2014 VT 36


State v. Bolaski (2012-036)
 
2014 VT 36
 
[Filed 25-Apr-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 36

 

No. 2012-036

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windsor Unit,


 


Criminal Division


 


 


Kyle Bolaski


April Term, 2013


 


 


 


 


M.
  Patricia Zimmerman, J.


 

William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, Anna Saxman, Deputy
Defender General, Montpelier,
  and William A. Nelson, Middlebury, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   Defendant Kyle Bolaski appeals from his
conviction for second-degree murder after a jury trial.  He argues that
the trial court erred in (1) not instructing the jury that, to find
second-degree murder, the jury had to find an absence of passion or
provocation; (2) excluding evidence of the victim’s mental health history in
the months before the incident; and (3) dismissing a juror during the trial
because she reported having followed the case during the time of the grand
jury.  We do not reach the juror issue, and reverse and remand for a new
trial.
¶ 2.            
The basic background to the case, derived from testimony at trial, is as
follows.  As there were a large number of witnesses and their testimony
was not entirely consistent, we summarize the largely undisputed facts in as
general terms as possible.  Where the factual disputes are important to
this appeal, we will highlight those disputes in the following discussion.
¶ 3.            
The victim, Vincent Tamburello, a native of Boston, was living at the
time of these events in Springfield, Vermont at the home of his girlfriend’s
mother.  While in Springfield, he interacted with a number of persons who
were acquaintances or friends of his girlfriend.  These encounters grew
increasingly hostile, including an incident in which the victim took marijuana
without paying for it and an incident in which the victim had a physical fight,
hitting another person on the jaw and knocking him to the ground.  The
latter occurred when a group of persons encountered the victim outside the
house where the victim was living.  This event led, in turn, to a
confrontation at a softball field in Chester, Vermont.  Defendant and his
brother Corey were recruited to be part of that encounter, although they had
not previously met the victim. 
¶ 4.            
Defendant and others arrived at the ball field at around 7 p.m. on
August 17, 2008.  Soon after defendant’s truck arrived, the victim arrived
with his girlfriend and her friend.  The group, including defendant,
started approaching the victim’s car, engaging in shouting with the
victim.  They were unarmed.  The victim exited his vehicle holding a
taser[1]
and sparking it.  The group continued to approach.  The victim then
threw the taser into the car and pulled out a splitting maul from the back
seat.  He raised it and charged at the approaching group, which scattered
and ran away. 
¶ 5.            
For unknown reasons, the victim chose to chase defendant to his truck
that was some distance away.  Once they reached the truck, the victim
began hitting the truck with the maul.  Defendant was able to enter the
truck, where he obtained a rifle.  Under highly disputed circumstances,
defendant twice shot the victim, once in the leg and once in the
buttocks.  The victim bled to death from the second shot. 
  
¶ 6.            
Defendant admitted to having fired the two shots, but maintained that he
acted in self-defense.  The State disagrees.  Given these positions,
the events that occurred after defendant and the victim reached the truck
became the center of the trial.  There were significant conflicts in the
testimony, especially in the description of what occurred between the first
shot and the second shot.  In a statement that was introduced at trial,
defendant described that the victim kept coming at him “like a madman,” even
after he was hit once in the leg.  Some witnesses testified that the
victim kept approaching defendant with the splitting maul after the first shot,
whereas others testified that the victim retreated.  One witness had
previously stated that “it looked like he was coming at him, still a threat,
when [defendant] fired the second shot,” but then declined to endorse this
statement at trial, even when confronted with that statement.  A number of
witnesses testified that after the second shot, defendant yelled, “It was
self-defense!” and proceeded to either kick the victim or hit him with the butt
of his gun.  
¶ 7.            
The medical examiner testified to two entrance wounds from the
bullets—one that entered in the front of the victim’s inner left thigh, and
another that entered the left buttock, just below the waistline, and exited the
front pelvic area, suggesting a downward trajectory.  The victim died from
the gunshot in his buttock, which passed through blood vessels and organs in
the left side of the pelvis, causing him to bleed to death.  The defense
called an expert witness to testify that these wounds would be consistent with
the testimony that the victim was approaching and facing defendant when the
shot was fired, given the delay of slightly under one second between “a visual
event that requires a decision, the making of that decision, and the finger
movement.”  The medical examiner also testified to injuries on the
victim’s face and head, including fractures inflicted by a blunt object in the
eye area of the skull.  A toxicology report was admitted; it showed the
presence of a number of drugs in the victim’s blood and urine, including Xanax,
THC, methadone, Paxil, Restoril, Oxazepam, and cannabanoids.  
¶ 8.            
The above paragraphs describe the most important evidence that was
presented at trial.  Defendant sought, however, to present additional
evidence relating to the victim’s mental health during the two months prior to
these events.  This evidence was obtained by a subpoena to Springfield
Medical Care Systems.  The State filed a motion in limine to exclude this
evidence, and the court granted it.  The trial court had previously sealed
the records obtained by the subpoena pursuant to the patient’s privilege
contained in 12 V.S.A. § 1612.  In a follow-up order, it sealed
depositions of medical care providers taken by defense counsel.  The
court’s decision on the motion in limine was filed under seal.  Because
the exclusion of the evidence is one of the issues on appeal, the briefs and
printed cases for this appeal were submitted under seal.  For reasons
described in our discussion of the evidentiary issues later in this opinion, we
choose not to break the seal. 
¶ 9.            
In its motion in limine, the State argued that the evidence to be sealed
constituted propensity evidence impermissible under Vermont Rule of Evidence
404(b), that it was privileged and of “marginal relevance,” and that “the
probative value of this evidence is greatly outweighed by the danger of unfair
prejudice.”  Defendant responded that the evidence was entirely relevant
to understanding the victim’s actions on the day of his death, and argued that
it was not to be admitted to show propensity but instead to provide
“circumstantial evidence of [the victim]’s motives for going to the ball field
and his state of mind when he began his attack on [defendant], an individual
whom he had never met before, with a splitting maul.”  The State’s motion
was granted, and the trial court declined to admit any medical evidence
concerning the victim prior to and including the victim’s medical care received
on August 14, 2008.
¶ 10.        
Accordingly, the evidence related to the victim’s mental health was not
presented at trial.  Defendant argued self-defense throughout, saying that
defendant was frightened for his life and aimed only to disable the
victim.  In closing, defense counsel relied heavily on the testimony of
those witnesses who stated that the victim was still advancing on defendant
before the second shot, and emphasized the lessons of the expert testimony,
including the “fight or flight” impulse and the nearly-a-second reaction time
between making a decision and pulling a trigger.  He also referred to the
toxicology report, stating that “[the victim has] all of these drugs with
various combinations mixing around his urine and his blood at the time that he
initiates the attack at the ball field,” but did not refer to any of the
information excluded by the order on the motion in limine that may have
explained how those drugs affected the victim in particular.  
¶ 11.        
The prosecution, for its part, argued strongly against self-defense and
suggested that the testimony of the witnesses whose accounts were more
consistent with defendant’s as to the victim’s last actions was biased, had
initially been inconsistent, and had come to reflect the “party line.” 
The prosecutor urged the jurors to use their common sense when evaluating the
various witnesses’ testimony, suggesting that the “party line” simply did not
make sense.  The prosecutor also argued that the jury could draw no
inferences from the toxicology report, stating that “you have zero testimony on
how that might have affected anybody’s behavior.”  
¶ 12.        
The jury was instructed on the elements of the charged offense of
second-degree murder, and then received a transition instruction to the
lesser-included offenses of voluntary manslaughter and involuntary
manslaughter. The transition instruction stated:  
If
you decide that the State has not proven each of the essential elements of second-degree
murder then you must consider whether [defendant] is guilty of one of the
lesser offenses . . . .  Or if you are unable to agree
upon a verdict concerning the charge of second-degree
murder . . . then you may move on to consider the lesser offenses.

