State v. Gurung

• Decision Date: 31 December 2020
• Docket Number: No. 2020-042,2020-042
• Citation: 2020 VT 108
• Parties: State of Vermont v. Aita Gurung
• Court: Vermont Supreme Court

2020 VT 108

State of Vermont v. Aita Gurung

No. 2020-042

Supreme Court of Vermont

September Term, 2020

December 31, 2020

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@vermont.gov 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.

On Appeal from Superior Court, Chittenden Unit, Criminal Division

Samuel Hoar, Jr., J.

Thomas J. Donovan, Jr., Attorney General, and John D.G. Waszak, Assistant Attorney General, Montpelier, for Plaintiff-Appellant.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellee.

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

¶ 1. CARROLL, J. The State appeals a trial court order denying its motion for a mental examination of defendant who is charged with first-degree murder of his wife and attempted first-degree murder of his mother-in-law. The State argues that the court had the discretion to order the evaluation and erred when it determined that, because a former prosecution and the current prosecution are the same proceeding, Vermont Rule of Criminal Procedure 16.1(a)(1)(I) does not allow for a second evaluation and that, even if the rule allowed for it, a second evaluation would not be reasonable. We reverse and remand.

¶ 2. Defendant, a native of Nepal, is alleged to have attacked his wife and mother-in-law with a meat cleaver on October 12, 2017. Defendant's wife did not survive the attack and her mother suffered serious bodily injury. The Chittenden County State's Attorney charged defendant with first-degree murder and attempted second-degree murder. Defendant was arraigned on October 13 and ordered held without bail at the Vermont Psychiatric Hospital for the purpose of conducting competency and sanity evaluations.

¶ 3. The court-appointed examiner, Dr. Paul Cotton, conducted the competency and sanity evaluations using a Nepali interpreter.¹ Dr. Cotton issued his report on December 10 and opined that, while defendant was competent to stand trial, he was insane at the time of the attack. In January 2018, defendant filed notice of an insanity defense and adopted Dr. Cotton as his expert witness. Defendant did not immediately concur with Dr. Cotton's competency finding, but after a second competency evaluation by Dr. Cotton and a hearing on the issue, both the State and defendant stipulated that defendant was competent to stand trial and the court made that finding.²

¶ 4. In October 2018, the court granted the State's motion—opposed by defendant—for a mental-health evaluation of defendant by Dr. Albert Drukteinis. In November 2018, defendant provided notice that a second expert witness, Dr. David Rosmarin, had opined that defendant was insane at the time of the offense and provided video recordings of his evaluation of defendant to the State.

¶ 5. Dr. Drukteinis conducted his interview and evaluation of defendant on November 7. He did not use an interpreter. In his report, he noted that, "there were many times that questions needed to be repeated or clarified, and some of [defendant's] inconsistent responsesmay have been partly due to a language barrier." Dr. Drukteinis ultimately opined that defendant was insane at the time of the attack.

¶ 6. On May 31, 2019, the Chittenden County State's Attorney's Office filed a notice of dismissal without prejudice pursuant to Vermont Rule of Criminal Procedure 48(a). After disclosing that both Dr. Cotton and Dr. Drukteinis had found defendant insane at the time of the attack, it explained: "The State does not have sufficient evidence to rebut this insanity defense. Therefore, the State cannot meet its burden of proving the Defendant is guilty beyond a reasonable doubt; rather, the evidence shows that the Defendant was insane at the time of the alleged offense."

¶ 7. On September 11, after an independent review of the case, the Office of the Vermont Attorney General (AG) filed charges of first-degree murder and attempted first-degree murder against defendant, and the court found probable cause the same day. Defendant again provided notice of an insanity defense.³ Defendant listed Dr. Drukteinis as a defense witness.

