State v. Wheelock

• Citation: 609 A.2d 972,158 Vt. 302
• Decision Date: 03 April 1992
• Docket Number: No. 89-475,89-475
• Parties: STATE of Vermont v. William F. WHEELOCK III.
• Court: United States State Supreme Court of Vermont

Page 972

609 A.2d 972

158 Vt. 302

STATE of Vermont v. William F. WHEELOCK III.

No. 89-475.

Supreme Court of Vermont.

April 3, 1992.

M. Patricia Zimmerman, Windsor County State's Atty., White River Junction, for plaintiff-appellee.

Charles Martin of Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

Defendant appeals his conviction of second-degree murder for shooting and killing James Brillon during a drug and alcohol binge. Defendant claimed he shot the victim because the victim was attacking him with a knife. He raises three issues, all concerning the trial court's instructions to the jury. Defendant first contends that the trial court erred in its self-defense charge when it instructed the jury to assess the reasonableness of his belief without taking into account his intoxication. Second, he assigns error to the court's refusal to instruct the jury on the theory of "imperfect self-defense." Third, he claims error based on the trial court's failure to instruct the jury that it could draw inferences, favorable to the defense, from the State's failure to dust for fingerprints on knives in the kitchen at the crime scene and to test defendant for intoxication when he was arrested. We affirm.

Defendant killed Brillon with a single round from a shotgun fired at close range. The shooting occurred in the early morning at the apartment of the victim's girlfriend. Both defendant and the victim had ingested alcohol, cocaine, valium and marijuana prior to the shooting. Confrontations between the two punctuated the night. The killing occurred when the victim entered the living room; defendant, who testified he believed the victim had a knife, shot him in the chest. During the investigation, police found no knife near the body, and did not search for one in the apartment. When defendant was apprehended, he possessed a bottle of partially consumed scotch. Police did not administer a test to determine the level of alcohol or presence of drugs in defendant's blood.

I.

Defendant requested the court to instruct the jury on self-defense, in relevant part:

[O]ne may use deadly force in defense of his life, limb, or in fear of bodily injury if it reasonably appeared to the accused that it was necessary to use the force which he did use.

The trial court's instruction on self-defense was as follows:

[T]he defendant must have a reasonable expectation of immediate harm. That is, the expectation of harm must be based upon reason and not upon fancied or unfounded fear. Also it must be such an expectation as a reasonable person might entertain under the prevailing circumstances. Therefore, you should measure the expectation of harm by a standard of what a hypothetical reasonable ordinary person might expect in the same situation as you find existed and which the defendant was in. You should determine again taking into account all of those circumstances if such a person would have a reasonable expectation of harm.

In doing so you should take into consideration such factors as shown by the evidence as a reasonable person in the defendant's shoes--such as what he knew with the victim, what their relationship was or had been, what their prior interaction had been, including hostile or aggressive conduct, if any, by the victim and any other factors supported by the evidence that you consider relevant. You should not measure the expectation of harm by a standard of what a drug or alcohol-impaired person might expect. You should measure the expectation by what a non-impaired--that is a reasonable person --might expect, not however, by what such a person in the defendant's shoes and position might expect.

During a lengthy charge conference, defendant expressed dissatisfaction with the instruction as proposed, saying in part that

there is no reasonable person standard in Vermont in terms of self-defense. And that's our primary objection I would say. There's a secondary problem here that I think we need to discuss.... I think that the intent of this charge here is that you are saying you can't consider someone's state of intoxication in determining the reasonableness of their expectation. I think what you're saying here, basically, [is] "If I'm drunk, I am still charged with the responsibility of accurately perceiving events in order to invoke self-defense."

