









2014 VT 129










State v. Congress (2011-307)
 
2014 VT 129
 
[Filed 05-Dec-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 



2014 VT 129



 



No. 2011-307



 



State of Vermont


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Chittenden
  Unit,




 


Criminal Division




 


 




Latonia Congress


February Term, 2013




 


 




 


 




Michael
  S. Kupersmith, J.




 



Thomas J. Donovan, Jr., Chittenden County State’s Attorney,
and Pamela Hall Johnson, 
  Deputy State’s Attorney, Burlington, for
Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Marshall Pahl,
Appellate Defender, Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
ROBINSON, J.   This case requires us to decide whether,
in a murder prosecution, a jury can find a defendant guilty of voluntary
manslaughter, as opposed to murder, on the basis of evidence that the
defendant’s actions were influenced by a serious psychological condition that
does not rise to the level of insanity and does not negate the defendant’s
specific intent to kill.  It also obliges us to reconcile disparate
strands of our case law concerning the effect of what is often described as
“diminished capacity” evidence in the context of a homicide prosecution. 
We conclude that the trial court correctly declined to
instruct the jury that it could consider the evidence of defendant’s
psychological condition as a basis for convicting her of voluntary
manslaughter, and reject defendant’s challenges on appeal to several of the
trial court’s evidentiary rulings.  Accordingly, we affirm.
I.
¶ 2.            
A jury convicted defendant Latonia Congress of second-degree murder
following a trial.  The evidence relevant to the issues on appeal can be
summarized as follows.  In October 2009, defendant lived in a house in
Essex Junction with her husband; their three children; her husband’s sister,
Helena Copeland; a friend, Shateena Morris; and four
of defendant’s cousin’s children, including sixteen-year-old Shatavia Alford.  Copeland described defendant as
“sweet,” and testified that defendant took care of all of the kids in the house
before worrying about herself.  Copeland described defendant’s
relationship with Shatavia as close, recalling that
the two played and sang together, and that defendant paid for Shatavia’s clothes, school events, and anything else she
wanted.
¶ 3.            
Copeland testified that she was at the house with Shatavia
and several younger children on the afternoon of October 16, 2009, when
defendant telephoned, spoke with Shatavia, and
shortly thereafter arrived home.  Defendant “came storming in” and went
straight to Shatavia, yelling at her about something
related to their phone conversation, and then about the latter’s
responsibilities around the house.  Defendant slapped Shatavia,
and the two began punching each other and pulling each other’s hair until
Copeland and Morris separated the two and tried to calm them down. 
Defendant slipped free, said, “I’m going to kill that bitch,” and stood behind
the kitchen counter looking at Shatavia. 
Thinking that defendant and Shatavia had calmed down,
Copeland turned away and moments later heard Shatavia
scream.  She turned around and saw Shatavia
jumping up and down with blood spraying from her chest and a knife falling to
the floor.  Inferring that defendant had thrown the knife at Shatavia, Copeland called 911.  While speaking to the
police, she heard defendant repeatedly tell the victim that she was sorry.
¶ 4.            
A recording of the 911 call was played for the jury and admitted into
evidence.  A police officer arrived during the call, and Copeland can be
heard telling him that defendant and Shatavia had
been fighting, that Copeland had attempted to intervene, and the she had heard
defendant say, “I’m going to kill that bitch.”
¶ 5.            
The first police officer on the scene testified that after he
transferred care of Shatavia to the rescue squad, he
heard defendant talking on the phone, crying, and saying several times that
“this is just a dream, this can’t be happening.”  She urged the person on
the other end of the line to go to the hospital and check on Shatavia and said, “I don’t know what happened.”  She
slumped to the ground for a period, and when asked what had occurred, defendant
repeatedly stated that “[i]t happened so fast, I
don’t know” but also acknowledged that she and Shatavia
had been fighting.
¶ 6.            
Shatavia was transported to a hospital where
she was pronounced dead.  A medical examiner testified that she died from
a stab wound to the heart that severed her pulmonary artery.  The wound
was three to five inches in depth and could not, in the medical examiner’s
opinion, have been caused by a thrown knife.  The examiner also noted some
injuries to the victim’s fingers that were consistent with defensive wounds.
¶ 7.            
Morris, the other adult who observed the altercation, testified for the
defense, recalling that defendant and Shatavia had
enjoyed a close “mother–daughter” type of relationship.  Morris had seen
them “debate” about chores, but had never heard defendant use abusive language
with Shatavia, nor seen her become violent with or
strike Shatavia.  Although Morris was present at
the time of the offense, she did not hear defendant threaten to kill Shatavia.  Morris testified that defendant’s husband
was extremely abusive, physically and emotionally, and described in detail a
time when he got on top of defendant and punched her repeatedly.
¶ 8.            
Morris was not alone in testifying about such abuse.  Defendant’s
aunt recalled that she repeatedly heard defendant’s husband verbally abuse
defendant, and described several instances in which she saw him physically hit
her, including while she was pregnant.  She spoke about a time when
defendant’s husband ripped wires out of defendant’s car and ripped her shirt
because he did not want her going to church.  Several of defendant’s
friends testified that her husband repeatedly called her names and yelled at
her, and they described incidents in which he tried to strike her, ripped her
clothes, restrained her by sitting on her, followed her in his car, removed a
license plate from a van to prevent her from driving it, and tried to prevent
her from leaving the house.  One friend explained that when her husband
was away, defendant was outgoing and fun, but when he was around, she “goes into
a shell” and “shuts down.”  Defendant’s husband testified as well,
acknowledging that he had frequently struck, choked, and beat defendant with a
belt.  He explained that he didn’t feel good about his actions, but he was
upset at the time, and he suggested that as his wife, she should follow his
instructions.
¶ 9.            
Defendant testified on her own behalf.  She described how she came
to be the principal care provider for her own three children and her cousin’s
four children, including Shatavia.  She acknowledged
that she had not given birth to Shatavia, but
described her as “my oldest daughter” and “my other half.”  Defendant
confirmed that her husband had physically and emotionally abused her for many
years, and described various incidents including one in which he hit her on the
side of the head and broke her eardrum, more than one when he hit her while she
was pregnant, and one in which he sliced her dress open with a razor blade to
prevent her from going to a wedding reception.  With respect to the events
surrounding Shatavia’s death, she recalled that she
had an argument with Shatavia, that Shatavia struck her, and that they started fighting, but
she could not remember what happened thereafter until she saw Shatavia lying on the ground bleeding and tried to pull her
up to take her to the hospital.
¶ 10.         Philip
J. Kinsler, Ph.D., a clinical and forensic
psychologist, testified as defendant’s expert.  Dr. Kinsler
explained that he had reviewed the case records, interviewed defendant on five
separate occasions for a total of fourteen to fifteen hours, and administered a
number of psychological tests.  Dr. Kinsler
testified that the tests indicated that defendant had “enormously elevated”
levels of psychological trauma; strong indicators of depression and
dissociation; and a composite I.Q. of 77, which is among the lowest six percent
of the population.  He concluded that, at the time of the events in
question, defendant suffered from “acute stress disorder” (an early stage of
post-traumatic stress disorder), and “as a component of” that disorder,
suffered from “dissociative amnesia.”  Dr. Kinsler
explained that, as a result of her history of extreme abuse, defendant “went
into a dissociative state” when she became embroiled in the fight with Shatavia so that she was not aware of how she was acting
and could not remember what occurred.  It was his opinion that she reacted
