State ex rel. Kuntz v. Montana Thirteenth Judicial Dist. Court

995 P.2d 951 (Mont. 2000)

Justice James C. Nelson delivered the Opinion of the Court.

… On January 8, 1999, the District Court for the Thirteenth Judicial District, Yellowstone County, issued an Order denying Bonnie Kuntz's motion to dismiss or strike an amended information. The amended information alleged, under one charge, that Kuntz negligently caused the death of Warren Becker by stabbing and then failing to call for medical assistance. Kuntz contended that her affirmative defense of justifiable use of force nullified any conceivable duty she had to render aid to Becker following the stabbing, and therefore the portion of the information pertaining to her failure to summon medical aid should be amended or stricken. In denying Kuntz's motion, the District Court stated that because Kuntz may have had such a duty, both she and the State would be permitted to argue whether her “actions after the stabbing tend to refute her claim of justification.” Kuntz [and the state jointly sought review.] This Court concluded … that legal questions raised were ones of first impression [and granted review.] ...

According to the amended information and supporting affidavit, Yellowstone County Sheriffs deputies were dispatched on April 19, 1998, to the home of Bonnie Kuntz and Warren Becker to investigate a reported stabbing. When the deputies arrived at the trailer house, Becker was dead from a single stab wound to the chest.

Kuntz, who was waiting for medical and law enforcement personnel to arrive, told the deputies that she and Becker had argued the morning of April 18, 1998. At some point during the day, both parties left the trailer home. After Kuntz returned that evening, at or before midnight, a physical altercation ensued.

The alleged facts indicate that Kuntz and Becker, who had never married but had lived together for approximately six years, were in the process of ending what is described as a stormy relationship. When Kuntz arrived at the mobile home that night, she discovered that many of her personal belongings had been destroyed, the interior of the home “trashed,” and the phone ripped from the wall. Kuntz told the deputies that she then went into the kitchen. There, allegedly, Becker physically attacked her, and at one point grabbed her by the hair, shook her, and slammed her into the stove.

Kuntz told the deputies that she could not clearly remember what happened, only that she had pushed Becker away and had then gone outside by the kitchen door to “cool off.” When she thought that the fight was over, and that it was safe to go back inside, she returned to the kitchen. She discovered a trail of blood leading from the kitchen through the living room and out onto the front porch where she found Becker collapsed face-down on the porch. She alleges that she rolled him over. Becker was unresponsive.

Kuntz then alleges that she found Becker's car keys in one of his pockets, got in his vehicle, drove to a friend's house several miles away, and called her mother. Kuntz does not allege that she personally contacted medical or law enforcement personnel; rather, authorities were apparently summoned by Kuntz's sister-in-law, who lived next door to Kuntz's mother, sometime within an hour after the stabbing. Kuntz did return, however, to the trailer home where she waited for the deputies and medics to arrive.

On June 23, 1998, Bonnie Kuntz was charged with negligent homicide for causing the death of Warren Becker by stabbing him once in the chest. Although she admitted stabbing Becker and causing his death, Kuntz entered a plea of not guilty based on the defense of justifiable use of force.

On November 6, 1998, shortly before the scheduled trial date, the State filed an amended information charging the same offense but alleging that Kuntz caused the death of Becker by stabbing him once in the chest with a knife and by failing to call for medical assistance. Kuntz again entered a plea of not guilty. On December 18, 1998, Kuntz filed a motion to dismiss the amended information or in the alternative to strike the allegation that the failure to seek medical assistance constituted negligent homicide.

Following a hearing and briefing, the District Court issued an Order and Memorandum on January 8, 1999, denying Bonnie Kuntz's motion to dismiss the amended information….

For criminal liability to be based upon a failure to act, there must be a duty imposed by the law to act, and the person must be physically capable of performing the act. See § 45-2-202, MCA. As a starting point in our analysis, the parties here have identified what is often referred to as “the American bystander rule.” This rule imposes no legal duty on a person to rescue or summon aid for another person who is at risk or in danger, even though society recognizes that a moral obligation might exist. This is true even “when that aid can be rendered without danger or inconvenience to” the potential rescuer. Pope v. State (Md. 1979), 284 Md. 309, 396 A.2d 1054, 1064. Thus, an Olympic swimmer may be deemed by the community as a shameful coward, or worse, for not rescuing a drowning child in the neighbor's pool, but she is not a criminal. See LaFave & Scott, Substantive Criminal Law § 3.3(a) (1986).

But this rule if far from absolute. Professors LaFave and Scott have identified seven common-law exceptions to the American bystander rule: 1) a duty based on a personal relationship, such as parent-child or husband-wife; 2) a duty based on statute; 3) a duty based on contract; 4) a duty based upon voluntary assumption of care; 5) a duty based on creation of the peril; 6) a duty to control the conduct of others; and 7) a duty based on being a landowner. See LaFave & Scott, § 3.3, at 283-289. A breach of one of these legal duties by failing to take action, therefore, may give rise to criminal liability. Our review of the issues presented here can accordingly be narrowed to two of the foregoing exceptions as briefed by the parties and identified by the District Court: 1) a duty based on a personal relationship, and 2) a duty based on creation of the peril.

… In the widely-cited case of State v. Mally (1961), 139 Mont. 599, 366 P.2d 868, this Court held that under certain circumstances a husband has a duty to summon medical aid for his wife and breach of that duty could render him criminally liable. The facts of the case described how Kay Mally, who was suffering from terminal kidney and liver diseases, fell and fractured both her arms on a Tuesday evening. Her husband, Michael Mally, put her to bed and did not summon a doctor until Thursday morning. “During this period of time, as she lay there with only the extended arm of death as a companion, she received but one glass of water.” Mally, 139 Mont. at 608, 366 P.2d at 873. Although his wife ultimately died of kidney failure, Mally was found guilty of involuntary manslaughter, a forerunner of Montana's negligent homicide statute, because his failure to act hastened his wife's death. See Mally, 139 Mont. at 610, 366 P.2d at 874. See also Territory v. Manton (1888), 8 Mont. 95, 19 P. 387 (finding husband criminally culpable for leaving intoxicated and inadequately clothed wife outside in winter conditions overnight). But see State v. Decker (1971), 157 Mont. 361, 365-66, 485 P.2d 695, 698 (reversing involuntary manslaughter conviction of husband who, after finding his intoxicated wife unconscious on barroom floor, put her to bed and failed to summon medical aid until the next morning).

In Mally, however, we alluded to a limitation of this rule which is a point of contention between the parties here. We cited to People v. Beardsley (Mich. 1907), 150 Mich. 206, 113 N.W. 1128, which is favorably cited by Amicus. The Michigan Supreme Court concluded that the legal duty imposed on the personal relationship of husband and wife could not be extended to a temporary, non-family relationship. The court held that a married defendant had no duty to summon medical help for his mistress, who was staying in his house for the weekend, after she took morphine following a bout of heavy drinking and fell into a “stupor.” Beardsley, 113 N.W. at 1131.

We agree with the State, as well as myriad commentators over the years, that although not expressly disfavored in case law, Beardsley is indeed “outmoded.” … See, e.g., Note, Criminal Omissions, 55 Harv. L. Rev. 615, 625 (1942) (suggesting that the law should protect the expectation found in certain personal relationships that “in an emergency a limited faith or trust will be honored”); Graham Hughes, Criminal Omissions, 67 Yale L. J. 590, 624 (1958) (stating that Beardsley “proclaims a morality which is smug, ignorant and vindictive”); Arthur Leavens, A Causation Approach to Criminal Omissions, 76 Calif. L. Rev. 547, 561 (1988) (criticizing the Beardsley court's “crimped” reading of legal duty). See also State v. Miranda (Conn. 1998), 245 Conn. 209, 715 A.2d 680, 682 (concluding that person who is not biological or legal parent of a child but who establishes a “familial relationship” with live-in girlfriend has duty to protect child from abuse); Leet v. State (Fla. App. 1991), 595 So. 2d 959, 963 [same].

