State v. Viens

• Decision Date: 19 June 2009
• Docket Number: No. 07-444.,07-444.
• Citation: 978 A.2d 37,2009 VT 64
• Parties: STATE of Vermont v. Collin VIENS.
• Court: Vermont Supreme Court

978 A.2d 37

2009 VT 64

STATE of Vermont v. Collin VIENS.

No. 07-444.

Supreme Court of Vermont.

June 19, 2009.

James A. Hughes, Franklin County State's Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Daniel Stevens, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. After he shot and killed Rejean Lussier while hunting, defendant Collin Viens was charged, convicted, and sentenced for involuntary manslaughter, 13 V.S.A. § 2304. On appeal, defendant claims that the trial court erred in instructing the jury and in denying defendant's motions for a judgment of acquittal. Defendant also asserts that his conviction cannot stand because the State's information was defective. We disagree and affirm.

¶ 2. The record, viewed in the light most favorable to the verdict, reveals the following facts. On November 23, 2005, defendant, a college freshman, went hunting with his friends. Defendant had not hunted before, but he had successfully obtained his hunting license through an accelerated hunter education course that summer. The accelerated course consisted of a home study program and a day of training with a certified instructor. The course included instruction on hunter safety, and it emphasized, among other safety guidelines, that a hunter should use binoculars instead of his rifle scope for viewing objects, aim his firearm at a target only if he intended to shoot it, keep his rifle's safety engaged and finger off of the trigger until ready to fire, and exercise proper muzzle control at all times. Testimony at trial indicated that hunters sometimes violate these guidelines; however, they are generally considered fundamental to safe hunting.

¶ 3. During the hunt, defendant's friends "pushed" the woods, attempting to drive deer into an adjacent field where defendant, acting as the "sitter," waited to fire at any deer driven toward him. It was getting dark, with about an hour left of light, when defendant's friends heard two gun shots. When the group exited the woods and joined defendant, he explained that he had shot at a coyote. The group then disbanded, and defendant returned home.

¶ 4. That evening, the victim was found dead sitting in a tractor on his farm, near where the group had been hunting. Testimony at trial indicated that the victim occasionally observed deer from his unlit, stationary tractor.

¶ 5. At the crime scene, investigators discovered boot tracks in the snow approximately two hundred yards from the tractor. The tracks were in a "very small circle" and looked like "somebody [was] being impatient." Two rifle cartridge casings and a penny-sized medallion were found near the tracks.

¶ 6. The following morning, defendant received a phone call notifying him of the victim's death. He returned to the hunting site with his father to speak with the police. Defendant cooperated with the police and led them to where he had been hunting the day before—the exact spot where police discovered the casings and the medallion.¹ Defendant told the police that he had fired his rifle at a coyote that had run between him and the tractor.

¶ 7. During his second formal interview with the police, however, defendant admitted that he had not seen a coyote. According to his taped statement, which was played at trial, defendant was kneeling on the ground and "messing around" with his rifle while waiting for his friends to flush deer towards him. At some point, he stood up, shouldered his gun—with the safety off and his finger on the trigger— and began to point it in different directions while looking through the scope. Defendant stressed that he did not intentionally fire at the tractor; the rifle just "went off." Because he was embarrassed and did not want his friends to think less of him, defendant fired another shot into the woods and fabricated the coyote story to disguise the accidental discharge. Defendant ultimately admitted that he was looking through his rifle's scope and had seen the tractor at the time his rifle discharged.

¶ 8. At trial, the State argued that defendant's conduct was criminally negligent. According to the defense, the victim's death was a tragic accident, not a crime. The jury returned a unanimous verdict, convicting defendant of involuntary manslaughter due to his criminal negligence. This appeal followed.

I.

¶ 9. On appeal, defendant contends that the trial court erroneously instructed the jury. First, according to defendant, the court failed to describe an element of the crime—the existence of an unlawful act independent of the killing of the victim. Second, defendant argues, the court erroneously neglected to instruct the jury regarding a specific set of acts sufficient to support the State's assertion that defendant acted with criminal negligence; therefore, defendant insists, there can be no way of knowing that the jury reached a unanimous decision with respect to that element of the charged crime, as required.