“automatically and without conscious control,” and would not have been “able to
control her actions to conform with the law.”
 The dissociative response would have been the same, according to Dr. Kinsler, regardless of who “struck the first blow.”
¶ 11.         The
State called Albert M. Drukteinis, M.D., a forensic
psychiatrist, as a rebuttal witness.  Dr. Drukteinis
disputed that defendant was suffering from any mental disease or defect at the
time of the killing, although he acknowledged that his opinion was limited to
psychoses causing hallucinations or delusions and acknowledged that it was
“very possible” defendant had PTSD.  He did not believe that psychiatry
had the “tools” to know whether defendant’s dissociation occurred during or
after the events, or whether she could control her actions.
II.
¶ 12.         The
central issue on appeal involves the jury instructions as they relate to
defendant’s evidence that she suffered from a psychological condition that
prevented her from controlling her actions.  In addition to an instruction
on insanity, defendant requested that the jury instructions address her
psychological condition as an extenuating circumstance mitigating what would
otherwise be a conviction for murder to manslaughter.  The trial court
responded that the evidence of defendant’s condition either did or did not negate
specific intent.  The court’s proposed instructions reflected that if the
jury concluded that the psychological condition did negate defendant’s specific
intent, that would defeat the State’s ability to prove the essential elements
of first-degree murder, second-degree murder, and voluntary
manslaughter, the specific intent requirement for voluntary manslaughter being
the same as for second-degree murder.  If the jury concluded that the
condition did not negate defendant’s specific intent, the trial court asked
rhetorically what was left to consider: “How can you have a little bit of
intent if it says ‘specific intent’?”  Through counsel, defendant argued
that even if the jury did not conclude that the evidence of defendant’s mental
condition negated her specific intent, it would be misleading to define
the extenuating circumstances mitigating murder to manslaughter to include only
heat of passion and provocation without also including a mental condition that
does not rise to the level of insanity but may decrease a person’s faculties
and awareness.
¶ 13.         The
trial court rejected defendant’s position.  With reference to defendant’s
insanity defense, the trial court instructed:  “To sustain a defense of
legal insanity, . . . Congress must have proven . . . that she suffered a mental disease or
defect at the time of the alleged offense and, second, that as a result of a
disease or defect she was unable to appreciate the criminality of her conduct
or she was unable to conform her conduct . . . to the requirements of the
law.”  With respect to the difference between second-degree murder and
voluntary manslaughter, the court instructed that the first four elements of
the two charges were the same, and explained: “You may find that the degree of
crime is reduced from second-degree murder to voluntary manslaughter if
[defendant’s] mental state was influenced by extenuating circumstances such as
a sudden passion or . . . provocation that
would cause a reasonable person to lose self-control.”  The court further
instructed, “If you find the State has failed to prove any of the first four
essential elements”—including specific intent—“then you must find [defendant]
not guilty of voluntary manslaughter as well.”
¶ 14.         The
jury returned a verdict of guilty on the charge of second-degree murder. 
Defendant renewed her objection to the jury instruction in a motion for
judgment of acquittal or a new trial, which the trial court denied.  The
trial court’s decision not to give the requested instruction aligning evidence
of defendant’s mental condition alongside provocation as a factor that would
mitigate second-degree murder to voluntary manslaughter is defendant’s primary
ground for appeal.
¶ 15.         The
trial court and defendant both relied on the guidance of this Court in making
their respective arguments.  The fact is, as set forth more fully below,
we have sent mixed signals on the question. We are now called upon to “reconcil[e] the arguably disparate threads of our jurisprudence”
concerning the effect of “diminished capacity” evidence in the context of a
homicide prosecution.  State v. Bruno, 2012 VT 79, ¶ 42 n.4, 192
Vt. 515, 60 A.3d 610.  
¶ 16.         At
the outset, we note two important provisos.  First, while terms such as
“diminished capacity” can be helpful in describing a particular concept or set
of concepts, they can also be misleading.  Across jurisdictions, and even
within jurisdictions, the term “diminished capacity” has varied meanings and
significance.  See generally E. Nevins-Saunders, Not Guilty as Charged:
The Myth of Mens Rea for Defendants with Mental
Retardation, 45 U.C. Davis L. Rev. 1419, 1456 (2012) (noting that “[d]iminished capacity has so many different iterations in
jurisdictions across the country that it is somewhat difficult to define
succinctly.”); J. Compton, Note, Expert Witness Testimony and the Diminished
Capacity Defense, 20 Am. J. Trial Advoc. 381,
387-94 (1997) (describing four distinct approaches taken by different states in
connection with the diminished capacity defense).  Moreover, in some
circumstances a decision to apply the label, or to reject the label, may appear
to determine an outcome, obscuring the underlying considerations connecting a
factual scenario to a legal conclusion.  We necessarily rely on decisions
and commentaries relating to “diminished capacity” in our analysis, but the
ultimate question before us is not what does or does not qualify for the label
“diminished capacity” or what effect that label has on
the legal framework of a particular case.  Rather, it is whether defendant
in this case was entitled to an instruction that would have allowed the jury to
convict defendant of voluntary manslaughter rather than second-degree murder on
the basis of her psychological condition even if it concluded that defendant’s
evidence did not negate the State’s proof of her specific intent.
¶ 17.         Second,
the question before us is not whether the evidence of defendant’s psychological
condition is legally relevant to the charge of second-degree murder.  It
clearly is in at least two ways.  The trial court properly instructed the
jury that the State bore the burden of proof on all essential elements of its
case and that proving that defendant had the requisite state of mind when she
killed her niece was one of those elements.  The court instructed:
  If you
decide that at the time of the offense, [defendant] was suffering from a mental
condition not amounting to insanity which prevented her from forming the
required mental state or states, then she is not
guilty of any of the crimes of first degree murder, second degree murder and
voluntary manslaughter.  
  The cause
of a mental condition is not relevant.  Furthermore, if you have a
reasonable doubt about whether [defendant] was capable of forming the required
mental state or states, then you must give her the benefit of that doubt and
find her not guilty of the three specific crimes mentioned.
The court went on to explain that
the requisite mental state for murder and voluntary manslaughter is an intent
to kill, or an intent to do great bodily harm, or a wanton disregard of the
likelihood that death or great bodily harm would result.  If the jury
concluded that as a result of defendant’s mental condition it had a reasonable doubt
as to whether she had (or was able to form) the intent to kill or do great
bodily harm, or the necessary wanton disregard, it was instructed to acquit of
first-degree murder, second-degree murder, and voluntary manslaughter.
¶ 18.         Moreover,
the jury was instructed that if it decided that defendant had proven by a
preponderance of the evidence that she “suffered from a mental disease or
defect at the time of the alleged offense and either that the mental disease or
defect rendered her incapable of appreciating the criminality of the alleged
offense or that she was incapable of conforming her conduct to the requirements
of the law at the time of the alleged defense,” then it must find defendant not
guilty by reason of insanity.
¶ 19.         The question
before us is whether, in addition to potentially establishing insanity
or negating the State’s evidence of her intent, evidence of defendant’s mental
condition could reduce defendant’s potential criminal liability from
second-degree murder to voluntary manslaughter even if the jury concluded the
State had shown beyond a reasonable doubt that she had the requisite specific
intent for second-degree murder.[1]
A.   
 
