*1 .221 engine do not The facts indicate did a rod” “throw incapacitated- consequence rap- or that the car was as a ping. lacking proximate cause, are Facts which show a connection, causal between the claimed statement and the noise. representations alleged relating engine
The facts and to the noise insufficient withstand the are attack the motion to will, justice, remand, grant we dismiss. interest opportunity plaintiff complaint, amend if be so advised. Judgment reversed; plain- with remanded leave cause apply thirty days, an amendment within he be so
tiff if advised.
State of Vermont P. Wilfred A.2d
[260 393] No. 27-69 Holden, C.J., Shangraw, Barney, Keyser, Present: Smith JJ.
Opinion Filed December 1969. *2 Keefe, Jeffords, Attorney T. M. General and William James Attorney General for the Assistant State. *3 Waterbury, Adams, Defendant.
Charles J. for County Washington Jury a Shangraw, Grand returned J. A shooting concerning incident against respondent a bill true thereupon indicted which occurred on October 1968. He assaulting public peace by disturbing breaking for and Bishop, wife, with caliber revolver. his Florence a .22 arraignment pleas guilty respondent of not and entered On by guilty by insanity. Thereafter he was tried reason of his County guilty. jury Washington and in Court found respondent case, of moved At conclusion the State’s by insanity guilty reason and for a directed of not of verdict acquittal. re- a directed The same motions were verdict for a at the of all of the evidence. He moved newed conclusion Attorney by reason of comments made the State’s mistrial jury. Respondent excepted during his summation charge. Following verdict, portions certain of the court’s set aside a new moved that verdict rendered be and also, judgment granted, court enter a trial and notwithstanding acquittal the verdict. All of these motions were denied. appeal general in
The in case on are whether issues support to sustain or a verdict there was sufficient evidence guilty; judgment whether a mistrial should have been Attorney during of a comment the State’s declared because summation; and, whether the court’s instructions to the insanity correct, subject com- were on the plete proper. respect practical purposes, all with
For facts undisputed. No evidence was offered actual assault are respondent denying alleged committed the offense. that he had disagreement case, only as be- area of The material respondent, relates to tween the State sanity or assault. time respondent Bishop married for Florence had been The thirty-one years prior trial to the date which was held Granitevillé, January They living 22 and 1969. Vermont, question. at the time of the assault years happy five
.Their been about married life had until previous to arose between them and the trial. Marital discord seeking year Bishop during Mrs. had considered the last Bishops between the most recent discussion divorce. The just Bishop her before left about divorce had been Mrs. Tuesday evening. did not see the home on She again Friday week, until nor he assaulted her did whereabouts, she was she inform him of her or with whom staying. Ages employed by The had been the Rock n
Corporation years. employment for fifteen His most recent capacity of' man. a stock He was conscientious good work work and had record. employed Ages Capacitor Mrs. the Rock of Street, Barre, daily Plant on South Main Vermont. Her shift *4 ended about 3:30 and P.M. for about three weeks she had been transported by Meigs. home a after work Mrs. Millie
The with caliber com- assault .22 revolver was by shooting Bishop mitted in Mrs. the stom- approaching Meigs’ plant ach while was she car in the parking day’s lot had Friday, after she her work on ended Bishop October 1968. The shot was not fatal and Mrs. testi- at the trial. fied good up the time to about had been respondent’s health
The could not trial he question. At time of the incident during the week oí did not work days worked he recall which that week he shooting. did work When he previous to sick, vomited, up, got and was concentrate, worked not could morning On the or three occasions. work on two to leave had went bird reasons shooting work for these and he left hunting. re- appearance of the following persons observed
The shooting, shortly of, after the spondent or about the time Bishop, Florence Mrs. part as follows: testified and —he appearance Mercier, Phyllis had dazed normal; was Mrs. —he expression Lamphere, facial restless; Mrs. Doris and was —his Mekklesen, appeared to blank; just Thomas Officer C. was —he coherent, cried; rational, and he speech was normal his be eyes being Denko, except some tears for Donald — normal; Police Nelson remorseful, appeared Officer State Police, him; nothing about Chief Lay, was unusual —there Gauthier, unusual; Chandler, nothing Donald Floyd —he — clearly manner, didn’t or cigarette in his usual didn’t smoke crying appearance and his fully questions, been answer had past. same expressions as facial shortly employee, that Carpenter, a fellow testified Donald upset Bishop easily while at work shooting, Mr. was before the great tense, ragged, under appeared disturbed and be up par. work was not strain and that