State v. Steven D. Bourgoin, 254 A.3d 217

Background

Late on Oct. 8, 2016 defendant drove the wrong way on I-89 at high speed, struck a car carrying five teenagers (all killed), fled in a police cruiser, returned the wrong way, and struck the wreckage again.
Charged with five counts of second-degree murder, grossly negligent operation, and operating a vehicle without owner consent; defendant asserted insanity and diminished-capacity defenses.
Thirteen-day jury trial with extensive expert testimony: two defense forensic psychiatrists opined legal insanity; State’s expert countered and concluded no qualifying mental disease.
Jury rejected insanity defense and convicted on all counts; defendant sentenced to lengthy concurrent terms; defendant renewed motion for judgment of acquittal as to murder intent and appealed.
On appeal defendant raised four principal claims: (1) insufficiency of evidence of wanton intent for second-degree murder; (2) court should have instructed jury that State expert’s sanity opinion was irrelevant to diminished-capacity; (3) discovery/due-process violation from State expert’s unexpected rebuttal opinion about defense diagnosis; and (4) trial court erred in denying mistrial after disclosure failures regarding a defense witness’s pretrial statements.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of intent for 2d-degree murder (wanton disregard)	Circumstantial evidence (wrong-way driving at high speed, passing other cars, horn/flash warnings, late steering into travel lane) permits inference defendant was subjectively aware of a high risk of death and wantonly disregarded it.	Defendant contends evidence does not show subjective awareness of deadly risk; delusional thinking (agreed to by experts to some extent) negates wanton intent.	Affirmed. Evidence sufficient to permit jury to infer subjective awareness and wanton disregard; insanity/delusion evidence did not preclude the jury from finding mens rea.
Jury instruction on relevance of State expert’s sanity opinion to diminished-capacity	State: expert sanity testimony was relevant because defendant pleaded insanity and there is overlap between insanity and mental-state elements of crimes.	Defendant: court should have instructed jury that State expert’s sanity opinion was irrelevant to diminished-capacity.	No plain error. Court and parties distinguished insanity from mens rea; expert sanity testimony was relevant and not erroneously used to negate diminished-capacity.
Admission of State expert’s rebuttal opinion about whether borderline/unspecified personality disorder qualifies as a "mental disease" (discovery/due process)	State: testimony was within disclosed expert issues and rebuttal scope; any inconsistency could be exposed on cross-examination and defense could recall its expert.	Defendant: proffer was a late/unexpected opinion, preventing defense experts from responding and creating asymmetrical discovery and prejudice.	No reversible error. Trial court acted within discretion; any disclosure problem did not cause meaningful prejudice—defense cross-examined expert and did not seek continuance or recall its expert.
Motion for mistrial based on undisclosed prosecutor-witness pretrial conversations (witness said defendant later told her there were no wrong-way signs)	State: produced at least one recording to defense-related expert; dispute about whether disclosure reached defense; prosecutor believed she had disclosed.	Defendant: prosecution failed to disclose witness’s pretrial statements, which undermined insanity defense and his ability to investigate; mistrial required.	Denied. Court assumed possible disclosure lapse but found no bad faith and cured potential prejudice with an immediate, agreed curative instruction and access to recorded jail calls; jury presumed to follow instruction.

Key Cases Cited

State v. Baird, 175 A.3d 493 (2017) (defines wantonness as extreme recklessness disregarding probable loss of life)
State v. Brunell, 615 A.2d 127 (Vt. 1992) (subjective awareness of deadly risk required for wantonness)
State v. Sidway, 431 A.2d 1237 (Vt. 1981) (circumstantial proof can raise inference of knowledge)
State v. Messier, 497 A.2d 740 (Vt. 1985) (overlap between insanity evidence and mens rea; mental disease evidence may affect intent inquiry)
State v. Webster, 179 A.3d 149 (2017) (distinguishing when State’s sanity evidence is irrelevant because sanity was not contested)
State v. Miller, 502 A.2d 832 (Vt. 1985) (trial court discretion in admitting late-disclosed inculpatory testimony subject to cross-examination/recall)
State v. Provost, 896 A.2d 55 (Vt. 2005) (defendant must show both discovery rule violation and resulting prejudice)
State v. Sarkisian-Kennedy, 227 A.3d 1007 (2020) (limits on presuming jury will follow curative instruction; presumption applies absent overwhelming probability instruction is ineffective)
Greer v. Miller, 483 U.S. 756 (1987) (discusses when curative instructions are insufficient to cure prejudice)
Wardius v. Oregon, 412 U.S. 470 (1973) (reciprocal discovery requirements and due-process limits on asymmetrical disclosure)