 
Although the instruction regarding
voluntary manslaughter explained that the difference between second-degree
murder and voluntary manslaughter was the existence of “extenuating
circumstances, such as sudden passion or great provocation,” the second-degree
murder charge did not explain that the existence of passion or provocation
would mean that second-degree murder had not been proven.  Defense counsel
did not object, and the jury found defendant guilty of second-degree murder.[2] 
¶ 13.        
After the conviction, defendant moved for a new trial on three
grounds.  The first was the trial court’s ruling on the motion in limine,
which excluded the victim’s mental health evidence.  The second was
prosecutorial misconduct, based on the prosecutor making groundless objections,
requesting (and being granted the right) to treat nine witnesses as hostile,
and generally badgering witnesses.  The third was that the jury
instructions did not explain that to find defendant guilty of second-degree
murder, the jury needed to find an absence of passion or provocation.  The
motion was denied.  This appeal followed.
¶ 14.        
On appeal, defendant argues that even though his case was presented as a
self-defense case, there were sufficient facts in evidence to merit an
instruction on passion or provocation for the second-degree murder
charge.  He also argues that the exclusion of the victim’s mental health
evidence was error because it was clearly admissible under Rule 404(b). 
Finally, he argues that the dismissal of a juror partway through the trial
because she admitted to having followed the story of the case during the grand
jury phase was improper.  
¶ 15.        
We begin with the question of the instruction.  Defense counsel did
not object to the jury instructions before the jury retired to deliberate, so
defendant’s objection is not preserved.  See V.R.Cr.P. 30. 
Therefore, we review only for plain error.  To find plain error, “(1)
there must be an error; (2) the error must be obvious; (3) the error must
affect substantial rights and result in prejudice to the defendant; and (4) we
must correct the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.”  State v. Herrick, 2011
VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285.
¶ 16.        
The State charged defendant with two crimes, second-degree murder and
aggravated assault with a deadly weapon.  With respect to the murder
count, the court also instructed the jury on two uncharged, lesser-included
offenses—voluntary manslaughter and involuntary manslaughter.  The issue
before us relates to the mental elements of these offenses and the transitional
instruction.  The second-degree-murder instruction required the jury to
find that defendant acted with one of three alternative mental states: intent
to kill, intent to do great bodily harm, or wanton disregard of the likelihood
that death or great bodily harm would result.  The court did not charge
that the jury also had to find that defendant did not act under the influence
of passion or provocation.  The transitional instruction stated that the
jury could consider the lesser-included offenses only if it decided that the
State had not proven second-degree murder.  
¶ 17.        
The instructions then moved on to the lesser-included offenses, starting
with voluntary manslaughter.  It defined that crime as “an intentional,
unlawful killing of another human being committed under extenuating
circumstances that would mitigate, but not justify the killing, such as great
provocation that would cause a reasonable person to lose self-control.” 
It went on to say that “[a] killing is voluntary manslaughter as opposed to
murder if [defendant] was adequately provoked, did not have enough time to cool
down and in fact did not cool down.”  This element was restated a number
of times.  For example, the instructions contained the same elements as
second-degree murder, but added that voluntary manslaughter could be found
“[e]ven if [defendant]’s mental state was influenced by extenuating
circumstances, such as sudden passion or great provocation that would cause a
reasonable person to lose self-control.”
¶ 18.        
Our relevant substantive law is clear: “Where passion or provocation is
implicated, the court must instruct the jury that to establish murder the State
must prove beyond a reasonable doubt that the accused did not kill under the
influence of passion or provocation.”  State v. Hatcher, 167 Vt.
338, 345-46, 706 A.2d 429, 433 (1997).[3] 
Here, the instruction failed to include this element among its recitation of
the elements of second-degree murder.  Although it did come back to these
elements in an instruction on voluntary manslaughter, this instruction came
after the transition instruction that directed the jury to stop further
deliberation if the elements of second-degree murder were established.  
¶ 19.        
A defendant is entitled to instructions that are “ ‘full, fair, and
correct on all issues, theories, and claims’ presented by the evidence.”  State
v. Swift, 2004 VT 8A, ¶ 12, 176 Vt. 299, 844 A.2d 802 (quoting State
v. Day, 150 Vt. 119, 123, 549 A.2d 1061, 1064 (1988)).  We review jury
instructions as a whole to ensure that they convey the spirit of the law and
there is no fair ground to say that the jury was misled.  State v.
Myers, 2011 VT 43, ¶ 22, 190 Vt. 29, 26 A.3d 9.  We cannot
conclude that the instructions in this case were full, fair and correct on the
elements of second-degree murder, assuming that the court’s decision to charge
voluntary manslaughter as a lesser-included offense was proper; nor can we
conclude that the jury was not misled, despite the more accurate statement of
the law in the voluntary manslaughter instruction.
¶ 20.        
We do not view the State as contesting this conclusion as far as it
goes—the State does not argue that the instructions were erroneous if a
provocation instruction was warranted.  Instead, the State argues that (1)
neither passion nor provocation is implicated in this case, and (2) even if it
were, defendant was not prejudiced by the absence of that instruction because
the defense foreclosed the possibility of a voluntary manslaughter conviction
by presenting an “all-or-nothing” self-defense case.  Based on this second
argument, the trial court denied the motion for a new trial, stating that
“provocation was never a factual issue, or a legal issue, argued by either of
the parties at trial.  This was a self-defense case.”  
¶ 21.        
We begin with that second argument.  The principle espoused by the
State and the trial court—that a defendant is not prejudiced by flawed jury
instructions that do not allow the jury to find an alternative outcome,
implicated by the evidence but not argued—is incorrect, at least where there is
preservation of an objection to the instruction.  We explained this in State
v. Yoh, 2006 VT 49A, 180 Vt. 317, 910 A.2d 853.  In Yoh, we
faced a situation in which passion or provocation was implicated by the
evidence, id. ¶ 20, but a voluntary-manslaughter instruction was
not given to the jury at all.  The defendant was convicted of first-degree
murder and appealed, arguing that he was prejudiced by the absence of a
voluntary-manslaughter instruction.  We observed—much as the State and
trial court did in this case—that the jury was faced with two entirely
conflicting versions of the case, neither of which would have led to a
voluntary manslaughter conviction.  We found it “hard to believe that a
jury presented with those two versions of events would have disregarded both
arguments and settled on a verdict supported by evidence that both sides either
ignored or dismissed.”  Id. ¶ 21.  Even given that
observation, however, we stated that “we would still reverse appellant’s
conviction if the jury had chosen to convict him of second-degree murder
instead of first-degree murder.”  Id. ¶ 22. As the jury had
convicted the defendant of the higher of the two offenses, though, we found
that the absence of the voluntary manslaughter instruction was harmless beyond
a reasonable doubt.[4] 
Id. ¶ 21.  
¶ 22.        
Applying the principle of Yoh to the case before us, we note the
obvious point that the jury instructions in this case did include a
voluntary-manslaughter instruction.  However, the instructions overall
