Sunday, May 11, 2014

Something Missing . . .

State v. Bolaski, 2014 VT 36

By Andrew Delaney

Defendant gets his second-degree murder conviction reversed without getting to the final issue he raises in the case. So what happened?

The SCOV recounts the trial testimony in a qualified way, noting that the testimony was “not entirely consistent” and that it will “summarize the largely undisputed facts in as general terms as possible.” The SCOV does note that important-to-this-appeal factual disputes will be highlighted.

The entire incident happened at a softball field in Chester, Vermont. The Boston-native victim had been living in Springfield, Vermont—in what some might call typical Vermont fashion—at his girlfriend’s mother’s home. He did not play well with his girlfriend’s friends and acquaintances, apparently. He stole a bag of weed and later punched a guy in the jaw while a bunch of people watched. This event precipitated the softball-field confrontation.

For some reason, defendant and his brother got recruited to be part of this confrontation, though they had yet to meet the victim. Defendant and a group of we-don’t-like-victim-very-much people arrived at the ball field, and victim and his girlfriend arrived shortly thereafter. The group approached victim’s car and shouted at him as he shouted back. The group was unarmed. Victim jumped out of his car with a taser and started sparking it. Victim then tossed the taser in the car and grabbed a splitting maul.

Nobody knows why, but victim focused in on defendant, chasing him to his truck. Once defendant got into the truck he was able to get hold of a rifle. Meanwhile, victim was doing some unauthorized bodywork on defendant’s truck with the maul. “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.”

Defendant admitted shooting the victim twice but maintained that it was in self-defense. Some witnesses said victim kept coming after the first shot; some said that victim retreated. A number of witnesses said that defendant yelled, “It was self-defense!” after the second shot, and then kicked the victim or hit him with the butt of the gun.

The medical examiner testified that the bullets’ entrance and exit areas suggested a downward trajectory and that 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.” A defense expert testified that the trajectory was consistent with the victim’s continuing approach. The medical examiner also testified to eye-area fractures caused by “a blunt object in the eye area of the skull.” Victim was on an exotic cocktail of legal and illegal drugs.

Defendant sought to introduce evidence of victim’s mental health during the immediately preceding two months, but in a number of hush-hush decisions and filings under seal it was excluded and even the SCOV says, “For reasons described in our discussion of the evidentiary issues later in this opinion, we choose not to break the seal.” I don’t know about you, but now I really want to know what’s in those files.

A brief aside to discuss filings under seal, and in camera review and such: basically, so-called sensitive material is presented only to the court or only one side has it. The overall idea is that if something is important enough to be brought in, the court’ll say something. Yeah. I don’t know about you, dear reader, but I like to make up my own mind about what is and isn’t important—and most actively involved clients do too. Ah, but I digress . . .

Back to our regularly scheduled programming . . . the State argued that the sealed medical evidence was propensity evidence, privileged, and only marginally probative. Defendant argued, more or less, that it showed defendant was a “psycho” in the colloquial sense and went to the victim’s motives in attacking a guy he had just met with a splitting maul. The trial court sided with the State and the evidence stayed out.

Defendant argued self-defense throughout trial, but obeyed the exclusionary ruling. It appears that the records might’ve shed some light on the Charlie-Sheen-esque drug cocktail’s effect on the victim’s mental state—but that wasn’t brought in.

The prosecution argued against self-defense, and told the jury it couldn’t draw any inferences from the toxicology report, ‘cause there was “zero testimony on how that might have affected anybody’s behavior.”

The jury instructions “did not explain that the existence of passion or provocation would mean that second-degree murder had not been proven.” Defense counsel didn’t object, and the jury found defendant guilty.

Defendant moved for a new trial on three bases: first was the mental-health-records-exclusion ruling; second was the prosecutor just misbehaving in general throughout trial; third was the jury instructions’ failure to include an absence of passion or provocation. The trial court denied the motion, and that brings us to the SCOV.

