United States v. Scott Robin Roston

On the last night of her honeymoon aboard the cruise ship Stardancer, Karen Roston went overboard and died. Her husband of just a few days, the appellant Scott Robin Roston, was accused of killing her. He was indicted for second-degree murder and convicted. On appeal he contends that the evidence is insufficient to support his conviction, and that the district court erred by (1) refusing to give the jury a voluntary manslaughter instruction; (2) admitting into evidence a statement Roston made to the ship’s doctor when the doctor questioned him concerning the incident; (3) denying his pretrial request for substitution of counsel; and (4) departing upward in imposing his sentence.

We have jurisdiction under 28 U.S.C. § 1291 . We affirm Roston’s conviction, but vacate his sentence and remand for resentencing.

*1289 FACTS

Several people noticed tension between Roston and the decedent during the cruise. A passenger who shared a table with them testified that Roston was angry with his new wife because she ate sweets and didn’t know what eating utensils to use from the “complex” settings of shipboard silverware. Roston was seen fighting with a woman on deck about 45 minutes to one…

concurring

While I agree with the opinion in this appeal, I write separately to express my view that the standard adopted by our circuit for provocation justifying a voluntary manslaughter instruction is impossibly high. The opinion correctly states the standard as requiring that the provocation must be such as would “arouse a reasonable and ordinary person to kill someone.” I cannot envision such a provocation that would not constitute justification for the crime. “[A] reasonable person does not kill even when provoked____” Model Penal Code § 210.3 cmt. 5(a), at 56 (1980); see Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim.L. & Criminology 1, 33 (1984) (“Reasonable people do not kill no matter how much they are provoked, and even enraged people generally retain the capacity to control homicidal or any other kind of aggressive or antisocial desires.” (footnote omitted)).

The Model Criminal Jury Instructions for the Ninth Circuit set forth what appears to me to be a more appropriate standard: "Provocation, in order to be adequate, must be such as might naturally cause a reasonable person in the passion of the moment to lose self-control and act on…

986 F.2d 1287 UNITED STATES of America, Plaintiff-Appellee, v. Scott Robin ROSTON, Defendant-Appellant. No. 89-50531. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 9, 1992. Decided Feb. 26, 1993. Mary M. Gibbons, North Hollywood, CA, for defendant-appellant. Mark D. Larsen, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before CANBY, BOOCHEVER and DAVID R. THOMPSON, Circuit Judges. DAVID R. THOMPSON, Circuit Judge: 1 On the last night of her honeymoon aboard the cruise ship Stardancer, Karen Roston went overboard and died. Her husband of just a few days, the appellant Scott Robin Roston, was accused of killing her. He was indicted for second-degree murder and convicted. On appeal he contends that the evidence is insufficient to support his conviction, and that the district court erred by (1) refusing to give the jury a voluntary manslaughter instruction; (2) admitting into evidence a statement Roston made to the ship's doctor when the doctor questioned him concerning the incident; (3) denying his pretrial request for substitution of counsel; and (4) departing…