Insufficient circumstantial evidence of aiding murder.

 State v. Durenleau, 163 Vt. 8, 12-13, 652 A.2d 981, 982 (1994) 

ALLEN, Chief Justice.Defendant Rebecca Durenleau appeals her conviction following a jury trial for the first-degree murder of her husband, Michael Durenleau. Defendant contends that the State failed to present sufficient evidence to establish her guilt beyond a reasonable doubt. We agree and reverse.

On the evening of July 12, 1985, defendant and her husband left their Swanton home and headed for the tavern. They arrived at approximately 9:30 p.m. and defendant parked the car in an unlit area behind a building located to the rear of the tavern.  The Durenleaus entered the bar together, found a table, and ordered a beer. After driving nearly thirty miles from Swanton to Essex, they stayed only fifteen minutes 983*and left without finishing the beer. Defendant and her husband went back to the car; Without warning, Michael Durenleau was struck in the back of the head with a blunt instrument and stabbed twice in the heart. 

In reviewing a denial of a Rule 29 motion, this Court must determine whether the evidence presented by the State, taken in the light most favorable to the prosecution and excluding any modifying evidence, sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.

To convict defendant, the prosecution had to prove that Olmstead unlawfully killed Michael Durenleau, wilfully and deliberately, with premeditation, and that defendant aided or incited him in that killing.

 The evidence established that defendant carried on an adulterous affair, wanted to leave her husband for Olmstead but was concerned about losing her house and children, lied when she denied knowing about an increase in her husband's life insurance, and said she would be better off if her husband were dead. Knowing of the mutual hostility between Olmstead and her husband, she threatened to start sleeping with her husband again unless Olmstead "proved himself." The fatal trip to Veronica's was planned in advance, and defendant drove to the tavern and parked in the back. After a fairly long drive to the tavern, defendant and her husband stayed only briefly. An individual fitting Olmstead's general description and a truck similar to his were seen in the area around the time of the assault. Defendant failed to direct the bar patrons to the murder scene immediately. Shortly after the killing, defendant and Olmstead 984*were in regular contact, and Olmstead told defendant that he had "proven himself."

After careful review of the record in the light most favorable to the State, we conclude that a jury could not properly find defendant guilty beyond a reasonable doubt If Olmstead had lain in wait and ambushed Durenleau, the only evidence of defendant's participation was the fact that the reconciliation celebration had been planned in advance, that defendant drove and parked behind the bar, that they stayed only briefly, and that she did not immediately direct people to the rear of the building. Without additional evidence, the jury was left to speculate that defendant and Olmstead had orchestrated the attack. t

Defendant may have been happier without her spouse, and may have unwisely continued to associate with Olmstead, a suspected murderer, but the evidence does not permit rational inferences sufficient to establish guilt beyond a reasonable doubt that defendant assisted in her husband's murder.

Therefore, we reverse the conviction and direct entry of a judgment of acquittal. We do not readily overturn a jury's determination, but this Court cannot shrink from its duty to protect an individual's due process right to conviction only by evidence of guilt beyond a reasonable doubt.

Double jeopardy bars her retrial, 

985

The judgment of conviction is reversed, and a judgment of acquittal is entered.

 Peter F. Langrock and Beth Robinson of Langrock Sperry & Wool, Middlebury, for defendant-appellant

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.