Opinion
Case No. 5:18-cv-118
2020-01-30
Jonathan CHOMA, Plaintiff, v. Daniel TUCKER, Defendant.
Pietro J. Lynn, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, VT, for Plaintiff. Matthew G. Hart, Esq., Law Offices of Matthew G. Hart, Rutland, VT, for Defendant.
Pietro J. Lynn, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, VT, for Plaintiff.
Matthew G. Hart, Esq., Law Offices of Matthew G. Hart, Rutland, VT, for Defendant.
ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Geoffrey W. Crawford, Chief Judge
In this diversity action, plaintiff Jonathan Choma sues defendant Daniel Tucker on theories of intentional infliction of emotional distress ("IIED"), assault, and battery. The case arises out of an altercation between the two men at a Vermont wedding in 2015. Plaintiff seeks compensatory and punitive damages, attorney's fees and costs, and prejudgment interest. (Doc. 1.)
On March 13, 2019, Choma moved for partial summary judgment as to one material fact, "that Defendant pointed a gun at Plaintiff on September 26, 2015." (Doc. 15 at 1 (emphasis added).) Tucker disputes this allegation, and submitted a response on April 19, 2019. (Doc. 18.) Choma filed his reply on May 3, 2019. (Doc. 21.) The court heard argument on Choma's Partial Summary Judgment Motion on June 24, 2019. (Doc. 24.)
Choma has since altered his request in subsequent filings and at his June 24, 2019 motion hearing before this court. See infra at 5 n.3.
For the reasons that follow, Choma's motion for partial summary judgment is GRANTED.
FACTS
On September 26, 2015, Choma was attending a Vermont wedding when he alleges that Tucker, without any provocation, aimed a handgun at Choma and screamed at Choma to get out of his car. (Doc. 1 ¶¶ 5–6.) Tucker denies these allegations. (Doc. 18-2 ¶¶ 5–6.)
In June 2016 Tucker was charged in Vermont Superior Court with violating 13 V.S.A. § 1024(a)(5), aggravated assault with a deadly weapon. (Doc. 18 at 1.) On March 12, 2018, Tucker pled guilty to two misdemeanor charges: reckless endangerment and simple assault. (Doc. 1 ¶ 15; see also Doc. 18-5 at 3, 6–7.) The March 12th change of plea transcript reads in pertinent part:
The Court: Okay. Do you understand the charge in Court I alleges that on or about September 26th of 2015, that you recklessly engaged in conduct which placed another person in danger of death or serious bodily injury, when well-armed with a loaded and operable pistol; pointed the pistol in the direction of Mr. Jonathan Choma. Maximum punishment, one year, 1,000 dollars, or both. Do you understand that?
The Defendant: Yes, Your Honor.
The Court: Do you understand Count II alleges that on or about that same date, you recklessly caused bodily injury to another by shoving Deborah Choma? Maximum punishment one year, 1,000 dollars, or both -- do you understand that?
The Defendant: Yes, Your Honor.
...
The Court: And so as to Count I as amended, what's your plea, Mr. Tucker? Guilty or not guilty?
The Defendant: Guilty.
The Court: And as to Count II, guilty or not guilty?
The Defendant: Guilty.
The Court: Do you agree that on September 26th there was an incident -- of 2015 -- at that time you had a firearm; it was loaded; it was operable; and you pointed it in the direction of Mr. Choma? And by doing so, he was placed in danger of death or serious bodily injury? And also on that date in time, you had an interaction with Deborah Choma where you shoved her. And by shoving her, your conduct was reckless and it caused bodily injury to her, which is any pain or impairment; do you understand that?
The Defendant: Yes, Your Honor.
The Court: And is that what happened on that date?
The Defendant: Yes, Your Honor.
The Court: The Court will find a factual basis, will find the pleas are made
knowingly, voluntarily, after knowing voluntary intelligent waiver will enter a judication of guilt.
(Doc. 32 at 6–7; 10–11.)
STANDARD OF REVIEW
Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When reviewing a motion for summary judgment, a court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See Davis-Garett v. Urban Outfitters, Inc. , 921 F.3d 30, 45 (2d Cir. 2019). The role of the trial judge at the summary judgment stage is not to resolve issues of material fact, but rather to determine whether such issues exist to be determined at trial. See id. (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." Zehner v. Jordan-Elbridge Bd. of Educ. , 666 F. App'x 29, 32 n.1 (2d Cir. 2016) (internal quotation marks omitted).
