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State v. Baird

Supreme Court of Vermont

August 25, 2017

State of Vermont
v.
Keith J. Baird

         On Appeal from Superior Court, Caledonia Unit, Criminal Division

          Michael S. Kupersmith, J. (Ret.), Specially Assigned

          Lisa A. Warren, Caledonia County State's Attorney, St. Johnsbury, for Plaintiff-Appellant.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellee.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          EATON, J.

         ¶ 1. The State charged Keith Baird, defendant in this appeal, and two others with burglary, kidnapping, and first-degree murder for their involvement in the death of seventy-eight-year-old Mary O'Hagan on September 10, 2010 at her home in Sheffield, Vermont. The basis for defendant's murder charge was that the murder occurred during the commission of a burglary in which defendant participated and therefore constituted felony murder pursuant to 13 V.S.A. § 2301. Defendant filed a Vermont Rule of Criminal Procedure Rule 12(d) motion to dismiss the first-degree murder charge, arguing that the State could not establish a prima facie case because it could not show that defendant killed the victim or that he had the necessary mental state for first-degree felony murder. A deposition of Richard Fletcher, one of the codefendants, provided most of the admissible evidence in support of the State's opposition to the motion to dismiss; facts in the investigating police officer's affidavit of which he had first-hand knowledge provided additional support for the State's opposition. Following a hearing, the court granted defendant's motion to dismiss. For the reasons stated herein, we reverse the dismissal, reinstate the first-degree murder charge, and remand for further proceedings.

         ¶ 2. When reviewing the grant of a Rule 12(d) motion to dismiss, this Court employs the same standard as the trial court. State v. Willard-Freckleton, 2007 VT 67A, ¶ 2, 183 Vt. 26, 949 A.2d 416. A motion to dismiss must be denied if, " 'taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has [produced] evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt.' " State v. Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37 (1995) (quoting Reporter's Notes, V.R.Cr.P. 29). Because the grant of a motion to dismiss precludes a jury from hearing any evidence and because a jury is in the best position to weigh facts and deliver a verdict, "courts should grant a judgment of acquittal only when there is no evidence to support a guilty verdict." State v. Cameron, 2016 VT 134, ¶ 5, ___Vt.___, ___A.3d ___. Thus, the issue before the trial court, and before this Court on appeal, is whether the State produced sufficient "substantial, admissible evidence" to prove beyond a reasonable doubt that defendant had the requisite mens rea for felony murder. V.R.Cr.P 12(d)(2); see also Cameron, 2016 VT 134, ¶ 5.

         ¶ 3. At common law, the felony-murder doctrine imputed an intent to murder when a death occurred during the perpetration of a felony, even if the death was an accident or otherwise unintentional. State v. Bacon, 163 Vt. 279, 291, 658 A.2d 54, 62-63 (1995) (citing 2 W. LaFave & A. Scott, Substantive Criminal Law § 6.7, at 145, § 6.8, at 159 (1986)). The doctrine applied not only to the felon who caused the death but also to all accomplices in the underlying felony. Id.; see also Tison v. Arizona, 481 U.S. 137, 159 (1987) (Brennan, J., dissenting) ("This curious doctrine is a living fossil from a legal era in which all felonies were punishable by death; in those circumstances, the state of mind of the felon with respect to the murder was understandably superfluous, because he or she could be executed simply for intentionally committing the felony." (footnote omitted)). As we observed in State v. Doucette, however, "[a]s the common law developed, many more crimes became felonies, and many of these, such as tax evasion, larceny, and embezzlement, were not violent and did not involve a likelihood of causing death." 143 Vt. 573, 578, 470 A.2d 676, 680 (1983)). Thus, this Court has interpreted the rule narrowly "to mitigate the harshness of the common-law felony-murder rule." Bacon, 163 Vt. at 292, 658 A.2d at 63; see also Doucette, 143 Vt. at 581, 470 A.2d at 682 (reasoning that Legislature intended to "limit the common law felony murder rule in order to restrict its harshness").

         ¶ 4. In Vermont, the applicable statute, 13 V.S.A. § 2301, precludes prosecution for first-degree murder based solely on evidence that a defendant intended to commit one of the enumerated felonies.[1] See Bacon, 163 Vt. at 291, 658 A.2d at 63 (holding that "the mere showing that a person intended to commit one of the felonies enumerated in § 2301 is insufficient to convict the person of felony murder"); Doucette, 143 Vt. at 582, 470 A.2d at 682 (same). In addition to proving the defendant's intent to commit one of the enumerated felonies, the State must also establish that the defendant had one of the mental states for second-degree murder: the intent to kill, the intent to do great bodily harm, or "a wanton disregard for human life with respect to the murder itself." Bacon, 163 Vt. at 292, 658 A.2d at 63; see also State v. Sexton, 2006 VT 55, ¶ 17, 180 Vt. 34, 904 A.2d 1092 overruled on other grounds by State v. Congress, 2014 VT 129, 198 Vt. 241, 114 A.3d 1128. The theory behind Vermont's limitation is that the State must prove the individual liability of each felon because it " 'is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen and unagreed-to results of another felon.' " Bacon, 163 Vt. at 292, 658 A.2d at 63 (quoting People v. Aaron, N.W.2d 304, 372 (Mich. 1980)). Requiring the State to prove, at a minimum, wanton disregard for human life in a first-degree felony-murder prosecution is also consistent with the U.S. Supreme Court's recognition that

some nonintentional murderers may be among the most dangerous and inhumane of all-the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an "intent to kill."

Tison, 481 U.S. at 157.

         ¶ 5. Thus, in Vermont, so long as the State establishes that a defendant had the requisite mental state for a second-degree murder conviction, any "murder" committed during the perpetration of an enumerated felony constitutes first-degree murder, regardless of whether the defendant caused the killing. Bacon, 163 Vt. at 291, 658 A.2d at 63. If the State proves that a defendant had the intent to commit an enumerated felony, that a murder occurred during the commission of that felony, and that the defendant had, at minimum, a wanton disregard for human life, 13 V.S.A. § 2301 makes the defendant guilty of murder in the first degree, even though he or she might otherwise have been guilty only of murder in the second degree. See Sexton, 2006 VT 55, ¶ 17 (describing mens rea requirements for second-degree murder). In this case, the application of the felony-murder rule to defendant does not require that the State put forth evidence that he murdered the victim; the issue here is whether the State put forth sufficient substantial, admissible evidence to prove beyond a reasonable doubt that Baird had, at minimum, a wanton disregard for human life during the victim's killing. See V.R.Cr.P. 12(d)(2); see also Fanger, 164 Vt. at 51-52, 665 A.2d at 37. The other elements the State must prove to convict defendant of first-degree murder are not the subject of the motion to dismiss.

         ¶ 6. In finding the evidence of intent lacking, the trial court stated "there is no evidence that the defendants intended to harm [the victim] in any way." The court went on to state "there was no evidence from which the jury might reasonably infer that [] Defendant knew of the probability or likelihood that his conduct or the conduct of his ...


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