State of Vermont v. James Riley

Facts

On October 20, 1979, the defendant pulled over in the breakdown lane of the highway and was seated in the driver’s seat when an officer pulled up behind him and approached his vehicle. The defendant stated that he had a leg cramp, which he was massaging at the time.

During a routine check of the car from the outside, the officer noticed a handgun on the seat beside the defendant, its barrel pointed toward the passenger door. Opening the door on the defendant’s side of the vehicle, the officer asked the defendant to put both hands on the steering wheel, which the defendant did, and then to get out of the car, which he refused to do.

The officer then ordered the defendant out of the car, and as he did so the defendant dropped his hand from the steering wheel and reached toward the gun. The officer drew his gun. The defendant replied “everything is cool, don’t shoot,” and brushed the gun along the seat until he could place it on the floor in front of the passenger’s place. He then got out of the car.

The defendant was arrested and charged with attempting to put another in fear of serious bodily injury. At trial the officer testified that he had been frightened by the defendant’s conduct, and had feared for his life. He said that there was a point at which he could not see the defendant’s hand because it was down in front of the seat, and he “knew the gun was with the hand” and “didn’t know what the story was.”

The defendant testified that he slid the gun across the seat of the car and eased it to the floor in an effort to eliminate any possibility that the officer would see it and become so excited that he would shoot the defendant out of fear.

The defendant was convicted. He appealed, arguing that the evidence did not constitute an attempt because he did intend to scare the officer.