"THE GREATEST DANGER TO AMERICAN FREEDOM IS A GOVERNMENT THAT IGNORES THE CONSTITUTION!" THOMAS JEFFERSON
"GRAND JURIES ARE TOO TIME CONSUMING AND EXPENSIVE!"
ATTORNEY GENERAL WILLIAM SORRELL
THIS SHOULD TERRIFY EVERY AMERICAN! THE VERMONT SUPREME COURT DELIBERATELY AND WITH INTENT AND MALICE RIGGED THE APPEAL PROCESS TO RELEASE KYLE BOLASKI!
This is the transcript of the Vermont Supreme Court’s decision to overturn Kyle Bolaski’s murder conviction. I have noted all of the discrepancies in Red. This decision is so blatantly biased and shameful! They did exactly what Robert Sand did in the Grand Jury. They rigged it! They used perjured testimony and statements, falsehoods and ignored all of the evidence that was presented at trial. Evidence that convicted Bolaski! Completely disregarding and not even mentioning that Vinnie was shot in the back! Because that would destroy their claim of provocation!
In a complete disregard for the truth they distorted the facts, manipulated the truth, disregarded the evidence and even stated fictitious elements of the trial, Grand Jury and events of the crime to further their own agenda! They even completely disregarded their own police officers and investigators over the perjured testimonies of the murderers. Basically, saying their own police and investigators lied! This is disgraceful and shameful for the Justices of the Supreme Court to violate their Oaths in order to protect a convicted murderer!!
They willfully and knowingly violated their Oath to “Preserve, Protect and Defend the Constitution of the United States of America!” To hide the shame brought upon them by a government that believes they are above the law! Their motive is clear…Protect the Vermont Judicial System and corrupt politicians that went too far in their deceptions and corrupted their entire State Judicial System and state government! So much so that the Vermont State Supreme Court made a new law clarifying provocation to justify their decision! A provocation law that was never on the books in their entire history! A law that many criminals have since used in their defense!
THIS IS UNCONSCIONABLE! THE QUESTION IS WHY WOULD THEY DO THIS? WHO HAS THE POWER TO ACTUALLY MAKE THE SUPREME COURT DO THIS? I'LL LEAVE THAT QUESTION TO YOU...
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.
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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.
THIS STATEMENT IS BLATANTLY DECEIVING AND FALSE! IT SHOWS THE DIRECTION THAT THE SUPREME COURT IS HEADING! WHILE THERE WERE A LARGE NUMBER OF WITNESSES THE ONLY TESTIMONIES THAT WERE INCONSISTENT WERE OF THOSE THAT WERE INVOLVED: JERRY UCCI, TRISTAN BLANCHARD, COREY BOLASKI AND TIM ARBUCKLE. EACH OF THEM WERE IMPEACHED AT TRIAL AND ALL OF THEIR TESTIMONIES WERE PROVEN TO BE LIES! THIS IS A FACT AND ALL RECORDED IN THE TRIAL DOCUMENTS! YET THE COURT COMPLETELY DISREGARDED THIS! THEY CHOSE INSTEAD TO USE THE PERJURED AND FALSE TESTIMONIES OF THE MEN THAT HELPED TO MURDER VINNIE, ADMITTED DRUG DEALERS! FOR OBVIOUS REASONS!
ALL OF THE NON-BIASED WITNESSES TESTIMONIES WERE CONSISTENT WITH THE PHYSICAL EVIDENCE PRESENTED AT TRIAL! ALL OF THE TESTIMONIES OF THE POLICE AND STATE POLICE WERE CONSISTENT WITH THE EVIDENCE! THE SUPREME COURT CHOSE TO DISREGARD THEM ALL! THEY ARE LARGELY CALLING THEIR OWN POLICE AND STATE POLICE INVESTIGATORS LIARS! STATE MEDICAL EXAMINER BUNDOCK CLASSIFIED THIS AS MURDER! THEY CHOSE TO IGNORE HER!
THEY GO ON TO SAY THEY ARE SUMMARIZING THE FACTS! SUMMARIZING?? THIS IS A MURDER CASE! ONE OF THE MOST BRUTAL MURDERS OF VERMONT'S HISTORY AND THEY'RE SUMMARIZING!? YOU WILL SEE WHY!
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.
This is incorrect. They were neither acquaintances nor friends of Vinnie's girlfriend. They were acquaintances/friends of Kirby not Kulie. Vinnie was training Kirby at the gym. Trying to help her lose weight and give her some self esteem. Kirby asked Vinnie and Julie for a ride up to Blanchard's house. Kirby wanted to talk to Michelle, Blanchard's girlfriend, who was the instigator of this entire incident.
These encounters grew increasingly hostile, including an incident in which the victim took marijuana without paying for it...
This statement is a bold faced, outright lie! It was proven in court, and admitted to by Blanchard, that Vinnie did not steal any marijuana! This was admitted to by Tristan Blanchard at trial! He actually told 2 stories to everyone to get them to go after Vinnie. He first said that Vinnie stole marijuana, then he said that Vinnie stole money from him! He admitted in court, under oath, that he lied!
This was also verified by Jordan Ebelt, Kyle's girlfriend at the time and who was at Blanchard's house at the time Vinnie was there. At trial she testified that Vinnie did not steal anything and basically disputed all of Blanchard's testimony. This is all in the trial transcripts! Chief Justice Dooley is blatantly and purposely using false information and facts! This did not happen and he knows it! It's obvious what they are doing. They cannot use the truth! If they did they would have no conditions to overturn the appeal! The following is an excerpt from Blanchard's trial testimony admitting he lied...
TRIAL TESTIMONY OF TRISTAN BLANCHARD:
Q And what are the instances that precipitated a series
4 of events that leads to Mr. Tamburello being shot is your
5 alleging that Mr. Tamburello stole $40 from you, right?
6 A That changed.
7 Q Yeah. You changed the initial lie that you told,
8 correct?
9 A The story I've changed. Yeah.
10 Q Story. Well, you want to call it a story? Are you
11 more comfortable with a story?
12 A Well, when we --
13 Q Wait. Hang on a second. Are you more comfortable with
14 story than lie?
15 A Whatever you want to call it.
16 Q I want to call it a lie because that's what it was.
17 You okay with that?
18 A Yeah. If you want to call that that.
THE SUPREME COURT IS PURPOSELY USING FACTS THEY KNOW TO BE UNTRUE TO OVERTURN BOLASKI'S CONVICTION! THIS IS ABSOLUTELY UNCONSCIONABLE!
...and an incident in which the victim had a physical fight, hitting another person on the jaw and knocking him to the ground.
ANOTHER EXAMPLE OF THEM MASKING THE TRUTH! WHAT THEY ARE CONVENIENTLY LEAVING OUT IS THAT A MOB OF 15-20 PEOPLE CONVERGED ON JULIE'S HOUSE! THEY TRESPASSED ON THE PROPERTY AND REFUSED ALL REQUESTS BY THE OWNER OF THE PROPERTY, JULIE'S ELDERLY MOTHER, TO LEAVE THE PROPERTY. TRISTAN BLANCHARD, BY HS OWN ADMISSION WAS ARMED WITH A TIRE IRON!
JULIE'S MOTHER WAS ASSAULTED AND THE GIRLS WERE TERRORIZED! VINNIE STEPPED IN FRONT OF THE WOMEN TO PROTECT THEM. GIB BASTIAN, A HULKING 6' 300 POUND BRUTE OF A MAN, APPROACHED VINNIE MENACINGLY AND SPIT IN HIS FACE! VINNIE RETALIATED AND PUNCHED GIB, KNOCKING HIM OUT. PROTECTED HIMSELF AND THE 3 WOMEN THE GANG GIB WAS WITH WERE TERRORIZING. THIS IS SO OBVIOUS WHY THEY ARE "SUMMARIZING". THE TRUTH SHOWS VINNIE ACTED IN SELF DEFENSE. BUT THEY CAN'T SHOW THAT. IT WOULD RUIN THEIR APPEAL.
The latter occurred when a group of persons encountered the victim outside the house where the victim was living.
ENCOUNTERED? THIS COULDN'T BE FURTHER FROM THE TRUTH! THEY ARE COVERING UP THE TRUTH! THE TRUTH IS THEY PURSUED VINNIE AND THE GIRLS AND TRIED TO RUN THEM OFF THE ROAD WITH THEIR CAR! ON THE WAY BLANCHARD HAD CALLED A GANG OF HIS FRIENDS AND LIED TO THEM IN ORDER TO AMASS A MOB OF 15-20 PEOPLE WHICH INCLUDED GIB AND TRISTAN BLANCHARD, WHO ADMITTED HE HAD A TIRE IRON WHEN THEY WENT UP TO VINNIE! THEY CONVERGED ON JULIE'S MOTHER'S PROPERTY AS AN OUT OF CONTROL MOB! THEY TRESPASSED ON HER PROPERTY AND REFUSED TO LEAVE WHEN SHE TOLD THEM TO. THEY ASSAULTED JULIE'S MOTHER, JULIE AND KIRBY. VINNIE WAS ALL ALONE YET HE STOOD UP TO THEM, AGAINST A MOB BENT ON VIOLENCE, TO PROTECT 3 TERRIFIED WOMEN.