Applying the foregoing to the facts here, we conclude that Kuntz and Becker, having lived together for approximately six years, owed each other the same “personal relationship” duty as found between spouses under our holding in Mally. This duty, identified as one of “mutual reliance” by LaFave and Scott, would include circumstances involving “two people, though not closely related, [who] live together under one roof.” LaFave & Scott, § 3.3(a)(1), at 285-286. To hold otherwise would result in an untenable rule that would not, under the factual circumstances found in Mally, impose a legal duty to summon medical aid on persons in a relationship involving cohabitation. Nevertheless, this holding is far from dispositive in establishing a legal duty under the facts presented.

We agree with the District Court that the duty based on “creation of the peril” is far more closely aligned with the factual circumstances here. Undoubtedly, when a person places another in a position of danger, and then fails to safeguard or rescue that person, and the person subsequently dies as a result of this omission, such an omission may be sufficient to support criminal liability. See LaFave & Scott, § 3.3(a)(5), at 288; State v. Morgan (Wash.App. 1997), 86 Wn. App. 74, 936 P.2d 20, 23 (imposing criminal liability for supplying cocaine leading to victim's overdose) ….

This duty may include peril resulting from a defendant's criminal negligence, as alleged here. See generally Mally, 139 Mont. at 606, 366 P.2d at 872 (stating that failure to obtain medical aid for one who is owed a duty is a sufficient degree of negligence as to constitute involuntary manslaughter)….

The legal duty based on creation of the peril has been extended in other jurisdictions to cases involving self-defense. See King v. Commonwealth (Ky. App. 1941), 285 Ky. 654, 148 S.W.2d 1044; People v. Fowler (Cal. 1918), 178 Cal. 657, 174 P. 892, 896 …. A clear, conclusive articulation of the legal duty to render or summon medical aid following an act of self-defense, however, was not established in either of these cases.

The court in King, for example, reversed a conviction of voluntary manslaughter that was based on the appellant's refusal to give or permit others to give aid or medical attention. The court, in finding that jury instructions were improper and prejudicial, stated:

Since the shooting was justified, appellant could not have been guilty of voluntary or involuntary manslaughter unless he had committed some subsequent act which converted a non-fatal injury into a fatal one. If the injury was fatal, nothing which appellant might have done could have changed the result, or lessened or increased his responsibility.

King, 148 S.W.2d at 1047 (emphasis added). The facts do not reveal how the use of force came about, only that the appellant shot the decedent in the leg with a shotgun in the “necessary defense of appellant's father.” King, 148 S.W.2d at 1046. Following the shooting, the Kings (father and son) carried the victim to their front porch and, futilely, attempted to stop the bleeding. The Kings did not have access to a phone or an automobile. Consequently, “some hours elapsed before the first-aid man and the constable arrived, and about 11:30 A.M. an automobile was procured [approximately five hours after the shooting].” King, 148 S.W.2d at 1046. Even though evidence showed that a physician could have been summoned more speedily, and that the appellant's father acted somewhat indifferently to the shooting victim's plight, the court concluded that the Kings had not committed a “subsequent act” in that they did not actually refuse to render or seek medical attention for the victim, and thus could not have been found guilty of voluntary manslaughter, which required an unlawful, willful act. King, 148 S.W.2d at 1046-47.

… As King and Fowler suggest, the legal duty imposed on personal relationships and those who create peril are not absolute; i.e., there are exceptions to these exceptions. The personal relationship legal duty, for example, does not require a person to jeopardize his own life. See also State v. Walden (N.C. 1982), 293 S.E.2d 780, 786 (stating that although a parent has a legal duty to prevent harm to his or her child, “this is not to say that parents have the legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children”). Furthermore, the duty does not arise unless the spouse “unintentionally entered a helpless state,” or was otherwise incompetent to summon medical aid on his or her own behalf. Commonwealth v. Konz (Pa. 1982), 450 A.2d 638, 642.

Similarly, the law does not require that a person, who places another person in a position of peril, risk bodily injury or death in the performance of the legally imposed duty to render assistance.…

Therefore, where self-preservation is at stake, the law does not require a person to “save the other's life by sacrificing his own,” and therefore no crime can be committed by the person who “in saving his own life in the struggle for the only means of safety,” causes the death of another. 40 Am.Jur. Homicide § 116 (1999) (analyzing self-preservation in situations involving common peril). Even states such as Vermont that have adopted a “Good Samaritan Doctrine” which—contrary to the American bystander rule—imposes a legal duty to render or summon aid for imperiled strangers, do not require that the would-be rescuer risk bodily injury or death. See, e.g., State v. Joyce (Vt. 1981), 139 Vt. 638, 433 A.2d 271, 273 (holding that Vermont's Duty to Aid the Endangered Act did not require bystanders to intervene in a fight, because such intervention would expose person to risk of sustaining an injury). Thus, although a person may still be held accountable for the results of the peril into which he or she placed another, the law does not require that he or she risk serious bodily injury or death in order to perform a legal duty.

With these general principles in place, we now turn to the [key issue:] Does one who justifiably uses deadly force in defense of her person nevertheless have a legal duty to summon aid for the mortally wounded attacker?

Our analysis of this issue is narrowed to whether the legal duty to summon aid, based on the defendant's personal relationship or creation of peril, extends into circumstances where the defendant's alleged use of justifiable force places his or her aggressor in need of medical attention. The State contends that even if Kuntz's use of force was justified, a proven subsequent failure by her to summon aid could constitute a gross deviation from ordinary care. Thus, the State's amended information charging Kuntz with negligent homicide for stabbing Becker and then failing to immediately call for medical assistance was proper and should not be stricken. Although the use of force may be justified, to not hold such a person criminally accountable for the subsequent omission would, according to the State, “encourage revenge and retaliation.”

Whether inflicted in self-defense or accidentally, a wound that causes a loss of blood undoubtedly places a person in some degree of peril, and therefore gives rise to a legal duty to either 1) personally provide assistance; or 2) summon medical assistance…. Even so, the performance of this legal duty, as discussed above, does not require that a person place herself at risk of serious bodily injury or death.

Accordingly, …we hold that when a person justifiably uses force to fend off an aggressor, that person has no duty to assist her aggressor in any manner that may conceivably create the risk of bodily injury or death to herself, or other persons. This absence of a duty necessarily includes any conduct that would require the person to remain in, or return to, the zone of risk created by the original aggressor. We find no authority that suggests that the law should require a person, who is justified in her use of force, to subsequently check the pulse of her attacker, or immediately dial 9-1-1, before retreating to safety.

Under the general factual circumstances described here, we conclude that the victim has but one duty after fending off an attack, and that is the duty owed to one's self—as a matter of self-preservation—to seek and secure safety away from the place the attack occurred. Thus, the person who justifiably acts in self-defense is temporarily afforded the same status as the innocent bystander under the American rule. See Pope, 396 A.2d at 1064 (stating general rule); LaFave & Scott, § 3.3(a)(5), at 288 (suggesting that “one who innocently creates danger is on principle in the same position as that of a bystander who happens by when a situation of danger has developed”).

