State v. Bourgoin

• Decision Date: 12 March 2021
• Docket Number: No. 19-319,19-319
• Citation: 254 A.3d 217
• Parties: STATE of Vermont v. Steven D. BOURGOIN
• Court: Vermont Supreme Court

254 A.3d 217

STATE of Vermont

v.Steven D. BOURGOIN

No. 19-319

Supreme Court of Vermont.

January Term, 2021

3-12-2021

Reargument Denied May 3, 2021

Sarah F. George, Chittenden County State's Attorney, and Andrew Gilbertson and David Tartter, Deputy State's Attorneys, Burlington, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

EATON, J.

¶ 1. Defendant appeals jury convictions on five counts of second-degree murder, one count of grossly negligent operation, and one count of operating a vehicle without the owner's consent. The charges stemmed from a tragic incident during which defendant drove the wrong way on the interstate and crashed into a car, killing five teenagers, before fleeing the scene in a police cruiser, returning to the scene shortly thereafter by again driving the wrong way on the interstate, and crashing into the wreckage. Defendant, who asserted insanity and diminished-capacity defenses at trial, argues that he is entitled to reversal of his murder convictions because the State failed to prove the intent element of second-degree murder and the trial court erred in admitting undisclosed testimony and in instructing the jury. We affirm.

¶ 2. At around midnight on October 8, 2016, shortly after merging onto Interstate 89 at Exit 11 heading south, defendant turned his vehicle around and began driving north at high speeds in the southbound lanes. Before crashing into the teenagers’ car, defendant drove at high speeds past several other vehicles that honked their horns, flashed their lights, or pulled off the road to get defendant's attention or get out of his way. Shortly after the crash, while the first police officer at the scene attempted to free the teenagers from their burning car, defendant fled the scene in the officer's cruiser and headed south in the southbound lanes back towards Exit 11. But before reaching Exit 11, defendant turned the cruiser around and again headed north in the southbound lanes. He drove into the wreckage from the first collision at over one hundred miles an hour, injuring several people.

¶ 3. The State charged defendant with five counts of second-degree murder, one count of grossly negligent operation, and one count of operating a vehicle without the owner's consent. During the thirteen-day jury trial held in mid-May 2019, defendant presented the testimony of two forensic psychiatrists in support of his insanity defense. The State presented its own expert to counter that defense. At the conclusion of the trial, the jury rejected defendant's insanity defense and found him guilty of all charges. The trial court denied defendant's post-trial motions, including his renewed motion for judgment of acquittal. Following a hearing, the court sentenced defendant to twenty-six-years-to-life on the murder convictions, one-to-two years on the grossly-negligent-operation conviction, and four-to-five years on the conviction for aggravated operation without the owner's consent—all to be served concurrently.

¶ 4. On appeal, defendant argues that: (1) he was entitled to judgment of acquittal on the murder charges because the State failed to prove beyond a reasonable doubt the intent element of second-degree murder; (2) the trial court committed plain error by not instructing the jury that the State expert's opinion on his insanity defense was irrelevant to his diminished-capacity defense; (3) the court violated discovery rules and his constitutional due process rights by allowing the State's expert to offer a new opinion on a defense expert's diagnosis of defendant on the eve of the State expert's rebuttal testimony, after the defense experts had testified and were no longer available; and (4) the court abused its discretion by not declaring a mistrial after learning that the State had failed to disclose statements made by a defense witness—defendant's former intimate partner—to the prosecution during pretrial conversations.

I. Motion for Judgment of Acquittal

¶ 5. In a post-trial motion, defendant renewed his argument that he should be acquitted of the murder charges because the State failed to prove that at the time of the crashes his mental state satisfied the minimal intent element required to convict him of second-degree murder—wanton disregard of the likelihood that death or great bodily harm would result from his actions.

See V.R.Cr.P. 29(c) (allowing defendant found guilty by jury verdict to move for judgment of acquittal within fourteen days after jury's discharge). The trial court rejected this argument and denied defendant's motion, ruling that the State produced sufficient circumstantial evidence of defendant's subjective awareness of the deadly risk his actions posed for the jury to conclude beyond a reasonable doubt that the State had met the minimal intent element for second-degree murder.

