Marc Burrell (defendant) was convicted of manslaughter after a jury trial in the Superior Court. Burrell appealed, arguing that the trial court committed an error in its jury instruction concerning the requirement under a New Hampshire statute that provides that conduct creating criminal liability must include a voluntary act. The New Hampshire Supreme Court affirmed the Superior Court.
Douglas Saari and Joey Baglione made plans to have a few drinks at Baglione’s house. Before going there, Saari, a minor, stopped at Burrell’s house and asked Burrell to purchase beer. Burrell agreed and decided to accompany Saari to Baglione’s. When they arrived, Baglione answered the door holding a .357 revolver. Inside the house were an AR-15 rifle, possibly a shotgun, a .44 revolver, and a .38 snub-nose revolver. The .357 and .44 revolvers were loaded.
During the afternoon the three drank beer and watched an X-rated movie. Baglione and Burrell played a form of Russian roulette with the .357 revolver. One bullet was placed in the chamber, the chamber was spun, one player placed the gun to his head with his finger on the trigger, and then the gun was examined to see whether the bullet would have been discharged if the trigger had been pulled. At some point in the afternoon, all three went out on Baglione’s back porch and fired one or two rounds with the .44 revolver.
At trial, Saari testified that while Baglione was out of the room, Saari told Burrell that he was going to steal the .38 and placed it in the lining of his leather jacket. Burrell agreed to go along with Saari, and stated that he was going to steal the AR-15, the .44, and the .357. When Baglione returned, Burrell announced his intention to steal the weapons. Baglione said, “You’re not going to steal those guns, so I’ll stop you.” Baglione ran out of the room, and returned with a shotgun. By then, Burrell had put down the AR-15, but kept the .44 in his belt and the .357 in his hand.
Saari testified that Baglione “came running out of the basement … and told [Burrell], … ‘You ‘re not going to steal those guns because I’ll blow your f ___ head off.”‘ Saari added that Baglione was not “serious .. . [and] he pumped the shotgun more than once, so I know it wasn’t loaded.” Saari then “looked at Burrell to see what his response was. And before I had time to do anything, he had shot in Baglione’s direction” and hit him. Burrell dropped the gun, tried to call an ambulance, but panicked and went outside. At that time, Baglione’s brother-in-law, Greg Eastman, arrived and called the ambulance. After the ambulance arrived, Eastman, Saari and Burrell went to the hospital.
At trial, Burrell testified that the fatal shooting did not occur when Baglione threatened him, but later in the afternoon while he and Baglione were preparing to take some of the guns back to a closet in Baglione’s father’s bedroom. Before storing the guns, Baglione told Burrell that his father always kept the .357 loaded.
Burrell testified that, after loading the .357 revolver, he was seated on the forward edge of the love seat with his feet outstretched. Baglione passed in front of him from right to left. While Baglione was to his left, he sighted the gun on the hearth and put his finger on the trigger. He heard a noise and saw Baglione move from left to right in front of him. Thinking that they were going to collide, he jerked back and the gun went off. Burrell admitted on cross-examination that because of a lazy left eye, a problem he was aware of on the day of the shooting, he had great difficulty seeing anything to his left.
In New Hampshire, “a person is not guilty of an offense unless his criminal liability is based on conduct that includes a voluntary act or the voluntary omission to perform an act of which he is physically capable.”
RSA 626: 1, I. Burrell does not dispute either the statutory requirement or the fundamental principle that criminal liability must be predicated upon conduct that includes a voluntary act. Burrell, however, contends that the court erred in failing to instruct the jury that it must find that Burrell’s act of pulling the trigger was voluntary.
The trial court gave the jury the following instruction on the voluntary act requirement: A person is not guilty of an offense unless his criminal liability is based upon conduct that includes a voluntary act. A voluntary act is defined as conduct which is performed consciously as a result of effort or determination. To find Burrell guilty of an offense, any offense, you must find that the criminal liability is based upon conduct that includes a voluntary act. And although a voluntary act is an absolute requirement for criminal liability, you do not have to find that every single act in the circumstances presented to you was voluntary. It is sufficient to satisfy the requirement of a voluntary act if you find that Burrell’s conduct causing the death of Joseph Baglione, Jr. included a voluntary act.