ANALYSIS
The issue before the court is the preclusive effect, if any, of a criminal guilty plea in a subsequent civil suit based on the same factual events. The court finds that the guilty plea, which is also admissible, does have a specific, limited preclusive effect in this case. The court reviews both the evidentiary and preclusive effects of a prior guilty plea in turn.
I. Admissibility
The Federal Rules of Evidence apply to this diversity case. See Buck v. Fairpoint Commc'ns, Inc. , No. 2:14-cv-157, 2016 WL 7665785, at *1 (D. Vt. Oct. 27, 2016) ("[T]he Federal Rules of Evidence, rather than state evidentiary laws, are held to apply in federal diversity proceedings." (quoting Legg v. Chopra , 286 F.3d 286, 289–90 (6th Cir. 2002) )).
Tucker's previous statements and guilty plea are admissible as statements of a party offered pursuant to F.R.E. 801(d)(2)(A). On March 12, 2018, Tucker pled guilty to reckless endangerment in Vermont superior court. (Doc. 1 ¶ 15.) At his change of plea, Tucker admitted to "recklessly engag[ing] in conduct which placed another person in danger or death or serious bodily injury, when well-armed with a loaded and operable pistol; pointed the pistol in the direction of Mr. Jonathan Choma." (Doc. 18-5 at 7–8.) The court finds that Tucker's previous statements and guilty plea satisfy the requirements of Rule 801(d)(2)(A), and that they are highly probative in this case because they directly relate to elements of the causes of action. Therefore, they are properly admissible as evidence in this action. See United States v. Overton , No. 15-CR-9S, 2017 WL 6347084, at *2 (W.D.N.Y. Dec. 13, 2017) ("this Court finds that the statements Defendant made in connection with his state conviction are properly admissible under Rule 801 (d)(2)(A)."); see also United States v. Frederick , 702 F. Supp. 2d 32, 37 (E.D.N.Y. 2009) (internal quotation marks omitted) ("evidence of a defendant's valid prior state-court guilty plea for similar or lesser included conduct is properly admissible in a subsequent federal prosecution, even where admission of the plea could be considered virtually tantamount to directing a verdict.")
Neither party to this action disputes this conclusion. At the June 24th motion hearing, Tucker's attorney stated: "It's almost like a permissive type thing, you may consider this as evidence of guilt or negligence in the context of deciding the count for intentional infliction or the count for assault." (Doc. 33 at 8.) The court later confirmed with the parties, "[t]he common ground is that you both want to say that it's appropriate for the judge to indicate that Mr. Tucker pled guilty to the charge, read the charge aloud, and stop there, right?" (Id. at 12.) Choma's attorney responded, "Correct." (Id. )
II. Collateral Estoppel
Next, Choma contends that Tucker's prior conviction has preclusive effect in this action. Specifically, Choma seeks to apply the doctrine of offensive collateral estoppel, or issue preclusion, to one statement: "that on or about September 26, 2015, Mr. Daniel Tucker aimed a loaded and operable pistol in the direction of Mr. Jonathan Choma." (Doc. 21 at 3.) Choma argues that "[t]his fact provides some of the factual basis for two of the charges alleged in the Complaint, namely intentional infliction of emotional distress and assault." (Id. ) Tucker, in turn, does not dispute his prior guilty plea, nor that he previously admitted that conduct. Tucker seeks an opportunity to "offer an explanation to his guilty plea and litigate the issues." (Doc. 18 at 5.)
Choma's request changed in his Reply (Doc. 18 at 3) and as stated at the June 24th motion hearing:
So we believe that it is fair for him to be estopped from asserting that he did not point a gun in the direction of the plaintiff in this case and that he -- and what we're specifically asking he be estopped from litigating that Daniel Tucker, in the county of Rutland at Castleton, on or about September 26, 2015, recklessly engaged in conduct which placed another person in danger of death or serious bodily injury when, armed with a loaded and operable pistol, pointed such pistol in the direction of Jonathan Choma in violation of 13 VSA, Section 1025.
(Doc. 33 at 3–4 (emphasis added).) Therefore, the court focuses on this statement rather than the statement in Choma's initial motion and complaint that Tucker "pointed a gun at Plaintiff on September 26, 2015." (Doc. 15 at 4 (emphasis added); see also Doc. 1 ¶ 6.)
Federal law governs issues of claim preclusion in diversity cases, but the federal choice of law rule is to apply the law of the state in which the district court is located. See CSX Transp., Inc. v. General Mills, Inc. , 846 F.3d 1333 (11th Cir. 2017) ; see also Semtek Int'l Inc. v. Lockheed Martin Corp. , 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (applying choice of law principles to closely related issue of res judicata).