his psychia- Burlington, Vermont, Young, Dr. William G. field, thirty-five years experience trist, was with only expert testified to the witness who as arraignment respondent. Following respondent’s he was Waterbury, Hospital, Ver- committed Vermont Young Dr. mont, for examination and on October During one-half hours. him about one and examined and later Young called as a witness the State trial Dr. respondent in his defense. Mr. testimony the effect that were to His suffering or disease at from a mental defect shooting; type thereof “dissociated time of the acting character with inner reaction”, is, out of he was person sees when a personality, behavior that one the sort of doing; really thinking such a condition of what he is isn’t *5 period would include a of amnesia which necessarily would not any particular have be of duration; that at the time of the examination, Bishop’s Mr. happened recollection of what at the shooting vague time of the was and that he recalled little of happened what parked between time when he his car parking lot and the time when he found himself with his waiting wife for the arrive; period authorities to that the non-recall or events, non-recollection of i.e. from the he time parked the car until he waiting found himself for the authori- ties, period awas support sufficient opinion amnesia to Bishop suffering that Mr. was from a mental or illness disso- ciated reaction at assault; the time of the suffer- that was ing from a traumatic mental condition and mental disease at shooting, the time of the and that this condition could af- have considerably fected his mind differently so he would act ordinary circumstances; than under possible was shooting, governed time his mind was an un- impulse controllable and Bishop irresistible to shoot Mrs. produced which grew or out of a traumatic mental condi- tion which he resist; was unable to and that the trauma which contributed to the mental disease or of Mr. condition shooting including at time of the Bishop’s Mrs. talk of di- leaving and her telling vorce home without him where she was going living. or where she was Young
Dr. testified that the sane the time respon- referring examination October 1968. In dent’s condition shooting, at the time of the doctor further expressed Bishop’s seriously that Mr. mind was impaired, temporarily and that he was insane at that time.
The test of as a defense in criminal in this cases appears in 13 V.S.A. 4801 and is as follows: § (1) person responsible A is not for criminal if conduct at the time of such conduct aas result of mental disease adequate capacity defect he appreciate lacks either criminality of his conduct or to conform his conduct requirements of law.
(2) The terms “mental disease or defect” do not include abnormality repeated an only by manifested criminal or otherwise anti-social conduct. The “mental terms disease congenital or defect” shall include and traumatic mental conditions as well as disease.
n Young witnesses, lay testimony Dr. view of the following question; we are led to case such that could
Is the evidence find beyond doubt that the sane a reasonable commission the crime? at the time *6 question preserved properly for this Court’s review This respondent. by suitable motions of the judg for for a verdict and motion
A motion
directed
notwithstanding
in nature and
ment
the same
the verdict are
light
most favor
require
be viewed in
the evidence
against
made. Baldwin
party
whom the motion is
able to the
556;
70,
Railways,
71, 223 A.2d
LaFaso
126 Vt.
v. Vermont
95,
is
crim
LaFaso,
90,
223
While this
126 Vt.
814.
v.
A.2d
upon
passing
is the same as
case,
in
such motion
the rule
inal
Here,
3,
Ballou,
1,
When evidence requisite possess the mental did not to indicate criminally responsible, capacity it becomes make him to beyond duty prosecution establish, reasonable ingredient sanity doubt, as an essential Insanity defense. It crime. not an affirmative means prosecution weakening meeting case made one essentials; beyond go. Warner, of its need not v. State 100, 394, 149; Blair, 81, 391, 91 Vt. 101 A. v. 118 State Vt. 101, 677; 529, Wilson, 524, 99 A.2d v. 113 Vt. 37 A.2d State 400. latitude is
Considerable allowed the courts in ad mitting tendency light has a evidence which throw mental condition of a of the commis- time 228 provided crime, prove proof
sion of or tends to dis- prove Am.Jur.2d, Evidence, the issue involved. 29 358. section sanity insanity or
Whenever the of an individual inis issue, expert professional may than witnesses other or men personal person relate their observations whose mental question, condition is so far as tend those observations light Expert upon Opinion throw 31 Am.Jur., that issue. Evidence, section 85. non-expert may give
A his as to the witness another, upon or when based conversations dealings person, upon had with or which he has such or upon appearance, any bearing upon condi or fact his mental tion, knowledge observation, with the witness’ own having conversations, dealings, appear first to such testified facts, opinion. ance as observed the basis other 210; Ellis, Holton v. 114 Vt. 49 A.2d Estate Hayden, 296, 304, 398; Will, A.2d Vt. In Re Wood’s 407, 409, 115 95 Vt. A. 231.