Finally, we conclude that the duty to summon aid may in fact be “revived” as the State contends, but only after the victim of the aggressor has fully exercised her right to seek and secure safety from personal harm. Then, and only then, may a legal duty be imposed to summon aid for the person placed in peril by an act of self-defense. We further hold that preliminary to imposing this duty, it must be shown that 1) the person had knowledge of the facts indicating a duty to act; and 2) the person was physically capable of performing the act. See LaFave & Scott, § 3.3(b), at 289 (stating prevailing view that person may not be held criminally liable where defendant is unaware of the facts giving rise to the duty to act); § 45-2-202, MCA (stating that a “material element of every offense is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing”).

It must be emphasized, however, that once imposed, a proven breach of this legal duty may still fall far short of negligent homicide, pursuant to § 45-5-104, MCA, which requires a gross deviation from an ordinary or reasonable standard of care….

For these reasons, the District Court's order denying Kuntz's motion to amend or strike the amended information is affirmed, and this case is remanded for further proceedings consistent with this opinion.

Justice Terry N. Trieweiler concurring and dissenting.

… The majority has concluded that although circumstances occur which are so extreme that a woman is justified in the use of deadly force to defend herself, a jury can, after the fact, in the safe confines of the jury room, conclude that at some subsequent point she was sufficiently free from danger that she should have made an effort to save her assailant and that because she didn't she is still criminally liable for his death even though at some previous point in time she was justified in taking his life. This result is simply unworkable as a practical matter and makes poor public policy.

Section 45-3-102, MCA, provides that a person is justified in the use of deadly force only when necessary to prevent imminent death or serious bodily harm to herself or another, or to prevent commission of a forceable felony. It severely limits the circumstances under which deadly force is justified. However, it specifically recognizes that under those circumstances, the amount of force necessary may be deadly. It is inherently contradictory to provide by statute that under certain circumstances deadly force may be justified, but that having so acted, a victim has a common law duty to prevent the death of her assailant….

Robertson v. Commonwealth

82 S.W.3d 832 (Ky. 2002)

Opinion of the Court by Justice Cooper.

Michael Partin, a police officer employed by the city of Covington, Kentucky, was killed when he fell through an opening between the roadway and the walkway of the Clay Wade Bailey Bridge and into the Ohio River while in foot pursuit of Appellant Shawnta Robertson. Following a trial by jury in the Kenton Circuit Court, Appellant was convicted of manslaughter in the second degree for wantonly causing Partin's death, KRS 507.040(1), and was sentenced to imprisonment for six years. The Court of Appeals affirmed, and we granted discretionary review to further consider the circumstances under which criminal liability can be imposed upon a defendant for injuries or death directly caused by the volitional act of another.

At about 2:00 a.m. on January 4, 1998, Officer Brian Kane of the Kenton County Police Department attempted to arrest Appellant in Covington for possession of marijuana. Appellant broke free of Kane's grasp and began running north on Fourth Street toward the Clay Wade Bailey Bridge which spans the Ohio River between Covington and Cincinnati, Ohio. Kane radioed for assistance and pursued Appellant on foot “at a sprint.” When Appellant reached the bridge, he vaulted over the concrete barrier between the roadway and the walkway and began running north on the walkway toward Cincinnati. Kane, who, at that point, was running on top of the concrete barrier jumped down to the walkway and continued his pursuit.

Meanwhile, Partin and two other Covington police officers, Steve Sweeney and Cody Stanley, responded to Kane's request for assistance and arrived at the bridge almost simultaneously in three separate vehicles.…

Partin's vehicle was the first of the three police cruisers to reach the bridge. He stopped in the right northbound lane just beyond where Appellant was running on the walkway. Stanley stopped his vehicle directly behind Partin's vehicle, and Sweeney stopped in the left northbound lane, also behind Partin's vehicle. Sweeney and Stanley testified that they … saw Partin exit his vehicle, proceed to the concrete barrier, place his left hand on the barrier, then vault over the barrier “as if he had done it a million times before,” and disappear. The concrete barrier was thirty-two inches high. The railing of the walkway was forty-three inches high. There was a forty-one-inch-wide open space between the concrete barrier and the walkway railing. Partin fell through the open space into the river ninety-four feet below. His body was recovered four months later.

No one will ever know why Partin fell through the opening between the concrete barrier and the pedestrian walkway. Perhaps, he did not realize the opening was there. Perhaps, he knew it was there and miscalculated his vault. Either way, however, his death resulted from his own volitional act and not from any force employed against him by Appellant. Whether Appellant's act of resisting arrest by unlawful flight from apprehension was a legal cause of Partin's death requires application of the provisions of KRS 501.020(3) (definition of “wantonly”), KRS 501.020(4) (definition of “recklessly”), and KRS 501.060 (“causal relationships”).

KRS 501.020(3) defines “wantonly” as follows:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.... (Emphasis added.)

KRS 501.020(4) defines “recklessly” as follows:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. (Emphasis added.)

Thus, wantonness is the awareness of and conscious disregard of a risk that a reasonable person in the same situation would not have disregarded, and recklessness is the failure to perceive a risk that a reasonable person in the same situation would have perceived.

KRS 501.060 provides in pertinent part:

(1) Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred. ...

(3) When wantonly or recklessly causing a particular result is an element of the offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware unless:

(a) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or

(b) The actual result involves the same kind of injury or harm as the probable result and occurs in a manner which the actor knows or should know is rendered substantially more probable by his conduct.

(4) The question of whether an actor knew or should have known the result he caused was rendered substantially more probable by his conduct is an issue of fact. (Emphasis added.)

Obviously, Appellant's unlawful act of resisting arrest by fleeing from apprehension was a “but for” cause of Partin's fatal attempt to pursue him by vaulting from the roadway of the bridge to the walkway. As noted by the 1974 Commentary to KRS 501.060, the issue then becomes primarily one of mens rea.

Once an act is found to be a cause in fact of a result and a substantial factor in bringing about that result, it is recognized as the proximate cause unless another cause, independent of the first, intervenes between the first and the result. And even then the first cause is treated as the proximate cause if the harm or injury resulting from the second is deemed to have been reasonably foreseeable by the first actor.

Thus, the fact that Partin vaulted over the concrete barrier of his own volition does not exonerate Appellant if Partin's act was either foreseen or foreseeable by Appellant as a reasonably probable result of his own unlawful act of resisting arrest by fleeing from apprehension.

In Phillips v. Commonwealth, Ky., 17 S.W.3d 870 (2000), we relied, inter alia, on KRS 501.060 in upholding the wanton murder conviction of a defendant who fired shots at an intended victim from inside a vehicle and thereby induced the intended victim to return fire and kill a passenger in the defendant's vehicle. We held that it was reasonably foreseeable that, if shots were fired at another person from inside a vehicle, the other person would return fire in the direction of the vehicle, thus endangering the lives of its other occupants. 17 S.W.3d at 875. Also illustrative is the pre-code case of Sanders v. Commonwealth, 244 Ky. 77, 50 S.W.2d 37 (1932), which upheld the manslaughter conviction of a defendant who had threatened his wife with a deadly weapon while they were in a moving vehicle, causing her to jump from the vehicle to her death—clearly a volitional act by the victim but a probable and reasonably foreseeable consequence of the unlawful act of the defendant.