WHEN GIB, THE BIGGEST OF THE GROUP, APPROACHED HIM AND SPIT ON HIM VINNIE HIT HIM AND KNOCKED HIM OUT. THE MOB THEN SCATTERED. BLANCHARD, EMBARRASSED AND FURIOUS THAT VINNIE HAD STOOD UP TO THEM, CALLED KYLE BOLASKI TO HELP HIM EXACT REVENGE ON VINNIE!
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.
REMEMBER THIS STATEMENT BY DOOLEY AS THIS WILL BE IMPORTANT LATER ON!
¶ 4. Defendant and others arrived at the ball field at around 7 p.m. on August 17, 2008.
THIS IS ASTONISHING HOW THEY GLOSSED OVER THIS! BESIDES THE EVENTS AT THE BALL FIELD THE SERIES OF EVENTS LEADING UP TO THE BALLFIELD IS THE MOST IMPORTANT PART AS IT SHOWS HOW AND WHY VINNIE WENT TO THE BALLFIELD. WHAT DOOLEY FAILS TO MENTION IS THIS WASN’T JUST A CHANCE “ENCOUNTER.” THEY DIDN’T JUST ARRIVE AT THE BALLFIELD. THIS WAS A METHODICALLY PLANNED SCHEME TO LURE VINNIE TO THE BALLFIELD WHERE THEY WOULD EXACT THEIR REVENGE, ALL ORCHESTRATED BY TRISTAN BLANCHARD WHO TOLD BOLASKI AND EVERYONE THAT VINNIE HAD STOLEN MONEY FROM HIM.
JOHN LAVOIE METICULOUSLY SHOWED THEIR PLANS AND THEIR INTENT. THIS WHOLE SERIES LEADING UP TO THE BALL FIELD IS AN INTEGRAL PART OF THIS MURDER CASE. YET DOOLEY BY PASSED IT ENTIRELY!! BECAUSE THE FACTS SHOW THAT KYLE, TRISTAN, UCCI AND COREY DELIBERATLY SET VINNIE UP! EVIDENCE AT TRIAL SHOWS THAT THEY STALKED VINNIE, HUNTED HIM, ON THE DAY OF THE MURDER. THEY SEARCHED FOR HIM AND WHEN THEY COULD NOT FIND HIM THEY DECIDED TO BRING VINNIE TO THEM!
THE FOLLOWING ARE THE DOCUMENTED, UNDISPUTED FACTS LEADING UP TO THE BALLFIELD AND ALL IN TRIAL TRANSCRIPTS :
**SATURDAY 8/16/2008. AFTER THE ASSAULTS ON THE GIRLS AND VINNIE, BLANCHARD WAS INCENSED! VINNIE HAD STOOD UP TO THEIR ENTIRE GANG AND BACKED THEM DOWN! BLANCHARD WANTED REVENGE SO HE CALLED KYLE BOLASKI, WHO ACCORDING TO ROBERT
COREY BOLASKI STATEMENT:
112-25 Who's "those guys"?
113- 1 A. Jerry and Kyle and them. I don't know whether they
2 had word of this since night before, whether -- because I'm
3 pretty sure that they -- last night Tristan had called Kyle
4 and stuff and let him kind of know what was going on, when
5 everything went down, as I know there was other people that
6 were involved in this
BLANCHARD LIED TO THEM, TOLD THEM VINNIE HAD BROKEN INTO HIS HOUSE AND STOLE MONEY FROM HIM. THEY TALKED AND FORMULATED A PLAN. TELEPHONE RECORDS VERIFY THIS AS WELL AS TRIAL TESTIMONY.
**SUNDAY 8/17/2008. AT APPROX. 8AM BLANCHARD ADMITTEDLY MADE FIVE CALLS TO KIRBY'S PHONE THINKING IT WAS VINNIE'S PHONE. SHE DIDN'T ANSWER BECAUSE SHE DIDN'T RECOGNIZE THE NUMBER. KYLE, COREY, UCCI AND BLANCHARD MEET UP AND, AS JOHN LAVOIE STATES, STARTED THEIR "HUNT" FOR VINNIE. GIB WAS ENLISTED TO
7 Q. Does the guy with the ax at any point see
8 this other guy pull the rifle out? I'm just wondering
9 at what point when they kind of switch roles and go to
10 the guy with the gun chasing the guy with the ax.
11 A. I don't think he saw him pull it out. I
12 think he saw it when the guy come running back around
13 because his truck was parked like this, mine was like
14 this. He jumped in the passenger, grabbed the --
15 grabbed this while the other guy was chase -- while the
16 ax guy was chasing some other people there, and when I
17 say other people, I think it was that other guy that
18 grabbed the other gun. He was running around there too.
19 The guy that owned the gray truck grabbed
20 the gun out of the passenger's side and ran around the
21 front of his truck, so now this guy could see him, and
22 that's when he pulled the gun up and aimed right at him.
23 Q. What did the guy with the ax do when he --
24 A. He was trying to scamper away, I think.
25 Q. He was still trying to get out of the way
1 when the guy was pointing the gun at him?
2 A. Yep.
3 Q. So he saw the guy point the gun at --
4 A. He saw the gun come up like that and then --
5 yeah, I believe he was trying to go between my truck and
6 his truck, trying to get around the corner.
7 Q. Okay.
8 A. And what had happened is when he went in
9 the -- he was in the center of the two trucks after the
10 first shot and was trying to scamper there. This guy
11 still had this side covered. The other guy had another
12 gun coming around the other side of my truck --
TRISTAN BLANCHARD: Here Blanchard admits calling Vinnie persistently early in the morning of the murder. Showing they had a plan of intent from the very beginning! This was the first attempt of provocation. Yet the Supreme Court has completely left these facts out, once again ignoring the truth!
222:16 Q. Did you have contact with Vinny Sunday?
17 A. ... I tried
18 calling his phone. He hung up. I tried calling again,
19 he hung up. Four times. I called one more time, he hung
20 up.
BLANCHARD CALLED VINNIE 5 TIMES! THIS WAS FROM A MAN THAT WAS SUPPOSED TO BE SO TERRIFIED OF VINNIE HE "WAS SHAKING AND CRYING!" YET HERE HE WAS CALLING VINNIE, STALKING HIM!
JULIE STATEMENT: (SPEAKING ABOUT THE SUNDAY OF THE MURDER)
. And then
14 today Kirby got a phone call from her ex-boyfriend that said,
15 I’d really like to patch things up. You know he really
16 doesn’t seem like that bad of a kid and I’m sorry I was such
17 a jerk. Meet me in Chester at the softball field. I don’t
18 know the exact name of this field but -- so, I said that I
19 would and on our way we were going to grab stuff from her
20 house and then go home.
19:2 A. So, day two, that would be today. (8-17-08) We had a good
3 day, everything was going fine. Kirby kept getting a bunch
4 of restricted phone calls, someone blocking their number.
5 And they were just playing music, being rude to them -- being
6 rude to her and I just said, just ignore them. Well, finally
7 she answered -- this was at my house, this was about 6:00 --
8 5:30 ish, 6 -- and said, they want to -- they want to mend
9 ways, Tristan, Gib, everybody wants to mend ways with you,
10 Vinnie. And Vinnie said, well I don’t believe that. And she
11 goes, no, I -- I think that he wants me back, I think that,
12 you know, we’re going to have relationship again.
COREY BOLASKI:
40:11 Q. You believe Jerry tells Vinnie to show up at the
12 ball field?
13 A. Right. And --
14 Q. And Jerry has a --
15 A. In, like, X amount of minutes, 20 minutes, you
16 better be at the ball field. But this kid hangs up or
17 whatever. So Jerry calls Tim Arbuckle, Tim Arbuckle, and
18 says who is playing at the softball game? And Tim is the
19 one that tells us to come down there or whatever, I think,
20 or tells -- you know what I mean? He says, you know, come
21 down here and I'll (inaudible). Like I said, he's a tough
22 guy
THEY SCOURED THE TOWN LOOKING FOR VINNIE EVEN GOING TO VINNIE'S HOUSE WITHOUT SUCCESS. WHILE THEY WERE ALL IN KYLE'S TRUCK UCCI CALLED KIRBY SEVERAL TIMES UNTIL HE FINALLY GOT VINNIE ON THE PHONE. VINNIE REFUSED TO MEET WITH THEM AND HUNG UP ON UCCI SEVERAL TIMES.
UCCI CALLED TIMOTHY ARBUCKLE, THE TOWN TOUGH GUY, WHO WAS AT A SOFTBALL GAME. UCCI LIED TO ARBUCKLE AND TOLD HIM VINNIE WAS LOOKING FOR HIM AND WANTED TO FIGHT HIM. THEY OFFERED ARBUCKLE $100.00 TO HELP FIGHT VINNIE. ARBUCKLE TOLD UCCI TO GET VINNIE DOWN TO THE FIELD. UCCI DID EVERYTHING HE COULD TO GET VINNIE TO GO TO THE FIELD CALLING HIM A WIMP, A COWARD, A PUSSY UNTIL VINNIE FINALLY AGREED TO MEET THEM AT THE FIELD. GIB BASTIAN, JORDAN EBELT AND MICHELLE LACHAPELLE WERE ALSO CALLED TO MEET WITH THEM AT THE FIELD.