Though it judge, is for the court in to the first stance, experts possess whether witnesses introduced as suf give opinion, ficient skill to them to entitle an for it is the jury testimony to experts determine from the whether such have sufficient any importance. skill to render their of Ward, 225, v. State 39 Vt. 229. recognized
It is well
jury,
this State that
the
being
facts,
the
judge
credibility
of
the
trier
is
sole
of the
of
weight
testimony.
witnesses and of the
of their
Hill
State v.
ker,
569, 572,
117 Vt.
There is pointing evidence in this case to the respondent of the jury say and it was for the to whether this outweigh beyond evidence was sufficient to a reasonable doubt pointing respondent’s insanity. Blair, evidence to supra, 100, 677; Wilson, supra, 99 A.2d State v. 113 Vt. 529, 37 State, A.2d In (Okla.Crim.) 400. of case Tarter v. province' within P.2d 596 it was held was lay against jury testimony witnesses medical believe to that defendant was insane. jury, by apparently guilty,
The
their
verdict of
relied
lay
who testified as
the evidence of the
witnesses
to
normal
appearance
respondent
and rational
at the time of the
evidence,
support
Opposed to
assault.
respondent’s
insanity,
testimony
Young
claim of
of Dr.
lay
convincing
of the
witnesses
less
some
by
respondent
find
jury,
their failure to
as evidenced
by
insanity.
guilty
reason
mistrial,
support
motion
attention is
for
following
by
made
called to the
comments
Attor-
State’s
ney during argument
jury. “I
and summation to the
think
don’t
her;
think, however,
I
he intended to kill
do
based
the evi-
her;
her,
that he
dence
intended to hurt
and he
hurt
did
he
hospitalization,
wonder,
her four
and I
caused
months
ladies
gentlemen,
happen again.”
if it could
required
argument
Counsel is
to confine his
to the
properly
in the
and to
evidence
case
inferences
to be drawn
therefrom,
appealing
prejudice
and to
jury.
avoid
of the
Levine,
320, 326,
State v.
117 Vt.
It contended the above Attorney objected of the remarks State’s which were to below prejudicial. is here that, jury It claimed in so far as the knew, acquittal by insanity might an reason of or could result society release of the into where could Bishop again. shoot Mrs. wrong prosecutor play
It personal on the suggesting possible injury fears future to Mrs. acquittal. her husband the event of his Objection seasonably remarks the above made *8 respondent’s attorney. sustaining In objection, the the the objectionable, “Yes think it trial court stated: we is and the jury disregard anything in will the future.” “* * * charge jury, to its court later said: attorneys any arguments of they, statements have during arguments of or in made the course trial their are also evidence.” not given jury the instructions
It followed is assumed that the by disregarded these made remarks the trial court and attorney. prosecuting question do not meet the comments While by counsel, arguments we not con do standards sanctioned in any significant appellant’s turned in conviction clude that the consequently, and, no is degree reversal comments on these assignment required of error. on this claimed charge assigns Respondent in the court’s error prose insanity. that the It the law Vermont the issue of is sanity proving of the of cution had the burden beyond doubt. a reasonable portions of the court’s
Respondent to certain has referred references, By isolated it is charge these and claims error. erroneously upon placed proof of urged that the burden insanity. prove to given charge to assist the portions of the These insanity, purpose for the distinguishing between responsibility statute. The determining criminal under court, in the course each assigned trial is that fault every time, definition, refer, to bur- not did statement sanity beyond a rea- prove State den negated re- the overall and claim is Such doubt. sonable proof so the burden charge by the court that peated upon the State. cast charge of a trial into the not to be read
Error segments It be con isolating of it. small judge eye general content. on its with an piecemeal, but sidered Quoting from In re 81, 97, 99 Blair, A.2d 677. 118 Vt. page 114, 713, “An 152 Atl. Moxley’s Will, 103 Vt. light read must be be erroneous claimed to instruction subject.” upon the said is elsewhere what Roxbury, Town 55 Vt. Fassett v. stated As whole, charge “should be taken as page 552, at expressions that, alone, taken may some contain although it spirit yet true error, if as a whole breathes the would be ground say law, no and there is fair doctrine ought by it, it to stand.” misled jury has been *9 applica- insanity Elsewhere, sanity issues, and the the 13 V.S.A. tion of the in criminal cases under test of following proof, to 4801, of refer the section burden we the charge. comments in the contained court’s not question respondent The whether was or the legally breach of of the insane the time the commission responsible responsible for peace, therefore, of not or issues, we have question, his as act. On on all other this upon estab- to the State to you, the burden outlined rests beyond legal sanity respondent the a reasonable lish of the doubt, explained you the If find that as we have term. the respondent peace, failed the but committed breach the legally beyond that to find a reasonable doubt he was guilty reason time, your must be not sane verdict insanity. following by the find court. We later the statement statutory definition, applicable so far as it Under the here, prove proof upon to burden rests doubt, respon- beyond a to hold the reasonable order responsible conduct, that for criminal at the time dent or conduct, did not as result of mental disease such adequate capacity appreciate defect lack either criminality his conduct or to conform conduct to requirements of law.
