Thursday, September 8, 2011

Taking Out the Garbage


State v. Boglioli, 2011 VT 60 (mem.).

Okay readers, here is your free criminal law tip of the day!  When you have been bullied by your neighbor for several years to the point where you fear for your safety, you still should not carry a pistol with you when you take out the garbage. 


This bit of advice come courtesy of today’s unfortunate Defendant who failed to heed such advice and ended up in stand-off with victim, who was, to his detriment, holding a hatchet and shouting at Defendant. 

Let’s start at the beginning.  Victim, by all accounts, appears to have been a bit of a lout who tortured and harassed Defendant, to the point where Defendant was afraid to take out his trash lest he become the subject of victim’s desultory rants.  On the day in question, Defendant left his house to put his trash in a common dumpster.  Victim approached Defendant with a hatchet and suggested that they “get this over.”  Defendant drew his pistol and fired, mortally wounding Victim, who was dead within three minutes. 

At trial, the prosecution sought a conviction of second-degree murder against Defendant but asked for an additional jury instruction of voluntary manslaughter.  Defendant objected to this lesser offense and sought to establish his claim self-defense.  Jury convicted Defendant of voluntary manslaughter, and Defendant appeals to the SCOV.

On appeal, Defendant raises six issues.  None of them are earth shattering, but they do go through the brass tacks of a voluntary manslaughter charge and the elements of self-defense and are recommended to anyone trying such claims before a jury in the near future.

Defendant’s first claim of error is that the evidence does not support a voluntary manslaughter conviction.  The SCOV notes that the elements adequate provocation, inadequate time to cool off, actual provocation, and actual failure to cool off are fully met by the evidence.  Victim’s actions clearly provoked Defendant, and it did not give him time to cool down.  Victim showed up with the hatchet, taunted Defendant and did not give him room to leave.  Defendant reacted quickly, and Victim, like Ike Clanton, stays at the OK.

Defendant’s next argument challenges the jury’s finding on his mental state at the time of the shooting.  The jury was required to find that Defendant had one of three mental states: intent to kill, intent to commit great bodily harm, or wanton disregard of death or great bodily harm.  Defendant argues that the evidence shows some jurors believed he had intent to kill while others found only intent to commit great bodily.  The SCOV shrugs this argument off.  Unanimity is not important so long as every juror finds that he has at least one of the necessary states.  Which one is simply unimportant.

Defendant also challenges the jury instruction on self-defense as favoring the State.  The SCOV dismisses this argument as lacking.  The SCOV finds that there was more than enough evidence to cast reasonable doubt on each of the elements no matter how they were phrased.  Any problems with the trial court’s choice of words were, at best, minor, insignificant, and unlikely to have made a difference to the jury.

Defendant’s fourth issue is that the trial court instructed the jury that Defendant needed to have a reasonable and subjective belief in imminent bodily harm prompting his self-defense.  The SCOV disposes of this argument by noting that the perception of imminent harm, while subjective, must also be reasonable.  Sorry Don Knotts, no error here.

Defendant’s fifth line of appeal concerns five incidents of the Victim’s violent and bad behavior, which the trial court refused to allow Defendant to bring up in trial.  The SCOV rejects all five as baseless and irrelevant to the issue of self-defense.  It further notes that notwithstanding the trial court’s rulings, Defendant presented copious amounts of evidence to show Victim’s nature and behavior for the jury.  No error and no harm. 

Defendant’s last line of challenge comes from certain recordings that the State referenced between Defendant and his sister after Defendant had been arrested.  The State referred to these as “jailhouse recordings.”  Defendant sought to overturn his conviction because the jury might have gotten the idea from that statement that Defendant was a recidivist (or Elvis Presley fan).  The SCOV finds no credibility in this line of argument, and it rejects it quickly.

Defendant’s conviction is affirmed, and it looks like it will be awhile before he takes out the garbage again, which will hopefully give time for his nerves to settle.

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