Under Vermont law, collateral estoppel, or issue preclusion, is found when the following criteria are met:
(1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was resolved by a final judgment on the merits; (3) the issue is the same as the one raised in the later action; (4) there was a full and fair opportunity to litigate the issue in the earlier action; and (5) applying preclusion in the later action is fair.
Trepanier v. Getting Organized, Inc. , 155 Vt. 259, 265, 583 A.2d 583, 587 (1990). "Preclusion applies only to issues necessarily and essentially determined in a prior action." In re P.J. , 2009 VT 5, ¶ 12, 185 Vt. 606, 969 A.2d 133 (2009) (mem.) (internal quotation marks omitted). "The ‘critical inquiry is whether the party to be bound has had a full and fair opportunity to contest an issue resolved in an earlier action so that it is fair and just to refuse to allow that party to relitigate the same issue.’ " Estate of Hasse Halley v. Nationwide Mut. Ins. Co. , 5:12-CV-125, 2014 WL 12543867, at *6 (D. Vt. Mar. 24, 2014) (quoting Trepanier , 155 Vt. at 266, 583 A.2d 583 ).
Choma seeks to apply the doctrine of cross-over estoppel, which applies "where one party claims that an issue decided in a criminal proceeding is precluded in a subsequent civil case, or vice versa." Geico Gen. Ins. Co. v. Cota , No. 490-5-17 Cncv, 2018 WL 8666291, at *2 (Vt. Super. Ct. Oct. 2, 2018) (citing State v. Stearns , 159 Vt. 266, 268, 617 A.2d 140, 141 (1992) ). "The use of cross-over estoppel has been recognized approvingly by the Vermont Supreme Court." Id. ; see also Lay v. Pettengill , 2011 VT 127, ¶ 24, 191 Vt. 141, 155, 38 A.3d 1139, 1148 (2011).
A. Whether There Is Privity?
In this case, the first element of collateral estoppel is met. Tucker was a defendant in the prior criminal conviction, and this is a sufficient basis to satisfy the privity requirement for collateral estoppel. See Geico Gen. Ins. Co. , 2018 WL 8666291, at *3 ("Estoppel is asserted here against [defendant], who was a party in the earlier criminal proceeding.").
Mutuality in the sense that both plaintiff and defendant must be parties in both the prior case and in the case in which issue preclusion is asserted is no longer a legal requirement in Vermont. "We now join those courts that have abandoned an uncritical acceptance of the doctrine of mutuality." Trepanier , 155 Vt. at 266, 583 A.2d 583. In its place, the Vermont Supreme Court identifies "the critical inquiry [as] whether the party to be bound has had a full and fair opportunity to contest an issue resolved in an earlier action so that it is fair and just to refuse to allow that party to relitigate the issue." Id.
B. Whether The Issue Was Resolved By A Final Judgment On The Merits?
The second element of collateral estoppel "raises the difficult question of whether the plea of guilty resulted in a judgment on the merits." Geico Gen. Ins. Co. , 2018 WL 8666291, at *3 (quoting Normandy v. Martin , No. S0278-04 CnC, 2005 WL 8149913 (Vt. Super. Ct. Jan. 11, 2005) ). Authority on this issue is mixed. The Restatement of Judgments (Second) declines to extend principles of issue preclusion to guilty pleas:
The rule of this Section presupposes that the issue in question was actually litigated in the criminal prosecution. Accordingly, the rule of this Section does not apply where the criminal judgment was based on a plea of nolo contendere or a plea of guilty. A plea of nolo contendere by definition obviates actual adjudication and under prevailing interpretation is not an admission. A defendant who pleads guilty may be held to be estopped in subsequent civil litigation from contesting facts representing the elements of the offense. However, under the terms of this Restatement such an estoppel is not a matter of issue preclusion, because the issue has not actually been litigated, but is a matter of the law of evidence beyond the scope of this Restatement.
Restatement (Second) of Judgments § 85 cmt. b (1982) (internal citations omitted) (see also 18B Wright & Miller, Fed. Prac. & Proc. Juris. § 4474.1 (2d ed. Sept. 2018 update) ("The plea-based conviction does not actually adjudicate the fact issues necessary to establish guilt, and accordingly should not support issue preclusion.")).
