Because homicide trials often involve lesser-included offenses, all homicide instructions are included on this page, with their accompanying reporter’s notes. Please make sure to read the notes below, and consider carefully the relationships between the offenses.
First Degree Murder, 13 V.S.A. § 2301
CR24-031. First Degree Murder, by wilful, deliberate, and premeditated killing (01/10/06)
CR24-011. First Degree Murder, by poison (03/26/07)
CR24-021. First Degree Murder, by lying in wait (03/26/07)
- CR24-051. Felony Murder (Alone) (03/26/07)
CR24-052. Felony Murder (Accomplice) (03/26/07)
CR24-301. Transitions to Lesser Included Offenses (04/29/16)
- CR24-302. Transitions to Lesser Included Offenses (extenuating circumstances at issue) (04/29/16)
Second Degree Murder, 13 V.S.A. § 2301
Manslaughter, 13 V.S.A. § 2304
Aggravated Murder, 13 V.S.A. § 2311
CR24-511. While in Custody for Murder, 13 V.S.A. § 2311(a)(1) (12/22/03)
CR24-521. Previously Convicted for Murder, 13 V.S.A. § 2311(a)(2) (04/21/03)
CR24-541. Risk of Death to Another Person, 13 V.S.A. § 2311(a)(4) (01/10/06)
CR24-551. Avoiding Arrest, 13 V.S.A. § 2311(a)(5) (01/10/06)
CR24-556. Effecting Escape, 13 V.S.A. § 2311(a)(5) (01/10/06)
CR24-561. Hired Another to Commit Murder, 13 V.S.A. § 2311(a)(6) (03/26/07)
CR24-566. Was Hired to Commit Murder, 13 V.S.A. § 2311(a)(6) (07/16/03)
CR24-571. Victim was Law Enforcement Officer, 13 V.S.A. § 2311(a)(7) (04/21/03)
CR24-581. While Perpetrating Sexual Assault, 13 V.S.A. § 2311(a)(8) (03/26/07)
The task of drafting model instructions for homicide cases has presented the committee with difficult and complex issues. Areas of concern have included (1) the detail to be included in the explanation for the term “unlawful killing,” (2) explanations for the various mental elements for each degree of homicide, including the lesser included offenses, and (3) proper treatment of transitions. In recent years, the Supreme Court has addressed some of the difficult issues, and the committee has responded by modifying its model instructions. It is now clear that, when the evidence supports theories of sudden passion or provocation, a conviction for second-degree murder requires proof beyond a reasonable doubt that the accused did not kill under the influence of passion or provocation. State v. Bolaski, 2014 VT 36, 196 Vt. 277. See CR 24-302 and accompanying notes. It is also clear that diminished capacity cannot properly be considered as an “extenuating circumstance” that would reduce second-degree murder to voluntary manslaughter. State v. Congress, 2014 VT 129, 198 Vt. 241.
Where an instruction refers to the element of “unlawful killing,” bracketed text is provided for use in cases where the evidence supports a claim that the killing was justified. See 13 V.S.A. § 2305. The shorter instruction is recommended for cases lacking evidence of justification. Any additional explanation should be tailored to fit the evidence.
The homicide instructions are unusual in that the mental elements are often described in different terms for the different degrees. As one example, first-degree murder might require proof of a willful, deliberate and premeditated killing under 13 V.S.A. § 2301, whereas the mental element for involuntary manslaughter is generally stated as criminal negligence as described in State v. Stanislaw, 153 Vt. 517, 525 (1990). Usually the instructions for first-degree murder do not include an instruction for criminal negligence, unless the manslaughter instruction is given as a lesser included offense. The idea is that deliberation and premeditation are higher mental states, and proof of the higher mental states will necessarily include proof of any lower mental states. See State v. Bolio, 159 Vt. 250, 253-54 (1992) (discussion of lower mental states included within higher mental states, in context of aggravated assault).
A slightly different confusion could arise in the context of second-degree murder (or voluntary manslaughter), where the mental element may be satisfied by any one of three forms of intent, namely an intent to kill, or an intent to do great bodily harm, or a wanton disregard of the likelihood that death or great bodily harm would result. See State v. Johnson, 158 Vt. 508, 518 (1992). It is now clear that these three mental states form a hierarchy, so that proof of the higher mental states will also establish the lower mental states. “As long as all jurors [are] unanimous on the ultimate issue of intent, which of the three alternative methods used to inform each decision as to intent is immaterial.” State v. Boglioli, 2011 VT 60, ¶ 12, 190 Vt. 542, 545.