¶
20.        
We first consider the evolution of our own decisions concerning the
elements of murder and manslaughter.  The common law generally defined
murder as “the unlawful killing of a person with ‘malice aforethought.’ ” State v. Johnson, 158 Vt. 508, 515, 615 A.2d 132, 136
(1992) (citation omitted).  In the nineteenth century, many states,
including Vermont, enacted statutes dividing murder into degrees in order “to
graduate punishment on the basis of culpability and to narrow the category of
capital offenses.”  Id. at 515, 615 A.2d at 136. 
Thus, our homicide statute, which has remained unchanged for over a century,
provides that “[m]urder committed by means of poison,
or by lying in wait, or by willful, deliberate and premeditated killing,” or
“in perpetrating or attempting to perpetrate” certain specified felonies,
“shall be murder in the first degree,” and “[a]ll
other kinds of murder shall be murder in the second degree.”  13 V.S.A. § 2301.  The premeditated form of
first-degree murder requires an intent to kill. 
Johnson, 158 Vt. at 518, 615 A.2d at 137-38. 
Second-degree murder may be predicated on an intent to
kill, an intent to do great bodily harm, or a wanton disregard of the
likelihood that one’s behavior may cause death or great bodily harm.[2]  State v. Sexton, 2006 VT 55,
¶ 12, 180 Vt. 34, 904 A.2d 1092.
¶ 21.         Equally
well-established under the common law of Vermont and elsewhere is the offense
of manslaughter.  This Court explained in an early case, 
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 [offense]; or involuntary, as when the
death of another is caused by some unlawful act, not accompanied with any
intention to take life. 
 
