Koppersmith v state case brief

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.