This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Windsor Unit, Criminal Division. 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] 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 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 cannabinoids.
[¶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.
[¶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 ...