The distinction between second-degree murder and voluntary manslaughter does not lie in the mental state requirement. The intent component of voluntary manslaughter is the same as that required for second-degree murder. State v. Blish, 172 Vt. 265, 272 (2001). Instead, the distinction is that “[v]oluntary manslaughter is an intentional killing committed under extenuating circumstances that may negate willfulness, such as sudden passion or provocation that would cause a reasonable person to lose control.” Blish at 270 (quoting State v. Hatcher, 167 Vt. 338, 345 (1997)). Because such circumstances play a crucial mitigating role, “[w]here passion or provocation is implicated, the court must instruct the jury that to establish murder the State must prove beyond a reasonable doubt that the accused did not kill under the influence of passion or provocation.” State v. Bolaski, 2014 VT 36, ¶ 18, 196 Vt. 277, 286 (quoting Hatcher at 345-46); In re Sharrow, 2017 VT 69, ¶ 14 (defense counsel’s failure to object to instruction that did not require State to prove absence of passion or provocation was ineffective assistance of counsel that prejudiced defendant). These instructions must be given regardless of whether the parties focus their arguments on the passion or provocation evidence. Id. at ¶ 22 (citing State v. Yoh, 2006 VT 49A, 180 Vt. 317).
In State v. Congress, the shared mental element for second-degree murder and voluntary manslaughter also led the Supreme Court to conclude that diminished capacity, which can negate an actor’s ability to form a required mental element, cannot be used to reduce second-degree murder to voluntary manslaughter. Rather, “a defendant who defeats the State’s burden with respect to the state-of-mind element for second-degree murder cannot be convicted of any degree of homicide more serious than involuntary manslaughter.” Congress, 2014 VT 129, ¶ 33 (emphasis in original). The committee has adjusted the transition and diminished capacity instructions to account for this clarification.
The committee drafted CR 24-302, in response to State v. Bolaski, 2014 VT 36, 196 Vt. 277, for use in cases where the evidence supports instructions on passion and provocation. The current version of CR24-301 has been modified for use in cases where there is no evidence to support passion or provocation, and where voluntary manslaughter is not available as a lesser-included offense. CR24-302 includes an essential element that “(Def)_______________’s mental state was not influenced by extenuating circumstances, such as sudden passion or great provocation, that would have caused a reasonable person to lose self-control.” The trial court should consider the following four factors when determining whether a manslaughter instruction is supported by evidence: (1) adequate provocation, (2) inadequate time to regain self-control or “cool off,” (3) actual provocation, and (4) actual failure to “cool off.” State v. Perez, 2006 VT 53, ¶ 14, 180 Vt. 388, 393.
Defendants have a right to choose a “hard” or a “soft” transition between offenses. The hard transition requires a verdict on the highest offense before the jury considers the lesser included offenses. The soft transition allows jurors to consider the lesser offenses if they are unable to agree upon a verdict on the higher offense “after all reasonable efforts to reach a unanimous verdict.” State v. Duff, 150 Vt. 329, 336-37 (1988). The committee’s instructions generally contain soft transitions, because most defendants prefer them. However, for defendants who prefer a hard transition, the committee offers the following example:
You must first consider the charge of first-degree murder. If the State has proven each of the essential elements of that charge, then you must find (Def)_______________ guilty of that charge, and you will be done with your deliberations. If you decide that the State has not proven each and every one of the essential elements of first-degree murder, then you must find [him] [her] not guilty of that charge, and then you must consider whether [he] [she] is guilty of the offense of second-degree murder.
First Degree Murder By Means Of Poison. Under the statute, 13 V.S.A. § 2301, murder by means of poison is defined as first degree murder. LaFave and Scott have explained the nature of this crime as follows:
It is not necessarily murder by poison to kill another person with poison, as where one administered poison innocently and for a lawful purpose and yet produces a death. The homicide must first amount to murder, either because the defendant had an intent to kill or do serious bodily injury, or because his conduct evinced a depraved heart, or because the death by poison resulted from the defendant’s commission or attempted commission of a felony. A poison is not necessarily something administered internally; it may be inhaled or injected.
2 LaFave and Scott, Substantive Criminal Law (1986), § 7.7 at 243 (footnotes omitted). One of the cases cited in the footnotes defines “poison” as meaning “any substance introduced into the body by any means which by its chemical action is capable of causing death.” State v. Jeffers, 661 P.2d 1105, 1126 (Ariz. 1983) (cited in LaFave and Scott, § 7.7 at 243, footnote 49). Jeffers held that heroin is considered a poison in the criminal context. Id.