ON THEIR WAY TO THE FIELD TO MEET VINNIE THEY MADE A STOP AT KYLE AND COREY'S HOUSE AND PICKED UP 2 RIFLES! THEIR INTENT AT THIS POINT WAS OBVIOUS! THEY THEN DROVE TO THE FIELD.
MICHELLE LACHAPELLE
LINE 11-JC: LET'S BE REAL CLEAR WHAT EVERYBODY HAD IN THEIR MINDS, OKAY.
LINE 12-ML: THAT'S WHAT I HAD IN MY MIND.
LINE 13-JC: THEY'RE, THEY'RE GOING TO KICK VINNIE'S ASS BECAUSE HE'S A PROBLEM CHILD.
LINE 14-ML: YEAH, THAT'S WHAT I TOOK IT AS.
PAGE 28
LINE 9/10-JC: OKAY, SO LET'S CLARIFY THIS; YOU KNEW THEY WERE GETTING ENOUGH PEOPLE TOGETHER SO THEY COULD, THEY COULD BEAT VINNIE BECAUSE VINNIE IS A BIG GUY.
LINE 11-ML: WELL, WHEN TRISTAN SAID THEY WERE GOING TO MEET MORE PEOPLE THEN YEAH.
THESE SERIES OF EVENTS SHOW THAT KYLE, COREY, TRISTAN AND JERRY UCCI HAD A DEFINITIVE PLAN TO GET VINNIE! THEIR MOTIVE...REVENGE! THIS IS WHAT JUSTICE DOOLEY CONVENIENTLY LEFT OUT! IT'S UNCONSCIONABLE THAT THE SUPREME COURT WOULD DELIBERATELY HIDE THIS!
Soon after defendant’s truck arrived, the victim arrived with his girlfriend and her friend. ONCE AGAIN THEY GLOSSED OVER A VERY IMPORTANT PART, THEY NEGLECTED TO MENTION THAT KYLE AND JERRY UCCI WENT OVER TO SPEAK WITH TIM ARBUCKLE WHO THEY ENLISTED TO HELP BEAT VINNIE! ALSO TESTIMONY SHOWED THE ONLY REASON THEY WERE THERE WAS TO EAT VINNIE OR WORSE
RICHARD HOWARD STATEMENT:
20 Q. Okay. So the guy comes in looking for Tim
21 Arbuckle because he's going to help Tim in whatever
22 fight Tim's about to get into?
23 A. Well, he wanted Tim to help him.
24 Q. Oh, okay.
25 A. This -- this kid that came in in the -- in
1 the truck wanted Tim -- said he'd pay him 100 bucks to
2 help him fight.
12 and then Tim said hey, this guy wants to pay me 100
13 bucks to help him get into a fight
10 Q. Anything else you can think of that we
11 should know about?
12 A. Other than the fact that, you know, it's --
13 these people had nothing to do with the softball.
14 Nothing at all. Other than the fact I think he was
15 want -- he knew -- I -- I took it as he knew Timmy.
16 Q. Yep.
17 A. Because he was trying to get Tim's help to
18 help him. Other than that, I never heard of them, never
19 seen them, never -- I've never seen them at ball games.
20 It's not like they hung out --
21 Q. So they weren't there watching the game or
22 anything like that?
23 A. Nope.
24 Q. They'd come in looking for Tim. That's the
25 only reason they were there.
1 A. They come in looking for Tim. Yep.
COREY BOLASKI STATEMENT:
108-6 Kyle was over there with
7 Jerry, and they were the two instigators with this other
8 kid, Tim, or whoever the hell this kid was who's on the
9 softball team, I don't know, he was in a cut-off.
COREY, KYLE'S OWN BROTHER, WAS TESTIFYING THAT KYLE AND ARBUCKLE WERE THE INSTIGATORS, NOT VINNIE!
The group, including defendant, started approaching the victim’s car, engaging in shouting with the victim.
ENGAGING IN SHOUTING? THEY WERE THREATENING THEM. TELLING VINNIE THEY WERE GOING TO "KICK HIS ASS!" YELLING AT KIRBY AND JULIE TELLING THEM THEY WERE GOING TO BEAT THEM! TESTIMONY SHOWS THEY WERE THERE TO FIGHT! THE SUPREME COURT IS DELIBERATELY HIDING THIS TO GIVE BOLASKI A NEW TRIAL! THEIR CONDUCT IS ABSOLUTELY DISGRACEFUL!
JULIE KRONBERG
5: 5 So I pull around here and I had parked my car
6 facing the opposite direction so my back was facing
7 everything and all the girls -- there were girls there, I
8 don’t know their names, I don’t know Chester girls. They
9 were yelling at Kirby to get out of the car. They wanted to
10 kick her ass. So I told Kirby to stay in the car and they
JULIE KRONBERG
27:17 Q. Okay. And then what happened?
18 A. These girls started screaming, get out of the car
19 you pussies, we want to kick your ass. And I’m like I can’t
20 deal with this, I can’t deal with this. Vinnie goes, hang on
21 a second, I want you to stay in the car, lock the doors.
22 Kirby starts crying, I can’t believe they want to kill me,
23 they -- she tells me that they call her and threaten her all
24 the time.
11 said I was a pussy and I needed to get out too.
TRISTAN BLANCHARD
23 And from what I know, Jerry had called Tim
24 as protection basically or to help the situation to try
25 and calm this kid down or whatever they were going to
24
1 do, so I don't understand why Tim was saying what's this
2 kid's problem with me because really from what I know,
3 Vince didn't really have a problem with Tim, but Tim
4 weren't having it. He said -- he said you bring that
5 fucking Taser down here right now, I'll put that Taser
6 up your fucking ass, big boy, get down here.
TIM ARBUCKLE
19 Q. Okay... There's four
20 guys in the truck, Kyle, Jerry, two other guys you don't
21 know?
22 A. Yeah.
23 Q. Okay.
24 A. They get out. They're -- they're all ramped
25 up and ready to fight, and I went up to the truck and I
1 see two weapons in the front seat,
RICHARD HOWARD: (SPEAKING ABOUT KYLE AND UCCI APPROACHING ARUBCKLE AT THE FIELD)
20 Q. Okay. So the guy comes in looking for Tim
21 Arbuckle because he's going to help Tim in whatever
22 fight Tim's about to get into?
23 A. Well, he wanted Tim to help him.
24 Q. Oh, okay.
25 A. This -- this kid that came in in the -- in
4/ 1 the truck wanted Tim -- said he'd pay him 100 bucks to
2 help him fight.
12 and then Tim said hey, this guy wants to pay me 100
13 bucks to help him get into a fight
The result of the above testimony lies on Page 108—Line 16 of Steve Howard’s GJ Testimony, where he says he witnesses the driver of the silver truck approach Tim Arbuckle and hand him $100 dollars to give Vinnie a beating. This is why no one wants to claim who was driving that truck.
16 Q. Then the silver pickup truck comes in, it parks
17 next to your pickup truck?
18 A. Right.
19 Q. Someone gets out of pickup truck?
20 A. Yep.
21 Q. Does that someone go up to Tim?
22 A. Heads right towards Tim.
23 Q. Anybody with him?
24 A. There was, there was, I don't know how many, but
25 somebody did get out of passenger side, so, yes, there
0109
01 was somebody with him.
02 Q. Okay. So that's the driver goes up to Tim?
03 A. Yes.
04 Q. And are you able to hear the conversation back and
05 forth between the driver and Tim?
06 A. No, other than the fact that when Tim was bragging
07 about the hundred bucks, we just put two and two
08 together, that this was the guy, because when he pulled
09 in, I didn't even know who this guy was, he got out, and
10 he said, Tim, I'll give you the hundred bucks if you help
11 me beat up this guy. He headed toward him, so we kind of
12 focused what's going on here now.
13 Q. So you kind of see the transaction being closed?
14 A. Right.
15 Q. So you saw that happen. And then is that when the
16 other car pulls up?
17 A. Yep.
NICHOLAS BATCHELDER
09 A. They were talking with Tim, and that's, they were
10 talking to Tim about a fight, then twenty minutes later
11 is when everything happened.
12 Q. How do you know they were talking about a fight?
13 A. Because I overheard it.
14 Q. What was being said?
15 A. There was going to be a fight.
They were unarmed. NO WHERE IN ANY TESTIMONY DOES IT SAY THEY WERE UNARMED. NOT ONLY THAT BUT HOW COULD VINNIE AND THE GIRLS KNOW THAT THIS MOB WAS UNARMED ESPECIALLY SINCE THEY WERE ARMED THE NIGHT BEFORE! ONE OTHER VERY IMPORTANT ASPECT... THERE WERE 8-10 PEOPLE IN THAT MOB! THAT HAVE FEET AND FISTS, VERY CLEAR WEAPONS, AGAINST VINNIE AND 2 TERRIFIED GIRLS! THAT MOB WAS THE WEAPON!
-------------------------------------------------------------------------
RICHARD HOWARD
23 Q. How many people were in that initial group
24 that went up to this guy with the ax about?
