Motion for Reargument Denied January 12, 2015.
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Chittenden Unit, Criminal Division. 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] 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.
[¶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 that 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.
[¶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.
[¶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 wilful, 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. 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 ...