girlfriend at approximately 1:00 a.m.After paying the cover charge and entering the club, he remained inside for a short period and then went outside to smoke marijuana with a friend.When the defendant returned to the bar, the doorman, Russell Armstrong, asked to see his ticket, and an argument ensued.The individuals began to fight, and the defendant brandished a knife and stabbed Armstrong several times.Armstrong later died from the wounds inflicted.

The defendant was indicted for first-degree murder, and a lengthy bifurcated trial was held to determine whether he was guilty and, if so, whether he was sane.At the close of the evidence in the guilt phase of the trial, the presiding judge charged the jury on first-degree murder and the lesser-included offenses of second-degree murder and manslaughter.These instructions were subsequently repeated at the request of the jury.The defendant was found guilty of second-degree murder and sane, and he initiated this appeal.

The defendant focuses his argument on the trial judge's instruction on manslaughter.The instruction, to which the defendant properly objected and excepted when it was given for the second time, provided as follows:

"The line which distinguishes provocation which will mitigate the offense from murder to manslaughter cannot be clearly defined.Reasonableness is the test.The law requires that provocation to be such as might induce such a man, in the anger of the moment, to commit such an act.Lawful behavior on the part of the victim cannot serve as a trigger for legally sufficient provocation.A lawful act, even if it involves physical violence, is not recognized by the law as a sufficient provocation.Thus, the provocation must itself be an unlawful act."

(Emphasis added).The defendant specifically challenges the judge's instruction that a lawful act could not constitute sufficient provocation to mitigate the offense from murder to manslaughter.The underlying premise of his argument is that Armstrong acted lawfully in using non-deadly force to prevent what was reasonably believed to be a criminal trespass.SeeRSA 627:7.The defendant claims that such lawful conduct could result in adequate provocation under the manslaughter statute, RSA 630:2 (Supp.1981), and that the instruction therefore was reversible error.

The manslaughter statute, id., provides in pertinent part:

"A person is guilty of manslaughter when he causes the death of another ... [u]nder the influence of extreme mental or emotional disturbance caused by extreme provocation...."

(Emphasis added).Neither the legislative history of the statute, nor our case law, offers any guidance as to the specific types of conduct that will constitute "extreme provocation" under the statute.

It is generally recognized that provocation is adequate to reduce a homicide from murder to manslaughter only if it would cause a reasonable person to kill another out of passion.SeeW. Lafave & Scott, Handbook on Criminal Law§ 76, at 573(1972);2 Wharton's Criminal Law § 155, at 241-42(14th ed. C. Torcia1979);see, e.g., People v. Simpson, 74 Ill.2d 497, 503, 23 Ill.Dec. 579, 580, 384 N.E.2d 373, 374(1979).Virtually all the acts that have been found to constitute adequate provocation have involved unlawful conduct, such as assault, battery, illegal arrest, adultery and mutual combat.SeePeople v. Miller, 96 Ill.App.3d 212, 214, 51 Ill.Dec. 898, 900, 421 N.E.2d 406, 408(1981);W. Lafave & A. Scottsupra§ 76, at 574-76;see, e.g., Denham v. State, 218 Miss. 423, 429, 67 So.2d 445, 447-48(1953)(adultery);State v. Conley, 255 Mo. 185, 200-01, 164 S.W. 193, 198(1914)(assault).

Moreover, several courts have expressly ruled that the exercise of a legal right cannot provide sufficient provocation to reduce the grade of a homicide.SeeState v. Manus, 93 N.M. 95, 100, 597 P.2d 280, 285(1979)(citing, State v. Lawry, 4 Nev. 161, 170(1868);State v. Craton, 28 N.C. (6 Ired.L.) 164, 174 (1845)).This view is consistent with the common law.SeeW. Lafave & A. Scottsupra§ 76, at 574-76.

In support of his claim that lawful acts may constitute adequate provocation, the defendant argues that acts committed during mutual combat have often been held to constitute sufficient provocation for a finding of manslaughter.This argument is not persuasive because it fails to recognize that the acts which have resulted in sufficient provocation in mutual combat cases have generally been unlawful in themselves.See, e.g., State v. Fuller, 302 S.W.2d 906, 908(Mo.1957);cf.Commonwealth v. Collberg, 119 Mass. 350, 353(1876)(blows during fight by mutual consent constitute assault);RSA 631:2-a (Supp.1981)(harmful acts during fight entered by mutual consent treated as violations).

While it is true that some courts have held that words alone, and thus potentially lawful conduct, may provide adequate provocation, see, e.g., People v. Wickersham, 124 Cal.App.3d 835, 177 Cal.Rptr. 559, 563(1981);State v. Carson, 292 Or. 451, 640 P.2d 586, 590(1982), we decline to follow such an approach.Considering the common-law rule which measures provocation under a reasonable-person standard, and the requirement under our manslaughter statute that the provocation be "extreme,"we hold that a lawful act cannot provide sufficient provocation to support a finding of manslaughter.The trial court's instruction in this case therefore was proper.

The defendant's second argument concerns the permissibility of certain questions which the State posed to him on cross-examination.Before the defendant took the stand, several witnesses testified that during the altercation with Armstrong, the defendant, who had sustained a minor cut, made statements tending to incriminate himself, such as "I'm going to get that m________ f________" and "I'll teach him [Armstrong] not to cut me again."When the defendant, on cross-examination, testified that he did not remember making these statements, the prosecution asked him what he thought these statements would have meant if he had made them.The trial court permitted this line of questioning over the defendant's objections and exceptions, and the defendant now challenges the court's ruling.He claims that the questions were unduly argumentative.

While we recognize that the trial court has broad discretion in defining the scope of cross-examination, State v. Glidden, 122 N.H. 41, 47, 441 A.2d 728, 731(1982), we agree with the defendant that the questioning in this case as to his interpretation of unacknowledged statements was inappropriate.The questions dealt with speculative matters and were not calculated to impeach the witness.See2 Wharton's Criminal Evidence § 427, at 339-40(13th ed. C. Torcia1972).Nevertheless, the...