There are few Vermont cases dealing with, or discussing, murder by poison. See Rogers v. State, 77 Vt. 454 (1905) (murder by chloroform); State v. Sargood and Doyle, 77 Vt. 80 (1904) (poisoning colts and attempting to poison two persons); State v. Meaker, 54 Vt. 112 (1881) (murder by poison); State v. McDonnell, 32 Vt. 491 (1860) (“Killing by poison indicates malice, where the poison is given in such quantities as ordinarily to produce death.”). The State must show a state of mind sufficient to prove murder. State v. Bacon, 163 Vt. 279 (1995) (context of felony murder).
Cases from other jurisdictions provide interesting reading, and also illustrate some of the difficulties that may arise when the proof is by circumstantial evidence. See People v. Hanei, 403 N.E.2d 16 (Ill. App. 1980), cert. denied, 450 U.S. 927 (thalium on a doughnut); Langham v. State, 11 So.2d 131 (Ala. 1942) (insufficient evidence to show death by poison); Edge v. State, 164 S.W.2d 677 (Texas Cri. App. 1942) (insufficient evidence that wife murdered husband by putting strychnine in the peregoric); State v. Koontz, 183 S.E. 680 (W. Va. 1936) (proof by circumstantial evidence that defendant gave kids candy she had made with arsenic); Cassell v. Commonwealth, 59 S.W.2d 544 (Ky. App. 1933) (question was whether death by poison was murder or suicide); State v. Hyde, 136 S.W. 316 (Mo. 1911) (questions sufficiency of evidence that the defendant had provided “fever pills” containing strychnine and possibly cyanide); Commonwealth v. Danz, 60 A. 1070 (Pa. 1905) (poisoning with a form of arsenic labeled as “Rough on Rats”); State v. Nesenhener, 65 S.W. 230 (Mo. 1901) (not clear that wife had administered morphine to her husband, or that he had died from morphine poisoning); Johnson v. State, 15 S.W. 647 (Texas App. 1890) (charge of murder by strychnine in the water bucket; case discusses difficulty of explaining burdens of proof).
First Degree Murder By Lying in Wait. Under 23 V.S.A. § 2301, a murder committed “by lying in wait” is murder in the first degree. There is little or no discussion of this provision in Vermont case law. In the instruction, CR24-011, the definition of “lying in wait” derives from Black’s Law Dictionary (6th ed.), and from 2 LaFave and Scott, Substantive Criminal Law (1986), § 7.7 at 242. Similar language may be found in cases from other jurisdictions, including United States v. Shaw, 701 F.2d 367 (5th Cir. 1983); People v. Ward, 27 Cal.App.3d 218, 103 Cal.Rptr. 671 (Cal.App. 1972); State v. Brooks, 445 P.2d 831 (Ariz. 1968); People v. Thomas, 261 P.2d 1, 3 (Cal. 1953).
In a variety of cases, courts have held that watching and waiting alone will not satisfy the element of “lying in wait” if there has been no attempt at concealment or secrecy. See State v. Brooks, 445 P.2d 831 (Ariz. 1968) (it was not lying in wait to stand outside building with shotgun in hand waiting for victim); People v. Kahn, 198 Cal.App.2d 326, 17 Cal.Rptr. 793 (1961) (there was no element of concealment, where defendant waited for victim in his living room, at the invitation of victim’s family); People v. Merkouris, 297 P.2d 999, 1012 (Cal. 1956) (not lying in wait to sit in parked car across street from victim’s shop).
First Degree Felony Murder. Felony murder may be predicated on the commission of one of the felonies enumerated in the statute: arson, sexual assault, aggravated sexual assault, robbery, or burglary. 13 V.S.A. § 2301. However, “[i]n addition to proving the defendant’s intent to commit one of the enumerated felonies, the State must also establish that the defendant had one of the mental states for second-degree murder: the intent to kill, the intent to do great bodily harm, or a wanton disregard for human life with respect to the murder itself.” State v. Baird, 2017 VT 78, ¶ 4 (quotation omitted). For further discussion of felony murder in Vermont, see Baird, 2017 VT 78, ¶¶ 3–5; State v. Bacon, 163 Vt. 279, 291–93 (1995); and State v. Doucette, 143 Vt. 573, 577–83 (1983).
