State v. Utter

Court of Appeals of Washington, 1971.

4 Wash.App. 137, 479 P.2d 946.

Dressler, p. 114-116


Facts: The defendant’s son was seen entering their apartment.  The son was heard to say “Dad, don’t” and then was seen in the hallway of the building, stabbed in the chest.  He said “Dad stabbed me” and then died.  The defendant was charged with second degree murder and convicted of manslaughter.  He appealed on the basis of a “conditioned response” theory that was barred by the trial court.


Issue: Should the trial court have instructed the jury to ignore the evidence about conditioned response?


Rule: The theory should have been presented to the jury if there was sufficient evidence to support it.


Analysis: The court feels that the defendant makes an appropriate argument, at least in theory.  If homicide requires an “act”, and an “act” is implicitly a “voluntary act”, then it follows that the killing of Utter’s son must be found to be voluntary in order to be found to constitute homicide.


The court finds, however, that there is insufficient evidence in the record for the jury to consider whether or not the defendant was conscious or acting voluntarily at the time of the killing.


Conclusion: The court affirmed the trial court’s verdict (according to the full version of the case).


Notes and Questions


1.     It seems that the “something” that distinguishes voluntary from involuntary action is intent, but we haven’t discussed intent in class.  The Model Penal Code says that an “act” can be construed as either voluntary or involuntary, but that a “voluntary act” is a necessary element in any crime.

2.     If you are acquitted on the ground of insanity, you could be involuntarily committed; if you are acquitted on the basis of automatism, presumably you would be able to just go home, or maybe to a hospital.

3.     It looks like there is one meaning of “involuntary” that means “coerced”, or maybe even “antivoluntary” – against one’s will.  The sense of “involuntary” in the present case seems to be more like “sans volition” – no will whatsoever.  It’s sort of like positive (voluntary), negative (“anti”-voluntary) and zero (“involuntary”).

4.     So if you intend to do something but don’t intend to do harm, this does not constitute mens rea.  If you are aware that you will cause harm or could cause harm, I suppose that would constitute mens rea.

5.     It is true that conduct during an epileptic seizure is involuntary.  The choice to get in the car in the first place—in full knowledge of the fact that you have epilepsy and could harm others by driving—is voluntary.  Thus, for an epileptic, it could be argued that operating a motor vehicle at all constitutes operating a motor vehicle “in a reckless or culpably negligent manner”.  The prosecution would argue that getting into the car in the first place is the voluntary act necessary under Model Penal Code § 2.01 (1).

6.     The Model Penal Code (§ 2.01 (4)) says that you can’t be convicted for possession unless you were aware of having the forbidden thing long enough to get rid of it.

7.     One does not choose to be an epileptic.  Therefore, no one could be convicted of the crime because there is no voluntary act associated with it.  I suspect that such a statute would be unconstitutional, but I could not name the particular grounds on which it could be overruled.  Epileptic seizures themselves are only somewhat more voluntary than being an epileptic insofar as these seizures may be controlled by medication.


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