Burrell requested this instruction: A person is not guilty of an offense unless his criminal liability is based on conduct that includes a voluntary act. If you find Burrell’s act of pulling the trigger of the handgun in this case not to have been a voluntary act, then you must find Burrell not guilty.
Burrell essentially asks this court to require the State to prove that Burrell’s last act was voluntary in order to establish criminal liability. There is no support for this proposition in either the statute or in our case law. The statute only requires that Burrell’s conduct that gives rise to criminal liability include a voluntary act. Although a voluntary act is absolutely necessary for criminal liability, there is no requirement that every act preceding the actual commission of the offense be voluntary. We hold that the trial court’s refusal to instruct the jury that Burrell’s act of pulling the trigger must have been a voluntary act was not error. Affirmed.
1. State the facts relevant to deciding whether Marc Burrell “voluntarily” shot Joey Baglione.
2. State the court’s definition of “voluntary act.”
3. Summarize the court’s reasons for holding that the trial judge wasn’t required to give the jury instruction that Burrell asked for.
4. In your opinion, which is the better rule for determining whether an act is voluntary: (a) the last act has to be voluntary or (b) that conduct has to include a voluntary act? Defend your answer.
Acie Terry Moore was convicted of second-degree murder, and sentenced to the trial court sentenced defendant to a presumptive-range term of 146 to 185 months imprisonment. Moore appealed, arguing that the trial court should have instructed the jury on the defense of unconsciousness.
At about 9:00 P.M., Terry Moore was driving south on a two-lane paved road in Alamance County with a 50-mileper-hour speed limit. At the same time, Mark McKinney was driving his truck north on the same road. Anthony Satterfield was riding a motorcycle directly behind Mr. McKinney’s truck. Mr. Satterfield was followed by two more vehicles, one driven by Michael Rea and the second by Phillip Hagerman.
As defendant’s truck approached Mr. McKinney’s truck, Moore’s truck crossed the double yellow center line into the wrong lane of travel. Mr. McKinney jerked the wheel of his truck to avoid colliding with defendant’s truck. Defendant’s truck, still in the wrong lane of travel, then struck Mr. Satterfield’s motorcycle without braking. During the collision, the tire of defendant’s truck severed Mr. Satterfield’s leg, the driver’s side mirror on defendant’s truck collided with Mr. Satterfield’s helmet causing a large laceration on his forehead, and defendant’s truck smashed the crank case on the motorcycle. Mr. Satterfield’s body travelled approximately 100 feet before coming to rest.
After striking the motorcycle, defendant still did not brake, and his truck remained in the wrong lane of travel. Mr. Rea swerved his truck to the right to avoid colliding with defendant’s truck. Defendant’s truck travelled another 151 feet and then, again without braking, slammed into Mr. Hagerman’s truck, snapping the rear axle of that truck and spinning the truck into a ditch. The left front tire of defendant’s truck then deflated, and defendant’s truck continued travelling for 168 feet off the highway into a field.
At trial, Moore’s physician, Dr. Meindert Albert Niemeyer, testified as an expert in family medicine. According to Dr. Niemeyer, defendant has diabetes and a history of seizures and it was possible that hypoglycemia would cause a person like defendant to lose consciousness. He further testified that defendant’s diabetes and low blood sugar could cause a state of “ketosis” in which defendant’s body would produce “ketones” that can smell like alcohol.
Defendant’s sister testified that when defendant does not “have good control over his diabetes,” he gets disoriented and confused. She further testified that defendant has a history of seizures that caused him to “black out and stay out for a couple of minutes and then when he would come to he wouldn’t know where he was at.” On the night of the accident, defendant’s sister was worried that defendant might have high blood glucose because he was acting tired and confused and had not eaten since early morning. Defendant’s sister did not smell alcohol on defendant when he met her at the go cart track, and she would not have let defendant drive if she believed he had been drinking.