were erroneous because they required the jury first to decide whether the State
had proven the charge of second-degree murder before the jury could move on to
consider the crime of voluntary manslaughter and the instructions on
second-degree murder failed to include the absence of passion or
provocation—even though the presence of such passion or provocation is the only
distinction between the two crimes.  As a result, the instructions
effectively disallowed the jury from considering the lesser-included offense.[5]  The logic of Yoh therefore
applies full force to this situation: whether the absence of passion or
provocation becomes an element of second-degree murder depends on whether there
is evidence of passion or provocation, not on the arguments of the two parties
to the jury.  The fact that defendant relied upon the complete defense of
self-defense, and not on the mitigating defense of provocation, does not mean
that there was no instructional error.
¶ 23.        
Of course, in Yoh, the voluntary manslaughter instruction was
requested, id. ¶ 19, whereas here the objection to the jury
instructions was waived and we are reviewing only for plain error. 
However, presuming that the evidence did in fact support a passion or
provocation instruction, which we conclude below that it did, the precedent of Hatcher
allows us very comfortably to conclude that there was an error and that the
error was obvious—the first two prongs of the test for plain error.  We
analyze the last two prongs of this test infra ¶¶ 29-32.
¶ 24.        
We turn now to the State’s argument that there was no prejudice because
the evidence, taken in the most favorable light to defendant, would not have
allowed the jury to find “adequate provocation,” because (1) the victim
was reacting to a threat caused by the group including defendant advancing on
him, and (2) “[d]amage to one’s truck, although upsetting, does not
mitigate murder.”  
¶ 25.        
We reject the first ground.  The State exaggerates the nature of
defendant’s initial actions, particularly when the evidence is viewed in the
light most favorable to him.  While the evidence shows that the group of
persons, including defendant, advanced towards the victim, and that there were
loud and generally threatening words on both sides, there was no indication
what would have occurred if they had reached him.  None of the group
seemed to have weapons at the time, and the victim had at least two
weapons.  Rather than acting defensively with those weapons, he acted
offensively with the splitting maul in pursuing defendant.
¶ 26.        
The second ground assumes that the victim never tried to do anything
beyond inflicting damage to defendant’s truck.  Witnesses described more
actions than that.   For example, one witness, supported by another,
testified that when defendant reached his truck, the victim was in close
pursuit.  The witness stated that defendant fell down when he reached the
truck, but that action actually saved him because the victim would have hit him
with the splitting maul if he had been standing:  “It would have gone
directly in his back.”  Another witness described the victim as advancing
towards defendant prior to defendant shooting the victim in the leg: “like [the
victim] would have hit [defendant] if he did not shoot him.”  Defendant’s
brother had found a rifle at this point and shot it into the ground to stop the
victim from advancing on him.  The atmosphere was chaotic: “And until the
first shot, it was pandemonium, people running everywhere.  Kids were
crying, screaming.  It was out of control.”  Many witnesses described
being scared, including defendant in his statement.[6]
¶ 27.        
To establish provocation, the facts must show: “(1) adequate
provocation; (2) inadequate time to regain self-control or ‘cool off’; (3)
actual provocation; and (4) actual failure to ‘cool off.’ ”  State
v. Kulzer, 2009 VT 79, ¶ 25, 186 Vt. 264, 979 A.2d 1031 (quotation
omitted).  We have never specifically defined provocation. 
Definitions from other jurisdictions typically describe an action of
provocation in terms of the reaction it is expected to induce.  See Varner
v. Stovall, 500 F.3d 491, 500 (6th Cir. 2007) (defining provocation under
Michigan law to be an action that causes defendant to act out of passion rather
than reason and that would cause a reasonable person to lose control); People
v. Fenenbock, 54 Cal. Rptr. 2d 608, 617 (Ct. App. 1996) (“[P]rovocation may
be anything that arouses great fear, anger or jealousy.”); State v. Melendez,
643 P.2d 607, 608 (N.M. 1982) (“[P]rovocation can be any action, conduct or
circumstances which arouse anger, rage, fear, sudden resentment, terror or
other extreme emotions.”); State v. Starkey, 244 S.E.2d 219, 225 n.7 (W.
Va. 1978) (defining provocation as acts which would cause a reasonable person
to kill and would cause a reasonable person to lose control and act out of heat
of passion “and that he in fact did so”).  The State views self-defense
and provocation as wholly separate concepts such that evidence that establishes
one negates the other.  Thus, in the State’s view, defendant’s testimony
that he acted in self-defense negates a finding that he acted under
provocation.  
¶ 28.        
In fact, provocation and self-defense are closely related; the common
element in many cases is fear.  Where a defendant claims self-defense and
testifies that he acted out of fear, a jury verdict rejecting self-defense but
finding the defendant guilty of voluntary manslaughter is reasonable and
sustainable.  See Melendez, 643 P.2d at 609.  In this case
there was ample evidence that defendant acted under provocation such as to
sustain a verdict of voluntary manslaughter.  The fact that the jury
rejected defendant’s claim of self-defense does not undermine this conclusion. 
¶ 29.        
This brings us to the heart of the issue—whether the instruction error
rises to the level of plain error such that we must reverse the conviction.
 Plain error has four requirements.  Supra ¶ 15.  In
addition, a claim of plain error in a jury instruction requires that “we
examine the instructions in light of the record evidence as a whole and
determine if any error would result in a miscarriage of justice.”  Herrick,
2011 VT 94, ¶ 18.  Here, the first two elements of plain error are
present: (1) there was error and (2) it was obvious.  The second element
is met because we clearly explained the requirements for second-degree murder
in Hatcher.  167 Vt. at 345-46, 706 A.2d at 433.  Thus, the
issue turns on the third and fourth elements: (3) whether the error affected
defendant’s substantial rights and caused prejudice and (4) whether we must act
because of the serious effect on the fairness of the proceeding.  Herrick,
2011 VT 94, ¶ 18.
¶ 30.        
The State argues that these elements are not satisfied for essentially
the same reason that it argued there was no error—because defendant claimed he
committed no crime as he engaged in self-defense.  The State relies
primarily on the rationale in State v. Lambert, a case in which the
trial court failed to instruct the jury on an element of the charged offense,
but there was no objection to the charge.  2003 VT 28, 175 Vt. 275, 830
A.2d 9.  The offense was cruelty to a child, and the element was custody,
charge or care of the child.  We held that there was no plain error
because “this element was not seriously at issue. . . . 
Defendant did not contest that her son was in her care and custody at the time
of the charged events.”  Id. ¶ 15.  Without citing that
case in this context, the State argues that the Lambert rationale
exactly describes the situation here.
¶ 31.        
We disagree with the State’s argument, and the disagreement is central
to our conclusion that plain error is present in this case.  Defendant had
two possible responses to the State’s case.  One was a complete defense,
self-defense; if the jury accepted this defense, defendant committed no
crime.  The second was that although defendant committed a crime, he did
not commit murder as the State charged, but instead committed
manslaughter.  Defendant’s position at trial was that he acted in
self-defense and committed no crime.  This does not mean, however, that if
the jury rejected his self-defense theory he otherwise admitted to committing
murder.
¶ 32.        