State v. McDonnell, 32 Vt.
491, 545 (1860) (quotation and emphasis omitted), overruled on other grounds
by State v. Burpee, 65 Vt. 1, 8, 25 A.
964, 966 (1892).  Our prior cases frequently stated that “[t]he element that distinguishes murder from manslaughter is
the presence or absence of malice.”  State v. Shaw, 168 Vt. 412,
415, 721 A.2d 486, 490 (1998); see also State v. Hatcher, 167 Vt. 338,
345, 706 A.2d 429, 433 (1997) (same); State v. Wheelock, 158 Vt. 302,
310, 609 A.2d 972, 977 (1992) (noting that voluntary manslaughter is “the
intentional killing of another” under “extenuating circumstances affecting a
defendant’s state of mind [that] negate malice”).
¶ 22.         Our
case law through the years has not clearly defined malice, or clearly explained
how, if at all, it is different from intent or from the absence of cognizable
extenuating circumstances.  In Johnson, we noted: 
Manslaughter
is generally defined as an unlawful killing of a person absent malice
aforethought. In straightforward terminology, voluntary manslaughter is an
intentional killing committed under extenuating circumstances that would
mitigate, but not justify, the killing, such as provocation that would cause a
reasonable person to lose self control. 
 
158 Vt. at 518 n.4, 615 A.2d at 138 n.4.  In other words, we essentially concluded
that “malice” is simply a stand-in for “absence of extenuating mitigating
circumstances.”
¶ 23.         Although
we described the common-law concept of “malice” in Johnson, we
simultaneously abandoned the term and concluded that the various levels of
criminal liability for homicide are better described with reference to the
states of mind required for each:
 
Our holding does suggest that continued use of the archaic and arcane language
associated with the word “malice” could only be a source of confusion to jurors.
Accordingly, because the term “malice aforethought” has no real meaning other
than denoting various mental states, and because it has been the source of much
confusion in the case law and in jury instructions, the trial courts should
refrain from using the term in jury instructions. Rather than describing malice
as a requisite element of murder, the trial courts should indicate the
appropriate states of mind required for each type of murder.
 
Id. at 519, 615 A.2d at 138
(emphasis added; citations and footnote omitted).  Our statement in Johnson signaled that
“intent” and the presence or absence of extenuating circumstances are the
relevant state-of-mind factors differentiating second-degree murder, voluntary
manslaughter, and involuntary manslaughter. 
¶ 24.         In a
number of post-Johnson decisions we have continued to describe malice as
an element distinguishing second-degree murder from voluntary
manslaughter.  See, e.g., Shaw, 168 Vt. at 415, 721 A.2d at 490 (“The element that distinguishes murder from manslaughter is
the presence or absence of malice.”); see also Hatcher, 167 Vt.
at 345, 706 A.2d at 433 (same).  In others, we substituted the term
“willfulness” for malice as the factor distinguishing murder from voluntary
manslaughter, and described it as the element negated by extenuating
circumstances such as passion or provocation.  See State v. Blish, 172 Vt. 265, 270, 776 A.2d 380, 385 (2001) (“It
is well established in Vermont that ‘[v]oluntary
manslaughter is an intentional killing committed under extenuating
circumstances that may negate willfulness, such as sudden passion or
provocation that would cause a reasonable person to lose control.’ ”) (alteration in original); State v. Shabazz, 169 Vt. 448,
451-52, 739 A.2d 666, 668 (1999) (citing Hatcher, 167 Vt. at 345, 706
A.2d at 433).  On other occasions, we have equated “malice” with
specific intent.  See, e.g., Sexton, 2006 VT 55, ¶ 14 (“the
elusive term ‘malice,’ . . . has long been
the distinct mens rea—the specific intent—separating
murder from manslaughter.”).
¶ 25.         These
various attempts to use or define malice have not created more clarity, and are
unnecessary.  Although we must grapple with our diverse uses of the term
malice in analyzing our past decisions, we need not carry the term
forward.  If malice is synonymous with “specific intent,” we can simply
use the term “specific intent.”  If it signals the absence of extenuating
or mitigating circumstances, then we can simply describe the absence of
extenuating or mitigating circumstances in identifying the elements of
second-degree murder versus voluntary manslaughter.  In the context of
levels of homicide liability, “malice” is not, in any event, a separate element
independent of intent and the absence of extenuating, mitigating circumstances,
and we need not invoke the term, or try to define it, in order to distinguish
between second-degree murder and voluntary manslaughter.[3]  We reiterate our holding in Johnson:
“Voluntary manslaughter is an intentional killing committed under extenuating
circumstances that would mitigate, but not justify, the killing, such as
provocation that would cause a reasonable person to lose self
control.”  158 Vt. at 518-19 n.4, 615 A.2d at 138
n.4.
B.
¶ 26.         Given
this framework, the question remains whether the kind of mental condition
ascribed to defendant in this case can support a jury instruction that allows
conviction for voluntary manslaughter.  That “sudden passion or
provocation that would cause a reasonable person to lose control” is an
extenuating circumstance that allows a jury to convict for voluntary
manslaughter instead of second-degree murder is black-letter law.  Hatcher,
167 Vt. at 345, 706 A.2d at 433.  The question is
whether this is the only type of extenuating circumstance recognized by our
law.
1.
¶ 27.         In
the case of State v. Duff, this Court reversed a conviction because the
trial court’s instructions did not adequately inform the jury that evidence of
a diminished mental capacity could be a basis for a conviction of voluntary
manslaughter.  150 Vt. 329, 554 A.2d 214 (1988), overruled on other
grounds, State v. Powell, 158 Vt. 280, 284, 608 A.2d 45, 47
(1992).  This Court wrote:
  In Vermont, there are at least two ways in which
malice may be negated in the context of a homicide prosecution.  First, a
jury may find malice to be absent by reason of sudden passion or great
provocation.  Second, a jury may find malice to be absent by reason of a
defendant's diminished capacity.  The latter is predicated upon a finding
by the jury that the defendant suffered from mental disabilities, not
necessarily amounting to insanity, which operated to preclude a capability of
forming a state of mind (in this case, malice) which is an essential element of
the greater offense charged.  
Id. at 331, 554 A.2d at 215
(citations omitted).
 