25 A. I want to say roughly probably eight to ten
1 people were headed up that way.
--------------------------------------------------------------------------------
The victim exited his vehicle holding a taser[1] and sparking it. THIS STATEMENT WAS PROVEN FALSE! SEVERAL WITNESSES INCLUDING JERRY UCCI STATED THAT IT WAS JULIE WHO HELD THE TASER OUT THE WINDOW AND SPARKED IT, NOT VINNIE!
JERRY UCCI:
23 They pull up, start yelling something out
24 the window. Vinny gets out. Julie's waving the Taser
25 out the window. A whole group of guys goes up to
1 confront Vinny
KIRBY DONAHUE
158:10 Q. Okay. At some point did someone flash the Tazer
11 A. Julie did.
12 Q. Julie did, okay.
JORDAN EBELT
179:20 A. Walking up because they were hollering at us. And
21 Julie had the stun gun or Tazer out the window saying
22 come and get it, and she was zapping it.
The group continued to approach. THIS SPEAKS VOLUMES ABOUT THEIR INTENT! AFTER SEEING THE TASER THEY STILL CONTINUED TO ADVANCE, UNFAZED BY IT, UNAFRAID, INTENT ON GETTING AT VINNIE AND THE GIRLS! 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.
UNKNOWN REASONS!? THIS MOB OF 8-10 MENACING PEOPLE WERE ADVANCING ON VINNIE AND THE GIRLS THREATENING THEM. TELLING THEM THEY WERE GOING TO BEAT THEM! THEY ATTACKED THEM AND ASSAULTED AN ELDERLY LADY THE NIGHT BEFORE! VINNIE DIDN'T JUST CHASE KYLE, HE CHASED THEM ALL AWAY FROM THE 2 GIRLS TO PROTECT THEM. AS TIM ARBUCKLE STATES..."THEY WERE RAMPED UP AND READY TO FIGHT!" THE SUPREME COURT IS INSISTENT ON TWISTING THE TRUTH!
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. VINNIE WAS NOT HIT “ONCE IN THE LEG!” THAT FIRST SHOT TORE THROUGH BOTH LEGS TAKING OUT LARGE AMOUNTS OF THE LEGS. WHAT THEY ALSO FAIL TO MENTION IS THAT WHEN BOLASKI GOT THE RIFLE OUT OF THE TRUCK HE WENT AROUND TO VINNIE AND STATED “IS THIS WHAT YOU WANT? YOU WANT SOME OF THIS?” JUST BEFORE HE SHOT VINNIE. Some witnesses testified that the victim kept approaching defendant with the splitting maul after the first shot, whereas others testified that the victim retreated. THOSE “SOME WITNESSES” WERE UCCI AND COREY. EVERY OTHER NON BIAS WITNESS SAID VINNIE WAS RETREATING. DR. BUNDOCK, THE STATES MEDICAL EXAMINER STATED THAT WITH THE WOUNDS THAT WERE INFLICTED BY THAT FIRST SHOT, INTO BOTH LEGS, MADE IT IMPOSSIBLE FOR VINNIE TO CONTINUE TO GO AFTER BOLASKI. NOT TO MENTION THAT WITH BOTH LEGS BLOWN APART BOLASKI COULD HAVE EASILY OUTRUN VINNIE, IF AS HE SAID, VINNIE ADVANCED ON HIM. 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. IT’S ABSOLUTELY STUNNING THAT THEY MENTION THIS ONE WITNESS WHICH CONTRADICTED HIMSELF AT TRIAL YET THEY MAKE NO MENTION OF EVERY OTHER WITNESS THAT STATED VINNIE WAS RETREATING AND BEING PURSUED BY BOLASKI!
RICHARD HOWARD
24 Q. And he pulls out a rifle?
25 A. Rifle.
1 Q. Any idea what kind of rifle? Was it wooden
2 stock, synthetic?
3 A. Wooden stock, yep.
4 Q. What's he proceed to do?
5 A. He runs around the front of his truck
6 towards the guy. He's -- he's now chasing the guy with
7 the ax.
8 Q. Is he saying anything?
9 A. Yeah, like you want some of this or to that
10 nature. Is this what you're looking for, is this what
11 you want or something like that.
12 Q. Something to that effect?
13 A. Yep.
14 Q. This what you want, this what you're looking
15 for?
16 A. Yep. You want some of this I guess is what
17 it -- I guess.
18 Q. Okay. So now the driver of the truck now
19 has a -- the rifle and is chasing the guy with the ax
20 around the front of the truck?
21 A. Right.
22 Q. Okay. Then what happens?
23 A. They run towards the back of the truck.
24 Q. Both of them do?
25 A. Well, the -- the guy with the ax is already
1 back there. The guy that come around with the gun come
2 around to about the side of his truck and was aiming
3 it -- aiming towards that guy.
4 Q. Okay.
5 A. He shoots and -- and I see the guy flinch
6 and it -- it hit him in the leg.
7 Q. So then the -- the guy with the rifle
8 shoots?
9 A. Yep.
10 Q. And he hits the guy with the ax in the leg?
11 A. Yep. And he -- he didn't go down. Or if
12 he -- he did, he might have stumbled a little bit.
13 Q. Okay.
14 A. He did flinch. But he was then -- the guy
15 with the ax was then trying to, seems like, get away
16 from them.
17 Q. Yep.
18 A. No.
19 Q. What was he doing that you say he was trying
20 to get away?
21 A. He was trying to get away from the guy who
22 shot at him, was trying to like hide between the two
23 vehicles, which one of them was my vehicle.
24 Q. Okay. And you say "the guys."
25 A. Yep. There was another guy, and I think he
1 came from the car that parked by the snack shop. He
2 had -- he had a gun. There was two guns involved.
3 Q. Any idea where that guy got a gun from?
4 A. I didn't see where that came from.
5 Q. So the guy with the ax is trying to get away
6 from the guy with the gun?
7 A. Yep.
8 Q. So then a second male that may have come out
9 of the vehicle by the snack shop?
10 A. Right, either there or maybe he was in the
11 truck as well when they first came down, but somebody --
12 another guy, that I didn't know who, had a gun as well.
24 A. Now, I think the two guys with the rifle
25 were trying to surround him somehow, and the guy with
1 the ax runs back behind my truck.
2 Q. Okay. Yep.
3 A. The guy who originally shot shot again. I
4 never saw him -- it hit the guy. I never saw the guy.
5 He was behind my truck.
23 Q. What did the guy with the ax do when he --
24 A. He was trying to scamper away, I think.
25 Q. He was still trying to get out of the way
1 when the guy was pointing the gun at him?
2 A. Yep.
3 Q. So he saw the guy point the gun at --
4 A. He saw the gun come up like that and then --
5 yeah, I believe he was trying to go between my truck and
6 his truck, trying to get around the corner.
7 Q. Okay.
8 A. And what had happened is when he went in
9 the -- he was in the center of the two trucks after the
10 first shot and was trying to scamper there. This guy
11 still had this side covered. The other guy had another
12 gun coming around the other side of my truck --
13 Q. Yeah.
14 A. -- so then this guy with the ax ran out
15 behind the vehicles, and that's when the second shot
16 fired, and that's when I didn't -- I didn't see him go
17 down, I didn't see it hit.
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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.
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RICHARD HOWARD
9 A. So at this particular time, we didn't know
10 what to do. All's we knew was this was not the place
11 for us to be, so I'm thinking of how I can get to my
12 truck and get out of there. When he shot the second
13 time, he ran up to that guy and he took the butt of the
14 barrel --
15 Q. Yep.
16 A. -- of the gun --
17 Q. Yep.
18 A. -- or the -- the stock and was -- I'm
19 assuming. I never saw it, but he was making the
20 striking like he was beating him with it. And that's
21 when I jumped in my truck and left.
22 Q. Did you see him hit the guy at all with it?
23 A. No. There was just enough of an angle where
24 he must have been -- he had to have been on my -- I want
25 to say my right rear back side because the way the angle
1 was, I could see almost in between the two trucks and I
2 could not see the guy, so he was behind my truck just
3 enough that I did not see him.
4 Q. But you see this motion of the rifle coming
5 up in the air butt down?
6 A. Absolutely. Yep. And the guy was yelling
7 all kinds of stuff, and I don't know exactly what, to
8 the effect of, you know, the same type of deal -- I
9 don't know. I don't even want to speculate. I just --
10 I just know he was --
11 Q. So he was just -- he was yelling something?
12 A. Absolutely. He was yelling a bunch of stuff
13 while he was hammering I'm assuming the guy.
14 Q. Hang on a second. Let me pause this tape
15 for one second here. If I can figure out how to pause
16 it. Guess it's not going to let me pause it. I'm right
17 in the middle of something. Okay. If I don't answer
18 that, they're going to call 5,000 more times still. So
19 he's yelling something but, you know, does he seem
20 irate, does he see --
21 A. Absolutely. Yep. Excited. Excitable,
22 irated (sic), you know, just -- almost like he snapped.
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¶ 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. THIS IS ABSOLUTELY ASTOUNDING THAT THEY CONTINUALLY REFRAIN FROM SAYING THAT VINNIE WAS SHOT IN THE BACK! THEY MAKE SURE THEY MENTION THE ONE SHOT FROM THE FRONT BUT JUST WILL NOT SAY VINNIE WAS SHOT IN THE BACK!