Indeed, as discussed above, it would be entirely consistent for the jury
to find that he acted under extreme provocation and did not commit murder
despite his testimony that he acted in self-defense.  The most likely
rationale for the jury verdict was a finding that the victim was backing away
from defendant after the first shot, not moving toward him, and therefore the
second lethal shot was unnecessary to protect defendant from harm.  A
number of witnesses, including persons in the group that met the victim,
testified that this occurred.  While this finding might cause the jury to
reject defendant’s claim of self-defense, it would not determine whether the
victim’s actions were reasonably provoking.  It was undisputed that the
victim chased defendant with a splitting maul.  Virtually all witnesses,
including defendant, testified to the fear that the victim’s actions
engendered.  Various witnesses testified to acts of extreme
provocation.  The critical events occurred in a very short period of time,
with little opportunity for defendant to cool off.  We upheld a verdict of
voluntary manslaughter under similar circumstances in a case where defendant
relied upon self-defense.  See State v. Boglioli, 2011 VT 60,
¶ 8, 190 Vt. 542, 26 A.3d 44 (mem.).  There is a substantial
likelihood that the jury would have found that defendant acted under the
influence of provocation and rendered a similar verdict here, but the jury
instructions prevented a verdict based on that finding.
¶ 33.        
In these circumstances, the elimination of the opportunity for the jury
to find voluntary manslaughter, and not murder, was prejudicial to
defendant.  We conclude that the jury instruction caused a miscarriage of
justice that affected the fairness of the trial.  We cannot uphold the
resulting verdict, even though defendant did not object to the jury
instruction.
¶ 34.        
Defendant’s second claim on appeal is that the trial court erred in
excluding the mental-health-related evidence from the victim’s health-care
provider that was obtained by subpoena.  We address this issue because it
is very likely to arise on remand.
¶ 35.        
We purposely address this issue in a summary fashion because the evidence
in question was sealed by the trial court, and we are giving guidance for
remand rather than ruling on whether the trial court’s evidentiary decisions
were correct.[7] 
We emphasize that the ground for sealing, namely the patient’s privilege, and
the basis for exclusion of the evidence were totally different.  The
sealing decisions did not actually determine that public disclosure of the
medical records and depositions would violate the patient’s privilege. 
Neither party has asked us to review the sealing decision.  Moreover,
evidentiary rulings are discretionary, but the court’s sealing decision does
not specify how its discretion was exercised.  In these circumstances, we
choose to abide by the sealing decision and not describe the evidence in any
detail in this decision.  We conclude that we can give adequate guidance
to the trial court on remand within this limitation.
¶ 36.        
The State’s motion in limine made three basic arguments: (1) the
evidence should be excluded under the patient’s privilege; (2) the evidence
sought to show the victim’s violent character, but because defendant was
unaware of the information in the records at the time of the killing, the
evidence was excluded by Rule 404(b) as evidence that he “acted in conformity”
with his character; and (3) any probative value to the evidence would be
substantially outweighed by the danger of unfair prejudice to the prosecution
or confusion of the issues, rendering it inadmissible under Rule 403.
¶ 37.        
In brief, defendant’s response was that the evidence was relevant to his
self-defense claim because it explained the victim’s actions at the ball field
and why the victim would have continued to charge towards defendant before the
second shot.  Defendant argued that the evidence was not prohibited under
Rule 404(b) because it was being offered for non-character purposes and did not
show “other crimes, wrongs or acts.”  He argued that the evidence was
highly probative and not excludable under Rule 403.  Finally, he asserted
a number of reasons why the patient’s privilege was not a barrier to
admissibility.
¶ 38.        
The court granted the motion in limine and excluded all the evidence,[8] but did not reach the State’s privilege
argument or defendant’s responses that the privilege did not apply to the
evidence and that the evidence was admissible because of defendant’s
constitutional right to present his case.  Essentially, the court
perceived defendant as seeking to admit evidence of “the victim’s motive at the
time of the shooting.”  The court found the victim’s motive to be
irrelevant unless defendant actually knew of the facts shown by the evidence at
the time of the shooting, and the court found that defendant did not know of
these facts.  It also held that “[i]n order for evidence of a victim’s
motive to be admissible in the form of specific instances of
conduct, . . . the motive must be an essential element of the
offense” under Rule 405, which it was not.  The court went on to hold that
even if the evidence were admissible under Rules 404 and 405, the court would
hold it inadmissible under Rule 403 because its probative value was
substantially outweighed “by the danger of confusion of the issues, misleading of
the jury, and waste of time.”  The court acknowledged that it was issuing
a broad pretrial evidentiary ruling but opined that “there was a clear
advantage to deciding the issue now, with the benefit of reflection and
briefing, rather than during opening statements, where the issue otherwise
would have inevitably arisen.”  
¶ 39.        
Generally, we review evidentiary rulings for abuse of discretion.  Quirion
v. Forcier, 161 Vt. 15, 21, 632 A.2d 365, 369 (1993).  This includes
rulings for exclusion of a victim’s prior acts.  State v. Ovitt,
2005 VT 74, ¶ 11, 178 Vt. 605, 878 A.2d 314 (mem.).  We must also
bear in mind, however, that in criminal cases “the broad discretion of the
trial court in evidentiary matters is limited by defendant’s constitutional right
to confront witnesses against him and by the demands of due process.”  State
v. Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996).
¶ 40.        
The evidentiary issue arises in relation to defendant’s claim that he
acted in self-defense.  Self-defense in the context of a homicide
prosecution is defined in 13 V.S.A. § 2305(1) as a circumstance that
renders guiltless a person who kills or wounds another “[i]n the just and
necessary defense of his or her own life” or the lives of certain others. 
We clarified the “just and necessary defense” requirement in State v.
Wheelock, 158 Vt. 302, 307, 609 A.2d 972, 975 (1992), explaining that
self-defense is just and necessary when the “defendant’s belief of imminent
peril and of the need to repel that peril with deadly force is
reasonable.”  The jury “must assess the reasonableness of a defendant’s
apprehension, taking into account not only the circumstances with which he is
confronted, but his individual attributes as well.”  Id.
¶ 41.        
We start with the trial court’s reasoning in issuing a broad decision in
limine.  As the court noted, we have cautioned against broad pretrial
evidentiary rulings.  In State v. Williams, 2010 VT 77, ¶ 11,
188 Vt. 405, 9 A.3d 315, we took “the opportunity to point out the pitfalls in
granting such broad pretrial motions, and to underscore the advantages of
either deferring a ruling until trial or, at a minimum, establishing a clear
basis for deciding the issue in advance.”  In State v. DuBois, we
noted that an in limine ruling should be used “ ‘as a rifle and not as a
shotgun.’ ”  150 Vt. 600, 602, 556 A.2d 86, 87 (1988) (quoting Lewis
v. Buena Vista Mut. Ins. Ass’n, 183 N.W.2d 198, 201 (Iowa 1971)).  We
recognize that the court here believed that allowing the evidentiary issues to
linger would have disrupted the trial and that it believed it had a clear basis
to decide the issue in advance.  We also recognize that the records all
came from one source and were before the court.  Nevertheless, we
conclude, as we discuss below, that the records present a number of difficult
