State v. Williams, 79-406-C

• Decision Date: 14 July 1981
• Docket Number: No. 79-406-C,79-406-C
• Citation: 432 A.2d 667
• Parties: STATE v. Jeffrey WILLIAMS. A.
• Court: Rhode Island Supreme Court

Page 667

432 A.2d 667

STATE v. Jeffrey WILLIAMS.

No. 79-406-C.A.

Supreme Court of Rhode Island.

July 14, 1981.

Dennis J. Roberts, II, Atty. Gen., Kathryn A. Salmanson, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Janice M. Weisfeld, Asst. Public Defender, for defendant.

OPINION

WEISBERGER, Justice.

The defendant, Jeffrey Williams, was convicted in the Superior Court of second-degree murder. He appeals this conviction and raises one issue in support of his appeal. He complains solely of an alleged error in the instructions given by the trial justice. The facts pertinent to the issue raised are as follows.

The defendant had engaged in a series of physical altercations with his cousin, Glen Shelton (Shelton), beginning on March 31, 1978. One of these encounters resulted in defendant's striking Shelton on the head with a bottle. Another encounter resulted in a confrontation with knives. Finally, on April 2, 1978, defendant armed himself with a shotgun in anticipation of a possible attack by Shelton. As defendant awaited the arrival of a girlfriend, Shelton appeared and threatened defendant with a knife. In the course of this final confrontation, defendant shot and killed Shelton.

As a result of the testimony of witnesses for the state and for the defense, the trial justice instructed the jury concerning the elements of first-degree murder, second-degree murder, manslaughter, and self-defense. The charge to the jury was detailed and of significant length as was required by the multiplicity of legal issues to be covered. The trial attorney for defendant filed twenty-three requests to charge. At the conclusion of the charge, the trial justice asked counsel to state their objections to the instructions that she had given and informed the jury at that point, "Before I send you out, I have an opportunity to see the attorneys at (the) side bar * * *. They will tell me if I left anything important out." Whereupon defense counsel objected to the failure of the court to instruct with respect to "request number 5, number 11, 12, 16, 23. That's all I have, your Honor." After the final selection process of jurors had been completed and the jury retired to begin its deliberations, the trial justice again inquired of counsel, "Does either attorney want to elaborate on what was said at the side bar?" Counsel for defendant responded, "I don't wish to, your Honor please."

On appeal defendant asserts as error the failure of the trial justice to instruct in accordance with request number 9 which reads:

"Heat of passion includes rage, resentment, anger, terror and fear. Heat of passion may be produced by fear as well as by rage. U.S. v. Alexander, 471 F.2d 923 (D.C.Cir.)."

The trial justice instructed the jury concerning the elements of manslaughter and stated that

"(v)oluntary manslaughter or manslaughter, as I will refer to it now throughout the charge, is the unlawful but intentional killing of a human being without malice aforethought and without premeditation or deliberation, in a sudden heat of passion produced by adequate provocation,"

and later stated:

"I instruct you that the provocation must be of such character and degree as would naturally excite or arouse such passion, and the defendant must act under the smart of that sudden quarrel. * * * (W)e are saying heat of passion, as the term is used in our law, as that kind of passion as naturally would be aroused in the mind of an ordinarily reasonable person of average disposition in the same or similar circumstances * * *."

Nevertheless, defendant's appellate counsel now contend that the failure to give requested instruction number 9 constituted prejudicial error since the jury may not have understood from the instructions as given that "passion" may include fear and terror as well as anger. There is no question that the legal principles stated in request number 9 were correct and have been recognized in this state, State v. Smith, 93 A. 1, 4 (R.I. 1915), as well as by many other courts. E.g., United States v. Alexander, 471 F.2d 923, 942 n.49 (D.C. Cir.), cert. denied, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1972); People v. Best, 13 Cal.App.2d 606, 610, 57 P.2d 168, 170 (1936); State v. Ryan, 492 S.W.2d 116, 122 (Mo.App.1973); Morgan v. State, 536 P.2d 952, 954 (Okl. Cr. 1975); Commonwealth v. Harris, 472 Pa. 406, 408, 372 A.2d 757, 759 (1977); 2 Wharton, Criminal Law § 154 at 240 (14th ed. 1979). The real question at issue, however, is whether this ground for appeal was adequately preserved in the trial court.

Rule 30 of the Superior Court Rules of Criminal Procedure provides in pertinent part:

"No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." (Emphasis added.)

In the case at bar, defendant's trial counsel in accordance with the rule specifically called to the trial justice's attention certain requests to charge, the omission of which he asserted as error prejudicial to his client. He further specifically disclaimed any other error of commission or omission. We have repeatedly stated that we shall not consider on appeal asserted errors in the instructions of the trial justice unless timely objection is made in the trial court. State v. Marrapese, 116 R.I. 1, 12, 351 A.2d 95, 100 (1976); State v. Crescenzo, 114 R.I. 242, 258, 332 A.2d 421, 430-31 (1975); State v. Murphy, 113 R.I. 565, 577, 323 A.2d 561, 567 (1974); State v. Amado, 109 R.I. 53, 58, 280 A.2d 324, 327 (1971).

The defendant in his brief cites cases in which we have declined to review instructions when a defendant has failed to object to the instruction or to request a different one. State v. Pailin, 114 R.I. 725, 339 A.2d 253 (1975); State v. Carraturo, 112 R.I. 179, 308 A.2d 828 (1973). However, defendant misconceives the thrust of these cases. In State v. Pailin, supra, although we observed that the defendant had not requested an...