The arguments on appeal are: (1) that there were sufficient facts to warrant an absence-of-passion-or-provocation instruction; (2) the mental-health records shoulda been admitted; and (3) dismissing a juror partway through the case just ‘cause she admitted to following the case through the grand-jury phase. We already know the third issue doesn’t get addressed, but it’s in there.

The SCOV begins with the jury-instruction question. No objection at trial, so we’re in plain-error territory. It has to be an obvious error that substantially affects rights and results in prejudice. The SCOV will correct the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

The trial court instructed on three offenses: second-degree murder, voluntary manslaughter, and involuntary manslaughter. The SCOV notes that the second-degree-murder instruction here did not include a lack-of-provocation-or-passion element, which, when implicated, becomes an essential element—in other words, in order to convict on second-degree murder when passion or provocation are implicated, the jury has to find a lack of passion or provocation.

Because that threshold isn’t met, the SCOV isn’t going to let it stand. “We cannot conclude that the instructions in this case were full, fair and correct on the elements of second-degree murder.”

The State’s argument appears to be that there wasn’t any provocation or passion present, and even if there was, there’s no prejudice ‘cause defendant made an all-or-nothing self-defense argument. The SCOV is not convinced.

Turning to the self-defense-or-nothing argument, the SCOV reasons that if it walks like a duck, looks like a duck, and quacks like a duck, it gets an it-could-be-a-duck instruction. Here, passion or provocation was clearly implicated by the evidence. “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.”

The State’s no-prejudice argument rests on two grounds: (1) defendant and his group started the altercation; and (2) you can’t mitigate murder on the basis that someone is damaging your truck. (Now, a less-classy blog would make a crack about the prosecutor obviously being new to Vermont but we won’t do that here).

The SCOV outright rejects the defendant-started-it argument. It was a shouting match that victim escalated to a taser-con-splitting maul match. On the second argument, the SCOV notes that this assumes that all the victim tried to do was damage the truck. There was a lot more going on than that. At least one witness testified that defendant fell on his way to the truck, and that actually saved him from ending up with the splitting maul in his back.

The SCOV notes that defendant had two choices—go with self-defense or go with a manslaughter “defense” (if you can call that a defense). Just because the jury rejected the self-defense-therefore-no-crime argument, doesn’t mean it also rejected passion or provocation being present. There’s a lot more legal discussion if you like that sort of thing in the opinion. But the bottom line is that the SCOV concludes that the plain-error-application requirements are met in this case, reverses defendant’s conviction, and orders a new trial.

Because the mental-health-related evidence is likely to come up again on remand, the SCOV digs into it. The SCOV qualifies its analysis by noting that it’s not going to disturb the sealing order, and it’s just giving “guidance” as opposed to deciding whether the trial court was in fact correct on evidentiary rulings.

The State’s motion to exclude below made three basic arguments: (1) the information was covered by patient’s privilege and excludable; (2) defendant didn’t know about it before and it was simply propensity evidence offered to show victim acted in accordance with those propensities; and (3) any value the evidence had was outweighed by the danger of its unfair prejudice to the prosecution and its potential to confuse the issues.

Defendant’s response was essentially that it explained victim’s actions at the ball field and why victim would’ve kept on coming after defendant before the second shot. Defendant argued that it was not offered as character evidence and didn’t fall under the other-crimes-wrongs-or-acts prohibition. He also argued that the evidence was highly probative, and not unfairly prejudicial. He also gave a number of reasons why the material wasn’t covered under the patient’s privilege.

The trial court didn’t bother with the privilege arguments. The trial court found that defendant was trying to introduce evidence of victim’s motive and that was irrelevant. Defendant didn’t know about it beforehand and therefore it doesn’t come in. The trial court further opined that it might exclude it on prejudice-outweighing-probative-value grounds if it came down to that. Though the trial court acknowledged the ruling was broad, it noted that this was for the best so that it didn’t end up creating a bunch of problems during trial.

The SCOV notes that its usual standard of review on evidentiary rulings is abuse of discretion, but also notes that discretion in criminal cases is tempered by an accused’s constitutional confrontation rights.