evidentiary issues that the trial court did not fully address.  Because of
the range of evidentiary issues implicated by the motion in limine, the trial
court ought to have analyzed the many various classes of evidence before it,
providing a specific rationale for admitting, excluding, or deferring ruling on
each item at issue.  At least on some of the issues, the admissibility
decision was better left to the trial.[9]
¶ 42.        
We turn to the court’s specific grounds for excluding the medical
records, beginning with the court’s ruling that the information in the records
was irrelevant based on its characterization that defendant sought to show the
victim’s motive.  As stated above, defendant’s main relevancy point was
that the information in the records would support his position that the victim
kept advancing on him, holding the splitting maul, even after the first
shot.  He argues that the information goes to the victim’s mental state at
the time of the events and explains why the victim would not desist from the
attack.  He further argues that, based on the records, the jury could find
that the victim was attempting a form of suicide.  
¶ 43.        
Relevant evidence is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”  V.R.E.
401.  If the excluded evidence would make it more probable to the jury
that the victim was an aggressor when he was shot, it is relevant. 
Relevant evidence assists the jury in determining the “circumstances with which
[defendant] is confronted.”  Wheelock, 158 Vt. at 307, 609 A.2d at
976.
¶ 44.        
Relevancy in this case is clear from the way the rules of evidence
handle character evidence.  Although we conclude, infra, that at
least some of the evidence in question is not character evidence, the relevancy
question is the same regardless.  Evidence of a pertinent trait of the
victim’s character is admissible in a criminal case under Rule 404(a)(2),
although the method of proof is restricted by Rule 405(a).  This is an
exception to the general prohibition against admitting evidence of a character
trait to show that the person “act[ed] in conformity therewith.”  V.R.E.
404(a).  The typical evidence admitted under Rule 404(a)(2) is evidence
that the victim has a character trait for engaging in violent behavior. 
See State v. Roy, 151 Vt. 17, 30, 557 A.2d 884, 892 (1989), overruled on
other grounds by State v. Brillon, 2008 VT 35, ¶ 14, 183 Vt. 475,
955 A.2d 1108; see also People v. Orlewicz, 809 N.W.2d 194, 202 (Mich.
Ct. App. 2011) (“Evidence concerning the aggressive character of a homicide
victim, even if the defendant was unaware of it at the time, is admissible in
furtherance of a self-defense claim to prove that the victim was the probable
aggressor.”).  As reflected in the rule’s further authorization allowing
the prosecution to introduce evidence of the victim’s character trait of
peacefulness “to rebut evidence that the victim was the first aggressor,” the
understanding of relevancy is exactly the same as that advocated by defendant
here.  V.R.E. 404(a)(2).  The logical thread is, based on propensity,
the probability that a person with a violent character acted in conformity
therewith in the altercation that resulted in the victim’s death.
¶ 45.        
The trial court in this case appeared to conclude that evidence of the
victim’s mental state was admissible only if defendant knew of this
evidence at the time of the killing.  This ruling is contrary to our
holding in State v. Roy, 151 Vt. at 30, 557 A.2d at 892.  Roy
held that, in an assault-on-a-police-officer prosecution, evidence of the
officer’s reputation for using excessive force is admissible to show whether
defendant’s resistance to arrest was justified even though defendant was
unaware of that reputation.  Roy is consistent with the
overwhelming majority of decisions around the country.  See Commonwealth
v. Adjutant, 824 N.E.2d 1, 6-7 (Mass. 2005) (surveying cases from federal
courts and every state in the country and revealing that every federal court
and courts in forty-five of forty-eight states to consider the question mirror
the holding of Roy).  
¶ 46.        
Nevertheless, the State argues that the trial court’s holding is
required by our recent memorandum decision in State v. Boglioli, 2011 VT
60, ¶ 22, also a homicide self-defense claim case, where we noted that
evidence of a prior threat by the victim, made to a third person, could not be
relevant to defendant’s state of mind because defendant did not know of the
threat at the time of the shooting.  We added that even if it were
probative of the victim’s state of mind, “the victim’s state of mind is
immaterial to the question of self-defense.”  Id.  
¶ 47.        
We acknowledge that this language is overbroad, confuses the issue as it
is presented here and appears inconsistent with Roy, a decision that it
did not cite.  The discussion in Boglioli indicates that the Court
was concerned with the defendant’s state of mind and was holding that the
victim’s threats of violence, unknown to the defendant, were irrelevant to the
defendant’s state of mind.  See Boglioli, 2011 VT 60,
¶ 22.  To the extent that the language of Boglioli is
inconsistent with the holding in Roy, we overrule it.
¶ 48.        
In this case, the victim’s conduct at the ball field, and particularly
in the last minutes before the killing, is relevant to defendant’s self-defense
claim.  If the victim’s state of mind is, in turn, relevant to the
victim’s conduct, irrespective of whether that state of mind is known to
defendant, it meets the relevancy requirement of Rule 401.  The way the
evidence rules handle character shows that state of mind can be relevant to the
victim’s conduct.  
¶ 49.        
Some of the confusion in this case resulted from labeling defendant’s
theory as trying to establish the victim’s motives for his actions.  We
conclude that the word was misused in this context.  If the medical
records, for example, contained evidence that defendant had engaged in
misconduct with respect to the victim’s girlfriend, we might describe that
evidence as establishing a motive for the victim pursuing defendant with a
splitting maul.  Nothing like that is in the medical evidence. 
Instead, it relates generally to the victim’s mental health condition at the
time of the killing, a circumstance that we would not describe in this case as
motive.
¶ 50.        
Based on our review of the excluded evidence, we conclude that in
general it is relevant to defendant’s self-defense theory for the reason that
defendant argued.
¶ 51.        
The more difficult questions arise with respect to how defendant might
introduce the relevant evidence.  The State argues, and the trial court
apparently accepted, that the medical records contain character evidence and
its use would be based on propensity reasoning.  As we described above,
our rules contain a general prohibition on using character evidence “for the
purposes of proving action in conformity therewith on a particular occasion,”
V.R.E. 404(a), but there is an exception for “evidence of a pertinent trait of
character of the victim of the crime offered by an accused.”  Id.
404(a)(2).  There are two relevant provisos to the exception.  First,
under Rule 405(a), where evidence of a character trait is admissible, “proof
may be made by testimony as to reputation.”  Introduction of evidence of
specific instances of conduct is allowed only on cross-examination.  Id. 
Second, under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in
conformity therewith,” but may be admissible for other purposes.  Although
the trial court was less explicit on these points, we read its decision as
concluding that all of the evidence of specific instances of conduct in
the medical records sought to be admitted was character evidence improperly
offered to show that the victim acted in conformity with his character
trait.  
¶ 52.        
The information in the records includes actions of the victim,
communications with medical care providers, communications from medical care
providers, and diagnoses and treatment.  Some of the information involves
medical history.  Although Rule 404 uses the term “character,” it does not
define it.  In general, a medical condition, including a mental health
condition, has not been viewed as a character trait for purposes of the
evidence rules:
 
