State v. Soto

• Decision Date: 22 November 2011
• Docket Number: No. 2010–458.,2010–458.
• Citation: 162 N.H. 708,34 A.3d 738
• Parties: STATE of New Hampshire v. Michael SOTO.
• Court: New Hampshire Supreme Court

162 N.H. 708

34 A.3d 738

STATE of New Hampshire

v.Michael SOTO.

No. 2010–458.

Supreme Court of New Hampshire.

Argued: Sept. 21, 2011.Opinion Issued: Nov. 22, 2011.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Getman, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman and Clara E. Lyons on the brief, and Mr. Schulman orally), for the defendant.

LYNN, J.

Following a jury trial in Superior Court ( Smukler, J.), the defendant, Michael Soto, appeals his conviction for being an accomplice to first-degree murder. See RSA 626:8, 630:1–a, I(a) (2007). We affirm.

I

The defendant's conviction arises out of the fatal shooting of Aaron Kar in Manchester on the evening of January 2, 2007. On the previous day, a man named Bill threatened Roney White's young cousins with a knife at a 7–Eleven store close to Roney's home. When Roney learned of the incident from his cousins, he directed them to identify the man with the knife. Finding Bill standing outside the store, Roney punched him in the face in retaliation and fled the scene. Later that night, apparently in response to Roney's actions, Kar and his friends drove past a small group of people standing on the street, which included Roney, his brother Roscoe White, and their friend Anthony Clagon, and unsuccessfully attempted to hit one of them with a stick from the moving vehicle. No further encounter between the two groups occurred that night.

The next day, at around 2:30 p.m., Bill and another person attacked Roney with a baseball bat as he was walking alone on Nashua Street. Badly injured, Roney stumbled home to his mother and two brothers, Roscoe and Raymond Alleyene. Roney's mother took him to the hospital. Shortly thereafter, Alleyene, Clagon, and Roscoe met at Roscoe's house and discussed the possibility of an armed fight in retaliation for the attack on Roney. After Roscoe failed to get his own gun to work, he called some friends in Nashua, asking them to bring a gun.

That evening, the defendant, his brother Sergio, Andrew Gonzalez, and Clagon's cousin Kim and her children drove from Nashua to Manchester in a red Chevrolet Blazer. The men met Clagon, Alleyene, and Roscoe in the room Roscoe shared with Roney, smoked marijuana, and settled on a plan to find Roney's attackers and confront them. After Roscoe confirmed that the defendant had brought a gun, the six men set out in the Blazer to find Roney's attackers. A short time later, they found a group of people whom they suspected had been involved in Roney's attack gathered near a dumpster. After driving past the group once or twice, they parked the Blazer around the corner and discussed who would do the shooting. They settled on Roscoe as the shooter based on his blood relationship with Roney. The defendant then wiped the gun with his shirt, racked the slide to cock it, and handed it to Roscoe. Roscoe left with a mask on, shot Kar in the leg and abdomen, returned to the Blazer, and the men drove away. Kar later died from his wounds.

The jury convicted the defendant of first-degree murder based on his role as an accomplice in Kar's death. On appeal, the defendant argues that the trial court erred: (1) in not giving the jury a provocation manslaughter instruction; (2) in not giving a reckless manslaughter instruction; and (3) in permitting the introduction of an audio recording of Roscoe White discussing the crime with an informant.

II

The defendant first argues that the trial court should have instructed the jury to consider whether the defendant acted under an extreme mental or emotional disturbance caused by extreme provocation, see RSA 630:2, I(a), thereby reducing his criminal liability from murder to manslaughter. He argues that “there was overwhelming evidence to support a jury determination that Soto had been adequately provoked within the meaning of [the provocation provision of the manslaughter statute].” We disagree.

The defendant was entitled to the requested jury instruction only if there was some evidence to support a rational finding in favor of that defense. State v. Balliro, 158 N.H. 1, 5, 959 A.2d 212 (2008) (quotation and brackets omitted). “Some evidence” requires more than a minutia or scintilla of evidence. Id. “Where ... there is simply no evidentiary basis to support the theory of the requested jury instruction, the party is not entitled to such an instruction, and the trial court may properly deny the party's request.” Id. (quotation omitted). We will search the record for evidence supporting the defendant's requested jury instruction, and we will uphold the denial of a requested jury instruction absent an unsustainable exercise of discretion. Id.