The SCOV makes it clear that broad pretrial evidentiary rulings aren’t cool in general, and actually sneaks in a quote saying that an in limine ruling should be used “as a rifle and not as a shotgun.” Here, the SCOV acknowledges the trial court’s reasoning behind the ruling in a kindly enough manner, but nonetheless reasons that the trial court failed to address a number of issues raised by the evidence—and at least some rulings should’ve been reserved for trial. It’s not enough to hit the broad side of the barn—evidentiary rulings need to be on target.

Regarding the specific grounds given by the trial court for exclusion, the SCOV does not appear impressed. The SCOV first notes that the records (whatever may be in them) are relevant to defendant’s theory of the case: defendant claimed that victim kept coming after him and the records may have helped to explain victim’s actions.

Evidence of a victim’s violent character can come in to show that the victim was the likely aggressor—even if the defendant doesn’t know about it at the time of the altercation. The SCOV notes that one of its prior cases supports this proposition, but a recent one (covered by us here) has inconsistent language. The inconsistent language is overruled, and the SCOV holds—or at least recommends that—“state of mind can be relevant to the victim’s conduct.”

The SCOV notes that some of the confusion in this case results from imprecise language. Defendant’s theory is referred to as trying to establish victim’s “motive” for the attack, but we’re not really talking about motive here, we’re talking about the victim’s mental health condition.

There’s a lengthy discussion on what kind of evidence this actually is that touches on law review articles, evidence treatises, and cases from other jurisdictions. The basic thrust is that evidence of a diagnosed mental condition is not “character evidence” in the traditional sense. The evidence, however, must meet the traditional evidence balancing test—whether its probative value is substantially outweighed by the danger of its unfairly prejudicial effect or other considerations. The SCOV, despite its earlier we’re-just-making-suggestions-here statement holds as much.

The SCOV also reasons that these are not evidence of “acts” but of communications. While grandma might call that “slicing the bologna awful thin,” the premise is supported by a number of decisions from other jurisdictions. “Some of the medical evidence here, including evidence defendant most seeks to admit, fits within the . . . rationale.”

Some of the medical evidence related to prescribed medications and the reasons for the prescriptions. Again, a number of other jurisdictions approve the introduction of the victim’s drug-use evidence in the self-defense context. “Some of the evidence defendant wanted to admit falls in this category.”

The SCOV finally addresses the trial court’s balancing-test rationale. If you recall, the trial court’s ruling was essentially that even if it was relevant and otherwise admissible, the trial court would’ve kept it out due to its potential to cause unfair prejudice and confuse the issues.

Even though review is “very deferential,” the SCOV again notes its dissatisfaction with broad, sweeping rulings. The SCOV reasons that while some balancing would’ve kept some of the proposed evidence out, other items might’ve made it in. The peremptory ruling was not a good idea in general.

The SCOV doesn’t address the dismissal-of-the-juror issue because it’s not likely to arise during the new trial.

Defendant gets a new trial and a shot at showing that victim wasn't so innocent after all.  

2 comments:

  1. WOW. In a mighty large nut shell, that says it all. Hope Boloski gets a fair trial this time. Maybe, but the state of Vermont, will again go to any length to prove their case

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  2. "Prove their case"? Vermont prosecutors do not seek to prove their cases, they seek convictions. There is a difference. Jurors should be given all the information in the hands of the state and defense, all of it. Cherry picking what jurors are allowed to see is a game played by lawyers, whose goal is career advancement, and jurors are forced to decide a defendant's fate on inadequate information. If judges and lawyers were forced to seek medical care for themselves and their families from equally misinformed doctors, few would enter the legal profession, or last.

    When a conviction is reversed and a new trial is granted, the court and prosecutor should be personally responsible for refunding the state the expenses of the first trial and incarceration of the defendant. No insurance policy should be allowed to cover those costs. Such a policy would be an enormous step forward in preventing the legal atrocities that happen in the Windsor County District Court, the address of which is "Railroad Row". As usual, the taxpayer must pick up the tab for the misused funds.

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