A more difficult question of definition is presented by proof of mental
characteristics.  Insanity is not usually thought of as a question of
“character” and Wigmore argues that other evidence of mental infirmity is
admissible to prove conduct.  While mental condition must be proved
indirectly like character, weakness of mind does not usually have the
prejudicial impact of a moral judgment.
 
22
Wright & Graham, Federal Practice and Procedure: Evidence § 5233 at
355 (1978); see State v. Hendricks, 173 Vt. 132, 144, 787 A.2d 1270,
1279 (2001) (Dooley, J., concurring) (“Rule 404(a) restricts character evidence
and not propensity evidence.”); B. Anderson, Recognizing Character: A New
Perspective on Character Evidence, 121 Yale L.J. 1912, 1927 (2012)
(“Propensity reasoning is also the foundation for the logical relevance of
other types of proof that courts have recognized are not character
evidence.  Proof of . . . mental conditions and
illnesses . . . depend[s] on propensity inferences. 
Therefore, propensity should not be seen as synonymous with character, but
instead as one component of it and the basis of its logical relevance.”).
 The reasoning of the Wright and Graham treatise was applied in Bell v.
Whitten, 722 So. 2d 1057 (La. Ct. App. 1998),[10] a case in which a deputy sheriff was
injured during the arrest of a belligerent underage minor who was under the
influence of alcohol.  The deputy sheriff sued the minor who caused his
injuries and the minor’s father, as well as another underage minor who had
supplied the alcohol at a house party and his mother.  The defendants
obtained the medical records of the minor who injured the sheriff to show he
had been diagnosed with “intermittent explosive disorder” and “conduct disorder,
solitary aggressive” and that his actions were caused by his mental condition
and not his consumption of alcohol.  The court held that the records were
admissible because a mental condition is not a character trait and, therefore,
Louisiana’s equivalent of Rule 404(a) did not apply.  Id. at 1061.
¶ 53.        
The New Mexico Supreme Court used a similar analysis in State v.
Stanley, 37 P.3d 85 (N.M. 2001).  In Stanley, a defendant
charged with homicide attempted to introduce medical records of the alleged
victim to show the victim was suicidal and had attempted on a number of
occasions to commit suicide, in support of the claim that the victim’s death
was caused by his suicide and not defendant’s homicide.  The court
rejected the argument that evidence that the victim was suicidal was
inadmissible because it showed the victim’s character:
The
evidence of prior suicide attempts is not appropriately analogized to prior bad
acts which are inadmissible to show character, as provided for under Rule
[404(b)].  Rather, the evidence here was of a serious, long-term mental
illness treatable with medication and specific manifestations of that illness.
 