In tension with the Restatement of Judgments, however, trial courts in Vermont have applied collateral estoppel based on prior guilty pleas. For example, in Geico General Ins. Co. , the trial court acknowledged the conflict between the Restatement's rationale on estoppel and the "modern practice" that a "plea of guilty requires an evidentiary basis for the plea in which the facts are explored by the parties and the court, and a judicial determination is made with respect to the essential elements of the crime." 2018 WL 8666291, at *4 (internal quotation marks omitted). The court in that instance found it persuasive that Vermont criminal courts "must ensure that a plea is voluntary, that the defendant made a knowing waiver of his rights, and that there is a factual basis for the plea." Id. at *3 (citing V.R.Cr.P. 11(c), (d), & (f) ). Additionally, the court noted that defendants in Vermont have the option of resolving their criminal case by entering a plea of "no contest," that Rule 11(f) of the Vermont Rules of Criminal Procedure describes the acceptance of a guilty plea as a "judgment, and that the reporter's notes contemplate the use of a guilty plea for issue preclusion." Id. (citing Reporter's Notes, V.R.Cr.P. 11 ).
The Vermont Supreme Court considered the issue of cross-over collateral estoppel in State v. Nutbrown-Covey , 2017 VT 26, 204 Vt. 363, 169 A.3d 216 (2017). In denying a parent's claim that the dismissal of a child protection case in Family Court prevented the state from pursuing a criminal charge of domestic assault based on the same allegations, the court identified the factors governing analysis of the Trepanie r factors:
Whether there is substantial overlap in evidence between the two issues; whether any new evidence involves application of a different rule of law; whether pretrial preparation and discovery related to the first matter could have reasonably been expected to embrace the matter at issue in the second; and how closely related the two claims are to each other.
In this case, the court is satisfied that the critical factual issue—whether on or about September 26, 2015, Tucker aimed a loaded and operable weapon in the direction of Choma—was resolved by a final judgment on the merits in the criminal case. The transcript provided to the court shows that Tucker was afforded the protection given to criminal defendants by Vermont trial courts. (See Doc. 32 at 6–7; 10–11.) These protections are sufficient for a finding that "there are procedural safeguards in place [in Vermont criminal courts] to ensure that the plea is meaningful." Geico Gen. Ins. Co. , 2018 WL 8666291, at *3. The court is also cognizant that "[f]ederal courts must give preclusive effect to state court judgments ‘whenever the courts of the State from which the judgment emerged would do so.’ " Grega v. Pettengill , 123 F. Supp. 3d 517, 545 (D. Vt. 2015) (quoting Allen v. McCurry , 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) ).
Consistent with Nutbrown-Covey , the issue of Tucker's reckless conduct was a fact necessary to his conviction and was actually addressed by the parties and the judge at the change of plea colloquy. The court is satisfied that in accepting the guilty plea and entering a judgment of conviction, the criminal court decided that Tucker had pointed a gun at Choma. That the decision was based on Tucker's admission instead of a jury verdict makes it more likely to be true, not less. The court therefore finds that the second element of estoppel has been met.
C. Whether The Issues Are The Same?
The third element is whether the issues before the court now are the same as the ones previously litigated. Tucker pleaded guilty to two charges in state court: Count I for violation of 13 V.S.A. § 1025 (reckless endangerment), and Count II for violation of 13 V.S.A. § 1023 (simple assault). The court now reviews whether each of these issues are the same as the ones currently being litigated.
i. Count I—Reckless Endangerment
As to Count I, Tucker pleaded guilty to Vermont's reckless endangerment statute by "plac[ing] another person in danger of death or serious bodily injury, when well-armed with a loaded and operable pistol" pointed that pistol in the direction of Choma, in violation of 13 V.S.A. § 1025. ("Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded, and whether or not the firearm actually was loaded."). In this case, Choma seeks to apply preclusion as to his claims for IIED and assault on the legal element that Tucker pointed a gun in his direction on September 26, 2015, and thereby engaged in reckless conduct.
In Thayer v. Herdt , 155 Vt. 448, 586 A.2d 1122 (1990), the Vermont Supreme Court set out the elements of the tort of IIED:
(1) Conduct that is extreme and outrageous,
(2) Conduct that is intentional or reckless, and
(3) Conduct that causes severe emotional distress.
This formula follows Sheltra v. Smith , 136 Vt. 472, 392 A.2d 431 (1978), and remains authoritative today. These elements are cumulative. To recover, the plaintiff must prove all three.