In both Phillips and Sanders, a defendant applied unlawful force against another whose volitional response to that force caused the victim's death. The case sub judice is conceptually more similar to Lofthouse v. Commonwealth, Ky., 13 S.W.3d 236 (2000), which reversed the reckless homicide conviction of a defendant who applied no force against the victim but supplied cocaine and heroin to the victim whose self-ingestion of those drugs caused his death. The result reached by the plurality opinion in Lofthouse did not turn on the fact that the victim died as a result of his own volitional act. Rather, in reversing the conviction, the opinion emphasized the absence of any evidence that the defendant knew or should have known that ingestion of those drugs under those circumstances would probably cause the victim's death. Id. at 241. Here, as in Lofthouse, Appellant's mens rea, i.e., what he knew or should have known with respect to the probable consequences of his conduct, is crucial to determining the issue of his criminal liability.

Analogous to this set of facts is the case where a person pursued by the police in a high speed motor vehicle chase is held criminally liable for the death of an innocent bystander accidentally struck by a pursuing police vehicle. E.g., People v. Schmies, 44 Cal. App. 4th 38, 51 Cal. Rptr. 2d 185 (Calif. App. 1996) …. In People v. Schmies, supra, the California Court of Appeal directly addressed the effect of the police officers' conduct vis-a-vis the criminal liability of the defendant.

The negligence or other fault of the officers is not a defense to the charge against defendant. The fact that the officers may have shared responsibility or fault for the accident does nothing to exonerate defendant for his role. In short, whether the officers' conduct could be described with such labels as negligent, careless, tortious, cause for discipline, or even criminal, in an action against them, is not at issue with respect to the defendant here. In this sense the “reasonableness” of the officers' conduct, focused upon their point of view and their blameworthiness for the death, is not relevant.

The issue with respect to defendant focuses upon his point of view, that is, whether the harm that occurred was a reasonably foreseeable consequence of his conduct at the time he acted. Since the officers' conduct was a direct and specific response to defendant's conduct, the claim that their conduct was a superseding cause of the accident can be supported only through a showing that their conduct was so unusual, abnormal, or extraordinary that it could not have been foreseen.

51 Cal. Rptr. 2d at 193-94 (emphasis added). Although California does not have a statutory equivalent of KRS 501.060, this common law analysis of causation is consistent with the principles embodied in our statute….The fault or negligence of the officer is not determinative of the defendant's guilt. However, the reasonableness of the officer's response is relevant in determining whether the response was foreseeable by the defendant. The more reasonable the response, the more likely that the defendant should have foreseen it. It is immaterial that the ultimate victim was the officer, himself, as opposed to an innocent bystander.

Here, the conduct that supports Appellant's conviction is not, as the Commonwealth suggests, his own act of vaulting over the concrete barrier. Partin was not present when that act occurred; thus, it was not reasonably foreseeable that he would have vaulted over the barrier in reliance on the fact that Appellant had done so without incident. (That analysis might have been appropriate if Officer Kane had fallen from the bridge when he followed Appellant onto the walkway.) The conduct that supports Appellant's conviction is the continuation of his unlawful flight when he obviously knew that Partin intended to pursue him (as evidenced by the fact that when he saw Partin's vehicle stop, he reversed course and began running in the opposite direction), and that, to do so, Partin would be required to cross the open space between the roadway and the walkway and thereby risk falling to his death. “The question of whether [Appellant] knew or should have known [that Partin's death] was rendered substantially more probable by his conduct is an issue of fact.” KRS 501.060(4). There was sufficient evidence in this case to present that fact to a jury….

Accordingly, the judgment of conviction and the sentence imposed by the Kenton Circuit Court are affirmed.

Concurring Opinion by Justice Graves.

… The act of vaulting the gap between the roadway and the sidewalk is sufficiently wanton to support the jury's verdict in this case. Appellant was aware of the danger of the gap and consciously disregarded it when he jumped. Knowing he was being pursued by at least one officer on foot, Appellant had to assume any pursuing officer would attempt to follow him, also becoming susceptible to the risk. A gap of nearly 4 feet across a drop of 94 feet into moving water cannot be described as anything but a substantial unjustifiable risk. It is certainly logical for the jury to conclude that, when Appellant disregarded this risk to which he was subjecting those lawfully pursuing him, he grossly deviated from the standard of conduct that a reasonable person would observe.

Commonwealth v. Coleman

434 Mass. 165, 747 N.E.2d 666 (Mass. 2001)

MARSHALL, C.J. The defendant was convicted of murder in the first degree on a theory of deliberate premeditation, and of unlawful possession of a firearm. G. L. c. 269, § 10 (a). The trial judge denied the defendant's motion to set aside the verdict and to enter a finding of not guilty or to order a new trial, or, in the alternative, to reduce the verdict to manslaughter. The defendant's motion to reconsider that ruling was also denied. The defendant appeals from his conviction of murder. He challenges the sufficiency of the evidence of deliberate premeditation …. We affirm the defendant's conviction of murder in the first degree ….

Facts. The jury could have found that at approximately 2 A.M. on May 25, 1997, the defendant was involved in an altercation involving several persons outside a nightclub in Worcester. The fight began when two men attacked the defendant. At some point during or after the fight in which several persons had thrown punches, the defendant left the brawl and went to a nearby automobile where he retrieved a gun from the trunk. He then turned in the direction from which he had come and shot the victim at close range. There was evidence that the victim had followed the defendant to the automobile, but no evidence that the victim was armed at the time of the shooting. There was evidence that the defendant also shot the victim a second time as he lay on the ground. After the shooting, the defendant and three other men jumped into an automobile and sped away.

Paramedics arrived at the scene shortly after the shooting and found the victim with a gunshot wound to his chest. The victim was transported to a hospital, where he died approximately two hours later. A medical examiner located a single bullet that killed the victim lodged in his lower right chest. The gun used in the shooting was not recovered.

Sufficiency of the evidence. The defendant asserts that the evidence was insufficient to permit the jury to find that the element of deliberate premeditation had been proved beyond a reasonable doubt because there was insufficient time for the defendant to have planned the killing…. There was no error.

… To convict the defendant of murder in the first degree, the Commonwealth was required to prove beyond a reasonable doubt that the defendant unlawfully killed the victim, with deliberate premeditation and malice aforethought. Commonwealth v. Judge, 420 Mass. 433, 437, 650 N.E.2d 1242 (1995). Because the defendant challenges the sufficiency of the evidence as to one element only—deliberate premeditation—we examine the sufficiency of evidence relevant to that element alone. The Commonwealth was required to establish beyond a reasonable doubt that the defendant “reflected on his resolution to kill,” Commonwealth v. Ruci, 409 Mass. 94, 96, 564 N.E.2d 1000 (1991), and cases cited, and that the defendant's decision to kill was the product of “cool reflection,” Commonwealth v. Davis, 403 Mass. 575, 582, 531 N.E.2d 577 (1988). [The judge correctly instructed that “deliberate premeditation excludes action which is taken so quickly that there is no time to reflect on the action and then decide to do it. The Commonwealth must show that the defendant's resolution to kill was, at least for some short period of time, the product of reflection.”] “'Cool reflection' merely requires that 'the purpose [be] resolved upon and the mind determined to do it before the blow is struck[;] then it is, within the meaning of the law, deliberately premeditated malice aforethought.” Id.