 
We hold that evidence of suicidal tendencies of a deceased should not be considered
character evidence for purposes of Rule [404(b)].  Suicidal dispositions
typically stem from mental illness, not from a person’s “bad character” or
trait of character.
 
Id.
at 92 (footnote omitted).
¶ 54.        
 To the extent that the “character trait” evidence the trial court
relied upon here is actually evidence of a diagnosed mental condition, for
which the victim was receiving medical treatment, we hold that Rules 404 and
405 do not govern admissibility.  Of course, as discussed infra,
the evidence must meet the requirements of Rule 403.
¶ 55.        
There is a second reason why Rule 404(a) does not apply to some of the
medical evidence—it involves communications and not acts.  In State v.
Crannell we considered the admissibility of a statement the defendant made
in a letter to his wife stating that his greed might have taken him down the
path of a professional hit man: “I was on my way.”  170 Vt. 387, 400-01,
750 A.2d 1002, 1014 (2000), overruled on other grounds by Brillon, 2008
VT 35, ¶ 42.  The defense sought to exclude the statement under Rule
404(b) as a bad “act.”  We responded, citing numerous precedents from
other jurisdictions, that “[t]he statement at issue is not an ‘act’ within the
usual meaning of Rule 404; it is merely a statement defendant wrote” and “[t]he
statement does not reveal any prior misconduct such as Rule 404 forbids.” 
Id.  Some of the medical evidence here, including evidence
defendant most seeks to admit, fits within the Crannell rationale.
¶ 56.        
Third, some of the medical evidence defendant sought to admit here
relates to prescribed medications and the reasons for those
prescriptions.  Evidence of the drugs that were in the victim’s system at
the time of his death—some of which were medications—was admitted. 
Numerous decisions have ruled that evidence of a victim’s drug use at the
timing of the killing is admissible in cases where the defendant alleges
self-defense and the circumstances of the death are contested.  State
v. Baker, 623 N.E.2d 672, 677 (Ohio Ct. App. 1993); Jones v. State,
201 P.3d 869, 881-82 (Okla. Crim. App. 2009); State v. Ventre, 811 A.2d
1178, 1184 (R.I. 2002) (holding that evidence of a victim’s intoxication should
have been admitted to establish that the victim “may well have been
disinhibited by intoxication and more likely to have engaged in aggressive
conduct toward defendant”).  If the presence of drugs in the victim’s
system is admitted, evidence of how the presence or absence of those drugs
affected the victim’s conduct may also be admissible.  Some of the
evidence defendant wanted to admit falls in this category.  
¶ 57.        
Finally, we address the court’s decision with respect to Rule 403, which
provides that the trial court may exclude relevant evidence if it finds that
the “probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”  We have described Rule 403 rulings as highly
discretionary and the standard of review as very deferential.  See State
v. Lee, 2005 VT 99, ¶ 11, 178 Vt. 420, 886 A.2d 378.  The trial
court ruled that even if it found the medical record evidence to be relevant,
it would exclude the evidence under Rule 403 for three reasons: (1) certain of
the victim’s actions as described in the records would “present a significant
danger of confusion and waste of time because they would involve separate
mini-trials as to whether the incidents actually occurred in the manner
portrayed by defendant”; (2) there would be conflict about the victim’s
interaction with medical providers; and (3) all of the medical evidence “is
misleading to the extent that it suggests that the trial is about [the victim’s]
mental state.  It is not.”  The third reason is really a restatement
of the court’s ruling that the evidence is irrelevant, a ruling we found
erroneous above.  The first and second reasons are demonstrations of why a
broad pretrial evidentiary ruling was fraught with difficulty in this
case.  Neither reason fully addresses all the evidence.  The trial
court had no information that mini-trials about events and statements disclosed
in the medical records would, in fact, have occurred.  Indeed, the State
had not suggested that it would attempt to keep out the medical evidence based
on its accuracy; instead, its argument was that it was primarily character
evidence excluded by Rules 404(b) and 405, an argument largely unexplored by
the trial court.  Certainly, a more complete record could have narrowed
the issues and allowed an informed understanding of what would be presented and
opposed at trial.
¶ 58.        
Having said the above, we recognize that there were important Rule 403
concerns about the evidence.  However the jury evaluated the evidence, it
was clear that the victim was acting irrationally and out of control by chasing
a person he had never met before while swinging a splitting maul, a very
dangerous weapon.  The medical evidence may have better explained the
behavior of the victim, but many aspects of that behavior were undisputed in
the admitted evidence.  There are limitations to the probative value of
the evidence.
¶ 59.        
Moreover, although we have ruled above that mental health evidence may
provide a non-character explanation for the victim’s mental state and behavior,
it would be important for the trial court to determine whether it provided such
an explanation in this case.  At best the line between a character trait
and mental illness is blurry in many instances.  As the Wright and Graham
treatise elaborates, it would be anomalous to exclude evidence that a defendant
has a reputation as a thief, but then to allow evidence that defendant is
suffering from a mental illness that causes kleptomania.  22 Wright &
Graham, supra § 5233, at 355.   
¶ 60.        
Again, we stress that it is difficult to make a Rule 403 decision
covering all of the evidence in the record with one rationale.  Given the
complexity of the decision, it may be more efficient to reach a decision on the
State’s patient’s privilege claim before addressing whether items of evidence
are admissible under Rules 403 and 404(a), an approach the trial court did not
employ before the first trial.  It would also be helpful for the court to
know whether inferences from the medical records will be drawn through expert
testimony and to identify the actual disputes between the parties on the
medical records’ significance.  
¶ 61.        
Because we reverse and remand, we do not reach the question of the
dismissal of the juror.  The circumstance is unlikely to reoccur on
remand.
Reversed and remanded for a new trial.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
There is a certain amount of disagreement throughout as to whether, on the
various occasions mentioned, victim had a taser or a “stungun.”  We do not
find this distinction important.
 