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.” ONCE AGAIN THEY ARE BEING VERY DECEPTIVE AND UNTRUTHFUL! WHAT THEY HAVE FAILED TO MENTION IS THAT THE SHOT THEY ARE TALKING ABOUT IS THE FIRST SHOT THAT SHOWS VINNIE WAS FACING BOLASKI WHICH WAS NEVER IN DISPUTE AND HE NEVER SAID, NOR COULD HE ASCERTAIN THAT VINNIE WAS APPROACHING BOLASKI. WHAT THEY ALSO FAILED TO MENTION IS THAT THEIR EXPERT'S TESTIMONY ACTUALLY HELPED PROVE THAT VINNIE COULD NOT HAVE TURNED FAST ENOUGH TO BE SHOT IN THE BACK! HE ALSO STATED THAT IN HIS EXPERT OPINION IF SOMEONE BRINGS A GUN TO AN ALTERCATION THEIR INTENT IS TO USE IT!
THE SHOT IN THE BACK HAPPENED AFTER BOLASKI PURSUED VINNIE AROUND THE TRUCK AND AS VINNIE WAS APPROX. 30’-40’ AWAY FROM HIM. IT WAS NOT A SPLIT SECOND DECISION!
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. THEY TWIST THE WORDS OF THIS SENTENCE TO MAKE IT SEEM AS THOUGH THS WAS THE EXPERT WITNESS MENTIONED IN THE PREVIOUS PARAGRAPH! IT WASN'T! THE MEDICAL EXAMINER IS THE STATE'S WITNESS! DR. BUNDOCK, ON THE DEATH CERTIFICATE STATES THAT DEATH WAS BY HOMICIDE!
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. WHAT THEY ARE NOT MENTIONING IS THAT THE MEDICAL EXAMINER TESTIFIED THAT BESIDES THE THC AND CANNABINOIDS, WHICH ARE IN MARIJUANA, ALL OF THE OTHER DRUGS WERE PRESCRIBED TO VINNIE AND NONE OF THEM WERE OVER THE PRESCRIBED LIMIT! SHE ALSO TESTIFIED THAT THE DOSAGES WOULD NOT HAVE AFFECTED VINNIE'S BEHAVIOR!
THEY COULD NOT SAY THIS AS THEY WOULD HAVE NO EVIDENCE TO ALLOW AN APPEAL BASED ON NOT ALLOWING THE MEDICAL RECORDS. THIS IS WHY JUDGE ZIMMERMAN DID NOT ALLOW THEM. BECAUSE, NO MATTER WHAT, THE DRUGS VINNIE WAS DIAGNOSED WITH DID NOT CAUSE BOLASKI TO PURSUE VINNIE AND SHOOT VINNIE IN THE BACK AS HE WAS RUNNING AWAY AND THEN MERCILESSLY BEAT VINNIE AS HE LAY DYING!
¶ 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 THIS WAS BECAUSE THE DRUGS DID NOT CAUSE BOLASKI TO SHOOT VINNIE IN THE BACK! 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.” IT WAS OBVIOUS THE STATE DID THAT AS THE JURY CONVICTED IN 3 HOURS! THE COURT IS BYPASSING THE EVIDENCE TO MAKE THE POINT THEY WANT TO BRING OUT! 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.
THEY USE THE STATE V YOH CASE BUT THERE ARE NO SIMILARITIES TO THESE CASES! YOH STRANGLED HIS WIFE IN A FIT OF PASSION. THE DEFENSE TRIED TO USE THE TACTIC THAT THE JURY INSTRUCTED ON THE INVOLUNTARY MANLSAUGHTER CHARGES BUT THE SUPREME COURT SHOT IT DOWN...
TEXT FROM YOH...
YOH ¶ 9. In his direct appeal, appellant asserts that the district court erred by: (1) failing to suppress his confession; (2) admitting evidence of his prior bad acts; and (3) refusing to instruct the jury on the lesser-included offense of voluntary manslaughter.1 We reject these claims of error and affirm appellant's conviction. - See more at: http://caselaw.findlaw.com/vt-supreme-court/1344939.html#sthash.GGeoZKgG.dpuf
It is important to emphasize that this conclusion is possible only with the benefit of hindsight. In determining how many lesser-included offenses to charge, a trial court cannot foresee whether a jury will convict the defendant of the greatest offense charged, making it less important to instruct the jury on an additional lesser-included offense. Thus, regardless of the likely effectiveness of the defendant's strategy, the court must always grant a defendant's request for a lesser-included offense that is supported by the evidence. The court's error was serious, and it could have resulted in a reversal under slightly different circumstances, but here, it was harmless beyond a reasonable doubt. We therefore affirm appellant's conviction of first-degree murder. - See more at: http://caselaw.findlaw.com/vt-supreme-court/1344939.html#sthash.GGeoZKgG.dpuf
THE SUPREME COURT'S BIAS AGAINST VINNIE CONTINUES:
¶ 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.
NO INDICATION?? A GANG OF 15-20 PEOPLE THE PREVIOUS NIGHT, WHICH HAD WEAPONS, HAD TRESPASSED ILLEGALLY AND ASSAULTED THEM, INCLUDING AN ELDERLY LADY! THIS SAME GROUP COMPRISED OF SOME OF THE PEOPLE THAT WERE NOW CONVERGING ON VINNIE AND THE 2 GIRLS ONCE AGAIN! THEY WERE TELLING VINNIE THEY WERE GOING TO "KICK HIS ASS!" THEY WERE TELLING HIM THEY WERE GOING TO BEAT THEM! YET NO WITNESS TESTIMONY STATED THAT VINNIE MADE ANY THREATS TO THEM! WHAT MORE INDICATION DO YOU NEED? THEY WERE SAYING THEY WERE GOING TO BEAT THE GIRLS!! NO PROVOCATION? THIS IS A BLATANT DISREGARD FOR THE TRUTH AND MANIPULATION OF THE FACTS!
None of the group seemed to have weapons at the time,
NONE OF THE GROUP SEEMED TO HAVE WEAPONS?? A MOB OF 8-10 THREATENING PEOPLE WERE ADVANCING YELLING THREATS. THEY HAD HANDS AND FEET WHICH ARE CONSIDERED DEADLY WEAPONS ON A MOB! PLUS BY UCCI’S OWN STATEMENT HE HAD A BOTTLE WITH HIM THAT HE THREW AT VINNIE! THIS IS UNCONSCIONABLE HOW THEY ARE TWISTING THE FACTS TO FAVOR BOLASKI!
and the victim had at least two weapons.
THIS STATEMENT IS A LIE. VINNIE HAD A RAKE AND A MAUL WHICH HE USED FOR WORK IN THE CAR. THE DEFENDANTS DIDN’T KNOW THESE WERE IN THE CAR! VINNIE ONLY BROUGHT OUT THE MAUL WHEN THE MOB GOT WITHIN 20 FEET OF THEM. ALL WITNESS ACCOUNTS STATE THIS! THAT VINNIE DID NOT BRING OUT THE MAUL UNTIL THE MOB ADVANCED WITHIN 20’! JULIE HAD THE TASER, WHICH IS NOT EFFECTIVE UNLESS YOU TOUCH THE PERSON WITH IT. THIS APPARENTLY HAD NO EFFECT ON BOLASKI AND HIS MOB AS THEY CONTINUED TO ADVANCE MENACINGLY IN SPITE OF SEEING THE TASER!
Rather than acting defensively with those weapons, he acted offensively with the splitting maul in pursuing defendant.
WHAT WOULD THE COURT CONSIDER DEFENSIVELY? WAITING FOR THEM TO START BEATING VINNIE AND THE GIRLS!? WAITING UNTIL THE GIRLS WERE BEING BEATEN AND ASSAULTED, AS WHAT HAPPENED THE NIGHT BEFORE? THAT STATEMENT IS BASELESS AND WITHOUT MERIT AND ONLY ATTEMPT TO CREATE A FALSE PICTURE OF THE ACTUAL EVENTS. THEY ARE PAINTING A PICTURE THAT BOLASKI AND HIS MOB WERE JUST INNOCENTLY WALKING BY WHEN VINNIE PULLED OUT THE MAUL AND CHASED THEM FOR NO REASON! THEY WERE APPROACHING VINNIE AND THE GIRLS THREATENING THEM!! THEY WERE IN FEAR OF THEIR LIVES!! VINNIE ACTED COMPLETELY DEFENSIVELY AND APPROPRIATELY AS HE CHASED THE MOB AWAY FROM THE GIRLS! ANYONE WOULD HAVE DONE THE SAME!
¶ 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.”
THIS STATEMENT BY FAR IS THE MOST BLATENT LIE THAT THE SUPREME COURT IS USING TO HELP BOLASKI. THIS WAS PROVEN IN COURT THAT THIS INCIDENT NEVER HAPPENED! IT WAS A TOTAL FALSEHOOD! I AM TOTALLY SHOCKED THAT THEY THINK THAT THEY CAN GET AWAY WITH THIS BLATANT DISREGARD FOR THE TRUTH! THE WITNESSES THEY ARE REFERRING TO ARE KYLE BOLASKI AND JERRY UCCI WHOSE TESTIMONIES WERE IMPEACHED AT TRIAL! THE SUPREME COURT IS DELIBERATELY USING PERJURED TESTIMONY IN ORDER TO FREE BOLASKI!