¶ 28.         This
Court repeated this statement of the law in State v. Shaw, describing
the two ways to defeat the required state-of-mind elements of second-degree
murder: “The first is by reason of sudden passion or provocation; the second is
by reason of a defendant’s diminished capacity.”  168 Vt. at 415, 721 A.2d at 490.  We further explained:
Diminished
capacity is predicated on finding that the defendant suffered from mental
disabilities which prevented him from forming the state of mind—in
this case, malice—which is an essential element of the
greater offense charged.  Thus, sudden passion or great provocation
is not an essential element of voluntary manslaughter.  
Id. at
416, 721 A.2d at 490 (citation omitted).  
¶ 29.         Likewise,
in State v. Wheelock we explained that “[v]oluntary
manslaughter is the intentional killing of another human being done with a
state of mind of ‘sudden passion or great provocation,’ or some other mental
state caused by ‘diminished capacity.’ ”  158
Vt. at 310, 609 A.2d at 977 (second emphasis added).  The central issue in
Wheelock involved the relevance of defendant’s intoxication to his
self-defense claim, but the Court noted without concern that the trial court
had given the jury an opportunity to convict on the lesser charge of voluntary
manslaughter on account of defendant’s intoxication with the following
instruction:
  In general,
diminished capacity refers to a mental disability of the defendant at the time
of the alleged commission of the offense which precludes or prevents the
defendant from forming a specific intent or having the required state of mind
which is an essential element of the offense. . . . [It] results in malice being
negated. . . . 
[D]iminished
capacity recognizes that voluntary consumption of drugs or alcohol or both may
impair a person’s mental functioning to such an extent as to prevent that
person from forming the specific intent or intents
that are a necessary element of the offenses. . . . 
[I]n considering
diminished capacity, you should look to the evidence as you find it to be with
regard to the extent of the [d]efendant’s ingestion
of alcohol and or drugs and the evidence as to the observed effects upon him
and determine to what degree his mental ability to form the specific intent was
impaired.
Id. at
311, 609 Vt. at 977-78 (alterations in original).
¶ 30.         In
all of the above cases, this Court stated that evidence of a diminished mental
capacity could defeat a conviction for second-degree murder by undermining the
State’s proof of the essential state-of-mind element for second-degree
murder.  This Court suggested an alternative rationale in the more recent
case of State v. Sexton, in which we wrote:
  We have long held that diminished capacity due either
to voluntary intoxication or to a mental disability can mitigate murder to
voluntary manslaughter.  The traditional rationale supporting a diminished
capacity defense posits that a defendant’s decreased faculties or awareness may
preclude the specific intent to commit murder, thus reducing the crime to voluntary
manslaughter.  In State v. Blish,
however, we announced that “the intent component of voluntary manslaughter is
the same as that required for second degree murder.”  We went on to state
that the “critical factor distinguishing second degree murder from voluntary
manslaughter is not the mental state of the actor, but the existence of
mitigating circumstances.”  Thus, we adopted the position that “the
correct way of explaining [diminished capacity] is as a defense mitigating the
degree of homicide from murder to voluntary manslaughter.”
2006 VT 55,
¶ 13 (alteration in original) (citations omitted).  
¶ 31.         However,
in its subsequent analysis the Court reverted to the traditional state-of-mind
rationale for allowing the evidence of diminished mental capacity:  
The common law allows the defense of diminished capacity—due
either to intoxication or mental defect—to specific intent crimes, and we have
consistently made the defense available to negate the specific intent necessary
to commit second-degree murder.  All three prongs of the mens rea required for second-degree murder—intent to kill,
intent to cause great bodily harm, or wanton disregard of the likelihood that
one’s conduct would naturally cause death or great bodily harm—simply define
the term “malice,” which has always been a species of specific intent.
 The State’s arguments are therefore unavailing, and defendant is entitled
to present evidence that his diminished capacity, due either to voluntary
intoxication or mental disability, prevented him from
forming the specific intent to commit second-degree murder.
Id. ¶ 17 (citations omitted).
 
¶ 32.         Most
recently, in State v. Williams, we reiterated that “[t]here are two
bases for mitigating first- or second-degree murder to voluntary manslaughter”:
(1) adequate provocation and (2) “a defendant’s diminished capacity due to
mental disabilities that do not necessarily amount to insanity.”  2010 VT 83, ¶¶ 10-11, 188 Vt. 413, 8 A.3d 1053. 
We explained that “[t]he ‘traditional rationale’ for such mitigation is that ‘a
defendant’s decreased faculties or awareness may preclude [the defendant’s
ability to form] the specific intent to commit murder.’ ”  Id. ¶ 11 (quoting Sexton, 2006 VT
55, ¶ 13).  We explained that the diminished capacity defense
“necessarily requires consideration of a particular defendant’s ability to form
the intent to kill,” and stated that “[i]t is elemental that there must be a nexus between a defendant’s
mental condition—in this case, defendant’s alleged cognitive deficits,
dissociative state, jealous delusion, and voluntary intoxication—and [the
defendant’s] ability to form the intent required for murder.”  Id.
¶¶ 13-14.  Because the evidence did not support a sufficient nexus
between defendant’s various mental impairments and his ability to form the
intent required for murder, we concluded that the defendant was not
entitled to an instruction concerning the impact of his claimed diminished
capacity.  Id. ¶ 14.
¶ 33.         Significantly,
with the exception of the one statement noted in Sexton, we ascribed
significance to diminished-capacity evidence in all of the above cases on the
basis that the evidence can undermine the State’s proof of malice, which we
understood to be the requisite state of mind, or its proof of specific
intent.  We were right in those cases to acknowledge that evidence of
intoxication or a serious mental condition can defeat the State’s proof with
respect to the state-of-mind requirement for second-degree murder.  What
we failed to recognize in those decisions, and what has become clearer as our
law has evolved, is that a defendant who defeats the State’s burden with respect
to the state-of-mind element for second-degree murder cannot be convicted of any
degree of homicide more serious than involuntary manslaughter.  
¶ 34.        
We have recognized that what used to be described as “malice” is not some separate state of mind independent of intent and
the absence of extenuating circumstances.  Moreover, “we have specifically held that the intent component of
voluntary manslaughter is the same as that required for second degree
murder—actual intent to kill, intent to do serious bodily injury, or extreme
indifference to human life.”  Blish, 172
Vt. at 272, 776 A.2d at 386 (emphasis added) (citing Shabazz, 169 Vt. at
453, 739 A.2d at 669).  If the State fails to meet its burden to prove the
requisite intent for second-degree murder, then it has necessarily failed to
prove the requisite intent for voluntary manslaughter.[4]  Given
these considerations, if defendant in this case presented evidence that
persuaded the jury that the State had not met its burden of proof with respect
to her ability to form the intent to kill, cause serious bodily injury, or act
with wanton disregard of the likelihood that her conduct would naturally
cause death or great bodily harm, then she was
entitled to be acquitted of both second-degree murder and voluntary
manslaughter.  That is exactly what the trial court instructed. 
Given the framework that this Court has repeatedly relied upon for considering
evidence of diminished mental capacity in the context of a homicide prosecution,
there would be no analytical basis for an instruction that allowed a jury to
convict defendant for voluntary manslaughter if it concluded on account of the
evidence of her diminished mental capacity that the State had not met its
burden to prove the state-of-mind element for second-degree murder. 
2.
¶ 35.         As
noted above, we have in some prior decisions suggested an alternate framework
for considering evidence of a diminished mental capacity in homicide cases that
is not moored to proof of the defendant’s intent.  This suggestion first
surfaced in a concurring opinion in which Justice Morse wrote: 
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.” 
  “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. 
State v. Pelican, 160 Vt.
536, 543, 632 A.2d 24, 28-29 (1993) (Morse, J., concurring) (citations
omitted).  Justice Morse thus argued that evidence that reduces one’s
culpability, but does not actually negate specific intent, can reduce criminal
liability from second-degree murder to voluntary manslaughter.
¶ 36.         Several
years later, the Court cited Justice Morse’s concurrence in Pelican for
the proposition that the correct way to explain the effect of diminished
capacity evidence “is as a defense mitigating the degree of homicide from
murder to voluntary manslaughter,” and suggesting that the evidence may reflect
“extenuating circumstances that would mitigate, but not justify, the killing.” 
Blish, 172 Vt. at 270-71, 776 A.2d at 385
(quoting Pelican, 160 Vt. at 543, 632 A.2d at 28-29 (Morse, J.,
concurring)).  In Sexton,
this Court cited this prior discussion in Blish,
and adopted the position that “ ‘the
correct way of explaining [diminished capacity] is as a defense mitigating the
degree of homicide from murder to voluntary manslaughter.’ ”  2006 VT 55, ¶ 13 (alteration in original)
(citation omitted).
¶ 37.        
This statement of the law has the virtue of making sense of a
host of our prior decisions suggesting that evidence of a diminished mental
capacity can “mitigate” a defendant’s criminal liability from murder to
manslaughter.  But we conclude that this Court has not adopted it, and should
not adopt it, for several reasons.  First, although we have described this
alternative framework in two prior opinions—Blish
and Sexton—we have never truly applied it.  Blish
did not involve evidence of a defendant’s diminished mental capacity.  To
the extent we purported to adopt a new framework for evaluating diminished
capacity evidence in that case, our statements on the subject were beyond the
scope of the issue squarely before us.  In Sexton, the issue was
squarely presented, and we did state clearly our adoption of this new
framework.  2006 VT 55, ¶ 13. However, in our subsequent discussion in Sexton, we
reverted to a traditional mode of analysis and specifically tied the relevance
of the diminished capacity evidence to its tendency to negate the State’s proof
of defendant’s specific intent.  Id. ¶ 17. 
Then, in Williams, we quoted Sexton’s articulation of the
traditional rationale for considering diminished capacity evidence—tying it to
the State’s burden to prove intent—without acknowledging that we had purported
to abandon that rationale in Sexton.  2010
VT 83, ¶ 11.  For these reasons, we conclude that, despite the
mixed signals in our recent cases, the rationale for allowing a jury to
consider evidence of a defendant’s diminished mental capacity in a homicide
case, whether due to intoxication or a mental condition, remains squarely tied
to the tendency of such evidence to negate the State’s proof of intent.
¶ 38.        
We decline to depart from this established framework for several
reasons.  First, absent the touchstone of the State’s burden to prove
intent, we have no standards for evaluating the relevance of such
evidence.  If the State proves intent to kill beyond a reasonable doubt,
what factors would a jury consider in deciding whether evidence of diminished
mental capacity was an extenuating circumstance warranting mitigation of
criminal liability from murder to voluntary manslaughter?  The dissent
rightly points out that for decades Vermont juries have been ably considering
diminished capacity and the question of whether a defendant’s diminished
capacity in a particular case should mitigate an offense that would otherwise
amount to second-degree murder to voluntary manslaughter.  Post, ¶ 67.  But they have been doing so
pursuant to instructions that link the defendant’s mental capacity to his or
her state of mind.  The trial court offered just such an instruction here,
and recognized that a diminished capacity that prevented the defendant from
forming the requisite intent would not only defeat a conviction for
second-degree murder but would also be inconsistent with a conviction for
voluntary manslaughter.  
¶ 39.        
Second, even though the conclusion that such evidence can “mitigate
murder to manslaughter” would not be inconsistent with many of our prior
decisions, the rationale on which we would rely in getting there would be a
substantial departure from our longstanding framework for considering the
levels of homicide.  Although the Legislature has left development of
Vermont’s law of homicide largely to the common law, and thus given this Court
substantial leeway to develop the law in this area, see, e.g., Johnson,
158 Vt. at 519 n.5, 615 A.2d at 138 n.5, we conclude
that a shift of this magnitude would be more appropriately initiated by the
Legislature.[5]
 