The defendant recognizes that no particular period of reflection is required, and that a plan to murder may be formed in seconds. He argues that, because the fighting started when two men attacked the defendant and thereafter “everything was spontaneous,” there was not enough time for the defendant to plan the killing. We disagree. Three witnesses testified that, during or after a brief fistfight, the defendant walked to the trunk of a nearby automobile and obtained a gun. One witness testified that, as the defendant walked toward an automobile, he overheard another man say, “It ain't over. It ain't over. Pop the trunk. Pop the trunk.” This witness saw the trunk pop open, and the man hand something to the defendant, who then turned toward and shot the victim. A rational jury could infer that as the defendant walked toward the automobile, he formed the plan to kill. See Commonwealth v. Whipple, 377 Mass. 709, 714-715, 387 N.E.2d 575 (1979) (sufficient evidence of premeditation where defendant disengaged from fistfight, obtained gun from nearby automobile, returned and shot victim).

One witness also testified that, after the defendant shot at the victim once, the victim fell to the ground, and the defendant “stepped back like a foot or so, and ... shot at him again.” Other witnesses also heard more than one shot. Because only one bullet wound was located in the victim's body and the victim fell to the ground after the first shot, the defendant argues that this evidence cannot support a finding of deliberate premeditation, as the fatal shot had already been fired. But the jury could have inferred in these circumstances that the multiple shots fired at the victim were evidence of deliberate premeditation, even if only one shot killed the victim. Commonwealth v. Good, 409 Mass. 612, 618, 568 N.E.2d 1127 (1991) (evidence that defendant approached victim and at close range fired three bullets at victim sufficient to support finding that “before the shooting, the defendant at least briefly reflected on his resolution to kill”)….

The defendant points to testimony that he claims undermines the evidence of deliberate premeditation, namely that the victim chased the defendant as he approached the automobile from which he obtained the gun. But there was no evidence that the victim was armed, or that the defendant shot the victim to protect himself from the victim. In any event, the defendant's reliance on contradictory evidence is misplaced. “Once sufficient evidence is presented to warrant submission of the charges to the jury, it is for the jury alone to determine what weight will be accorded to the evidence.” Commonwealth v. Ruci, supra at 97….

Postconviction motion to set aside or to reduce the verdict. … The defendant also argues that the judge abused his discretion by not reducing the verdict because the “verdict was against the weight of the evidence and a manslaughter verdict would be more consonant with justice.” Mass. R. Crim. P. 25 (b) (2). The defendant points to the evidence that he did not start the fight, but became involved after being attacked by two unknown men. He notes that there was evidence that the victim was walking or running behind him when the defendant retrieved the gun. He suggests that, because the shooting occurred during a “free-for-all” during which he and the victim exchanged blows, the crime should more properly be seen as manslaughter as the result of provocation or sudden combat….

Rule 25(b)(2) empowers a judge to reduce a jury's verdict when, in the judge's discretion, the lesser verdict is required in the interests of justice. We have noted, however, that a judge should exercise this broad power sparingly. See Commonwealth v. Woodward, 427 Mass. 659, 667, 694 N.E.2d 1277 (1998). The judge concluded that “considering the weight and credibility of the Commonwealth's case, the verdict was consonant with justice” and “in the interest of justice.” On our own review of the evidence, without benefit of the judge's superior information regarding the credibility of the witnesses, we cannot conclude that he abused his discretion. The evidence recited above supports the judge's conclusion that there is no evidence suggesting that the defendant killed the victim because he was provoked or engaged in sudden combat.

The verdict in this case is consistent with similar cases that have resulted in verdicts of murder in the first degree. See, e.g., Commonwealth v. Whipple, 377 Mass. 709, 711-715, 387 N.E.2d 575 (1979) (verdict not reduced where defendant left brief fistfight to obtain gun and returned to shoot victim); Commonwealth v. Watkins, 373 Mass. 849, 852-853, 370 N.E.2d 701 (1977) (verdict not reduced where evidence showed that during argument defendant ran to another room, retrieved knife, returned, and stabbed victim). The judge applied the proper legal standards, and did not abuse his discretion in denying the defendant's motion….

Commonwealth v. Acevedo

446 Mass. 435, 845 N.E.2d 274 (Mass. 2006)

SPINA, J. The defendant was indicted for murder in the first degree for the stabbing death of Charles McCullough during a fight. At trial, defense counsel argued for acquittal based on self-defense, and the trial judge instructed the jury on self-defense, voluntary manslaughter based on excessive force in self-defense, and involuntary manslaughter. The jury convicted the defendant of murder in the second degree. The defendant appealed from the conviction and filed a motion for a new trial, arguing that the failure of the judge to instruct the jury on voluntary manslaughter based on reasonable provocation created a substantial risk of a miscarriage of justice …. This motion was denied by the judge after a nonevidentiary hearing. The defendant's appeal from the order denying his motion for a new trial was consolidated with his direct appeal, and in an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the order and the conviction. Commonwealth v. Acevedo, 63 Mass. App. Ct. 1106, 824 N.E.2d 486 (2005). We granted the defendant's application for further appellate review, and we now reverse both the order and the conviction.

Background. On November 17, 2000, Crystal Graham, a high school student, hosted a party at her home in Lowell after a school dance. Charles McCullough, Graham's former boy friend, attended the party. [McCullough was drinking beer at the party and had taken the drug commonly known as “ecstasy.” Several of the Commonwealth's witnesses testified that McCullough appeared to be in a good mood that night, but the medical examiner testified that large amounts of “ecstasy” may cause paranoia or aggressive behavior.] When the defendant and four of his friends arrived at the party, they argued with McCullough, who accused them of stealing his headlights. Graham told the defendant and his friends to leave if they were going to fight, and they left the party.

Approximately forty-five minutes later, the defendant and his friends returned to the party. Another argument involving the defendant and McCullough ensued. The argument escalated into a physical confrontation when two of the defendant's friends punched McCullough. Graham demanded that everyone leave, and the defendant and his friends suggested taking the fight outside. Once outside, McCullough challenged the defendant to fight “one on one,” and they stepped toward each other, into the middle of a circle of people. McCullough, who was unarmed, punched the defendant in the head, and the defendant appeared to be punching McCullough's chest: no one else was involved in the fight. After ten seconds, McCullough fell back, holding his chest, and shouted that the defendant had stabbed him.

Although none of the Commonwealth's witnesses had seen a knife, McCullough had been stabbed five times. One wound penetrated his heart, and another perforated his liver: both injuries caused McCullough to lose a significant amount of blood quickly. McCullough collapsed in the street, and the defendant and his friends fled. When police arrived on the scene, at approximately 3 A.M., McCullough, still alive, was able to tell an officer that the defendant had stabbed him. He was pronounced dead when he arrived at a hospital….

Testifying on his own behalf at trial, the defendant explained that he and his friends went to Graham's party, but they left because McCullough was “trying to start” trouble. They returned to the party later, hoping that more people had arrived. They again encountered McCullough, who started an argument with two of the defendant's friends that escalated into a physical confrontation. After McCullough challenged them to “rumble,” the defendant decided to leave the party and ran outside, followed by his friends and other party guests. He tried to get into a friend's car but, finding it locked, he joined his friends in the crowd that had gathered on the street. The defendant and his friends walked backward across the street as McCullough and his friends approached them. The defendant saw McCullough look at him, bite his lip, make a fist, and run toward him. Someone hit the side of the defendant's face, knocking him to the ground. He felt people beating him about the head and attempted to push them away, but could not. The defendant then pulled his knife from his pocket, opened it, and swung it several times. After he heard McCullough cry out that he had been stabbed, he ran to his friend's car. The defendant threw the knife out the window as they drove over a bridge.