¶ 8. At a hearing on November 4, the AG notified the court that it intended to seek a mental examination by its own chosen expert on the issue of sanity. The AG filed its motion for mental examination on November 14. In its filing, the AG argued that its prosecution of defendant was a new prosecution and that Rule 16.1(a)(1)(I) does not limit the number of reasonable examinations that the court may order. The AG noted that if the court did not permit the AG to conduct an independent evaluation of defendant, "then in essence it is binding the Attorney General's Office to the previously obtained expert which [it] did not hire and [has] no involvement with." The AG advised the court that the expert hired by the Chittenden County State's Attorney, Dr. Drukteinis, would not talk to the AG's office without a release from the State's Attorney and that no release was forthcoming. Finally, the AG argued that another mental-health evaluationwas reasonable because the AG needed an expert with whom it could freely consult and that it "should be free of the encumbrances and decisions made in the prior separate State's Attorney's prosecution."

¶ 9. Defendant requested an evidentiary hearing on the AG's motion and the court granted the request, finding that there was "a substantial factual issue concerning the narrow question of the availability of Dr. Albert Drukteinis." Less than a week after the court issued this order, the AG also requested an evidentiary hearing and filed a notice that it intended to call an expert witness, Dr. Catherine Lewis "on the reasons why it would be reasonable and necessary for her to conduct her own separate in person [sic] examination of the defendant for purposes of evaluating whether or not he was sane at the time of the instant charged offenses."

¶ 10. In response to the AG's notice, the court issued the following entry order:

In apparent response to the court's December 3, 2019 Entry Order, the State has given notice of its intention, "with the Court's permission," to call Dr. Catherine Lewis to provide expert testimony at [the hearing]. The court is hard-pressed to understand how Dr. Lewis's testimony will assist the court to answer the "narrow question of the availability of Dr. Drukteinis." Accordingly, while the court will not preclude Dr. Lewis's testimony out of hand, it reserves the right to limit that testimony to the extent that it bears on the question the court has identified above and in its December 3 Entry Order.

The AG responded to the court's entry order the next day, alerting it to the fact that its characterization of the issue before the court, the availability of Dr. Drukteinis, had "little relevance" to the motion filed by the AG. It reiterated that the issue before the court was not whether Dr. Drukteinis was available to the AG, and clarified that it intended to call Dr. Lewis as a witness on the pertinent issue of whether an evaluation of defendant was necessary and reasonable.

¶ 11. An evidentiary hearing on the AG's motion for a mental evaluation was held on December 13. The court began the proceeding by again identifying the issue before it as limitedto the availability of Dr. Drukteinis. After confirming that the court had received its response to the court's last entry order, the AG repeated that it intended to call Dr. Lewis to testify on issues highly relevant to the request for a mental-health evaluation. The AG again argued that the availability of Dr. Drukteinis was a secondary issue. After some discussion, the court identified the two questions presented for decision: Is Dr. Drukteinis available or not and, if he is or is not, what impact this has on the State's request for an evaluation by Dr. Lewis. The court confirmed that it was aware that Dr. Drukteinis had been listed as a defense witness, and the AG again stated its position that it should be able to call its own expert witness and that whether Dr. Drukteinis was available to the AG had no bearing on that issue. The court responded: "That is a question of law for the court. It's not something we need to resolve factually here today. So the question is, is Dr. Drukteinis available to the State or not." The AG continued to argue to the court that it would be reasonable for Dr. Lewis to evaluate defendant for sanity.

¶ 12. After much back-and-forth concerning the focus of the hearing, the AG informed the court that Dr. Lewis had reviewed Dr. Drukteinis's report and that she would testify about the methodologies used and explain how she would approach an evaluation. The court then summarized the AG's argument:

[T]he point would be that even if Dr. Drukteinis were available to the State, based upon your communications with Dr. Lewis, the State has not only the obvious concern about the ultimate opinion but also about the methodology that underlies the opinion . . . and so would like the benefit of an expert in whose methodology it has greater confidence?

The AG confirmed this was accurate. The court then indicated it was content to decide the motion based upon the representation that one of the reasons the AG requested an evaluation for sanity was due to concerns it had with the methodology employed in the prior evaluation.

¶ 13. Defendant, with the court's prompting, agreed that the court could accept the AG's representation that it had concerns with Dr. Drukteinis's methodology and that was the basis forrequesting another evaluation. As a result, the court decided it did not need to hear Dr. Lewis's testimony and would consider the representation in its decision....