On Appeal from District Court of Vermont, Unit No. 3, Lamoille Circuit March Term, 2012 Brian J. Grearson, J.
The opinion of the court was delivered by: Robinson, J.
State v. Tribble 2010-021
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. The main issue in this case is whether the trial court's admission of a videotaped deposition of a key state witness who was out of the country but willing to travel to the trial violated defendant's constitutional right to confrontation where defendant personally objected to admission of the testimony on the record, but his counsel stipulated to the videotape's admission. We conclude that defendant's rights were violated by the admission of the hearsay testimony and, accordingly, reverse. Because the issue is very likely to arise on remand, we also consider defendant's claim that the trial court erred in permitting defense counsel to raise a diminished capacity defense over defendant's objection, concluding that the decision should have been left to defendant.
¶ 2. Defendant Dennis Tribble was charged with first-degree murder for killing Michael Borello and was convicted of second-degree murder. He appeals that conviction.*fn1
¶ 3. That defendant killed Mr. Borello is not in dispute. After the shooting, defendant drove to the Sheriff's office and told the dispatcher working the desk that he "shot [his] neighbor." The circumstances surrounding that killing are very much in dispute.
¶ 4. Defendant's case can be summarized as follows. In 1992, defendant purchased a parcel of land on Jones Lane, a dirt road in a secluded, sparsely populated, off-the-grid area in Wolcott. He did not move there until late 1998 or early 1999. Defendant developed a host of grievances against others in the very rural neighborhood, including, Mr. Borello and his family in particular. He alleged they were involved with drugs; they were loud; they were rude to him; Mr. Borello's son drove too fast on their road, doing gravel spins; they burned large quantities of trash; and they were polluting the underground water on his lawn. Defendant claimed Mr. Borello was particularly hostile to him, and on two occasions Mr. Borello fired multiple pistol shots while in defendant's vicinity to intimidate defendant. One of those times, Mr. Borello drove his car by defendant and gave him the finger with both hands. Not long before their final confrontation, Mr. Borello "got in [his] face" because defendant stopped waving at the Borellos. Mr. Borello had confronted defendant a number of times like that--with increasing frequency and severity in the months leading up to their final confrontation. Defendant complained repeatedly about various offenses to Mr. Borello directly, to the Lamoille County Sheriff's Department on multiple occasions, and to environmental authorities,but the problems persisted, and he felt like nobody was doing anything about them.
¶ 5. According to defendant, the issues came to a head on September 26, 2000. Hostilities had escalated, and Mr. Borello had threatened defendant several times over the preceding twenty-four hours, including telling him that defendant was "dead meat." In general, defendant had come to believe that his life was in danger living on Jones Lane. So when he went to chop wood by the road that day, he took his pistol with him in addition to his shotgun because he was worried about his safety. While defendant was splitting wood near the back of his truck by the side of the road, Mr. Borello drove slowly past him and stopped his car. Defendant got his pistol from the truck when he realized Mr. Borello was stopping. Mr. Borello got out of his car and came toward him, screaming. Defendant described Mr. Borello as angry and "purple in the face." Defendant moved backwards down a short embankment; as Mr. Borello pursued, defendant drew his gun. Defendant brandished his pistol, and when Mr. Borello looked like he was about to continue down the embankment, from about six feet away defendant shot Mr. Borello in the buttock in the hope that Mr. Borello would leave. Not knowing whether he had hit Mr. Borello, and given that Mr. Borello started to lunge again, defendant tried to fire a second shot, but his pistol jammed.
¶ 6. Mr. Borello then turned and ran quickly back to his car, and defendant retrieved his shotgun from his own truck. As Mr. Borello approached his own car, defendant feared that Mr. Borello was retrieving a weapon. When Mr. Borello did not heed defendant's instruction not to approach Mr. Borello's car door, defendant shot him in the hip with his shotgun. At that point, defendant allowed Mr. Borello to leave the scene. Mr. Borello ran away without difficulty, but bypassed the best route to his house and instead went around the curve and stepped on the running board of an abandoned dump truck body on another neighbor's property. Because he thought Mr. Borello was still a threat, defendant followed, instructing him to get away from the truck and shooting again with the shotgun when he did not. When Mr. Borello squared up to defendant and started to come at him, defendant shot him in the chest from a distance of six or seven feet. Mr. Borello fell at that point. Throughout the entire encounter, defendant felt threatened by Mr. Borello.
¶ 7. Although defendant wanted to focus his case solely on his self-defense claim, over his objection, defense counsel presented testimony of diminished capacity. Two different psychiatric experts for the defense testified that defendant suffered from a type of delusional disorder that included a fixed belief that someone wants to harm him, with an additional diagnosis of paranoid personality disorder. Because of his condition, defendant believed he needed to shoot and possibly kill Mr. Borello in order to protect himself. Defendant's delusional disorder accounts for defendant's belief that when Mr. Borello tried to go to his car, and when he then went to the abandoned dump truck, he was going to get a weapon. People who are delusional see a threat when there is no threat. Mr. Tribble himself testified that he did not suffer from a delusional disorder and was vigilant but not paranoid; defense experts testified that his belief that he was not delusional was not surprising given his disorder.
¶ 8. Defendant was the only surviving witness to the event, although one neighbor heard gun shots, and, from a distance, through a break in the trees, very briefly saw someone run up the road toward the dump truck, shouting, "Get out of here." Moments later, the person ran back the other way.
