State v. SotoState v. Soto
Fоllowing a jury trial in Superior Court (Smukler, J.), the defendant, Michael Soto, appeals his conviction for being an accomplice to first-degree murder. See RSA 626:8, 630:l-a, 1(a) (2007). We affirm.
I
The defendant’s conviction arises out of the fatal shooting of Aaron Kar in Manchester on the evening of January 2, 2007. On the previous day, a man named Bill threatened Roney White’s young cousins with a knife at a 7-Eleven store close to Roney’s home. When Roney learned of the incident from his cousins, he directed them to identify the man with the knife. Finding Bill standing outside the store, Roney punched him in the face in retaliation and fled the scene. Later that night, apparently in response to Roney’s actions, Kar and his friends drove past a small group of people standing on the street, which included Roney, his brother Roscoe White, and their friend Anthony Clagon, and unsuccessfully attempted to hit one of them with a stick from the moving vehicle. No further encounter between the two groups occurred that night.
The next day, at around 2:30 p.m., Bill and another person attacked Roney with a baseball bat as he was walking alone on Nashua Street. Badly injured, Roney stumbled home to his mother and two brothers, Roscoe and Raymond Alleyene. Roney’s mother took him to the hospital. Shortly thereafter, Alleyene, Clagon, and Roscoe met at Roscoe’s house and discussed the possibility of an armed fight in retaliation for the attack on Roney. After Roscoe failed to get his own gun to work, he called some friends in Nashua, asking them to bring a gun.
That evening, the defendant, his brother Sergio, Andrew Gonzalez, and Clagon’s cousin Kim and her children drove from Nashua to Manchester in a red Chevrolet Blazer. The men met Clagon, Alleyene, and Roscoe in the room Roscoe shared with Roney, smoked marijuana, and settled on a plan to find Roney’s attackers and confront them. After Roscoe confirmed that the defendant had brought a gun, the six men sеt out in the Blazer to find Roney’s attackers. A short time later, they found a group of people whom they suspected had been involved in Roney’s attack gathered near a dumpster. After driving past the group once or twice, they parked the Blazer around the corner and discussed who would do the shooting. They settled on Roscoe as the shooter based on his blood relationship with Roney. The defendant then wiped the gun with his shirt, racked the slide to cock it, and handed it to Roscoe. Roscoe left with a mask on, shot Kar in the leg and abdomen,
The jury convicted the defendant of first-degree murder based on his role as an accomplice in Kar’s death. On appeal, the defendant argues that the trial court erred: (1) in not giving the jury a provocation manslaughter instruction; (2) in not giving a reckless manslaughter instruction; and (3) in permitting the introduction of an audio recording of Roscoe White discussing the crime with an informant.
II
The defendant first argues that the trial court should have instructed the jury to consider whether the defendant acted under an extreme mental or emotional disturbance caused by extreme provocation, see RSA 630:2,1(a), thereby reducing his criminal liability from murder to manslaughter. He argues that “there was overwhelming evidence to support a jury determination that Soto had been adequately provoked within the meaning of [the provocation provision of the manslaughter statute].” We disagree.
The defendant was entitled to the requested jury instruction only if there was some evidence to support a rational finding in favor of that defense. State v. Balliro,
“A person is guilty of manslaughter when he causes the death of another . . . [u]nder the influence of extreme mental or emotional disturbance caused by extreme provocation but which would otherwise constitute murder.” RSA 630:2,1(a) (2007). Under the common-law rule, to reduce the crime of murder to manslaughter, the provocation must be so severe or extreme as to provoke a reasonable person to kill another person out of passion.