Defendant testified in his own defense, telling the jury that during the day on 14 August 2010, he mowed several lawns. Defendant ate breakfast early that morning, but did not eat anything for the remainder of the day. Although Trooper Norton testified that defendant told him on the night of the accident that he had taken his diabetes medication at about 5:30 A.M., defendant testified that he forgot to take his diabetes medication that morning. According to defendant, he drank a small amount of water and several sodas during the day. He also drank three 12- or 16-ounce beers at a friend’s house that evening before driving to the go-cart track.
The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability. Other courts have recognized “diabetic shock” and “epileptic black-outs” as sources of unconsciousness giving rise to the defense. Evidence showing that the defendant was unconscious during commission of the crime only as a result of voluntary ingestion of alcohol or drugs will not warrant an instruction on the defense of unconsciousness. However, evidence of a defendant’s voluntary consumption of alcohol does not render the defense of unconsciousness unavailable where there is additional evidence from which the jury could find the defendant’s unconsciousness was caused solely by something other than the voluntary consumption of alcohol.
Here, Dr. Niemeyer, defendant’s physician, testified that defendant is diabetic and has a history of seizures and that it is possible that defendant could pass out from hypoglycemia resulting from not taking diabetes medication, not eating during the day, not hydrating enough, and working outside during August temperatures. He further testified that defendant’s diabetes and low blood sugar could cause defendant’s body to produce “ketones” which can smell like alcohol. Defendant’s sister testified that when defendant had a seizure, defendant would “black out” for a couple of minutes and be disoriented and forgetful. Defendant’s sister explained in addition that when defendant “didn’t have good control over his diabetes,” defendant also became disoriented and forgetful.
Defendant testified that he forgot to take his diabetes medication on the day of the accident and ate breakfast early that morning but ate nothing else that day. The evidence showed that the accident occurred about 9:00 P.M. Defendant further testified that he mowed several yards that day, drank only a small amount of water and “a couple” sodas, and experienced nausea and a “burning sensation” in his eyes before the accident.
Regarding the accident, defendant testified that he “blacked out” and explained: I remember going into the curve and it just like something just blanket over my head and I couldn’t see nothing …. [A]II I heard was something go bang, bang, bang. That’s all I could hear but I couldn’t see nothing. Defendant also repeatedly testified that he was not drunk at the time of the accident.
Thus, taken in the light most favorable to defendant, the evidence permitted the jury to find that defendant was unconscious during the accident solely because of a hypoglycemic state, seizure disorder, or some combination of the two, and not as a result of his voluntary consumption of alcohol. The trial court, therefore, erred in failing to give an instruction on unconsciousness.
The State presented substantial evidence that defendant’s voluntary intoxication caused defendant’s mental state at the time of the accident. The State’s evidence indicated that defendant had three to four beers in the middle of the afternoon at a bar. When he returned to the bar in the early evening, approximately two and a half hours prior to the collision, two witnesses saw defendant so intoxicated that he walked into a wall. When he got inside the bar, he fell off a bar stool. At the Alamance County Detention Center, on the night of the accident, defendant told the investigating officer that he was a “nine” on an intoxication scale of one to 10, with 10 being “completely drunk.” Further, defendant performed poorly on four field sobriety tests and, in the investigating officer’s opinion, defendant’s physical and mental faculties were appreciably impaired by alcohol. Three other law enforcement officers and four civilian witnesses at the scene also observed defendant display signs of intoxication and many smelled an odor of alcohol on defendant. Defendant himself admitted drinking three 12- to 16-ounce beers that night.
Finally, chemical analysis showed that defendant had .18 grams of alcohol per 210 liters of breath at the time of the accident-a fact not explained by defendant’s evidence. And, at trial, defendant testified: “Everybody drinks and drives. I was the one that just got caught.”
Given this evidence, we cannot conclude that the jury would probably have reached a different verdict if properly instructed regarding the defense of unconsciousness. No error.