THE FIRST STATEMENT FROM COREY BOLASKI SPECIFICALLY STATES THAT KYLE GOT IN THE DRIVER'S SIDE THEN VINNIE STARTED HITTING THE TRUCK. HE NEVER MENTIONS ANYTHING ABOUT KYLE FALLING DOWN OR VINNIE ALMOST HITTING HIM:
109:19 Q. So you unlocked the door with the --
20 A. With the padlock.
21 Q. -- key fob thing or whatever the hell they call
22 that?
23 A. Yeah.
24 Q. Kyle gets in, Vinnie swings
113:24 Q. So Kyle gets into the driver's seat. Vinnie is
25 hitting that door?
26 A. Yup.
STEVEN PIPPIN, WHOSE STATEMENTS WERE CONSISTENT THROUGHOUT HIS FIRST STATEMENTS, THE GRAND JURY AND TRIAL, TESTIFIED THAT KYLE BOLASKI JUMPED IN THE DRIVER'S SIDE OF THE TRUCK AND COREY ALSO GOT IN THE TRUCK. KYLE GOT OUT OF THE PASSENGER'S SIDE WITH THE RIFLE.
19 Q. The shooter jumps in the truck?
20 A. Correct. The driver's side like he was
21 trying to get away, and his partner got in the
22 passenger's side.
23 Q. So they both got in the truck?
24 A. Yeah.
25 Q. So the shooter gets in the driver's side?
1 A. Correct.
2 Q. Okay. So this guy -- these two guys are now
3 in the pickup truck. The guy with the ax is now on the
4 outside on the driver's side?
5 A. Correct.
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.
THESE ARE FALSE STATEMENTS! THIS DID NOT HAPPEN. ACCORDING TO SEVERAL WTNESSES AND COREY’S OWN STATEMENTS AND TESTIMONY, AS KYLE WAS CHASING VINNIE AROUND THE VEHICLES AFTER THE FIRST SHOT, COREY WENT TO THE TRUCK, GOT THE RIFLE OUT OF THE BACK AND AS VINNIE WAS RUNNING AWAY HE SHOT AT HIM. ACCORDING TO COREY’S OWN STATEMENTS HE DID NOT EVEN KNOW IF VINNIE HAD SEEN HIM OR NOT!
COREY BOLASKI'S FIRST STATEMENT:
124:19 Q. Well, let me ask you this again. Did he see you
20 with a gun?
21 A. I don't know. Yeah, I think so. Maybe. Yes. I
22 don't know. I have no idea.
23 Q. Okay.
24 A. I don't know what he saw. How would I tell you what
25 he saw?
126:2 A. So that's why -- and then I just ran as fast as I
3 could, back as fast as I could, turned around and shot into
4 the ground and then left, and then I was right back here,
5 and then I was right there at that truck by the time I had
6 shot. So then I was right there. And then my brother came
7 around. And then I put the gun down
128:18 I told you, he was far enough where I'm talking 20, 30 yards
19 where I felt comfortable enough to shoot.
STEVEN PIPPIN TESTIFIED VINNIE NEVER MADE A MOVE TOWARD KYLE BUT KYLE SHOT HIM ANYWAY AND THEN CHASED VINNIE AND SHOT HIM AGAIN.
19 Q. Okay. Then where do these guys go in the
20 truck? You said they --
21 A. They scampered out the passenger's side.
22 And the driver/shooter came out with the rifle when he
23 got out. He brought it out with him.
24 Q. Okay. So the other guy that gets out, he
25 doesn't have a rifle at this point?
1 A. Not at this point, no.
2 Q. So the driver/shooter guy gets out with the
3 rifle?
4 A. Comes around the front of his truck to
5 confront this guy. The ax man is just standing there
6 with both hands on the ax not saying a word. They're
7 look --
8 Q. Where is he standing?
9 A. Right next to the pass -- the driver door.
10 Q. The driver's door?
11 A. Yep.
12 Q. Okay.
13 A. And they were saying words that -- the
14 shooter was saying words that I could not hear, and he
15 had the rifle up aimed, and I did not see the ax man
16 make a move, but the -- the kid shot him through the
17 leg, and the ax man -- I don't know if he backed up to
18 go around the back of the truck or turned and went
19 around the back of the truck. He -- he wasn't running.
20 He was trying to get away it looked like.
21 The shooter followed him slowly around the
22 truck, and from my vantage point with the -- the bed of
23 the truck, I could see that, you know, he had the rifle
24 up and aimed, and he shot at least two more times,
9 And the kid scampered out the passenger
10 door, and I'm assuming it was a .22 rifle. He had a
11 rifle with him. The ax man stopped and was standing --
12 the door's here and he's standing there like this, and
13 that kid had that rifle up, and I can't tell you why he
14 shot him, but he shot him through the leg, and I saw the
15 dirt behind the victim puff up and the guy gra -- I --
16 he went like that with his leg.
STEVEN PIPPIN ALSO TESTIFIED THAT THERE WERE SEVERAL PEOPLE KICKING VINNIE, TIM ARBUCKLE AND KYLE'S "OTHER FRIENDS!"
21 Q. Do you know if the second guy fired any
22 shots?
23 A. I -- I did not see him. I don't think so.
24 I did not see him. I did see a couple guys kick the
25 victim while he was on the ground.
1 Q. Who were "a couple guys"?
2 A. Those friends. Those friends of the
3 stranger's.
4 Q. So it's not the -- it's not the guy -- the
5 first shooter and it's not the other guy with the rifle.
6 There are other people involved in kicking this guy
7 while he's on the ground?
8 A. Yeah.
9 Q. How many do you think were involved in that?
10 A. At least two. Two people kicked him on the
11 ground for sure.
12 Q. Two males?
13 A. Two males.
14 Q. Do you know who they are?
15 A. One of them I do. I don't want to tell you
16 his name though. You know him.
17 Q. I'm sure. I know just about everybody that
18 was down there.
19 A. It can't get back to me, man.
20 Q. It's -- it should come out with -- no, it'll
21 come out in all the other --
22 A. Tim Arbuckle (inaudible).
23 Q. So Timmy was involved in it?
24 A. Yeah, he gave him a huge kick.
25 Q. Okay. But he didn't have anything to do
1 with the gun part of it?
2 A. No. No. He gave a huge kick to this guy.
3 And one -- one -- for sure another kid kicked as well.
4 Q. So there was another kid and Tim that
5 were --
6 A. Yeah.
7 Q. How much did they kick this guy?
8 A. I saw Arbuckle kick him once, and I'm
9 assuming the other kid kicked him once as well. That's
10 when I knew the shooting was done and I was gone.
RICHARD HOWARD TESTIFIED THAT THE TWO MEN, WHICH TURNED OUT TO BE KYLE AND COREY, WERE TRYING TO SURROUND VINNIE AS VINNIE WAS TRYING TO GET AWAY!
5 Q. So the guy with the ax is trying to get away
6 from the guy with the gun?
7 A. Yep.
8 Q. So then a second male that may have come out
9 of the vehicle by the snack shop?
10 A. Right, either there or maybe he was in the
11 truck as well when they first came down, but somebody --
12 another guy, that I didn't know who, had a gun as well.
13 He never fired.
14 Q. So he may have been in the gray pickup?
15 A. Right.
16 Q. But he had a rifle of some sort or a
17 handgun?
18 A. Yep.
19 Q. What was it?
20 A. Another rifle.
21 Q. Yep. Does he shoot it?
22 A. No.
23 Q. Okay.
24 A. Now, I think the two guys with the rifle
25 were trying to surround him somehow, and the guy with
1 the ax runs back behind my truck.
7 Q. Does the guy with the ax at any point see
8 this other guy pull the rifle out? I'm just wondering
9 at what point when they kind of switch roles and go to
10 the guy with the gun chasing the guy with the ax.
11 A. I don't think he saw him pull it out. I
12 think he saw it when the guy come running back around
13 because his truck was parked like this, mine was like
14 this. He jumped in the passenger, grabbed the --
15 grabbed this while the other guy was chase -- while the
16 ax guy was chasing some other people there, and when I
17 say other people, I think it was that other guy that
18 grabbed the other gun. He was running around there too.
19 The guy that owned the gray truck grabbed
20 the gun out of the passenger's side and ran around the
21 front of his truck, so now this guy could see him, and
22 that's when he pulled the gun up and aimed right at him.
23 Q. What did the guy with the ax do when he --
24 A. He was trying to scamper away, I think.
25 Q. He was still trying to get out of the way
1 when the guy was pointing the gun at him?
2 A. Yep.
3 Q. So he saw the guy point the gun at --
4 A. He saw the gun come up like that and then --
5 yeah, I believe he was trying to go between my truck and
6 his truck, trying to get around the corner.
7 Q. Okay.
8 A. And what had happened is when he went in
9 the -- he was in the center of the two trucks after the
10 first shot and was trying to scamper there. This guy
11 still had this side covered. The other guy had another
12 gun coming around the other side of my truck --
2 Q. Okay. Yep.
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.
