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State v. Ortiz6/10/2003
gone wrong * * *. But * * * if you want to save the objection you do have to raise it after I charge."
Thereafter, defendant properly preserved his objection for appeal.
A defendant charged with a crime "is entitled to instructions that explain those propositions of law that relate to material issues of fact that the evidence supports."*fn6 State v. Fetzik, 577 A.2d 990, 996 (R.I. 1990). Thus, it is undisputed that a defendant is entitled to an instruction on a lesser-included offense when at least some evidence adduced at trial warrants such a charge. State v. Brown, 744 A.2d 831, 838 (R.I. 2000); State v. Wilding, 740 A.2d 1235, 1240 (R.I. 1999); State v. Brown, 549 A.2d 1373, 1378 (R.I. 1988). We do not require a trial justice, however, to give the jury a lesser-included-offense instruction "when the evidence presented at trial shows no dispute as to an essential element that distinguishes the greater and the lesser offenses." Brown, 549 A.2d at 1378. On this appeal, we examine the record to determine whether it contains sufficient evidence to warrant a jury charge on involuntary manslaughter. See id. (recognizing that this Court's task on appeal from a trial court's refusal to give a jury instruction on a lesser-included offense "is to examine the record to determine whether sufficient evidence was introduced at trial to warrant [the instruction]").
Involuntary manslaughter is defined in Rhode Island as an "unintentional homicide without malice aforethought, committed either in the performance of an unlawful act not amounting to a felony or in the performance of a lawful act with criminal negligence." State v. Hockenhull, 525 A.2d 926, 929 (R.I. 1987); State v. Kaner, 463 A.2d 1348, 1351 (R.I. 1983). "[B]efore the trial justice is required to give an instruction on [involuntary] manslaughter, the evidence must show, however minimally, that the defendant acted without malice, either in * * * the commission of an unlawful nonfelonious act or in the performance of a lawful act with criminal negligence." Kaner, 463 A.2d at 1351. Involuntary manslaughter resulting "from criminal negligence is a lesser degree of homicide than an act that may constitute murder as the result of the wanton recklessness of the accused." Hockenhull, 525 A.2d at 929. Criminal negligence is defined as "'conduct which is such a departure from what would be that of an ordinarily prudent or careful man [or woman] in the same circumstances as to be incompatible with a proper regard for human life, or an indifference to consequences.'" State v. Robbio, 526 A.2d 509, 514 (R.I. 1987). Criminal negligence is negligence that is aggravated, culpable, or gross. Id. at 514 n.2. "The word 'involuntary,' used in connection with manslaughter, characterizes the result of the act, not the doing of the act." F. Lee Bailey and Henry B. Rothblatt, Crimes of Violence: Homicide and Assault § 568 at 442 (1973). "It does not mean that volition was not present in the act from which the death resulted." Id.; see also State v. McVay, 47 R.I. 292, 297, 132 A. 436, 438 (1926).
Voluntary manslaughter, however, is defined as "an intentional homicide without malice aforethought in a sudden heat of passion as a result of adequate legal provocation." Kaner, 463 A.2d at 1351. "The usual view of voluntary manslaughter thus presupposes an intent to kill (or perhaps an intent to do serious injury or to engage in very reckless conduct), holding that in spite of the existence of this bad intent the circumstances may reduce the homicide to manslaughter." Wayne R. LaFave, Criminal Law § 7.10(a) at 704 (3d ed. 2000).
"Although the killing of another person -- when accompanied by an intent to kill, or by an intent to do serious bodily inju
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