The defendant explained that he feared for his life because he was outnumbered and could not get away from his attackers: by his estimation, there were at least fifteen men, including McCullough, involved in the confrontation. On cross-examination, the defendant admitted that he could have run after discovering the cars were locked, but he did not want to leave his friends. He also acknowledged that McCullough was not the first person to hit him, and that when he fell backward, he could not see who was punching him.

Two of the defendant's friends who attended the party with him that night also testified for the defense. They corroborated the defendant's testimony that he left the party after a fight started; that a large crowd gathered outside; and that a group of men, including McCullough, surrounded the defendant, knocked him to the ground, and hit him. Both witnesses testified that they saw McCullough punch the defendant twice before the group closed in on him.

At the close of evidence, defense counsel orally requested jury instructions on manslaughter, without specifying a theory, and involuntary manslaughter. The Commonwealth argued that jury instructions on any theory of manslaughter were not warranted because, even in the light most favorable to the defendant, the evidence did not show that he acted based on heat of passion, reasonable provocation, or sudden combat. The Commonwealth also argued that the defendant was not entitled to an instruction on self-defense. Over the Commonwealth's objection, the judge instructed the jury on self-defense, voluntary manslaughter based on excessive force in self-defense, and involuntary manslaughter. The judge did not provide instructions on reasonable provocation or sudden combat. Defense counsel did not object to the instructions.

… On the third day of deliberations, the jurors submitted [this question: “Could you elaborate on malice? Please define all mitigating circumstances which should be considered in deciding malice. In other words, other than excessive force in self-defense, are there any other mitigating circumstances that would eliminate malice?”] After discussing the issue with counsel, the judge reinstructed the jury on malice and informed them, again without objection, that there were no mitigating circumstances to consider other than excessive force in self-defense. The jury returned their verdict finding the defendant guilty of murder in the second degree approximately forty minutes after the judge answered their … question.

The defendant timely appealed from his conviction. Later, represented by new counsel, he filed a motion for a new trial, arguing that the omission of a jury instruction on reasonable provocation created a substantial risk of a miscarriage of justice … [T]he judge denied the motion, concluding that the evidence at trial, viewed in the light most favorable to the defendant, would not have warranted an instruction on reasonable provocation, even if that instruction had been requested….

The defendant's direct appeal was consolidated with his appeal from the judge's order denying his motion for a new trial. In a memorandum and order affirming both the conviction and the order, the Appeals Court concluded that the absence of a jury instruction on reasonable provocation was not error because counsel did not request the instruction, and the trial judge was not obligated to provide one sua sponte….

Discussion. … As a threshold matter, we must determine whether the defendant would have been entitled to a jury instruction on reasonable provocation had he requested one. See, e.g., Commonwealth v. DeMarco, 444 Mass. 678, 685, 830 N.E.2d 1068 (2005) (counsel not ineffective in failing to request instruction to which defendant not entitled). If requested, “[a] manslaughter instruction is required if, on 'any view of the evidence,' regardless of the credibility, manslaughter may be found.” Commonwealth v. Carrion, 407 Mass. 263, 266-267, 552 N.E.2d 558 (1990)…. We therefore view the evidence in the light most favorable to the defendant to determine whether an instruction on reasonable provocation was warranted….

Voluntary manslaughter is an unlawful killing “arising not from malice, but 'from ... sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense.'“ Commonwealth v. Carrion, supra at 267. Reasonable provocation is provocation that “would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint.” Commonwealth v. Walden, 380 Mass. 724, 728, 405 N.E.2d 939 (1980). A jury instruction on reasonable provocation is warranted “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused's temper to cool.” Commonwealth v. Andrade, 422 Mass. 236, 237, 661 N.E.2d 1308 (1996). The defendant's actions must be “both objectively and subjectively reasonable. That is, the jury must be able to infer that a reasonable person would have become sufficiently provoked and would not have 'cooled off' by the time of the homicide, and that in fact a defendant was provoked and did not cool off.” Commonwealth v. Groome, 435 Mass. 201, 220, 755 N.E.2d 1224 (2001).

The defendant presented adequate evidence of reasonable provocation. He testified that, as he left the party, he was surrounded by McCullough and his friends, who repeatedly punched him in the head. He further testified that these men knocked him to the ground, and that he feared for his life because he was outnumbered by his attackers. Such testimony, if credited, could demonstrate “fear, fright, or nervous excitement” on the part of the defendant, sufficient to overcome a reasonable person's “capacity for reflection or restraint.” [In a footnote, the court added: The Commonwealth claims that the actual provoking fact in this case was McCullough's accusation that the defendant stole his headlights, and that any provocation arising from that accusation should have dissipated by the time the defendant returned to the party forty-five minutes later. In other words, the Commonwealth … argues that a reasonable person would have “cooled off” by the time he returned to the party, and therefore the defendant's actions were not objectively reasonable…. The defendant maintains that the provocation occurred not when words were exchanged at the party earlier in the night, but outside in the street, when McCullough and his friends charged at him, knocked him to the ground, and punched him in the head. According to defense witnesses, this occurred immediately before the stabbing, and if their testimony is credited, the defendant's emotions would not have had time to cool.]

It is well established that “provocation must come from the victim.” Commonwealth v. Ruiz, 442 Mass. 826, 838-839, 817 N.E.2d 771 (2004), and cases cited. The Commonwealth contends that the defendant was not entitled to an instruction on provocation because, even considering the defendant's own testimony, there was no evidence of adequate provocation from McCullough: the defendant could state with certainty only that McCullough looked at him, made a fist, and ran toward him, not that he actually struck him. We do not agree with the Commonwealth's contention. Several defense witnesses, including the defendant, testified that McCullough was part of a group of young men who surrounded the defendant, knocked him down, and beat him. Although the defendant testified that he could not see which of the men struck the blows, two defense witnesses testified that they saw McCullough strike the defendant twice. At times, even a single blow from the victim can constitute reasonable provocation. See Commonwealth v. Maskell, 403 Mass. 111, 116-117, 526 N.E.2d 756 (1988). “Whether the contact is sufficient will depend on whether a reasonable person under similar circumstances would have been provoked to act out of emotion rather than reasoned reflection.” Model Jury Instructions on Homicide 29 (1999). A jury could conclude that a reasonable person in the defendant's position would have felt an “immediate and intense” threat, and lashed out in fear as a result. Commonwealth v. Amaral, 389 Mass. 184, 189, 450 N.E.2d 142 (1983)….

A substantial risk of a miscarriage exists “if we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174, 714 N.E.2d 805 (1999). Although we cannot be certain that the jury would have returned a verdict of voluntary manslaughter had they been instructed on reasonable provocation, it appears to be a real possibility in this case. The jury need not have been convinced beyond a reasonable doubt that the defendant reasonably was provoked: they only would need to harbor a reasonable doubt on the issue. Commonwealth v. Acevedo, 427 Mass. 714, 716, 695 N.E.2d 1065 (1998) (when defendant raises issue of reasonable provocation, burden on Commonwealth to prove beyond reasonable doubt that defendant acted with malice by demonstrating that defendant was not reasonably provoked). The Commonwealth's case was strong but not overwhelming: the Commonwealth's witnesses testified that the fight involved only McCullough and the defendant, and that the defendant was the instigator, whereas defense witnesses testified that the defendant was attacked by McCullough and others. [The jury's decision to convict the defendant of murder in the second degree, rather than murder in the first degree, shows that they rejected the Commonwealth's theory of deliberate premeditation.] The jury's … question strongly suggests their willingness to consider other mitigating factors, the evidence supported an instruction on reasonable provocation, and the theory of provocation was consistent with the other defense theories. Accordingly, we conclude that trial counsel's failure to request an instruction on reasonable provocation manifestly was unreasonable, deprived the defendant of an available, substantial ground of defense, and created a substantial risk of a miscarriage of justice.