Before applying these principles to the facts, we note that our case law has approached provocation manslaughter in two arguably inconsistent ways: as a lesser-included offense of murder, see State v. Little,
We have never treated provocation manslaughter under RSA 630:2, 1(a) as a true “defense” under the Criminal Code triggering the notice requirements of Superior Court Rules 98(B) and 101, and we decline to do so today. Rather, provocation is best understood as a “partial defense” because, unlike traditional defenses that serve to discharge a defendant’s liability for conduct that otherwise constitutes a crime, provocation manslaughter comprises a set of mitigating circumstances that can negate the mens rea required for intentional murder and, even where they do not have this negation effect, can warrant a jury in "finding the defendant guilty of a separate, less culpable offense than murder under the Code. See Berman & Farrell, Provocation Manslaughter as Partial Justification and Partial Excuse, 52 Wm. & MARY L. Rev. 1027, 1045 (2011) (recognizing this widely-accepted approach). Unlike the defenses of insanity or self-defense, provocation under RSA 630:2,1(a) only reduces, but does not eliminate, the punishment for murder,
Although provocation is only a partial rather than a full defense, because it can operate both to reduce the mens rea required for murder and to provide a basis for the jury’s invocation of the community’s sense of compassion, we conclude that provocation, when properly raised, should
Turning now to the circumstances of the instant case, we conclude that the undisputed facts culminating in Ear’s death reveal no evidence upon which a provocation instruction was warranted. At least two hours passed between the moment the defendant learned by telephone that Roney had been attacked and the mоment the defendant and his friends found and killed
This sequence is not consistent with a sudden emotional disturbance from which the defendant had no time to regain contrоl of his passions. Even assuming that Ear was the person with Bill during the attack on Roney the day before, and that such attack both actually and reasonably provoked the defendant, a reasonable person would not remain in that extreme emotional state after driving to a different city, meeting with several friends to discuss how to retaliate, taking the time to smoke marijuana, and again driving to search for one’s provokers. The law is careful to distinguish a sudden rush of pаssion following extreme provocation, on the one hand, from a desire for revenge, on the other. See State v. Henson,
Equally implausible is the defendant’s contention that he had not actually cooled off. “[A defendant] cannot have his homicide reduced to voluntary manslaughter if ... he has actually cooled off by the time he commits his deadly act.” LaFave, supra § 15.2(e), at 509. Anger alone is not sufficient to warrant a provocation instruction; the law requires an extreme emotional response to a sufficiently provoking event. Washington v. State,
Ill
The defendant next argues that the trial court erred by refusing to instruct the jury on reckless manslaughter as a lesser-included offense of reckless second-degree murder. In addition to the indictment charging the defendant with first-degree murder, he also was charged in a separаte indictment with second-degree murder for allegedly recklessly causing the death of Kar under circumstances manifesting extreme indifference to the value of human life. See RSA 630:l-b, 1(b) (2007).
In general, a defendant charged with one offense is entitled to have the jury consider any lesser-included offenses. State v. Cameron,
The State contends that any error in failing to instruct the jury on reckless manslaughter was harmless beyond a reasonable doubt. An error is harmless only if it is detеrmined, beyond a reasonable doubt, that the verdict was not affected by the error. State v. Hernandez,
The State concedes, as it must, that reckless manslaughter is a lesser-included offense of murder. See RSA 630:2, 1(b) (2007); State v. Howland,
IV
Finally, the defendant objects to the admission of a jailhouse recording of a сonversation between Roscoe (who was at the time incarcerated on an unrelated matter) and a confidential informant. In that recording, Roscoe confessed to having shot the victim and shared certain details leading up to and following the shooting. He also told the informant that the gun was already “cocked back” and referred in the same sentence to “Mike,” which prompted the informant to ask Roscoe if he meant that “Mikey” — the defеndant — had cocked the gun for him. Roscoe did not intelligibly answer the informant’s question. The defendant argues that this recording contained inadmissible hearsay and otherwise violated his state and federal confrontation rights. The State contends that the court properly admitted the recording as a statement against penal interest, and that any error was harmless.
Assuming without deciding that the admission of the exchange constituted error, we agree with the State that any suсh error was harmless. For an error to be harmless, the State must prove beyond a reasonable doubt that it did not affect the verdict. Hernandez,
Affirmed.
Notes
Most modern formulations of the common-law “heat of passion” doctrine measure both the adequacy of the provocation and the severity of the response by a “reasonable person” standard. 2 W. LAFAVE, SUBSTANTIVE CRIMINAL LAW §15.2(b)(10), at 504 (2d ed. 2003). Unlike in the tort context, however, the reasonable person standard in the provocation context is not a standard of acceptable, non-blameworthy conduct; rather it is a fiction that stands for a centuries-old recognition that, in certain extreme circumstances, even an average person of ordinary disposition may suffer a temporary loss of reason and control. See id. at 495 (“[T]he reasonable man, however greatly provoked he may be, does not kill.”). Provocation manslaughter is, therefore, a “concession to human frailty,” reflected in the fact that a person killing under an extreme mental or emotional disturbance in response to extreme provocation has committed a serious crime — manslaughter — but not as serious a crime as first or second-degree murder.
In our statutes, a person convicted of first-degree murder must be sentenced to life imprisonment without the possibility of parole. RSA 630:1-a, III (2007). By contrast, a person convicted of manslaughter may be sentenced to no more than thirty years imprisonment. RSA 630:2, II (2007).
The definition of “purposely” found in the first-degree murder statute has two components: (1) that the defendant’s conscious object was to cause the death of another; and (2) that the defendant’s acts in furtherance of this object were deliberate and premeditated. See RSA 630:1-a, II (2007). This specific definition applicable to the first-degree murder offense proscribed by RSA 630:l-a, 1(a) is different from the general definition of “purposely” which applies to other crimes in the Criminal Code. See RSA 626:2,II(a) (2007).
The instruction on the elements of provocation manslaughter specified in the text also takes account of the fact that this offense can be charged as a stand-alone crime. See, e.g., State v. Darcy,