[2] 
The jury found defendant not guilty of a second charge, aggravated assault with
a deadly weapon.  


[3] 
The Reporter’s Notes for the Vermont Model Jury Instructions for Second Degree
Murder explain that “lack of provocation” is not “an essential element that
must always be proven in a prosecution for second degree murder,” but “in a
proper case involving substantial evidence of provocation, the lack of
provocation becomes an essential element that the state will have to prove
beyond a reasonable doubt.”  Available at http://vtjuryinstructions.org.


[4] 
We observed: “[P]resented with a choice between acquitting appellant,
convicting him of second-degree murder, or convicting him of first-degree
murder, the jury convicted appellant of first-degree murder.  This verdict
would likely have remained the same even if the court had charged the jury on
voluntary manslaughter.”  Id. ¶ 23.  
 


[5] 
In a case we have previously cited in Hatcher, 167 Vt. at 346, 706 A.2d
at 434, the New Jersey Court of Appeals explained why the passion or provocation
instruction is necessary for the murder charge even if voluntary manslaughter
is given as a lesser-included offense: 
 
The reason for
including the passion/provocation instruction within the initial charge on
murder is because the absence of passion/provocation is an element of the
murder charge which the State must prove beyond a reasonable doubt.  When
the jury is not informed of such during the instructions on the purposeful or
knowing murder, the sequential instructions permit the jury to convict a
defendant of murder without any consideration of passion/provocation.
 
State v. Bishop, 589
A.2d 625, 629 (N.J. Super. Ct. App. Div. 1991).


[6]
 Defendant was interrogated by a state police officer on the day of the
events.  The interrogation was taped and played back to the jury. 
Defendant said that victim acted “[l]ike a madman” and was threatening to hit
defendant with the axe and was swinging the axe.  He said: 
 
  Everybody
was scared.  No one knew what to do.  He was a madman, out of
control.  I was scared for my life, I was scared for my dog, scared for my
brother, scared for my friends that were there.  Didn’t know what to do at
that point.  So I took the gun out.
 
He said further: 
 
  So at that
point when he refused to not—not lay back and not come at me, I fired at him
again because I was scared, you know?  He was trying to cause harm to me,
my truck, my dog that was in the back seat, my brother that was with me, and I
had another friend that was with me, and I was scared, was scared for my life,
scared for people around me. 


[7]
 In this posture, we also do not address the State’s argument that some of
defendant’s arguments were not preserved regarding the admissibility of
information in the records.  Unsurprisingly, defendant’s arguments became
more focused and refined when presented on appeal.  Since we are
remanding, however, defendant can again present his arguments in the trial
court and will likely present them as he has on appeal.  Therefore, it is
irrelevant whether he stated them fully for the first trial.
 
We add the observation that defendant’s defenses were
limited by the broad pretrial ruling of the trial court.  For example,
defendant argues here that the victim may have been suicidal and that condition
explained his conduct towards defendant.  That argument, to the extent
that it could have been made, was foreclosed by the exclusion of the medical
evidence.  In this way, the situation was like that in State v. Memoli,
in which we stated:  “It is wholly inconsistent to on the one hand require
defense attorneys to abide by broad pretrial orders or risk sanctions, and on
the other hand punish defendant for not raising a defense that was wholly
dependent on the evidence that was excluded.”  2011 VT 15, ¶ 15, 189
Vt. 237, 18 A.3d 567.


[8]
 Although the record indicates that defense counsel took depositions of
individual mental health care providers, the record does not contain the
depositions, and the court did not reference deposition statements in its
decision.  Thus, our discussion relates solely to the records obtained by
subpoena.


[9]
 One evidentiary issue that is missing from the trial court’s analysis
because of the in limine ruling is whether defendant could maintain his theory
on the significance of the medical records without expert testimony. 
Defense counsel never indicated that he would employ an expert witness for this
purpose, and the trial court never determined whether an expert witness would
be required.


[10]
 Bell is discussed in Anderson, supra, at 1960-61.