¶ 9. The State's witnesses portrayed defendant as more of an aggressor relative to Mr. Borello and others. Various neighbors testified that they had never seen Mr. Borello threaten or disrespect defendant or anyone else,but that they had heard defendant complain many times about the Borellos. One neighbor described an incident in 2000 in which defendant initiated a verbal exchange of obscenities as Mr. Borello drove by, a time when defendant brandished a club and remarked to the neighbor that he, defendant, was taller than Mr. Borello, and an occasion when defendant showed his new shotgun and made a remark about the ease of killing someone. Another neighbor testified that shortly before the killing, defendant complained to her about the Borellos and told her he wanted to kill Mr. Borello's son, and that it would be easy to hide a body in the swamp. A state environmental officer testified that once when he was driving on Jones Lane, in street clothes and a Jeep Cherokee, a man, whom he later came to know as Mr. Tribble, walked into the road, stopped his car, and questioned him about who he was and why he was there in a way that made him uncomfortable.
¶ 10. Mr. Borello's son testified that defendant frequently stopped them on the road, swore a lot, and complained about one thing or another. It was normal for defendant to be "mouthy, upset, enraged, [and] hot off the handle," but at some point defendant turned his rage toward Mr. Borello and his son. On the day of the killing, the son was driving down the road in his father's truck, and defendant pulled into the road right in front of him, forcing him to begin to stop. After making eye contact, defendant pulled back into his driveway and allowed the son to pass.
¶ 11. A young man who was visiting a family, the Manoshes, on Jones Lane the day of the killing testified that as he was driving down the road, defendant was standing in the middle of the road waving his hand; when the young man pulled over, defendant asked him why the Manoshes were not doing anything about Mr. Borello's throwing trash on their and defendant's property. Defendant got progressively angrier, and said that if Mr. Borello kept on throwing trash on his property, defendant was going to kill him. Shortly thereafter, the young man encountered Mr. Borello's daughter on the road and relayed the threat. She saw her father, Mr. Borello, moments after, but does not recall with confidence whether she passed the information about Mr. Tribble's threat on to her father.
¶ 12. The State introduced physical evidence and observations from the scene to undermine defendant's account. The shell casing linked to defendant's first pistol shot was found at the edge of the road. Given ballistics testimony that defendant's pistol discharged cartridges to the rear and right of the shooter, the location of the shell casing undermined defendant's testimony that he had backed down the embankment away from the road before firing his pistol at Mr. Borello. Likewise, direct observations by one witness contradicted defendant's report immediately after the incident that, as he backed away from the road and down the embankment, he found himself in standing water, overtopping his boot. And no weapons of any sort were found in Mr. Borello's car or the abandoned dump truck.
¶ 13. Dr. Morrow, a forensic pathologist and Vermont's Chief Medical Examiner at the time of the killing, testified that Mr. Borello's wounds signaled that he had been shot once with a pistol and four times with a shotgun. In particular, Mr. Borello was shot in the hip with a pistol, with an exit wound through his buttocks. Mr. Borello was shot once in the back of the head and neck area with a shotgun; once in the shoulder and arm with a shotgun; once in the side and stomach with a shotgun; and once in the chest with a shotgun. Dr. Morrow testified that the pellet wounds from a shotgun were scattered over surfaces of the body, predominantly the back of the head and neck, on the right shoulder and arm, and on the back of the body from the shoulder blades to the back of the thigh. The trajectory of the pellets that grazed or hit Mr. Borello's torso was back to front. The pistol shot and first three shotgun shots likely caused Mr. Borello considerable pain, but would not likely have been fatal. The final shotgun shot to Mr. Borello's chest injured his heart and likely killed him immediately. The fatal shotgun blast was likely shot from an intermediate range, from five to twelve feet away, and hit Mr. Borello on a trajectory that would have been essentially level relative to a position in which Mr. Borello was standing erect. The pellets were two different colors, meaning the shotgun had been reloaded between shots. Among other things, Dr. Morrow's testimony undermined defendant's claim that he acted in self-defense, and that Mr. Borello was lunging at him during the altercation.
¶ 14. The State also relied on defendant's description of the confrontation to police officers shortly after the shooting; the prior statements were arguably inconsistent with his trial testimony in meaningful ways, including his description of the initial encounter with Mr. Borello. And the State argued that defendant's pursuit of Mr. Borello when Mr. Borello retreated down the road defeated the self-defense claim and supported the State's assertion that defendant intentionally killed Mr. Borello.
¶ 15. With respect to the diminished capacity defense, the State presented two expert witnesses who testified that defendant was not delusional and had the ability to form the various levels of intent to support conviction for first- or second-degree murder. The State's experts testified that defendant had a paranoid personality disorder, but was not delusional, and that defendant had the capacity to act willfully and to premeditate.
¶ 16. We first address defendant's Confrontation Clause claim. Over defendant's objection, defense counsel and the State stipulated to allow the State to take a preservation deposition of a critical witness for use in lieu of live testimony at trial. In November 2008, the State filed a "Notice of Intent to Use Deposition to Preserve Testimony" of the former Chief Medical Examiner who performed Mr. Borello's autopsy. In the notice, the State asserted that "Dr. Morrow will be unavailable for trial as he will be working and residing in New Zealand from February 2009 through June 2009." The State proposed to conduct a preservation deposition before Dr. Morrow's departure or, in the alternative, to present live testimony during trial via video-conferencing. The State appended to its notice an e-mail from Dr. Morrow describing his constraints:
As we discussed, I will be working . . . in Auckland, NZ at the time of trial. . . . It would be immensely inconvenient for my employer . . . and me, as well as inconvenient and potentially quite expensive for the State . . . to require me to appear in person at the trial. . . . I will be instate [sic] and available until Dec 30 to provide video taped preservation testimony at any mutually convenient time . . . ...