Murder: provocation as defense. Plain error.

State v. Bolaski 2014 VT 36 (25-Apr-2014)


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 not instructing the jury that, to find second-degree murder, the jury had to find an absence of passion or provocation. We reverse and remand for a new trial.

Defendant and others arrived at the ball field at around 7 p.m. on August 17, 2008. Soon after defendant’s truck arrived, the victim arrived with his girlfriend and her friend. The group, including defendant, started approaching the victim’s car, engaging in shouting with the victim. They were unarmed. The victim exited his vehicle holding a taser and sparking it. The group continued to approach. The victim then threw the taser into the car and pulled out a splitting maul from the back seat.  He raised it and charged at the approaching group, which scattered and ran away. For unknown reasons, the victim chose to chase defendant to his truck that was some distance away. Once they reached the truck, the victim began hitting the truck with the maul. Defendant was able to enter the truck, where he obtained a rifle. Under highly disputed circumstances, defendant twice shot the victim, once in the leg and once in the buttocks. The victim bled to death from the second shot. Defendant admitted to having fired the two shots, but maintained that he acted in self-defense.

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.” 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. 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.

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.

 It was undisputed that the victim chased defendant with a splitting maul. Virtually all witnesses, including defendant, testified to the fear that the victim’s actions engendered. Various witnesses testified to acts of extreme provocation. The critical events occurred in a very short period of time, with little opportunity for defendant to cool off. 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.

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.