Monday, September 17, 2012

General Aggravation

State v. Bourn, 2012 VT 71.

When the first sentence of a decision includes the words “an incident where he pointed an unloaded muzzleloader toward two police officers who were attempting to remove him from a home” you know it’s going to be an interesting read. 

Defendant was convicted of two counts of aggravated assault stemming from that incident.  He appeals with a twofold argument: first, that the charge of aggravated assault with a deadly weapon requires proof of specific intent to threaten and the trial court erred when it refused to give such an instruction, and second, that same intent may be negated by diminished capacity.  The SCOV agrees with Defendant that Vermont’s aggravated assault statute requires specific intent, and reverses.

The story begins with Defendant, his brother, and their buddy drinking and hanging out at the buddy’s house.  According to the buddy, at one point Defendant got very upset and began arguing with his brother.  Defendant became more or less “hysterical.”  Police officers, who I’ll call Toody and Muldoon (no idea about real names—but this sounds better than Officer 1 and Officer 2) came to the residence.  Defendant yelled obscenities and claimed that he was being deployed and was going to die “over there” . . . but Defendant isn’t and never has been in the military. 

Defendant continued to scream and yell.  When Toody and Muldoon told him he was under arrest, Defendant said he had a gun and came into the hallway holding a muzzleloader in his right hand by the fore-stock, in front of the trigger guard, with the muzzle pointing down at the floor.  The muzzleloader had no primer and could not be fired, though that wasn’t obvious.  Toody and Muldoon drew their guns and one of them said, “Show us your hands.”  Paul, facing the officers, raised the muzzle towards the ceiling in a continuous arc, and the muzzle briefly pointed in the officers’ direction.  Toody and Muldoon introduced Defendant to Mr. Pepper-Spray and Mr. Baton, which may have been painful.  Defendant was handcuffed and arrested.

The State brought six separate charges against Defendant, including two counts of aggravated assault (one count for the threat to Toody and one for the threat to Muldoon).  After a jury trial, Defendant was acquitted of all charges except for the two counts of aggravated assault.  He appeals. 

The SCOV begins with some interesting and relevant case-specific history.  A year before trial, the State and Defendant worked out a plea agreement, which included a plea of guilty to one count of aggravated assault.  During the plea colloquy (for the uninitiated, “colloquy” is a fancy-lawyer way of sayin’ “formal conversation”) Defendant agreed that he had held the rifle and that Toody and Muldoon may have felt threatened but that he didn’t intend to threaten them.   The judge stopped the discussion, noting that the count required specific intent to threaten, and that wasn’t present.  When Defendant eventually said, “I feel he was threatened when I brought the rifle up,” the court let Defendant enter his plea.

But like a bad penny, the intent question came back.  At the sentencing hearing, the court noted that it had reviewed the audio of the earlier plea hearing and again expressed concern that Defendant was not admitting to the intent element of aggravated assault, and so, the judge allowed Defendant to withdraw the plea and go to trial.

Different umpires, different rules: a different judge presided over Defendant’s trial.  At the jury-instruction conference, defense counsel and the State argued over whether aggravated assault requires a specific-intent (to assault in an aggravated manner) or a more general intent (to just do the act that is alleged without a specific intent to commit the crime). 

The trial court agreed with the prosecution, finding that aggravated assault is a crime of general intent.  And so, the trial court instructed the jury, among other things, that the “State does not have to prove he specifically intended to threaten the officers.”  The trial court also told the jury that Defendant’s voluntary intoxication defense didn’t apply to the aggravated assault charges.  

The SCOV begins its analysis by noting that the specific subsection Defendant was charged under applies when one “is armed with a deadly weapon and threatens to use the deadly weapon on another person.”  The State argues that because the other subsections contain specific-intent words, but that subsection does not, that makes aggravated assault under this subsection a general-intent crime.  The SCOV is not convinced. 

Legislative silence regarding intent, the SCOV reasons, does not automatically remove intent as an element of a crime.  And the SCOV has the cases to prove it.  Some of them even came out this year.  The SCOV even refers to a recent unpublished opinion—careful to point out its non-precedential nature—which held (but in a non-binding manner) that the specific subsection Paul was charged under requires specific intent.  Without specifically saying it, the SCOV also articulates the general “rule” that felonies require a little bit more than negligence when it comes to the mens rea (intent) department. 

The SCOV also notes that if it were to adopt the State’s construct, then reckless endangerment and aggravated assault would be, well, pretty much the same thing.  Well, except for the vastly different punishment.  Aggravated assault is a felony; resisting arrest is a misdemeanor. 

Fun fact:  In Vermont, a felony is any crime punishable by two years or more imprisonment; a misdemeanor is any crime punishable by less.  On the federal level, one year is the dividing line. 

Back to the case, the SCOV says that result is: “Jus’ plain gub-darn’d silly.”  Well, at least that’s the way visiting SCOV Law analyst Prof. Yosemite S. Sam puts it.

Because of the bad ruling on intent, Defendant was improperly denied his right to assert a diminished capacity defense to the two aggravated assault charges.  Everybody apparently agreed that Defendant was intoxicated and that specific intent could be negated by that intoxication.  The SCOV notes that the jury acquitted Defendant of the charges that allowed that defense.  

“The de-fendant was drunker than ol’ Elmer gets after a day of chasin’ that ‘wascally wabbit,’” explains Prof. Sam.  “So, he warn’t ne’sarily looking to scare them officers—probl’y had no i-dea what he was doin’.” 

The SCOV reverses accordingly.  

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