¶ 6. In considering defendant's request for judgment of acquittal, we apply the same standard as the trial court, without deferring to the trial court's ruling: we view the evidence presented at trial "in the light most favorable to the State, excluding any modifying evidence, and determine whether it is sufficient to fairly and reasonably convince a trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Davis, 2018 VT 33, ¶ 14, 207 Vt. 346, 186 A.3d 1088 (quotation omitted); see also State v. Berard, 2019 VT 65, ¶ 7, 211 Vt. 39, 220 A.3d 759 ("We review the denial of a judgment of acquittal de novo."). "This standard is deferential to the role of the jury—it recognizes that trial and appellate courts should hesitate to place themselves in the position of jurors." Davis, 2018 VT 33, ¶ 14, 207 Vt. 346, 186 A.3d 1088. Accordingly, "courts should grant a judgment of acquittal only when there is no evidence to support a guilty verdict." State v. Cameron, 2016 VT 134, ¶ 5, 204 Vt. 52, 163 A.3d 545 ; see also State v. Johnson, 2013 VT 116, ¶ 26, 195 Vt. 498, 90 A.3d 874 ("A judgment of acquittal is proper only if the prosecution has failed to put forth any evidence to substantiate a jury verdict.").

¶ 7. Second-degree murder is defined in 13 V.S.A. § 2301 as all types of murder other than first-degree murder, which is specifically defined therein. Thus, "the Legislature has left it to this Court to flesh out the elements of second-degree murder," which "we have reiterated ... requires an intention to kill, an intention to do great bodily harm, or a wanton disregard of the likelihood that one's behavior may naturally cause death or great bodily harm." State v. Sexton, 2006 VT 55, ¶ 12, 180 Vt. 34, 904 A.2d 1092 (quotation omitted), overruled on other grounds by State v. Congress, 2014 VT 129, 198 Vt. 241, 114 A.3d 1128.

¶ 8. "Wantonness is defined as extremely reckless conduct that disregards the probable consequences of taking human lives." State v. Baird, 2017 VT 78, ¶ 13, 205 Vt. 364, 175 A.3d 493 (quotation omitted). "To be convicted of second-degree murder, the defendant must subjectively be aware of the deadly risk to the victim," and "the degree of risk of death or serious bodily injury must be more than a mere unreasonable risk, more even than a high degree of risk." State v. Brunell, 159 Vt. 1, 7-8, 615 A.2d 127, 131 (1992) (quotation omitted). "However, the State need not prove a defendant's mental state directly because we have long recognized that direct evidence of intent is rare; it must be inferred from a person's acts and proved by circumstantial evidence." Baird, 2017 VT 78, ¶ 13, 205 Vt. 364, 175 A.3d 493 (quotation omitted); see also State v. Derouchie, 140 Vt. 437, 444, 440 A.2d 146, 149 (1981) ("The proper focus of judicial review should be the quality and strength of the evidence, whether direct or circumstantial.").

¶ 9. According to defendant, in this case the State failed to present any evidence either that he was aware of the deadly degree of risk his actions posed to the victims or that he knowingly disregarded that risk. Defendant acknowledges, however, uncontested witness testimony that on the day of the crashes, he initially entered the interstate going in the proper direction, but then abruptly turned his vehicle around, headed north in the southbound lanes, and, before crashing into the teenagers’ vehicle, passed at speeds approaching ninety miles per hour, several drivers who honked horns, flashed lights, or took evasive action. There is also significant evidence, discussed more fully below in addressing defendant's challenge to the sufficiency of the evidence, of the movement of defendant's vehicle into the southbound travel lane as defendant approached the teenagers’ car at high speeds in the last few seconds before the crash.

¶ 10. We conclude that this evidence was sufficient for the jury to find that defendant knowingly disregarded his subjective awareness of the very high risk of death or serious bodily injury that his actions posed to other persons driving on the interstate at that time. When the circumstances are such that the defendant "must have been aware" of his actions, the evidence—whether direct or circumstantial—"is sufficient to raise an inference of knowledge" and "withstand a motion for a judgment of acquittal." State v. Sidway, 139 Vt. 480, 485, 431 A.2d 1237, 1240 (1981) (concluding that proof of impact was sufficient for jury to infer hit-and-run driver's knowledge of injury or damage). "So long as the jury by way of a process of rational inference could conclude beyond a reasonable doubt that defendant committed the acts for which he was charged, we will not disturb the jury's verdict." State v. Godfrey, 2010 VT 29, ¶ 18, 187 Vt. 495, 996 A.2d 237 (quotation omitted); see also State v. Durenleau, 163 Vt. 8, 12, 652 A.2d 981, 983 (1994) (stating that, "[i]n assessing circumstantial evidence, the fact-finder may draw rational inferences to determine whether disputed ultimate...