Continuing following: charge we find the or respondent . did disease
. . such mental have alleged, he lacked defect on the October date criminal, adequate capacity to realize his act was mental impulse perform following it? or to refrain from prove beyond a reason- . . on the State to . the burden is not so mental disease defect did able doubt sustained, your operate, if not this burden is exist you should, assuming find the verdict even act, guilty of insan- be not reason committed said ity. charge again court of the the trial
Near conclusion proof rested fact called attention to the burden beyond doubt upon establish reasonable the State to justify a conviction. of the in order to reading charge A standing alone, of the would indicate that context, complained charge portions and out incomplete Considering charge and incorrect. en- its tirety, emphasis placed correctly and the which the court required justify conviction, essentials we conclude that complained of, misled the errors nor that prejudicial appears. error
Judgment Let be execution done. affirmed. Holden, C.J., concurring. question presented I Since view the appeal differently somewhat from that entertained in majority upon the opinion, I feel called to state the reasons my concurrence the result. doesn’t It seem me that in ordinary case, opinion the lay witnesses, the uniformed that sane, an presence accused excludes reasonable doubt the undisputed competent expert contrary, evidence to experienced psychiatrist. advanced a skilled and See Isaac States, U.S.App.D.C. 34, v. 168, 109 170; United 284 F.2d Maryland, 505, 150, v. 234 Md. 200 A.2d 17 A.L.R.3d Bradford 134 and annotation at 181. present case, however, Young
In Dr. was of the “possible” gov that it was that mind was by an impulse erned uncontrollable and irresistible at time shooting. considering competency such testi mony, probability standard, reasonable rather is the than con jecture possibility. or mere Stanley, See Hebert v. 124 Vt. 205, 210, 698, Howley 201 A.2d Kantor, 105 Vt. A. important, 628. More the doctor testified: “It was my impression suffering that what a he call we dissociated reaction; is, acting he was out character with his personality, inner sort of behavior that one sees when a person really thinking doing.” isn’t of what he is attorney inquired:
The state’s then Q. you accept the being Would definition dissociation as person prolonged period who functions of amne- being and then
sia returns to normal as dissociate reac- during period part tion that amnesia because that of his splits personality apparently off from rest of him operated independently? you for awhile Would ac- cept ? that definition good lay Yes, definition.
A. that’s suffering Bishop under Q. to have been for Mr. order So reaction, suffered a he would have have dissociate period of amnesia?
A. Yes.
Q. Bishop events If, however, to recall the Mr. was able shooting, would not during
preceding, and after the suffering reaction ? this dissociate be unlikely. Very A. opinion, that the re- doctor’s clear from this that
It is judgment “temporarily insane,” based spondent was immediately of amnesia from a state suffered diagnosis am- shooting. time of the His at the before and memory reported him the based on the lack of nesia was during course of his interview alleged 14, 1968, days after crime. Hospital on ten October crime the afternoon appears in the It evidence voluntary of the events statement made time of the offense. preceded and which occurred voluntarily given, statement was question made that No *11 rights protected constitutionally with the consistent in- remembered and time the accused. At exactly what investigators, detail, in considerable formed the particular happened. location where This included plant when vehicle, his wife she left parked that he saw quoted approached He her she his car. watched as of her conversation: substance you said, And that’s the Hell do want?’ ‘What
“She it. I done when
Q. you up her ? walk And did up No, to me. A. she walked
Q. your-gun at that time ? And where was my hand. A. gun
Q. you concealed before that? Did have the No, A. sir.— point right put right it
Q. you it at her ? Or her Did stomach? was about —she about she two feet from
A. Well pointed me, probably I it so at her.
Q. many you How fire shots did ?
A. One.” There case to indicate that other evidence in the respondent had transpired. substantial recall of what In the presence testimony province of this within the reject jury to the claim of the defense that experienced period of amnesia. “temporary insanity”
Since doctor’s premise, adequate founded on this had reason to testimony conclude that his on the issue of was not convincing. support The same considerations trial court’s guilty. refusal direct a of not verdict McGarry In re Petition of Michael J. Costello, Edward J. Judge County District Court In Chittenden A.2d
[260 402] No. 122-69 Holden, C.J., Shangraw, Barney, Present: Keyser, Smith and JJ.
Opinion 2, 1969 Filed December