According to V.R.Cr.P. 30, as interpreted in our cases, failure to object to an instruction after it is given to the jury is considered a waiver of any error even if the substance of the objection is made known before the jury charge. State v. Roberts, 154 Vt. 59, 71-72, 574 A.2d 1248, 1253-54 (1990); State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986). In this case, however, the court, after instructing the jury, told the parties that any objection made before the jury charge would be considered preserved. We shall, therefore, reach the issue, but caution that such advice is contrary to the rule, and the court should require that any objections be placed on the record after the charge is given to the jury. The primary reason for the rule is to give the trial court one last opportunity to avoid an error. In addition, our review is made easier by such a practice because objections during a charge conference often are vaguely worded and are interspersed during lengthy discussion. Here, for example, the charge conference consumed over a hundred pages of the transcript. By requiring post-charge objections, counsel is forced to focus on a succinct recitation of specific itemized objections enabling this Court to understand what defendant intended to preserve for appeal. Review on appeal also may be hampered by the absence in the record of the proposed instructions given to counsel to discuss at a charge conference, as in this case.

Defendant's apparent concern with the court's proposed instruction was that the jury might find his claim of self-defense unreasonable because he had been intoxicated at the time and his memory of the killing was poor. Defendant did not want the jury to conclude that an intoxicated person may never be capable of acting reasonably in self-defense. In his motion for a new trial, defendant reiterated his concern:

Defendant submits that the court's jury instructions upon the issue of self defense were at variance with Vermont law. The court instructed the jury to measure the self defense claim by a "hypothetical reasonable ordinary person" standard. In so doing, the Court instructed the jury to ignore evidence of drug and alcohol impairment. Vermont does not measure self defense by the hypothetical reasonable ordinary person standard.

The well-established doctrine of self-defense provides that a defendant 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). Our case law requires that self-defense is "just and necessary" when the defendant's belief of imminent peril and of the need to repel that peril with deadly force is reasonable. State v. Darling, 141 Vt. 358, 361, 449 A.2d 928, 929 (1982).

The right of self-defense does not require that one be actually assaulted, so long as the defendant's belief that he is in danger is founded on reasonably perceived circumstances. State v. Wood, 53 Vt. 560, 561, 567 (1881). In State v. Doherty, 72 Vt. 381, 396-97, 48 A. 658, 663 (1900), the reasonableness of defendant's belief was described as follows:

[A]lthough it might not have been necessary to have killed [the victim], if in view of his fear, fright, nervousness, or cowardice, it reasonably seemed to him, he could not be convicted of murder.... It is not whether the necessity actually existed, but whether in fact it reasonably seemed so to the respondent, under all the circumstances of the case, and ... the court [properly instructed] "If the circumstances were such as reasonably to lead the respondent to think that he was in danger of being killed or of great bodily harm by an assault from [the victim], he had a right to defend himself...."

(Emphases added). A jury, then, must assess the reasonableness of a defendant's apprehension, taking into account not only the circumstances with which he is confronted, but his individual attributes as well. Our law does not hold a nervous coward and a fearless bully to an identical reasonable person standard. See, e.g., State v. Rounds, 104 Vt. 442, 451, 160 A. 249, 251 (1932) (justification depends on whether jury finds that necessity reasonably appeared to the defendant); State v. Tubbs, 101 Vt. 5, 23, 139 A. 769, 776 (1928) (defendant may lawfully take a life if it "reasonably appear[s] to him" to be necessary); McQuiggan v. Ladd, 79 Vt. 90, 105-06, 64 A. 503, 507 (1906) (justification requires more than honest belief; proper inquiry for jury is whether necessity "reasonably appeared to [defendant]").

The trial court qualified the words, "measure the expectation of harm by a standard of what a hypothetical reasonable ordinary person might expect in the same situation," by placing defendant "in the same situation as you find existed and which the defendant was in" at the time of the killing. Later in the instruction the court stated, "You should take into consideration such factors as shown by the evidence as a reasonable person in the defendant's shoes [would]." (Emphasis added.) The jury was thereby instructed to consider the physical and mental traits of the accused, as well as the attendant situation and circumstances. Otherwise, "in the defendant's shoes" has no instructional value.

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. The jury must first assess the honesty of the belief, which is a purely subjective inquiry. It must then determine whether the particular defendant had an objective, discernible reason for such...