¶ 40.        
We do not deny the instinct, noted by the dissent,
that a defendant so severely compromised by mental or emotional trauma
that he or she lacks the normal capacity for self-control may be less
culpable.  Post, ¶ 58.  Our
decision leaves ample room for this consideration.  Evidence of a
defendant’s diminished mental capacity may support an insanity defense; may
defeat the State’s proof of intent to kill, thus reducing a defendant’s maximum
criminal liability for homicide to involuntary manslaughter; and may be highly
relevant in sentencing.  In particular, among the mitigating factors that
can reduce the minimum term for second-degree murder from twenty years down to
as few as ten years include that the defendant “was suffering from a mental or
physical disability or condition that significantly reduced his or her
culpability for the murder.”  13 V.S.A. § 2303(c), (f)(2).  Our decision here does not prevent a jury or
judge from considering such evidence for a host of purposes, and leaves intact
a sentencing provision that reflects the exact instinct to which the dissent
articulately gives voice.
III.
 
¶
41.        
Defendant’s several remaining claims do not require the same extended
discussion as the first.  Defendant contends that the trial court erred in
excluding the testimony of Copeland’s brother, defendant’s sister-in-law. 
The recording of the 911 call captured Copeland telling the officer at the
scene that defendant and the victim had been fighting, that Copeland had
attempted to intervene, and that shortly thereafter Copeland heard defendant
say, “I’m going to kill that bitch.”  At a bail hearing about a year
later, however, Copeland testified that she recalled the fight between
defendant and the victim but could not remember what, if anything, defendant
had said at the time.
¶
42.        
Copeland later left Vermont and could not be located by the State until
a few weeks before trial.  The defense was afforded an opportunity to
depose Copeland shortly before her trial testimony, in which she again recalled
defendant saying, “I’m going to kill that bitch.”  When asked by the
prosecutor why her testimony about defendant’s statement differed from her
testimony at the bail hearing, Copeland said that it was because she had been
threatened by defendant’s sisters.
¶
43.        
The defense cross-examined Copeland on inconsistencies between her
testimony about the incident at trial and her statement to the investigating
officers after the incident.  Copeland identified a document presented by
the defense as a copy of her “interview.”  When defense counsel asked
“Your interview with who?” she replied, “Well, I can’t really read it because I
don’t have my glasses.”  She went on to acknowledge that she had reviewed
the interview with the State just a few minutes prior to her testimony.
¶
44.        
The defense proceeded to cross-examine Copeland on inconsistencies between
her prior and current statements.  Copeland acknowledged several
inconsistencies between her trial testimony and her prior statements to the
investigators, but attributed them to the difficulty of remembering events that
had occurred more than a year before.  Defense counsel, in response, asked
Copeland if she had problems with her memory, whether she had “difficulties in
school,” or had attended “special classes,” all of which Copeland denied. 
Later, when asked why she had moved from New York to Vermont, Copeland stated
that her brother had been abusing her.
¶
45.        
At the end of the first day of defense testimony, the defense indicated
that it intended to call Copeland’s brother as a witness.  The following
day, the State moved to exclude this testimony as late-noticed.  The
defense countered that Copeland’s brother was called as a rebuttal witness to
address certain “new information” elicited from Copeland’s testimony,
specifically “that she couldn’t read because she didn’t have [her] glasses, that
she never had any kind of special education classes,” and that she had been
abused by the brother.  The trial court indicated that it considered these
matters to be “collateral” but invited briefing.  The defense argued that
Copeland’s brother’s testimony was admissible to impeach Copeland by
“contradiction with extrinsic evidence” under V.R.E. 608(b), as well as to
provide an opinion on Copeland’s character for truthfulness or untruthfulness
under V.R.E. 608(a).  The trial court ultimately excluded the proffered
“contradiction” testimony as “extrinsic and collateral,” and barred the
character testimony because Copeland’s brother had not been listed as a witness
by the defense.
¶
46.        
Defendant contends the trial court erred in excluding this testimony
pursuant to V.R.E. 608(b), arguing that the testimony was admissible for
purposes of impeachment by contradiction of Copeland’s factual testimony. 
Defendant cites the advisory committee note to Federal Rule of Evidence 608(b),
the model for Vermont Rule of Evidence 608(b), which explains that “the
absolute prohibition on extrinsic evidence applies only when the sole reason
for proffering that evidence is to attack or support the witness’ character for
truthfulness” and not “to bar extrinsic evidence for bias, competency and
contradiction impeachment.”  Advisory Committee Notes—2003 Amendments,
F.R.E. 608; see also United States v. Perez-Perez, 72 F.3d 224, 227 (1st
Cir. 1995) (“Impeachment by contradiction is a recognized mode of
impeachment not governed by Rule 608(b).”); United States v. Rodriguez,
539 F. Supp. 2d 592, 595 (D. Conn. 2008) (“Impeachment by contradiction, as
opposed to evidence of a witness’s character for truthfulness or
untruthfulness, is a permissible exception to the general proscription of Rule
608(b).”).
¶
47.        
Whatever the merits of that argument, it is equally well recognized that
“a witness may not be impeached by extrinsic evidence (contradiction by another
witness or evidence) on a collateral issue.”  United States v.
Tarantino, 846 F.2d 1384, 1409 (D.C. Cir. 1988) (emphasis added) (quoting United
States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970)); accord Perez-Perez,
72 F.3d at 227 (“[E]xtrinsic evidence to impeach is
only admissible for contradiction where the prior testimony being contradicted
was itself material to the case at hand.”); see also Rosario v. Kuhlman,
839 F.2d 918, 925-26 (2d Cir. 1988) (“The determinative question in deciding
whether extrinsic evidence contradicting a witness’s testimony is admissible is
. . . whether the assertions that the impeaching party seeks to contradict are
. . . material or collateral.”).  Furthermore, “the trial court retains
wide latitude to impose reasonable limits on cross-examination” into
“collateral issues” or matters only “marginally relevant.”  State v. Brochu, 2008 VT 21,
¶¶ 80-87, 183 Vt. 269, 949 A.2d 1035 (quotations omitted).
¶
48.        
The record here amply supports the trial court’s conclusion that the
areas of Copeland’s testimony that defendant sought to contradict through
Copeland’s brother’s testimony—whether Copeland needed glasses to read the
police statement the defense showed her at trial, had attended special classes
in high school, or was abused by her brother—were all collateral matters
without even a tenuous connection to Copeland’s testimony about what she
observed in connection with the events at issue in this case.  In
contrast, the accuracy of Copeland’s testimony and her credibility concerning
the events in question were substantially tested by the defense through close
cross-examination comparing her statements at the time of the incident and
several which she gave later, and exploring her relationship with the victim,
defendant, and defendant’s husband (her other brother) to suggest reasons why
she might resent defendant.  In addition, the defense specifically
challenged Copeland’s claim that she changed her testimony at the bail hearing
because of threats; the defense called defendant’s sister to testify that
neither she nor defendant’s other sisters had ever made any threats to
Copeland.  Accordingly, we find no basis to conclude that the trial court
abused its discretion, or deprived defendant of any substantial right, in
excluding as collateral the proffered testimony in question.
IV.
¶
49.        
Equally unavailing is defendant’s claim that the trial court erred in
excluding Copeland’s brother as a character witness.  The defense has an
obligation to disclose, on request of the prosecuting attorney, the names and
addresses of witnesses they intend to call at trial, V.R.Cr.P.
16.1(c), and, “if a witness is not timely revealed to the State, the trial
court may limit the witness’ testimony or exclude the witness
altogether.”  State v. Verrinder, 161 Vt.
250, 255, 637 A.2d 1382, 1386 (1993); see also V.R.Cr.P.
16.2(g)(1) (where party has violated discovery rule,
court may enter such “order as it deems just under the circumstances”). 
The trial court’s determination to exclude a witness “is discretionary and will
not be disturbed unless the defendant shows a clear abuse of discretion.” 
State v. Meyers, 153 Vt. 219, 224, 569 A.2d 1081, 1085
(1989).
¶
50.        
While acknowledging that Copeland’s brother was not on the defense
witness list, defendant nevertheless asserts that the trial court’s decision
was an abuse of discretion because the need for his testimony was not apparent
until Copeland’s last-minute deposition.  The argument is
unpersuasive.  As the trial court observed in its order denying
defendant’s motion for new trial, the importance of Copeland’s credibility as a
witness was well-known from the inception of the case, and Copeland’s brother’s
integral role as defendant’s brother-in-law was or should have been equally
apparent.  See, e.g., State v. Hugo, 156 Vt. 339, 344-45, 592 A.2d
875, 879 (1991) (holding that exclusion of untimely-disclosed witness “was
within the trial court’s discretion” where the witness, defendant’s father,
“could have been uncovered and disclosed earlier” and his proffered testimony
was largely cumulative); State v. Edwards, 153 Vt. 649, 649, 569 A.2d
1075, 1076 (1989) (mem.)  (upholding trial
court’s exclusion of two defense witnesses disclosed the day before trial
because they “were close relatives of the defendant and their evidence could
have been uncovered and disclosed earlier,” “the testimony from the witnesses
would have been cumulative,” and defendant had ample opportunity to give
earlier notice).
¶
51.        
Furthermore, the defense did not, as required by Vermont Rule of
Evidence 103(a)(2), make an offer of proof stating
“the substance of the evidence” offered: i.e., what Copeland’s brother would
have testified to, and whether it was to take the form of an opinion or
reputation testimony.  We therefore have no basis to determine whether the
evidence would have substantially assisted the defense.  State v. Ringler, 153 Vt. 375, 378, 571 A.2d 668, 670 (1989)
(reaffirming principle requiring “an offer of proof to be made before error may
be predicated upon a ruling excluding evidence”).  Accordingly, we find no
basis to conclude that the trial court abused its discretion in excluding the
witness.
V.
¶
52.        
Lastly, defendant contends the trial court misapplied Vermont Rule of
Evidence 703 in barring Dr. Kinsler from testifying
about the facts on which he based his opinions unless they were already in
evidence.  The background to the claim was as follows.  The State had
moved before trial to limit Dr. Kinsler’s testimony
in several respects, including any testimony recounting the statements of
persons he had interviewed.  The State was concerned, in particular, about
information conveyed to Dr. Kinsler by defendant and
others “regarding past abuse” by defendant’s husband.  At a pretrial
hearing on the motion, the court noted that the issue was governed by Rule 703,
which addresses the factual bases of opinion testimony by expert
witnesses.  Rule 703 provides, in part, that “[f]acts or data that are
otherwise inadmissible shall not be disclosed to the jury by the proponent of
the opinion or inference unless the court determines that their probative value
in assisting the jury to evaluate the expert’s opinion substantially outweighs
their prejudicial effect.”
¶
53.        
While defense counsel maintained that the probative value of any
potential hearsay testimony far outweighed its prejudicial effect, defense
counsel also acknowledged that, “by the time Dr. Kinsler
testifies . . . it will all be a moot point” because the information
at issue would already be admitted.  The court also recognized the
likelihood that the matter would be a “non-issue,” but was clear nevertheless
that it was “not going to have [defendant’s] background introduced through Mr. Kinsler.  That is something that has got to be
admitted independently.”  The court subsequently explained its view more
specifically: “If the crux of this defense is that [defendant] acted . . . because of post-traumatic stress
disorder which was itself caused . . . by someone abusing her, then
there has to be independent evidence of that.  We’re not going to float it
up there in midair for the jury to speculate about.”
¶
54.        
Following the hearing, the court memorialized its decision in a written
ruling, stating its understanding that Dr. Kinsler’s
testimony would be “based to great extent on the information he gathered
personally from . . . [d]efendant,” that
the court anticipated the State would be strongly interested in “testing” this
information “through cross-examination,” and therefore that Dr. Kinsler would not be allowed to refer to the information
unless it was already in evidence or elicited by the State through
cross-examination.
¶
55.        
In any event, defense counsel’s prediction that the matter would be a
non-issue was correct.  Defendant, her husband, and her friends and family
members testified extensively and in significant detail concerning the physical
and emotional abuse that defendant’s husband had inflicted on her.  Later,
as defendant’s last witness, Dr. Kinsler testified
over the course of almost an entire day about his five interviews with
defendant; separate meetings with defendant’s husband and other friends and
family; eight psychological tests that he administered to defendant and their
results; and other material that he had reviewed, such as police reports and
witness statements.  His testimony included defendant’s descriptions of
her husband’s physical and emotional abuse, as well as her relationship with
the victim and other family members.  Dr. Kinsler
also testified extensively about defendant’s specific memories of the events
surrounding the homicide, and how those memories had informed his decision on
which psychological tests to administer and how he interpreted the results
leading to his diagnoses.
¶
56.        
The foregoing record notwithstanding, defendant contends the trial court
committed prejudicial error in precluding Dr. Kinsler’s
testimony about the facts underlying his opinions without determining whether
their probative value outweighed their prejudicial effect, pursuant to Rule
703.  The claim is unavailing for two reasons.  First, contrary to
defendant’s claim, it is reasonably clear that the trial court weighed the
probative value of the information of principal concern to the
parties—defendant’s extensive history of domestic abuse—and concluded that it
did not outweigh the potential prejudice of admitting the evidence through Dr. Kinsler “for the jury to speculate about” without affording
the State the opportunity to test the information first-hand.  This
balancing of probative value versus unfair prejudice is precisely the sort which is committed to the trial court’s “broad” discretion,
and defendant has not shown that the court “either completely withheld its
discretion or exercised it on grounds clearly untenable or unreasonable.” 
State v. Shippee, 2003 VT
106, ¶ 13, 176 Vt. 542, 839 A.2d 566 (mem.).
¶
57.        
Second, defendant has not identified any specific information on which
Dr. Kinsler relied in forming his opinions that was
not admitted as a result of the court’s ruling.  Although defendant argues
on appeal that “[t]he limitations on Dr. Kinsler’s
testimony crippled his ability to explain his opinion to the jury,” defendant
has not explained what information Dr. Kinsler relied
on that was not in evidence and testified-to by Dr. Kinsler
himself.  Thus, there is simply no basis for a finding of error, and no
grounds to disturb the judgment.  State v. McGuigan,
2008 VT 111, ¶ 21, 184 Vt. 441, 965 A.2d 511 (stating that to warrant
disturbing judgment, claimed error—“be it of constitutional or nonconstitutional dimension”—must have affected party’s
“substantial rights”).
Affirmed.
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 
 