¶ 10. We review assertions of error with respect to jury instructions differently depending on whether the claimed error was adequately preserved for appeal. Where the defendant has made a timely, substantive objection to an allegedly deficient instruction after the charge and before the jury retires, we assess whether, viewing the instructions "in their entirety," they provided sufficient guidance to the jury without introducing prejudice into their deliberations. State v. Martin, 2007 VT 96, ¶ 39, 182 Vt. 377, 944 A.2d 867. The instructions need not be perfect: however, they must reflect "the true spirit of the law, such that the jury has not been misled." Id. (quotation omitted). A reversal is not called for unless the court's instructions, viewed in this light, "undermine[ ] confidence in the jury's verdict." Id.

¶ 11. Conversely, where the defendant does not make a timely objection below and thereby fails to preserve the issue for appeal, our review is substantially more circumscribed. We assess the instruction in the context of the entirety of the instructions according to a plain error standard. In re Carter, 2004 VT 21, ¶ 21, 176 Vt. 322, 848 A.2d 281. Plain error exists only where "a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights." Id. (quotation omitted). Additionally, absent a showing of "an unfair prejudicial impact on the jury's deliberations," we will not find plain error. State v. Pelican, 160 Vt. 536, 538-39, 632 A.2d 24, 26 (1993) (quotation omitted).

A.

¶ 12. Turning to defendant's first claim of error regarding the jury instructions, we note, at the outset, that defendant properly preserved this claim for our review. After the judge read the instructions to the jury, but before the jury retired for deliberations, defendant's counsel objected to the court's failure to describe the crime of involuntary manslaughter to the jury as requiring an independent unlawful act.

¶ 13. We have looked to the common law to supply the elements of the crime of involuntary manslaughter because our manslaughter statute, 13 V.S.A. § 2304, does not define the offense.² See State v. Shabazz, 169 Vt. 448, 450, 739 A.2d 666, 667-68 (1999). Over time, our view of the common law of manslaughter has changed.

¶ 14. In an early case involving a brawl wherein one of the participants was killed. State v. McDonnell, we described manslaughter as follows:

Manslaughter is the unlawful killing of another, without malice, and may be either voluntary, 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, which in tenderness for the frailty of human nature the law considers sufficient to palliate the offen[s]e; or involuntary, as when the death of another is caused by some unlawful act, not accompanied with any intention to take life.

32 Vt. 491, 545 (1860) (quotation and emphasis omitted), overruled on other grounds by State v. Burpee, 65 Vt. 1, 36, 25 A. 964, 974 (1892). Subsequent cases exhibited substantial flexibility regarding the conduct that could be deemed unlawful for purposes of involuntary manslaughter. For example, in State v. Center, we concluded that "indecent and immoral" conduct, though not criminal, could be unlawful, 35 Vt. 378, 386 (1862). Additionally, in State v. Averill, a case involving a purportedly accidental shooting, we held that "[a] lawful act done in an unlawful or negligent manner is in law an unlawful act," 85 Vt. 115, 126, 81 A. 461, 464-65 (1911) (quotation omitted). Thus, in Averill, where the defendant was indicted for murder, we upheld the trial court's decision to charge the jury on the lesser included offense of involuntary manslaughter because the facts indicated that defendant's negligent handling of the gun caused the victim's death. Id. at 133, 81 A. at 467.

¶ 15. Later cases continued to recite the unlawful act formulation of involuntary manslaughter stemming from McDonnell, see, e.g., State v. Rounds, 104 Vt. 442, 452, 160 A. 249, 252 (1932); In re Estate of Mahoney, 126 Vt. 31, 35, 220 A.2d 475, 478 (1966); State v. Norton, 147 Vt. 223, 233, 514 A.2d 1053, 1060 (1986); State v. Forbes, 147 Vt. 612, 617, 523 A.2d 1232, 1235 (1987), and added minor regulatory infractions and statutory crimes to the growing list of acts considered sufficiently unlawful for purposes of attaching criminal liability when their commission unintentionally resulted in death of another, see State v. Poirier, 142 Vt. 595, 598, 458 A.2d 1109, 1111 (1983) (upholding conviction of involuntary manslaughter stemming from car accident where unlawful acts included disregarding no-passing sign, driving illegally "in the lane of oncoming traffic," and "driving...