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| Leave the gun at home |
By Charlie Buttrey
When recently retired Vermont Supreme Court Justice John Dooley and longtime trial Judge Michael Kupersmith both take your side in a legal dispute, you’re usually in pretty good shape.
Usually.
Keith Baird discovered that truism the hard way.
The Baird matter involves the somewhat unusual and arcane matter of the “felony-murder rule.” Vermont law provides that a defendant can be convicted of murder, even if he did not commit the murder and even if he had no intention of committing a murder, if the State can prove three things: (1) that he intended to commit the felony of arson, sexual assault, aggravated sexual assault, burglary or robbery; (2) that he exhibited the necessary mental state for second-degree murder (intent to kill, intent to do great bodily harm, or “a wanton disregard for human life”); and (3) that someone was killed in the course of the crime. Under the felony murder rule, whether the defendant actually committed the murder, or even intended for a murder to be committed, is immaterial.
Baird found himself so charged after he engaged in a burglary with two accomplices during which one of his co-defendants murdered the home’s resident, 78-year-old grandmother Pat O’Hagan. The plan was for him and one of his accomplices to enter the house while the woman was asleep, and to carry unloaded guns. Unfortunately, unbeknownst to Baird, his accomplice, his cousin Michael Norrie, actually brought a loaded gun, and Ms. O’Hagan wasn’t asleep. While Baird was in another room, Norrie shot and killed her. Baird was charged with a number of crimes, including first-degree murder, based on the felony-murder rule.
His attorney filed a motion to dismiss the first-degree murder charge on the grounds that there wasn’t enough evidence, as a matter of law, to establish that he had the necessary mental state. After all, he argued, while the plan admittedly was to commit a burglary, Baird had understood that they were entering the premises with two unloaded guns. How, his lawyer asked, could he have evinced an intent to kill or to do great bodily harm or exhibit a “wanton disregard for human life” when the guns to be used were, to his knowledge, unloaded?
Judge Kupersmith agreed, and dismissed the charge. The State takes an appeal to the Vermont Supreme Court, and Justice Dooley agrees with Judge Kupersmith, maintaining that the reasonable belief that the codefendants are carrying unloaded weapons is conclusive evidence that Baird did not have the requisite intent to satisfy the felony murder rule.
The bad news for Baird is that Justice Dooley is a dissenting minority of one.
The other four justices conclude that the use of two unloaded guns—coupled with the fact that a third gun, along with its ammunition, was in the car they used to bring themselves to the scene—satisfies the prong of “wanton disregard for human life.” The Court reasons that whether the guns were loaded is immaterial, since “[t]he introduction of weapons during the commission of a crime is a significant escalation of dangerousness, even if some or all of the perpetrators believe the guns are unloaded. The only purpose in bringing a firearm to the commission of a robbery is to use it or to threaten to use it. Such an escalation increases the danger to human life.” In short, the use of one or more guns, loaded or unloaded, is all that’s needed to satisfy the requirement that the State prove “wanton disregard for human life.”
The first-degree murder charge is, thus, reinstated.
Both Norrie and the third defendant, Baird’s half-brother Richard Fletcher, have cut deals with the State. Fletcher’s deal requires that he testify against Baird at trial.
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