State v. Pelican

Morse, J.,

concurring. Although I agree with the Court’s result, I do not think any error, let alone plain error, was committed under point II, and I have a basic disagreement with the analysis in point III.

In point II, defendant claims that the trial court was wrong to instruct the jury that diminished capacity from intoxication served only to “negate” malice. But, defendant’s position that diminished mental capacity can also defeat the intent-to-kill element necessary to prove voluntary manslaughter is simply contrary to our case law.

We recently instructed that “malice” should no longer be used to describe the mental state required for murder. State v. Johnson, 158 Vt. 508, 519 , 615 A.2d 132, 138 (1992) (court should charge “appropriate states of mind required for each type of murder” rather than “describing malice as a requisite element of murder”). Second degree murder requires “‘an intention to kill, an intention to do great bodily harm, or a wanton disregard of the likelihood that one’s behavior may naturally cause death or great bodily harm.’” Id. at 517-18 , 615 A.2d at 137 (quoting State v. Doucette, 143 Vt. 573, 582 , 470 A.2d 676, 682 (1983)). Although we have spoken previously of diminished capacity as “negating” malice, the correct way of explaining its effect is as a defense mitigating the degree of homicide from murder to voluntary manslaughter. Like second degree murder, voluntary manslaughter is an intentional killing, but, unlike second degree murder, it is “committed under extenuating circumstances that would mitigate, but not justify, the killing.” Id. at 518-19 n.4, 615 A.2d at 138 n.4.

“Diminished” is not “eliminated.” It would be improper for the jury to acquit defendant because his capacity to develop a specific intent to kill was diminished. Rather, the diminished capacity defense operates only to lessen the culpability for the killing, not excuse it altogether. See State v. Wheelock, 158 Vt. *544 302, 309 , 609 A.2d 972, 976 (1992) (“[i]ntoxication may be considered in reducing the culpability of a crime from, for example, murder to manslaughter, but under a claim of self-defense, it cannot excuse a defendant from any criminal culpability”).

In point III, the Court distinguishes this case from State v. Camley, 140 Vt. 483 , 438 A.2d 1131 (1981), because in Camley the trial court never told the jury it could acquit the defendant, while here the trial court told the jury it must acquit defendant if it had a reasonable doubt that he was guilty. In the Court’s words, Camley “removed from the jury the option of a general not-guilty verdict.” I do not think Camley can be reasonably distinguished on that basis.

Here, the trial court instructed the jury, “Should you find that the state proved beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant guilty of one of the offenses charged.” (Emphasis added). That instruction plainly “removed from the jury the option of a general not-guilty verdict.” The court gave an unqualified instruction that the jury must convict defendant of homicide if it did not find he acted in self-defense. Given the nature of the defense, the jury could not conclude the instruction meant otherwise. This case was tried as if a general not-guilty verdict was not an option. The entire defense rested on a choice: either defendant was not guilty due to self-defense or, failing that, he was guilty only of manslaughter. The trial focused on three factual issues: Did defendant kill the victim in self-defense, or, if not, did he kill in the heat of passion or with diminished mental capacity due to intoxication. A factual issue decidedly not in dispute was whether defendant killed the victim.

Since it appeared in 1981, Camley has been significantly eroded, and we should now overrule the doctrine of plain error per se. A recent case, State v. Roy, 151 Vt. 17 , 557 A.2d 884 (1989), was a harbinger of Camley’s demise.

The Roy trial court, with defendant’s apparent approval, had not instructed the jury that knowledge that the victim of an assault was a police officer was an element of the charged crime, simple assault on a police officer. We stated that “other aspects of the charge .... cover[ed] the omission at least in part . . . [and] ‘[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.’” Id. at *545 22-23 , 557 A.2d at 888 (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). In addition, the Court criticized the creation of categories of plain error per se, preferring instead traditional case-by-case plain error analysis:

[W]hen we have examined cases where there is no objection below, we have consistently required a showing of plain error. This Court has not found that some errors are plain per se. Most recently in State v. Duff, 150 Vt. 329 , 554 A.2d 214 (1988), we decided a case where the defendant admitted committing a homicide but argued that he was guilty only of voluntary manslaughter by virtue of diminished capacity. The jury convicted the defendant of murder after the trial judge misdefined the elements of the crime of voluntary manslaughter by adding an element that was not part of the crime. This Court analyzed the charge error under the traditional plain error test although the practical effect of the error was to omit or misdefine an essential element of murder, the crime of which the defendant was convicted.

We believe it would be bad policy to create a category of errors which are plain per se.

Id. at 23, 557 A.2d at 888 .

Plain error per se is inconsistent with V.R.Cr.P. 52(b) (“[p]lain errors . . . may be noticed”) (emphasis added), which emphasizes the Court’s discretion rather than per se rules. See also State v. Weeks, 160 Vt. 393, 400 , 628 A.2d 1262, 1266 (1993) (applying plain error rule “involves appellate discretion and weighing of all relevant factors,” particularly prejudice to defendant); United States v. Olano, — U.S. —, —, 113 S. Ct. 1770, 1778 (1993) (although some categories of plain error per se may exist, “normally ... defendant must make a specific showing of prejudice” to qualify for relief under Rule 52(b)). We should resort to a per se analysis only when we are unable to do a meaningful particularized analysis. Cf. Sullivan v. Louisiana, — U.S. —, —, 113 S. Ct. 2078, 2081-82 (1993) (constitutional errors are reversible per se only when they affect framework of a trial, rendering harmless error analysis ineffective). In Sullivan , the Court held that an incorrect instruction on reasonable doubt tainted the entire trial making it impossible for an appellate court to do more than speculate about whether the *546 jury’s verdict was attributable to the error. Id. Consequently, the Court was unable to perform its particularized harmless error analysis, that is, “whether the guilty verdict rendered in this trial was surely unattributable to the error.” Id. at —, 113 S. Ct. at 2081. There is, however, “‘a strong presumption’” that errors are not in the per se category, id. at —, 113 S. Ct. at 2083 (Rehnquist, J., concurring) (quoting Rose v. Clark, 478 U.S. 570, 579 (1986)), but rather are simply “trial error” that can be accorded contextual analysis. Arizona v. Fulminante, 499 U.S. 279, 310 (1991). The jury-charge error here does not evade plain-error analysis. We can evaluate it within the defense strategy and its prejudice — or lack of it — to defendant. We should not resort to formulas instead of analysis.

Moreover, as the Court recognized in Roy , the doctrine of plain error per se is bad as a matter of policy because it eviscerates V.R.Cr.R 30 (requiring an objection to preserve claim of error in jury instruction). A defendant who gains no advantage by objecting — given the virtual certainty that the court will correct the error and thereby remove the basis for a winnable appeal — has no incentive “to object to errors that involve omissions of essential elements of the crime.” 151 Vt. at 23 , 557 A.2d at 888 . Precisely because defendant gains from overlooking the court’s error, requiring an objection becomes more compelling. A defendant who fails to object in these circumstances should at least risk a normal plain error analysis. See State v. Giroux, 151 Vt. 361, 365 , 561 A.2d 403, 406 (1989) (because defense theory was false accusation and defendant’s intent was not put in issue at trial, failure to instruct on element of intent in touching sexual assault victim was not prejudicial to defendant and therefore not plain error).

Instead, under Camley's plain error per se doctrine, a defendant has the assurance that, if convicted, on appeal he will be given a new trial. No policy asserted in favor of per se error is worth that cost to the criminal justice system. Roy , not Camley , provides the approach this Court should follow in determining whether jury instructions are plain error.