For the foregoing reasons, the judgment is reversed, the verdict set aside, and the order denying the defendant's motion for a new trial is reversed. We remand the case to the Superior Court for trial.

State v. Shumway

63 P.3d 94 (Utah 2002)

HOWE, Justice:

Defendant Brookes Colby Shumway appeals from a judgment of conviction for murder, a first degree felony under section 76-5-203 of the Utah Code, and for tampering with evidence, a second degree felony under section 76-8-510.

On January 22, 2000, then fifteen-year-old Brookes Colby Shumway spent much of the day with his friend, fourteen-year-old Christopher Ray. That evening, Brookes “slept over” at Christopher's trailer home. Brookes and Christopher were up until 5:30 a.m. playing video games. At about 7 a.m., Brookes went to Christopher's mother's room and awoke her by exclaiming that Christopher had tried to stab him and that he stabbed Christopher back and thought that he might be dead. Christopher's mother came out of her room and found Christopher lying on his back on the floor in the front room with a butcher knife covered in blood next to him. She called 911, and the police and paramedics arrived shortly thereafter. After trying to revive Christopher, the paramedics declared him dead at the scene. The police searched the trailer and took into evidence the butcher knife, along with other knives from the kitchen.

The police also found that blankets the boys had been using had blood stains and stab patterns in them and were rolled up in the corner of the front room. A gym bag in Christopher's bedroom contained bloody socks. Later that day, after the police finished their search and investigation, a crime scene cleanup company cleaned out the trailer. The next day, the state medical examiner reported that Christopher had been stabbed thirty-nine times and that some of the stab wounds, including the fatal neck wound to the carotid artery, apparently had been inflicted with an instrument other than the butcher knife found by police. That instrument was never found.

Brookes was subsequently charged with murder and with tampering with the evidence. The juvenile court certified him to stand trial as an adult in the district court. Following deliberations, the jury convicted Brookes of both charges. He now appeals.

Brookes contends that the trial court erred in giving jury instruction 26, which mandated the order of deliberation on the murder charge. That instruction stated:

Before you can convict the defendant, Brookes Colby Shumway, of the offense of Manslaughter, a lesser included offense in count I of the information, you must have found that the evidence fails to establish one or more of the elements of Murder, as charged in count I of the information, beyond a reasonable doubt ....

Brookes' trial counsel made no objection to the jury instruction. Brookes now contends, and the State concedes, that the instruction was erroneous …. In that case, we held that the trial court is not to mandate a specific order of deliberation to the jury concerning lesser included offenses …. Additionally, in the instant case the instruction was particularly erroneous because the jury should have been allowed to consider extreme emotional disturbance manslaughter even if they determined that all the elements of murder had been proved. In [State v.] Piansiaksone, we wrote:

It was theoretically possible that the jury could have found that every necessary element for murder had been satisfied and yet that manslaughter was the crime committed if the jury found that the killing was committed under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse.

954 P.2d 861, 870 (Utah 1998). As previously mentioned, defendant's counsel at trial made no objection to jury instruction 26. However, defendant now contends that it was plain error on the part of the trial court ….

Our case law requires that to establish plain error, a defendant must show that (1) the instruction was erroneous; (2) the error should have been obvious to the trial court; and (3) but for the error, there would be a reasonable likelihood for a more favorable outcome for the defendant. State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993). The State concedes that the jury instruction was erroneous and does not dispute that the error should have been obvious to the trial court, but counters that any error caused thereby was harmless because there is no evidence which would support the conclusion beyond a reasonable doubt that defendant killed the victim as a result of an extreme emotional disturbance or in imperfect self-defense, either of which would justify a verdict of manslaughter.

The State's contention that the trial court's error was harmless requires us to examine the evidence that might support a verdict of manslaughter. Utah Code Ann. section 76-5-203(3) provides two circumstances where a charge of murder can be reduced to manslaughter:

(3)(a) It is an affirmative defense to a charge of murder or attempted murder that the defendant caused the death of another or attempted to cause the death of another:

(i) under the influence of extreme emotional distress for which there is a reasonable explanation or excuse; or

(ii) under a reasonable belief that the circumstances provided a legal justification or excuse for his conduct, although the conduct was not legally justifiable or excusable under the existing circumstances.

(b) under subsection (3)(a)(i), emotional stress does not include:

(i) ...

(ii) distress that is substantially caused by the defendant's own conduct.

(c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint of a reasonable person under the then existing circumstances.

Extreme Emotional Distress Manslaughter

Turning first to consideration under subsection (3)(a)(i), we explained in State v. Bishop, 753 P.2d 439, 471 (Utah 1988), that a person suffers from an extreme emotional disturbance “when he is exposed to extremely unusual and overwhelming stress” such that

the average reasonable person under that stress would have an extreme emotional reaction to it, as a result of which he would experience a loss of self-control and that person's reason would be overborne by intense feelings such as passion, anger, distress, grief, excessive agitation, or other similar emotions.

Id. However, an extreme emotional disturbance will not serve to reduce murder to manslaughter if the actor brought about his own mental disturbance. Gardner, 789 P.2d at 282-83; § 76-5-203(3)(b)(ii).

One interpretation of the evidence supports the necessity for a manslaughter instruction under subsection (3)(a)(i). Brookes disclosed to police that on the morning of the altercation Christopher was irritated at him for beating Christopher at video games. As the boys went to bed, Christopher went to the kitchen and retrieved a knife that he began to throw in the air and catch. Christopher then lunged at Brookes and began poking him with the knife. The boys wrestled over control of the knife and in his anger, Brookes stabbed Christopher. Brookes also suffered stab wounds to his hand. There was evidence that Christopher had a reputation for being a “hothead” and losing his temper, while Brookes was known to be cooperative and peaceful. Other evidence supported the argument that Brookes had been bullied and pushed around by his peers since he was in the third grade, and that all of this “came out on Chris” when the boys fought over the knife.

Under this interpretation of the evidence, Brookes arguably did not bring about the disturbance by his own conduct, but rather Christopher initiated a violent and traumatic act by attacking Brookes with the knife. Christopher's aggressive conduct could be found by a jury to provide a reasonable excuse or explanation for Brookes' stress and rage that resulted in Brookes stabbing Christopher in the throat and chest. According to the medical examiner, “the lethal wound to the victim's throat was inflicted early in the struggle, while the victim's blood pressure was still good.” There is evidence that the wounds other than the two potentially fatal stabs would not have been deadly. At the end of the encounter, Brookes went to Christopher's mother's bedroom to awake her and told her twice that Christopher had tried to stab him. Brookes assisted her in her efforts to resuscitate Christopher. He was peaceful and sobbing. Police officers who responded testified that Brookes was not violent or a danger, but was cooperative and nonthreatening.

The State responds that the plain intent of our statutory scheme is to mitigate the crime of murder where a defendant's conduct was clearly wrong but where the circumstances were so provocative that even a reasonable person might have reacted similarly. But, the State asserts, even assuming the truthfulness of defendant's version of the incident, those facts would not constitute a “reasonable explanation or excuse” for the stabbing of Christopher. The State asserts that no reasonable person under the then existing circumstances, teased by a good friend playing with a knife during a sleepover, would have become so enraged or experience such an extreme emotional disturbance as to cause him to kill that person by cutting his throat and stabbing him thirty-nine times.