¶ 58.         REIBER,
C.J., dissenting.   The majority hold
that forty years of Vermont law entrusting juries with the discretion to reduce
murder to manslaughter based on evidence of a defendant’s diminished capacity
rests on a meaningless semantic distinction—an analytic flaw—which once revealed
compels its complete abandonment. As Holmes famously observed, however, the law
is not built on ordered logic; it is built on human experience.[6]  At bottom, the law’s recognition
that a defendant’s compromised mental condition may mitigate murder to
manslaughter reflects a basic human instinct correlating punishment with
fault.  We innately perceive that, even if technically “sane,” a defendant
so severely compromised by mental or emotional trauma that he or she lacks the
normal capacity for self-control may be less culpable, and
therefore deserving of the lesser—though not insubstantial—retribution
reserved for manslaughter.  The doctrine of diminished capacity simply
recognizes that we are all human, and all deserving of the law’s mercy. 
¶ 59.         The
majority maintain, nevertheless, that at least six decisions of this Court plus
“a host of other prior cases” recognizing the defense of diminished capacity
must be “overrule[d]” in order to avoid “a substantial departure from our
longstanding [homicide] framework.”  Ante,
¶¶ 34 n.4, 39.  This is paradoxical, to say the least. 
If a decision to overrule four decades of settled law is not a “departure” from
our established homicide framework, I cannot imagine what is.
¶ 60.         Certainly
our reasoning has been inconsistent, which may help to explain the majority’s
uncertainty in deciding whether we are reaffirming prior law or overruling
it.  But I think that this tension reveals something else: a fundamental
misunderstanding of the issue at the heart of this case.  The essential
question here is not, as the majority suggests, whether “malice” continues to
imply something more than intent; it probably does not.  Nor is the
question whether some of our decisions were logically inconsistent in
characterizing diminished capacity as intent-negating when voluntary
manslaughter actually requires an intent to kill; they probably were.
¶ 61.         What
the majority overlook is that all of these decisions—however occasionally
imperfect their logic—recognized a murder defendant’s basic right to persuade a
jury to reduce the offense to manslaughter based on evidence of diminished
capacity resulting from a mental disease or defect not amounting to
insanity.  The essential question here is why?  Why has this Court
consistently—until today—recognized this right?  Understand this, and we
may begin to understand how best to characterize such evidence, whether it be malice-negating, intent-negating, or something else
entirely.
¶ 62.         The
answer begins with the common-law crime of manslaughter based on heat of
passion, which this Court described more than 150 years ago in language that
cannot be improved on today:  an offense “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 [offense].”  State v. McDonnell,
32 Vt. 491, 545 (1860) (quotation and emphasis omitted), overruled on other
grounds by State v. Burpee, 65 Vt. 1, 8,
25 A. 964, 966 (1892).  Over time, the notion that human “frailty” may
“palliate” an offense from murder to manslaughter extended to other
circumstances, including—most notably—diminished capacity, which we early
defined as “legally applicable to [mental] disabilities not amounting to
insanity . . . to reduce the degree of the crime rather than to
excuse its commission.”  State v. Smith, 136 Vt.
520, 527, 396 A.2d 126, 130 (1978).
¶ 63.         Despite
the various unpersuasive efforts over time to correlate diminished capacity
with one or another element of murder—ably dissected by the majority—the fact
remains that, like heat of passion, it constitutes in essence an “extenuating
circumstance” permitting a jury to “palliate” or “mitigate” the offense from
murder to manslaughter.  See State v. Johnson, 158 Vt. 508, 518-`19
n.4, 615 A.2d 132, 138 n.4 (1992) (“In straightforward terminology, voluntary
manslaughter is an intentional killing committed under extenuating
circumstances that would mitigate, but not justify, the killing, such as
provocation that would cause a reasonable person to lose self
control.”).  Indeed, Justice Morse was absolutely correct, as well
as remarkably prescient, in anticipating this issue twenty years ago in State
v. Pelican, when he observed as follows:
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.
160 Vt. 536, 543, 632 A.2d 24, 29
(1993) (Morse, J., concurring) (quotation omitted); see also State v. Blish, 172 Vt. 265, 272, 776 A.2d 380, 386 (2001)
(noting that the “critical factor” distinguishing murder from manslaughter is
“the existence of mitigating circumstances”).
¶ 64.         Diminished
capacity thus operates precisely like heat-of-passion; it is not tied to a
particular state-of-mind element but rather allows the jury to reduce the crime
from second degree murder to voluntary manslaughter if it concludes that the
offense was committed under the influence of a mental disease or defect not
resulting in insanity.  This understanding not only reinforces Justice
Morse’s clarifying insight in Pelican, and our observation in cases like
Blish, concerning the critical distinction
between murder and manslaughter. It also closely complements the definition of
manslaughter endorsed by the distinguished authors of the Model Penal Code—and
enacted in several states—as “a homicide which would otherwise be murder . . .
committed under the influence of extreme mental or emotional disturbance for
which there is a reasonable explanation or excuse . . .
determined from the viewpoint of the actor’s situation under the circumstances
as [the actor] believes them to be.”  Model Penal Code § 210.3
(1980).
¶ 65.         As
succinctly summarized by New York’s high court, “[t]he purpose of the extreme
emotional disturbance defense is to permit the defendant to show that his
actions were caused by a mental infirmity not arising to the level of insanity,
and that he is less culpable for having committed them.”  State v.
Patterson, 347 N.E.2d 898, 907 (N.Y. 1976); see also State v. Dumlao,
715 P.2d 822, 829 (Haw. 1986) (noting that Hawaii’s manslaughter definition
based on the Model Penal Code essentially “merge[d] the two concepts of heat of
passion and diminished capacity”); McClellan v. Commonwealth, 715 S.W.2d
464, 468 (Ky. 1986) (explaining that “[e]xtreme
emotional disturbance for which there is a reasonable explanation . . . reduces
the degree of a homicide from murder to manslaughter [and] [i]n
that respect . . . serves the same function as ‘acting in sudden heat of
passion’ ”).  Even in England, the source of so much of our common law,
murder must be reduced to manslaughter if the jury finds that the defendant
“was suffering from such abnormality of mind . . .
as substantially impaired [his or her] mental responsibility for [the] acts and
omissions in doing . . . the killing.”  Homicide
Act, 1957, 6 & 7 Eliz. 2, c. 11, pt. I, § 2(1).  As one scholar has explained, the
English Homicide Act—like the Model Penal Code—“broadly sets out a policy for
judges and juries to apply in assessing culpability, but does not use legally
defined mental states as intermediaries.”  P. Dahl, Legal and
Psychiatric Concepts and the Use of Psychiatric Evidence in Criminal Trials,
73 Calif. L. Rev. 411, 440 (1985).
¶ 66.         What
prevents the majority from embracing this clear and straightforward approach
and reaffirming a defense that has been available to Vermont defendants for
nearly forty years?  The majority assert that it would mark a “substantial
departure” from Vermont law, yet recognize at the same time that we have
continually—if not always consistently—characterized diminished capacity as
fundamentally a defense in mitigation.  The authority for this approach is
plain.  No dramatic “departure” is required to recognize it.
¶ 67.         Perhaps
a different concern animates the majority, however—the concern implicit in
their suggestion that this understanding of diminished capacity lacks
sufficient “standards” and thus leaves too much discretion to the jury.  Ante, ¶ 38.  But if so the premise is
flawed.  This Court’s shifting explanations for the doctrine
notwithstanding, Vermont juries have applied the defense of  diminished
capacity for nearly forty years, and I am not aware of any suggestion, much less
evidence, of jury nullification or confusion.  There is simply no basis to
believe that ordinary Vermonters are incapable of sensibly evaluating a plea in
mitigation based upon evidence of significant mental trauma, to determine
whether in the particular factual circumstances it warrants a reduction in the
defendant’s culpability.
¶ 68.         Moreover,
taken to its logical conclusion, the majority’s belief that a defense divorced
from the specific elements of murder lacks adequate “standards” would just as
logically compel abrogation of heat-of-passion manslaughter, which we similarly
define as a defense in mitigation—“an intentional killing committed under
extenuating circumstances that would mitigate, but not justify, the killing,
such as provocation that would cause a reasonable person to lose
self-control.”  Johnson, 158 Vt. at 518-19 n.4, 615 A.2d at 138 n.4.  All that distinguishes the two doctrines,
in this sense, is the “reasonable person” test, an extraordinarily thin basis
of distinction.
¶ 69.         Indeed,
the notion that heat-of-passion manslaughter might provide a more reliable or
objective standard—predicated on whether a “reasonable” person would have been
sufficiently provoked to kill—has been shown to be wholly illusory.  The
idea that, in assigning criminal culpability, a jury should largely ignore the
mental state of the particular defendant and focus on whether a “reasonable”
person would have committed the homicide has been aptly described as
“absurd.”  As one commentator has cogently observed:
[I]t seems absurd
to say that the reasonable man will commit a felony the possible punishment for
which is imprisonment for life.  To say that the “ordinary man” will
commit this felony is hardly less absurd.      
Surely the true view of provocation is that it is a concession to the “frailty
of human nature” in those exceptional cases where the legal prohibition fails
of effect.  It is a compromise, neither conceding the propriety of the act
nor exacting the full penalty for it.
Dumlao, 715 P.2d at 827
(quoting G. Williams, Provocation and the Reasonable Man, 1954 Crim. L.
Rev. 740, 742); see also State v. Ott, 686
P.2d 1001, 1005 (Or. 1984) (observing that the traditional heat-of-passion
defense “placed the jury in the conceptually awkward (to put it mildly) position
of having to determine when it is reasonable for a reasonable man to act
unreasonably”); A. Donovan et al., Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, 14 Loy.
L.A. L. Rev. 435, 451 (1981) (noting “paradox . . . inherent in the use of the
reasonable standard to test criminal responsibility: the presence or absence of
criminal intent is determined by a standard which ignores the mental state of
the individual accused”).[7]
¶ 70.         The
notion that juries are reliably guided by identifiable public standards in
deciding whether an “ordinary” or “reasonable” person would have intentionally
killed under the circumstances is thus questionable, to say the least, and
certainly provides no more objective guidance than expert evidence focused on
the accused’s state of mind.  Indeed, as one scholar has noted, focusing
on the accused’s mental or emotional status actually “simplif[ies]
the jury’s task because the inquiry into the accused’s own mental state is more
concretely grounded in reality than are conjectures about a mythical reasonable
man.”  Donovan, supra, at 458. 
¶ 71.         Accordingly,
I would hold that the trial court erred in refusing to instruct on diminished
capacity where—as here—the record evidence amply supported such an
instruction.  Indeed, the facts here present a textbook case for the
jury’s consideration of the diminished capacity defense. Based on numerous
interviews with defendant and others, a clinical psychologist testified at
length concerning defendant’s “enormously elevated” levels of psychological
trauma resulting from a horrific history of domestic abuse.  He concluded
that defendant consequently suffered from “acute stress disorder,” entered a
“dissociative state” when she became embroiled in a physical confrontation with
the victim, and reacted “automatically and without conscious control” in
attacking the victim with deadly force.  The evidence was more than
sufficient to warrant an instruction on diminished capacity, allowing the jury
to determine whether defendant acted under the influence of a mental disease or
defect not rising to the level of insanity.
¶ 72.         In
light of this evidence, furthermore, it is impossible to conclude that the error
was harmless.  Defendant’s claim of diminished capacity was a central
theory of the defense.  “A defendant is entitled to have the court present
a defense based on the evidence to the jury squarely, that they might confront
it, consider it, and resolve its truth or falsity by the their verdict.”  State v. Drown, 148 Vt. 311, 312, 532 A.2d 575, 576 (1987)
(quotation omitted).  The trial court’s instruction on manslaughter
here entirely omitted from the jury’s consideration defendant’s core
defense.  Under any standard of fundamental fairness, this cannot be found
to be harmless beyond a reasonable doubt, and compels reversal of the judgment.
 See Duff, 150 Vt. at 333, 554 A.2d at 216
(reversing second-degree murder conviction based in part on court’s incomplete
charge on diminished capacity, which referenced only heat of passion).
¶ 73.         Today’s
decision to abandon the settled defense of diminished capacity defies common
sense, reason, and authority.  Although our descriptions of the doctrine
have not always been consistent, our commitment to its intrinsic justice has
never wavered.  This is because, like all good common-law principles, its
source does not lie in case books—but in the human heart.  The law is
diminished if we forget this. 