The Committee has prepared two sets of instructions for felony murder. CR24-051 is for use where the defendant acted alone. CR24-052 is for when the defendant acted with an accomplice.
Second Degree Murder. The instruction CR24-101 is drafted for use in a case charging second-degree murder, without a lesser included offense of voluntary manslaughter. In a case lacking sufficient evidence of passion or provocation, it is not necessary to include “lack of provocation” as an essential element. See, e.g., State v. Webster, 2017 VT 98, ¶¶ 35–43 (trial court properly declined to instruct on voluntary manslaughter and provocation); State v. Blish, 172 Vt. 265 (2001) (lack of provocation not always considered as an essential element). However, where the evidence tends to show passion or provocation, the absence of extenuating circumstances becomes an essential element that the State must prove beyond a reasonable doubt. In re Sharrow, 2017 VT 69, ¶ 14; State v. Bolaski, 2014 VT 36, ¶ 18, 196 Vt. 277, 286 (citing State v. Hatcher, 167 Vt. 338, 345-46 (1997)). For an instruction that includes a lack of extenuating circumstances as an essential element of second-degree murder, along with transitions to lesser-included offenses, see CR24-302 (first-degree murder, with transitions to lesser-included offenses).
Voluntary Manslaughter. Voluntary manslaughter “is an intentional killing committed under extenuating circumstances that may negate willfulness, such as sudden passion or provocation that would cause a reasonable person to lose control.” State v. Blish, 172 Vt. 265, 270 (2001) (quoting State v. Hatcher, 167 Vt. 338, 345 (1997)). This definition is in accord with a majority of states which recognize voluntary manslaughter as a distinct crime:
Voluntary manslaughter in most jurisdictions consists of an intentional homicide committed under extenuating circumstances which mitigate, though they do not justify or excuse, the killing. The principal extenuating circumstance is the fact that the defendant, when he killed the victim, was in a state of passion engendered in him by an adequate provocation (i.e., a provocation which would cause a reasonable man to lose his normal self-control).
Id. at 271 (quoting Vol. 2, LaFave and Scott, Substantive Criminal Law (1986), § 7.10 (Heat-of-Passion Voluntary Manslaughter) at 252).
The LaFave and Scott treatise, cited in Blish for the definition of manslaughter, provides a helpful explanation of the historical reasoning behind the provocation doctrine:
7.10(h) Rationale of Voluntary Manslaughter. Why is it that there exists such a crime as voluntary manslaughter to aid one who kills when provoked into a passion, yet there is no crime like, say, voluntary theft or voluntary mayhem to aid others who, reasonably provoked into a passion, steal from or maim their tormenters? The answer is historical. With most crimes other than murder the English court came to have discretion as to the punishment and so could take extenuating circumstances into account in the sentencing process; but with murder the penalty remained fixed at death, without the possibility of making any allowance for the extenuating fact that the victim provoked the defendant into a reasonable passion. “The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness.” [note 109]
This, of course, “fails to explain the doctrine’s continued viability,” [note 110] and courts have by and large failed to articulate a modern rationale. It has been suggested, however, that the present rationale for heat-of-passion manslaughter is that when
the provocation is so great that the ordinary law abiding person would be expected to lose self-control so that he could not help but act violently, yet he would still have sufficient self-control so that he could avoid using force likely to cause death or great bodily harm in response to the provocation, then . . . the actor’s moral blameworthiness is found not in his violent response, but in his homicidal violent response. He did not control himself as much as he should have, or as much as common experience tells us he could have, nor as much as the ordinary law abiding person would have. [note 111]
Vol. 2, LaFave and Scott, Substantive Criminal Law (1986), § 7.10(h), at 270. [Note 109 refers to the Report of the Royal Commission on Capital Punishment 52-53 (1953). Note 110 refers to Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J.Crim.L. & C. 421, 423 (1983). Note 111 refers to the Dressler article at 466-67.]
Involuntary Manslaughter. The instruction on involuntary manslaughter includes a bracketed choice between two mental states. These are recklessness, as that term is defined in State v. Brooks, 163 Vt. 245, 250–51 (1995), and criminal negligence, as defined in State v. Stanislaw, 153 Vt. 517, 525 (1990). A person acts recklessly by consciously disregarding a substantial and unjustifiable risk that death or serious bodily injury will result from his or her conduct. Brooks, 163 Vt. at 251 (citing Model Penal Code § 2.02(2)(c)). In contrast, criminal negligence occurs when the actor should be aware that a substantial and unjustifiable risk exists or will result from his or her conduct. Id. (citing Stanislaw). Proof of the higher culpable mental state will include proof of the lower included mental state. See State v. Bolio, 159Vt. 250, 253-54 (1992) (context of aggravated assault). Recent discussions on this topic can be found in State v. McCarthy, 2012 VT 34, 191 Vt. 498, and State v. Viens, 2009 VT 64, 186 Vt. 138.