“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 but which would otherwise constitute murder.” RSA 630:2, I(a) (2007). Under the common-law rule, to reduce the crime of murder to manslaughter, the provocation must be so severe or extreme as to provoke a reasonable person to kill another person out of passion.¹ State v. Smith, 123 N.H. 46, 48, 455 A.2d 1041 (1983). Even if a reasonable person would have committed the act, still the defendant must have been actually provoked. 2 W. LaFave, Substantive Criminal Law § 15.2(c), at 506 (2d ed. 2003). And even a defendant so provoked will not be entitled to a manslaughter instruction where the time elapsing between the provocation and the killing is such that a reasonable person would have cooled. Id. § 15.2(d), at 507. “[I]f, from any circumstances whatever, it appears that the party reflected, deliberated, or cooled any period of time before the fatal stroke was given, or if in legal presumption there was time or opportunity for cooling, the killing will amount to murder, being attributable to malice and revenge, and not to mental disturbance.” 40 Am.Jur. 2d Homicide § 60, at 648 (2008).

Before applying these principles to the facts, we note that our case law has approached provocation manslaughter in two arguably inconsistent ways: as a lesser-included offense of murder, see State v. Little, 123 N.H. 433, 435, 462 A.2d 117 (1983), and as a “defense” to murder, see State v. O'Leary, 153 N.H. 710, 713–14, 903 A.2d 997 (2006); State v. Taylor, 141 N.H. 89, 94–96, 677 A.2d 1093 (1996). In contrast to our 1983 decision in Little, which referred to provocation manslaughter as a lesser-included offense of murder, see Little, 123 N.H. at 435–36, 462 A.2d 117, in Taylor we referred to provocation manslaughter as a defense to murder. See Taylor, 141 N.H. at 96, 677 A.2d 1093. We approved of the jury instructions in Taylor because the trial court instructed the jury to consider provocation manslaughter alongside both first and second-degree murder, effectively treating provocation as a defense to both charges rather than as a lesser-included offense meriting the jury's attention only after the jury had fully deliberated on both the first-degree and second-degree murder charges. See id. Consistent with this holding, in O'Leary, we concluded that the trial court erred when it instructed the jury to consider the “lesser-included offense” of provocation manslaughter only after the jury had first acquitted the defendant of first and second-degree murder; despite this error, we affirmed the defendant's conviction because we found the error harmless. See O'Leary, 153 N.H. at 713–17, 903 A.2d 997.

We have never treated provocation manslaughter under RSA 630:2, I(a) as a true “defense” under the Criminal Code triggering the notice requirements of Superior Court Rules 98(B) and 101, and we decline to do so today. Rather, provocation is best understood as a “partial defense” because, unlike traditional defenses that serve to discharge a defendant's liability for conduct that otherwise constitutes a crime, provocation manslaughter comprises a set of mitigating circumstances that can negate the mens rea required for intentional murder and, even where they do not have this negation effect, can warrant a jury in finding the defendant guilty of a separate, less culpable offense than murder under the Code. See Berman & Farrell, Provocation Manslaughter as Partial Justification and Partial Excuse, 52 Wm. & Mary L.Rev. 1027, 1045 (2011) (recognizing this widely-accepted approach). Unlike the defenses of insanity or self-defense, provocation under RSA 630:2, I(a) only reduces, but does not eliminate, the punishment for murder,² based on what the law conceives as a lesser degree of culpability for acts done under the influence of extreme mental or emotional disturbance in response to extreme provocation.

Although provocation is only a partial rather than a full defense, because it can operate both to reduce the mens rea required for murder and to provide a basis for the jury's invocation of the community's sense of compassion, we conclude that provocation, when properly raised, should be treated similarly to self-defense. Accordingly, to guide trial courts in the future, we advise that, in a murder prosecution, the State must prove the absence of provocation beyond a reasonable doubt when the defendant presents some evidence to support a rational finding that he caused the death at issue under the influence of extreme mental or emotional disturbance caused by extreme provocation. See Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). For example, in a first-degree murder prosecution under RSA 630:1–a, I(a), where a defendant presents evidence to support a rational finding of provocation manslaughter, juries should be instructed that to find the defendant guilty of first-degree murder the State must prove beyond a reasonable doubt: (1) that the defendant caused the death of the victim; (2) that he acted “purposely” under the special definition of that term in RSA 630:1–a, II; ³ and ...