THEY HAVE NEVER DEFINED PROVOCATION? AFTER MANY YEARS AND COUNTLESS SELF DEFENSE CASES THEY NOW DECIDE TO DEFINE PROVOCATION? FOR THE FIRST TIME EVER THEY NOW DECIDE TO DEFINE PROVOCATION AND THEY USE LAWS FROM OTHER STATES IN ORDER TO DO SO! THEY BREAK THEIR OWN LAWS TO PROTECT BOLASKI! THIS IS UNPRECEDENTED! USING ANOTHER STATE'S LAWS TO PROTECT BOLASKI! ONLY THEY ARE LOOKING IN THE WRONG DIRECTION. THEY ARE LOOKING AT VINNIE AS THE PROVOCATEUR WHEN IT WAS ACTUALLY KYLE BOLASKI, COREY BOLASKI, JERRY UCCI, TRISTAN BLANCHARD AND TIM ARBUCKLE.
THIS IS EVIDENCED BY COREY BOLASKI'S OWN STATEMENT WHO BLAMES KYLE, UCCI AND ARBUCKLE FOR INSTIGATING THE WHOLE THING.
COREY BOLASKI:
108:4 Oh, no, no, he was going towards -- he wasn't --
5 that's what I'm saying. He wasn't going towards the
6 vehicle. He was going towards -- Kyle was over there with
7 Jerry, and they were the two instigators with this other
8 kid, Tim, or whoever the hell this kid was who's on the
9 softball team,
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 (THIS IS VERMONT NOT MICHIGAN!) 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) (THIS IS VERMONT NOT W. VIRGINIA!) (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 Lambertrationale 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. IT WAS ALSO UNDISPUTED THAT 8-10 PEOPLE WERE ADVANCING ON VINNIE AND 2 TERRIFIED GIRLS TELLING THEM THEY WERE GOING TO BEAT THEM AFTER USING FALSE PRETENSES TO GET THEM TO THE FIELD! Virtually all witnesses, including defendant, testified to the fear that the victim’s actions engendered. THEY REFUSE TO SAY OF THE INTENSE FEAR THAT VINNIE AND JULIE AND KIRBY WERE FEELING AS THIS HATE GROUP ADVANCED ON THEM, INSULTING THEM, THREATENING THEM. THIS SAME GROUP THAT ASSAULTED THEM THE PREVIOUS NIGHT! THE SUPREME COURT DELIBERATELY REFUSES TO STATE THIS. Various witnesses testified to acts of extreme provocation. THE VERY FIRST PROVOCATION BEING DONE BY BOLASKI, HIS BROTHER, UCCI, BLANCHARD, ARBUCKLE AND SEVERAL OTHERS AS THEY ADVANCED ON VINNIE AND THE GIRLS. THAT GROUP WAS BENT ON ONE THING, TO BEAT VINNIE AND THE GIRLS OR WORSE! VINNIE'S ACTIONS WERE NOT OF PROVOCATION, AS THEY CONTINUALLY TRY TO SAY, BUT OF DEFENSE TO PROTECT JULIE AND KIRBY AND HIMSELF. THE SUPREME COURT ABSOLUTELY REFUSES TO ACKNOWLEDGE THIS. THIS GROUP SHOWED THEIR VIOLENT TENDENCIES THE PREVIOUS NIGHT. THEY WERE KNOWN N THEIR NEIGHBORHOOD AS VIOLENT DRUG DEALERS, YET THE SUPREME COURT DECIDES TO PROTECT THEM. The critical events occurred in a very short period of time, with little opportunity for defendant to cool off. HERE THEY ARE ADMTTING THAT BOLASKI WAS NOT FEARFUL BUT ANGRY AND THAT HE WAS STILL ANGRY WHEN HE HAD SHOT VINNE PURSUED HM, SHOT HIM AGAIN AND THEN WENT UP TO HIM AND BEAT VINNIE AS HE LAY DYING. YES, BY THEIR OWN WORDS THIS WAS NOT A FEARFUL MAN BUT AN ANGRY MAN! IN COMPLETE CONTRADICTION OF THEIR CASE FOR PROVOCATION! 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. WHAT THEY CONTINUE TO PURPOSELY IGNORE IS THAT VINNIE DID NOT CHARGE TOWARDS BOLASKI AFTER THE FIRST SHOT! HE WAS RUNNING AWAY AND BOLASKI ALONG WITH HIS BROTHER. VINNIE WAS BEING PURSUED. VIRTUALLY ALL EVIDENCE AT TRIAL SHOWED THIS. IT WAS ONLY BOLASKI AND UCCI WHO STATED DIFFERENT. BUT UCCI WAS CAUGHT LYING ABOUT THIS AS HE WAS CAUGHT ON VIDEO SAYING TO TROOPER VITALE THAT HE PERSONALLY SAW BOLASKI SHOOT VINNIE AS VINNIE WAS BACKING AWAY AND THEN PURSUE HIM AND SHOOT HIM AGAIN. TROOPER VTALE TESTIFIED TO THIS AND THE VIDEO WAS PLAYED IN COURT AFTER WHICH UCCI ADMITTED HE LIED! YET THE SUPREME COURT INSISTS ON USING THE PERJURED TESTIMONY OF UCCI INSTEAD OF THE TRUTH! GIVING A SLAP N THE FACE TO TROOPER VITALE! 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. ONCE AGAIN THEY IGNORE THE EVIDENCE THAT VINNIE DID NOT CONTINUE TO ADVANCE BUT WAS RETREATING! 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. THIS IS THE MOST LUDICROUS EXAMPLE YET AS THEIR REASONING DOES NOT ADDRESS THAT VINNIE WAS SHOT IN THE BACK! THEY WILL NOT SAY THIS! THEY PURPOSELY STEER AWAY FROM THE MOST IMPORTANT FACT. THEY IGNORE IT BECAUSE WITH IT THEY HAVE NO LEGAL REASON FOR APPEAL!
¶ 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 byState 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. SeeCommonwealth 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. THIS DECISION CLEARLY SHOWS THE SUPREME COURT'S BIAS AGAINST VINNIE! THEY ARE SAYING THEY ARE ACCEPTING THE DEFENSE NOTION THAT VINNIE INITIATED THE CONFRONTATION BECAUSE HE WANTED TO COMMIT SUICIDE!! THIS SHOWS THAT NO MATTER WHAT THE EVIDENCE SHOWS, NO MATTER THE TRUTH OF THE EVIDENCE THEY HAVE THEIR OWN AGENDA! THIS REASON BY THE DEFENSE WAS NEVER BROUGHT OUT BY THE DEFENSE AT TRIAL, NEVER BROUGHT OUT BY THE DEFENSE'S NUMEROUS MOTIONS AND NEVER BROUGHT OUT AT THE ORIGINAL APPEALS. THE ONLY TIME THIS WAS EVER MENTIONED BY THE DEFENSE WAS IN THE APPEAL TO THE SUPREME COURT.
FOR THE SUPREME COURT TO EVEN HEAR THIS APPEAL REASON, NEVER MIND ACTING ON IT, IS BEYOND LOGIC AND GOES DIRECTLY AGAINST ALL OF THE EVIDENCE. IT'S OBVIOUS THE SUPREME COURT HAS ONE PATH IN MIND!
¶ 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. THIS EVIDENCE WAS ADMITTED IN COURT OF DRUGS IN VINNIE'S SYSTEM. WHAT THE SUPREME COURT HAS FAILED TO SHOW, ONCE AGAIN, IS THAT THE STATE MEDICAL EXAMINER TESTIFIED THAT THE DRUGS WERE ALL PRESCRIBED MEDICATION AND NONE WERE ABOVE THE PRESCRIED DOSES. SHE ALSO TESTIFIED THAT THE DRUGS WOULD HAVE HAD NO EFFECT ON VINNIE'S BEHAVIOR!
¶ 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. THIS STATEMENT IS BY FAR ONE OF THE MOST IRRESPONSIBLE OF THIS APPEAL DOCUMENT! AS ROBERT SAND DID IN THE GRAND JURY JUSTICE DOOLEY IS TURNING THIS AROUND AND MAKING VINNIE OUT TO BE THE BAD GUY AND BOLASKI AS THE VICTIM.
"VICTIM WAS ACTING IRRATIONALLY AND OUT OF CONTROL"
IT WAS BOLASKI AND HIS MOB OF 10 PEOPLE THAT WERE ACTING IRRATIONALLY AND OUT OF CONTROL WHEN THEY ADVANCED ON VINNIE AND THE 2 TERRIFIED GIRLS, THREATENING THEM WITH HARM. VINNIE WAS ACTING AS ANY RATIONAL PERSON WOULD UNDER THOSE CIRCUMSTANCES. HE PROTECTED HIS FIANCE AND FRIEND FROM AN OUT OF CONTROL MOB. PART OF THE SAME OUT OF CONTROL MOB THAT DESCENDED ON JULIE'S HOME THE PREVIOUS NIGHT. BRANDISHING WEAPONS, INCLUDING A TIRE IRON THEY TRESPASSED AND ASSAULTED AN ELDERLY LADY, VINNIE AND THE GIRLS. JUSTICE DOOLEY CONVENIENTLY CHOSE TO IGNORE THESE FACTS! THEY COMPLETELY IGNORED THE FACT THAT VINNIE STOPPED AT JORDAN EBELT YET DID NOTHING TO HER, SOMETHING AN "IRRATIONAL" AND "OUT OF CONTROL PERSON" WOULD NOT DO!