Note the distinction between recklessness pertaining to involuntary manslaughter (reckless conduct disregarding “the possible consequence of death resulting”), and wantonness pertaining to voluntary manslaughter (“extremely reckless conduct that disregards the probable consequence of taking human life”). State v. Blish, 172 Vt. 265, 273 (2001) (quoting State v. Shabazz, 169 Vt. 448, 455 (1999)) (emphasis in original); see also State v. Baird, 2017 VT 78, ¶ 13 (emphasizing “probable” in defining wantonness).
First Degree Murder, with Transitions to Lesser Included Offenses. Often, when a defendant is charged with first-degree murder, the court also instructs the jury on all of the lesser included degrees of homicide. Either party may request such instructions, if they are supported by the evidence. 13 V.S.A. § 14(a); see also State v. Bean, 2016 VT 73, ¶ 14, 202 Vt. 361 (“The State may request a lesser-included instruction, even over the defendant’s objections,” and “this request must be granted if supported by the evidence.). These two instructions differ on the issue of whether to include voluntary manslaughter as one of the lesser offenses. CR24-301 is designed for cases without sufficient evidence to support instructions for sudden passion or great provocation. Without such evidence, there is probably no basis for an instruction on a lesser included offense of voluntary manslaughter. See State v. Congress, 2014 VT 129.
After Congress, sudden passion or great provocation remains as the only obvious type of “extenuating circumstance” that can mitigate second-degree murder to voluntary manslaughter. However, in the Committee’s view, Congress left open the possibility of advancing novel theories of extenuating circumstances. The basis for the Committee’s view is that the Court in Congress reiterated its holding in Johnson, and continued using the language: “Voluntary manslaughter is an intentional killing committed under extenuating circumstances that would mitigate, but not justify, the killing, such as provocation that would cause a reasonable person to lose self control.” Congress, 2014 VT 129, ¶ 25 (emphasis added). The Court then posed the question “whether this is the only type of extenuating circumstance recognized by our law.” Id., at ¶ 26 (emphasis added). The Court never directly answered that question, but ruled that diminished capacity was not one such extenuating circumstance. While the Committee does not know of other possible extenuating circumstances that might be recognized by our law, it would be up to the defendant in an appropriate case to argue for a modified 24-302 instruction to reflect an extenuating circumstance other than sudden passion or great provocation.
CR24-302 is designed for cases that include sufficient evidence to show sudden passion or great provocation. “Where passion or provocation is implicated, the court must instruct the jury that to establish murder the State must prove beyond a reasonable doubt that the accused did not kill under the influence of passion or provocation.” State v. Bolaski, 2014 VT 36, ¶ 18, 196 Vt. 277, 286 (quoting State v. Hatcher, 167 Vt. 338, 345-46 (1997)).
The trial court should consider the following four factors when determining whether a voluntary manslaughter instruction is supported by the evidence: (1) adequate provocation, (2) inadequate time to regain self-control or “cool off,” (3) actual provocation, and (4) actual failure to “cool off.” State v. Perez, 2006 VT 53, ¶ 14, 180 Vt. 388, 393.
Aggravated Murder (In Custody For Murder). The instructions to be given following the close of evidence point out that a person need not be confined within a correctional facility in order to be in custody under sentence. As an example, a prisoner on furlough is still “in custody under sentence.” See In re Stewart, 140 Vt. 351, 358–60 (1981) (interpreting that phrase in the post-conviction relief context).
Aggravated Murder (Effecting Escape). Under the statute, 13 V.S.A. § 2311(a)(5), a murder may be aggravated murder if it is committed for the purpose of “effecting an escape by any person from lawful custody of a law enforcement officer.” The committee notes an anomaly, in that this section probably does not apply where a prisoner murders a corrections officer for the purpose of effecting an escape. Corrections officers are not usually considered as “law enforcement officers,” but they are sometimes employed to transport prisoners to and from court hearings. See 20 V.S.A. § 2358(d)(1).