We conclude that defendant was entitled to an instruction under subsection (3)(a)(i) because a jury could conclude that Brookes caused the death of Christopher “under the influence of extreme emotional distress for which there is a reasonable explanation or excuse.” In holding that the defendant was entitled to an instruction under subsection (3)(a)(i), we do not suggest that Brookes' version of the events that took place is the only reasonable interpretation of the evidence. Most disturbing, of course, is the fact that the medical examiner testified that Christopher had been stabbed thirty-nine times. However, in State v. Standiford, 769 P.2d 254, 264, 266 (Utah 1988), we approved of the giving of instructions for manslaughter and self-defense based on the defendant's theory of the case where he had stabbed the victim 107 times. See also State v. Cloud, 722 P.2d 750, 753-55 (Utah 1986), in which we held that the defendant would be entitled to an instruction on extreme emotional distress manslaughter where the victim had been stabbed twenty-seven times and died of multiple critical wounds….

Brookes next contends that the evidence is insufficient to support his conviction of evidence tampering…. After giving full weight to all of the evidence supporting Brookes' conviction of evidence tampering, we conclude that the evidence is insufficient to sustain his conviction….

Brookes' conviction of murder is reversed, and the case is remanded for a new trial. His conviction for tampering with evidence is reversed, and the charge is dismissed for insufficiency of the evidence.

State ex rel. Thomas v. Duncan

165 P.3d 238 (Ariz. Ct. App. 2007)

BARKER, Judge

This special action presents the issue of whether evidence of justification in a manslaughter case that would be prohibited under Arizona Revised Statutes [§§] 13-401(A), -412(C) and -417(C) (2001) if a justification defense were sought, may be admissible if it is relevant on a separate issue. The State of Arizona, Petitioner, asks this court to reverse the trial court's order permitting William Joseph Reagan, Jr., Real Party in Interest, to present such evidence to a jury. For the reasons that follow, we accept jurisdiction and deny relief.

On October 29, 2005, Reagan was driving his truck with his brother seated in the passenger seat. Reagan alleges that he was involved in a road rage incident. He claims that the occupants of the other vehicle involved in the incident “made threats that led him to believe that he and his brother were in danger of being seriously injured or perhaps killed.” Reagan tried to drive away, but alleges that the other vehicle chased him. Reagan was “fearful and remembers driving quickly because they were being chased and he wanted to get away from the danger.” During later investigation, witnesses claimed to have seen another truck either racing with or chasing Reagan's car. Reagan ran a red light while driving approximately seventy-nine to eighty-four miles per hour in a forty mile per hour zone and struck the victim's car, killing her. Reagan had a blood alcohol content of .093 at the time.

The State filed a motion to preclude Reagan from introducing evidence of the chase, arguing it went to the justification defense and was prohibited pursuant to A.R.S. §§ 13-401(A), -412(C), and -417(C) (2001). Following oral argument, the trial court denied the State's motion to preclude. The State filed this special action.

Special action jurisdiction is highly discretionary. Jurisdiction is appropriate when there is no adequate remedy by way of appeal…. Should Reagan be acquitted, the State could not appeal the trial court's order. Under these circumstances, the State does not have an adequate remedy by way of appeal. Furthermore, this special action presents a purely legal issue of first impression that is of statewide importance. Accordingly, special action jurisdiction is appropriate here.

The State raises two issues. First, does A.R.S. § 13-401(A) preclude the admission of evidence that is relevant to a justification defense when the defendant is seeking to use the evidence for other legitimate purposes? Second, did the trial court err in its determination that the disputed evidence in this case was relevant to the mens rea element of reckless manslaughter?

When construing a statute, “[w]e first consider the statute's language.” Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996)…. For purposes of the present case, the justification defense here is an affirmative defense that the defendant must prove by a preponderance of the evidence. A justification defense is unavailable in certain instances, as provided for in A.R.S. § 13-401(A):

Even though a person is justified under this chapter in threatening or using physical force or deadly physical force against another, if in doing so such person recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

The unavailability provision applies to the defense of self-defense and other justification defenses…. The defenses of duress and necessity are two of the justification defenses set forth in that chapter that are also specifically made unavailable “for offenses involving homicide or serious physical injury.” A.R.S. §§ 13-412(C), -417(C) (2001). Duress and necessity are therefore unavailable in this case irrespective of § 13-401(A).

Reagan, however, does not claim that he should be able to raise an affirmative defense of justification, be it one of duress, necessity or otherwise. Rather, he asserts that the evidence of the chase is relevant to the mens rea element of reckless manslaughter. The State argues that by introducing evidence that is relevant to a justification defense, Reagan is raising the defense despite his assertion to the contrary. The State urges this court to hold that § 13-401, in prosecutions for the reckless injury or killing of an innocent third person, is an absolute bar to admitting evidence that might support a justification defense even if the evidence is properly admissible for other purposes. We do not agree.

The language in the statutes cited by the State bars the use of defenses to a charged offense. See A.R.S. §§ 13-401(A) (“the justification afforded by this chapter [chapter 4: Justification] is unavailable in a prosecution for the reckless injury or killing of the innocent third person”), -412(C) (“the defense provided by subsection A [duress] is unavailable for offenses involving homicide or serious physical injury”), and -417(C) (“An accused person may not assert the defense under subsection A [necessity] for offenses involving homicide or serious physical injury.”) (emphasis added). Thus, by the statutes' own terms, they only restrict the availability of defenses. They do not bar the use of all evidence when admission of that evidence is sought for a separate, but permissible purpose.

The idea that a court may admit evidence for a legitimate purpose even though the evidence is inadmissible for another purpose is not foreign to the law of evidence…. Thus, we hold that the trial court may admit evidence tending to show justification in prosecutions for the reckless injury or killing of an innocent third person if that evidence is otherwise admissible for a separate purpose….

Having determined that A.R.S. §§ 13-401(A), -412(C) and -417(C) do not bar evidence of justification when it is admissible for a separate, permissible purpose, we now turn to whether such a purpose exists in this case. Reagan argues that the evidence is admissible as to the issue of mens rea for “recklessly” as provided in A.R.S. § 13-1103….

The crime of manslaughter, with which Reagan is charged, is defined as “[r]ecklessly causing the death of another person.” A.R.S. § 13-1103(A)(1). The term “recklessly” is defined to include the requirement that “a person is aware of and consciously disregards a substantial and unjustifiable risk.” A.R.S. § 13-105(9)(c) (emphasis added).

Reagan argues that evidence that he was being chased and feared for his and his brother's lives is relevant and admissible as to the mens rea “recklessly”. Specifically, he argues that because of the chase he was not “aware of” nor did he “consciously disregard” the risk. If the State cannot satisfy this element, then acquittal on the manslaughter charge would be required [although could still be convicted of the lesser included offense of negligent homicide, which does not require such awareness.]…

Similarly, here, evidence of the alleged chase at the time Reagan ran the red light is evidence the jury may consider in determining whether the State has met its burden to show that Reagan was “aware of and consciously disregard[ed]” the risk at issue here. Being “aware” of the risk and the “justifiability” of the risk are also separate and distinct inquiries. The use for this purpose is thus for a purpose different from that prohibited by the justification statutes.

In sum, the trial court did not err in admitting the evidence of the chase. We need not consider the defendant's constitutional grounds for the admissibility of the evidence as we resolve the case on other grounds. For the foregoing reasons, we accept jurisdiction and deny relief.