",,,CHASING A PERSON HE HAD NEVER MET BEFORE SWINGING A SPLITTING MALL."
IN ACTUALITY IT WAS KYLE BOLASKI, BY HIS OWN ADMISSION, THAT HAD FOLLOWED AND STALKED VINNIE THAT ENTIRE DAY, A PERSON HE HAD NEVER MET BEFORE. IT WAS BOLASKI WHO CALLED AND ASSEMBLED A GANG TO HELP GET VINNIE, A PERSON HE HAD NEVER MET BEFORE. IT WAS KYLE BOLASKI WHO OFFERED TIM ARBUCKLE $100.00 TO HELP THEM BEAT VINNIE, A PERSON HE HAD NEVER MET BEFORE, AND IT WAS BOLASKI WHO ADVANCED WITH A MOB YELLING THREATS TO VINNIE, A PERSON WHO HE HAD NEVER MET BEFORE! AND IT WAS KYLE BOLASKI THAT STOPPED AT HIS HOUSE AND PICKED UP 2 RIFLES, ONE BEING THE MURDER WEAPON, TO USE AGAINST A PERSON HE HAD NEVER MET BEFORE!
EARLIER IN THIS APPEAL DOCUMENT I SAID TO REMEMBER THE STATEMENT OF BOLASKI ADMITTING HE NEVER MET VINNIE BEFORE. THIS IS WHERE IT BECOMES RELEVANT. (Defendant and his brother Corey were recruited to be part of that encounter, although they had not previously met the victim.) JUSTICE DOOLEY USED BOLASKI'S STATEMENT WHEN IT BENEFITTED HIM AND OMITTED IT WHEN IT DIDN'T. HE CAN'T HAVE IT BOTH WAYS!
*THE FOLLOWING IS THE TEXT OF THE 911 CALL FROM JULIE ON THE NIGHT OF VINNIE’S MURDER*
"HELLO, 911. WHAT IS YOUR EMERGENCY?
JULIE: "HELP ME PLEASE I NEED HELP. THERE IS A GANG OF PEOPLE COMING AT US, THROWING GLASS AT US. THEY ARE GOING TO KILL US! PLEASE HELP US! PLEASE HURRY!"
911; WHERE ARE YOU? WHO ARE THEY TRYING TO KILL?
JULIE" WE ARE AT MACKENZIE FIELD. MY NAME IS JULIE. MY BOYFRIEND CHASED THEM AWAY FROM US. HE WAS TRYING TO PROTECT US BUT THEY ARE GOING TO KILL US! PLEASE HELP US! HELP US! PLEASE HURRY!
911: STAY CALM WHO IS...
JULIE: OH MY GOD, THEY'VE GOT GUNS! THEY ARE TRYING TO KILL VINNIE! PLEASE HURRY! PLEASE! PLEA... OH MY GOD, THEY SHOT HIM! THEY SHOT VINNIE! THEY'RE KILLING HIM! THEY'RE KILLING HIM! HURRY PLEASE HURRY. VINNIE! VINNIE! (Screaming and crying hysterically!" Her voice filled with terror!!) (A couple of faint shots can be heard in the background.)
911: JULIE GET OUT OF THERE! GET OUT OF THERE NOW! JULIE! GET OUT OF THERE!
JULIE: THEY'VE KILLED HIM! OH MY GOD, THEY'VE KILLED HIM! NO! NO! NO! VINNIE! PLEASE GOD NOOO! PLEASE HURRY! VINNIE! VINNIE! VINNIE!
911: JULIE GET OUT OF THERE NOW! GET OUT OF THERE!
JULIE: HE'S DEAD!! THEY'VE KILLED HIM! THEY'VE KILLED HIM! VINNIE! VINNIEEE!! NO! NO! NOOO!!
THIS IS DIRECT EVIDENCE THAT THE COURT TOTALLY IGNORED! THIS TOTALLY CONTRADICTS THEIR CONCLUSION THAT VINNIE WAS OUT OF CONTROL AND IRRATIONAL! THEY DELIBERATELY AND WH ILLFULLY OMITTED THIS VERY IMPORTANT EVIDENCE! THIS WAS AN IRRATIONAL GANG THROWING BOTTLES AT THEM AND THREATENING TO KILL THEM! THEY WERE IN FEAR OF THEIR LIVES!
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.
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. THE ONE THING THAT THEY NEVER MENTION, THE ONE IMPORTANT ASPECT THAT THEY PURPOSELY AND CONTINUOUSLY REFUSE TO MENTION IS THE FACT THAT VINNIE WAS SHOT IN THE BACK! THAT'S THE REASON THE TRIAL COURT FOUND THAT THE MEDICAL RECORDS HAD NO BEARING ON THE CASE OR THE JUDGEMENT OF GUILTY. BECAUSE VINNIE'S MEDICAL OF THE PAST DID NOT MAKE KYLE BOLASKI STALK VINNIE THROUGHOUT THE DAY, DID NOT MAKE KYLE BOLASKI SCHEME WITH COREY, UCCI, AND BLANCHARD TO GET VINNIE TO THE FIELD. AND THEY DID NOT MAKE KYLE BOLASKI PURSUE VINNIE, SHOOT HIM IN THE BACK AND THEN VICIOUSLY BEAT HIM AS VINNIE LAY HELPLESS AND DYING! BECAUSE IF THEY DID GO BY THE TRUTH THEN THEY COULD NEVER FREE BOLASKI. THEY COULD NEVER OVERTURN THIS WITH THE TRUTH!
I'M APPALLED AT THE EXTREMES THAT THE SUPREME COURT HAS GONE TO FREE KYLE BOLASKI AS SHOULD THE CITIZENS OF VERMONT! THE REASON WHY IS OBVIOUS!
¶ 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.
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[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.
THIS IS A HYPOCRITICAL STATEMENT AND COMPLETELY BIASED! THEY STATE THEY DO NOT FIND THIS DISTINCTION IMPORTANT YET THEY MADE IT A POINT TO BRING IT UP AND USED IT AGAINST VINNIE IN THEIR JUDGEMENT!
[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).
ONCE AGAIN THEY USE ANOTHER STATE'S LAWS TO JUSTIFY THEIR DECISION TO FREE BOLASKI! THIS IS VERMONT NOT NEW JERSEY! THEY SET A PRECEDENT TO FREE BOLASKI. THIS IS A SHAMEFUL DISGRACE. NOT ONLY HAVE THEY FREED A CONVICTED MURDERER WITHOUT JUSTIFICATION BUT NOW THIS CASE WILL BE USED AS A PRECEDENT TO FREE OTHER MURDERERS FOREVER! TO FREE BOLASKI THEY HAVE PUT THE FUTURE GENERATIONS OF THE CITIZENS OF VERMONT IN PERIL!
[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.
IRRELEVANT? IT WAS PROVEN IN COURT THAT THESE STATEMENTS WERE LIES! IT'S UNCONSCIONABLE THAT THEY ACCEPT BOLASKI'S WORD AGAINST ALL OF THE GOOD, RELABLE WITNESSES AND EVIDENCE WHICH SHOWED THESE STATEMENTS TO BE FALSE. THEY ARE SAYING THAT ALL OF THE OTHER WITNESSES, INCLUDING THEIR OWN TROOPERS ARE LIARS AND THAT THEY TAKE BOLASKI'S WORD OVER THEIRS. THEY ARE COMPLETELY DISREGARDING ALL OF THE EVIDENCE AND WITNESSES. THIS IS DISGRACEFUL!
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.
"SUICIDAL?? VINNIE WAS SHOT IN THE BACK! THEN SET UPON AND BEATEN! FOR THEM TO EVEN REMOTELY MENTION THIS IS ASOLUTELY LUDICROUS AND SHOWS THE EXTENT OF THE SUPREME COURTS BIAS AND WILLINGNESS TO REACH ABSURD LIMITS TO ACQUIT BOLASKI!
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.
THERE IS NO EVIDENCE AT ALL TO STATE THAT VINNIE WAS SUICIDAL! THIS WAS NEVER BROUGHT UP BY THE DEFENSE AT ANY TIME DURING THE TRIAL OR ANY PRETRIAL MOTIONS. THIS WAS ONLY DONE AT THE LAST MINUTE, OBVIOUSLY CONCEIVED BY THE STATE TO ALLOW FOR THE MEDICAL RECORDS TO BE USED AS AN EXCUSE TO ALLOW THE APPEAL! VINNIE WAS SHOT IN THE BACK AND BEATEN WHILE HE LAY DYING! THAT IS NOT A SUICIDE!
[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.
"A LIE DOESN’T BECOME TRUTH, A WRONG DOESN’T BECOME RIGHT AND EVIL DOESN’T BECOME GOOD JUST BECAUSE IT’S ACCEPTED BY A MAJORITY!"