  


 


 




 


 


 




 


 


 




 


 


Chief Justice



 







[1]
 For this reason, the dissent’s suggestion that the question in this case
is whether to recognize or abrogate a “diminished capacity” defense is
inaccurate.  The question before us is not whether evidence of a
diminished mental capacity may be relevant to reduce legal responsibility; the
question is what standards apply, and what consequences ensue.
 


[2] 
To avoid confusion, when we use the term “specific intent” in the context of
second-degree murder or voluntary manslaughter, we intend to encompass all
three of these types of intent.


[3]  We have contemplated the possibility
that “malice” might itself be an independent state-of-mind element that
distinguishes second-degree murder from voluntary manslaughter—above and beyond
intent or the absence of cognizable extenuating circumstances.  But we
cannot divine what it might mean.  In Johnson we rejected the
suggestion that “malice aforethought” was synonymous with “archaic phrases such
as ‘evil disposition,’ wicked purpose,’ and ‘heart fatally bent on
mischief,’ ” as those phrases do not approximate the term’s literal
meaning in modern times, “and indeed it is doubtful that an ‘ill-will’ element
was ever required for a murder conviction.”  Johnson 158 Vt. at
515, 615 A.2d at 136.  The term cannot connote
the opportunity for reflection, because such reflection is the defining feature
of premeditation-- an element of first-degree murder, but not second-degree
murder.  See State v. Reuschel,
131 Vt. 554, 558, 312 A.2d 739, 741 (1973) (“Every premeditated act is, of
course, a wilful one; and deliberation and
premeditation simply mean that the act was done with reflection and conceived before hand.  No specific length of time is
required for such deliberation.”) (quoting State v.
Carr, 53 Vt. 37, 46 (1880)).  Nor is malice
synonymous with awareness of the law or the ability to act in accordance with
it.  Under our scheme, these factors define
sanity.  13 V.S.A. § 4801(a)(1).  But see People v. Poddar,
518 P.2d 342, 348 (Cal. 1974) (person acts with “malice” when his or her
conduct is “likely to cause death or serious injury” and is taken despite
awareness of duty to act within the law and ability to act in accordance with
the law), superseded by statute, 1981 Cal. Stat. 1591, as recognized
in People v. Saille, 820 P.2d 588, 592-93
(Cal. 1991).


[4]
 To the extent that we suggested otherwise in Duff, Shaw, Wheelock,
Sexton, Williams, and a host of other prior cases, we hereby
overrule that aspect of those decisions.  The problem with those decisions
is not that they allowed the jury to convict on a lesser charge in the face of
evidence of diminished capacity that undermined the State’s evidence with
respect to the defendant’s intent; the problem is that they suggested that the
appropriate lesser charge was voluntary manslaughter, as opposed to involuntary
manslaughter. 


[5]
 The dissent cites a section of the Model Penal Code in support of its
position.  Post, ¶ 64.  It would
be difficult to apply individual sections of the Model Penal Code to a case
like this because the overall framework of Vermont’s homicide statute does not
track that of the Model Penal Code.  Adoption of the Model Penal Code’s
framework concerning homicide may be desirable, but an overhaul of our homicide
law of that magnitude is best left to the Legislature.


[6] 
“The life of the law has not been logic; it has been experience.”  O.W.
Holmes, Jr., The Common Law 1 (1881).  


[7] 
Tellingly, the defense of heat-of-passion or provocation originally “turned on
the individual accused’s state of mind as revealed by all relevant facts and
circumstances of the individual’s case” and was only modified to the so-called
“reasonable” person standard when judges gave the decision to juries as “a
device which promoted the myth of the objective, value-free nature of the
criminal law.”  Donovan, supra, at 447-48.



