Nobody Has the Right

By Daniel Richardson

State v. Herrick, 2011 VT 94.

There is an old joke about the futility of bringing a knife to a gun-fight, but the same might be said about bringing a knife to a meeting in a public place called by the husband of the woman with whom you are currently enjoying relations. 

But that is exactly what Defendant in today’s case did.  Called to the parking lot of the Rutland shopping mall, Defendant took a knife with a three-and-a-half-inch blade along with him.  The meeting went poorly.  Defendant and his soon-to-be-victim got into an argument.  They yelled at each other.  They called each other names.  Victim came close to Defendant and continued to yell.  Defendant pointed at Victim, and Victim pushed Defendant’s shoulder.

That is where Defendant lost it.  Apparently, “nobody [had] the right to do that to [him],” and anyone who did so risked life and limb.  Defendant stabbed Victim once in the back, and then when Victim turned and told Defendant that he was going to kill him, Defendant stabbed him a second time for good measures.  The stab wounds punctured Victim’s aorta, and Victim was pronounced dead shortly thereafter.  Nobody, apparently, puts Defendant in the corner.

On appeal from his conviction, Defendant’s arguments are fairly limited.  The first concerns Defendant’s claim that the trial court did not properly instruct the jury on the adequate provocation defense.  There are four elements to such a defense.  Defendant must demonstrate: 1) adequate provocation; 2) inadequate time to cool off; 3) actual provocation; and 4) actual failure to cool off.  Defendant’s argument is that these elements contain a subjective element that the trial court’s instruction did not capture and was, therefore, plain error.  It is plain error because Defendant lodged no objection to the instruction as it was actually delivered and, therefore, cannot object on any other grounds.  As with all plain-error-appeals, the SCOV reviews this under an elevated standard.

Not surprising the SCOV disagrees with Defendant’s position.  Adequate provocation is an objective standard and does not modify for an individual’s hotheaded personality.  The jury instruction tracked these elements, and no error, plain or otherwise, occurred. 

The more substantial question concerns an incident on the first day of trial.  Three people walked into the courtroom with shirts stating, “In loving memory of [Victim].”  The judge cleared the courtroom, and the attorneys and judge interviewed the jurors as a group and individually about the incident.  The results were somewhat jumbled.  It was unclear exactly how many jurors actually saw the people in the t-shirts.  Only three jurors admitted to reading the shirts.  None of the jurors claimed to be biased as a result of the incident. 

Defendant moved for a mistrial, which the trial court denied.  On appeal, Defendant argues that the trial court erred in not granting a mistrial or, in the alternative, not dismissing those jurors who read the shirts.  The SCOV disagrees with this analysis.

To obtain a mistrial, a defendant must show that a particular irregularity was capable of influencing jury decisions.  Here the facts show that none of the jurors were prejudiced as a result of the incident and were, by their own admission, still capable of rendering a fair and impartial decision based on the evidence.  While the more cynical might doubt the candor of the jurors, there was simply no evidence to the contrary.  Defendant cannot meet his burden of showing how this incident was capable of influencing the jury in a particular way.  The same goes for the individual jurors.  There was simply no evidence of bias or an impact on any juror’s ability to be impartial.  The SCOV affirms Defendant’s conviction.  

No word as to whether Defendant plans to modify his do-not-poke-me-or-I-will-stab-you policy during his upcoming stint within the Department of Corrections.