Range of Vision

By Cara Cookson

State v. McCarthy, 2012 VT 34

On a warm day in September 2008 as clouds began to collect and blot out the sun that had dominated the morning, Defendant began setting up a shooting range.  He started by mowing the backyard of his suburban Essex home.  Then he erected targets, creating an area where he could fire from the back of his house without obstruction.  When it was done, he invited friends to join him.  One brought an SKS-style semi-automatic rifle; another, a shotgun.  By all evidence, the party had a good time.  They enjoyed the outdoors and the last bit of warmth from Vermont’s Indian summer.

As evening rolled around, the party began winding down.  It was at that time that police came out the woods, and the party learned that an errant bullet from their range had struck and killed the Neighbor—a beloved St. Michael’s College professor—while he ate dinner with his wife. 

Let us begin with what this case is not.  It is not a murder case or a mystery.  The police had no problem identifying Defendant or his party who were still firing as the first responders arrived.  Defendant had no conscious intent to harm the neighbor.  By contemporary news accounts, Defendant and his friends were deeply remorseful and grieved at their actions.

According to the SCOV’s summary, Defendant had completed a hunter safety course just ten days prior to setting up the backyard shooting range.   Three people—including Defendant—fired the “SKS-style semi-automatic rifle” on the day in question.  Defendant had “little experience” with this type of high-powered rifle, and he knew nothing about his friends’ shooting ability.  Behind the target were a small stone wall, a sparsely wooded area, and an open field.  No hills or berms existed to catch a stray bullet. 

Approximately 250 yards away from the targets stands the Neighbor’s house.  It is visible from Defendant’s backyard.  From the shooting bench where the shooters set up their guns, the difference in angle between the Neighbor’s home and the target was six degrees—if the shooter pointed the gun barrel three inches to the right of the target and just under an inch up, the shot would hit the neighboring home. 

On the day in question, one of the shooters observed the house and asked Defendant about it.  Defendant insisted that the trees and hills made the arrangement safe.  Defendant admitted that he “had no way of knowing whether he or his fellow shooters would consistently hit their targets” and he “acknowledged that he should have been aware of the fact that a bullet could go high and to the right, leaving nothing to stop it.” 

Initially, when a bullet fired from the SKS rifle struck and killed Neighbor, the shooters didn’t realize what had happened; no one knows who fired the fatal shot.

The State charged Defendant with involuntary manslaughter under the theory that he acted with criminal negligence when he set up the range in an “inherently dangerous” location and allowed the shooters to discharge their rifles.  The jury found Defendant guilty on this criminal charge.

The most important question raised on appeal is whether the evidence offered by the State was enough to support Defendant’s conviction. 

If all the different types of legally-recognized wrongs committed against others were placed along an imaginary horizontal line, we would place intentional, premeditated murder at one end.  This is the far criminal end of the spectrum carrying with it the possibility of the worst criminal punishments. 

At the other end, we have simple negligence—someone failing to observe a recognized safety rule that any reasonable person would have followed, resulting in harm to someone else, but without intent to cause harm.  This is the purely civil end of the spectrum, carrying the possibility of monetary damages and usually not much else. 

Somewhere in the middle, we find involuntary manslaughter or criminal negligence, the place where despite how unintended the results may have been, the underlying act is so egregious that we attach criminal liability to the death that it caused. 

Causation—an element that must exist no matter where the “wrong” lies along the spectrum—is the notion that the harm must be directly linked to the wrongful act, otherwise the person who acted should not be held responsible.

Defendant claims that in his case, the causal connection between his actions—setting up the range and allowing his friends to shoot—is too removed from the resulting harm to Neighbor, and therefore, Defendant did not commit a crime. 

The SCOV finds sufficient evidence of causation.  But the SCOV focuses more directly on a separate issue as well: whether Defendant’s conduct constituted such a gross deviation from what a reasonable person would do that he should be held criminally responsible and whether the jury could find that he acted unaware of the risk of death to that same degree. 

This question can become rather vexing in retrospect.  At first glance, the fact of an innocent person’s death would appear to make the risk of such an outcome obvious.  But what matters is the likelihood of such an outcome.  It boils down to a comparison of imaginary odds, and it requires the jury to step back from what actually did happen to consider what could have happened.

Upholding Defendant’s conviction, the SCOV emphasizes that while Defendant did not intend to harm Neighbor, the evidence was such that the jury could find that he acted in complete disregard of the risk that this type of accident might happen.  The backyard shooting range was located in a suburban neighborhood.  Defendant had completed hunter safety just ten days prior.  He knew the SKS rifle was “a pretty powerful gun” and completely inappropriate for the setting.  He allowed people to shoot without knowing how well they could hit a target.  He was concerned about the SKS, but he let the group continue with it anyway. 

The SCOV deems this conduct criminally negligent.

As to the causation issue, the SCOV focuses on the principle that the defendant’s conduct need not be the sole cause of death.  “[A] defendant may be convicted of involuntary manslaughter for the course of events which naturally follow from his or her actions even when the actions were not the sole cause of the harm.”  Defendant need not have fired the fatal bullet, so long as he set in motion the unbroken chain of events that caused the victim’s death.

The remaining issues in this case offer insight into the role of judges and juries that we don’t tend to see very often.  First, the SCOV affirms the trial court’s decision to allow the jury to participate in a site visit of Defendant’s home.  It concludes that the site visit instructions and the way the visit was ultimately conducted did not amount to an abuse of discretion on the part of the judge sufficient to require a new trial. 

The SCOV finds no issue with a juror who appeared to be reenacting the shooting during the jury view, nor does it find improper extraneous influence resulting from the small groups of jurors who wandered around the site on their own.

Defendant also claimed that the judge “impermissibly assumed the roles of an advocate and a witness by recording observations on the record, out of the presence of the jury, about the conduct of the site visit.”  The concern here arises from evidentiary and judicial ethics dictates against judges participating as witnesses. 

The SCOV concludes that the judge’s observations on the record, after the visit occurred, did not constitute improper testimony.  The SCOV does advise that the “better practice” would have been to arrange for a video recording of the event.

Finally, the SCOV addresses Defendant’s concern that one of the jurors had a one-on-one conversation with a prosecuting attorney during the site visit.  As often happens in Vermont, the juror knew the attorney from church, and they exchanged pleasantries.  Defense counsel requested an examination of the juror after this encounter, and the SCOV found that the juror’s assurances that she would be able to act impartially were sufficient to cure any impact from the conversation.  The SCOV rejects Defendant’s argument that the relationship between the two automatically indicates an implied bias as a matter of law.

Defendant’s conviction and sentence are upheld.

No doubt that folks milling around any Vermont general store or in some smart café along the waterfront would offer quite a range of opinions about whether the jury reached the “right” conclusion in this case or whether Defendant was properly charged in the first place. 

Sometimes a case like this comes along that reminds us just how much the legal “system” is really just a set of laws and procedures that humans created and that humans carry out each day.  The “system” is not a machine, and the people responsible for making it work are, well, people.  To the extent that some might debate or disagree with the outcome proves a point: the “system” is only human in the end, and we each have a role to play in making it work.  The roles played by each figure in today’s case exist in every action that goes to a jury verdict and illustrate the delicate nature of the legal process.  Try as we might to separate it all, human emotion and human intangibles are inherent in the law—just as they are in ordinary life.