Choma seeks to establish that the second element—conduct that is intentional or reckless—is identical to the element of recklessness in the crime of reckless endangerment. (The first and third elements of IIED are not part of the elements of the crime.)
Reckless conduct is obviously an element of the crime of reckless endangerment. The statute is explicit on this point. Conduct is reckless if it "places or may place another person in danger of death or serious bodily injury." 13 V.S.A. § 1025. Pointing a firearm at another gives rise to a presumption of recklessness and danger. The Vermont Supreme Court has interpreted the statute to require that the state also prove that the firearm was operable. See State v. Messier , 178 Vt. 412, 885 A.2d 1193 (2005). This interpretation survived the amendment of the statute to eliminate a judicially-crafted requirement that the firearm be loaded.
With respect to intent, Vermont has adopted the Model Penal Code definition of recklessness to require a conscious disregard of a substantial and unjustifiable risk to the victim will result from the conduct. That risk must represent a gross deviation from the conduct of a law-abiding person. See State v. Brooks , 163 Vt. 245, 658 A.2d 22 (1995).
The court compares the criminal element with the second element of the IIED claim: reckless conduct. In the context of civil cases, the Vermont Supreme Court has defined reckless conduct to require proof of "a conscious disregard to a substantial and unjustifiable risk." Rochon v. State , 177 Vt. 144, 862 A.2d 801 (2004). The Rochon decision strongly suggests that the criminal and civil definition of reckless conduct are identical. It directs attention favorably to the definition in the Restatement (Second) of Torts § 500 (1965) (conduct taken "despite the actor's knowledge that the conduct presents an unreasonable risk of harm to others").
There is very little daylight between the definition of reckless conduct in 13 V.S.A. § 1025 and the more general standard described in Rochon. The specificity of § 1025 includes certain requirements which are not addressed in the broader civil definition. These include the requirement that the firearm be operable and that there be a risk of death or serious bodily injury. These are differences which set the bar higher than civil cases. They are not requirements which are different from the civil definition.
The court is satisfied that the facts supporting a charge of reckless endangerment with a firearm will also support a civil claim based on reckless conduct. Tucker's criminal conviction qualifies as a prior adjudication of the reckless conduct element of Choma's civil claim.
ii. Count II—Simple Assault
The guilty plea to simple assault has no such effect because the victim in the criminal case was Deborah Choma, who is not a party to this suit. Tucker admitted to shoving Ms. Choma. That admission and the subsequent conviction do not establish the elements of a civil assault or battery claims brought by Plaintiff.
D. Whether There Was A Full And Fair Opportunity To Litigate And Whether Applying Preclusion Is Fair?
The fourth and fifth elements of collateral estoppel are whether Tucker had a full and fair opportunity to litigate and whether it is fair to apply collateral estoppel in this later action, respectively. "No one simple test is decisive in determining whether either of the final two criteria are present; courts must look to the circumstances of each case." Trepanier , 155 Vt. at 265, 583 A.2d 583. "In short, in order to satisfy the final two criteria, the party opposing collateral estoppel must show the existence of circumstances that make it appropriate for an issue to be relitigated." Id. at 265–66, 583 A.2d 583, 587.
As the court has determined that the only issue that is the same as the prior criminal proceeding is the issue of recklessness, the court focuses the remainder of its analysis on that discrete issue. "Courts applying [the fourth] factor must take into account, among other considerations: the parties' incentives to litigate; the foreseeability of future litigation; the legal standards and burdens involved in the two actions; the procedural tools available in each forum; and the possibility of inconsistent determinations of the same issue in separate prior cases." Nutbrown-Covey , 2017 VT 26, ¶ 17, 204 Vt. 363, 169 A.3d 216. The court is also mindful that the "party need only have an opportunity to litigate an issue, and need not have taken advantage of the opportunity." Geico Gen. Ins. Co. , 2018 WL 8666291, at *4 (emphasis in original) (citing Cold Springs Farm Dev., Inc. v. Ball , 163 Vt. 466, 470, 661 A.2d 89 (1995) ).
Here, Tucker was provided with due process rights in his criminal proceeding and he had the opportunity to go to trial rather than to accept a guilty plea. Tucker had an incentive to litigate his criminal proceeding to avoid a potential felony conviction and a jail sentence. He chose to plead guilty to the two misdemeanors instead. The court finds that Tucker had a full and fair opportunity to litigate the issue of recklessness. See, e.g. , Normandy , 2005 WL 8149913, at *4 (finding the fourth element satisfied where "[defendant] was apprized of his right to a trial at the time he entered his plea and voluntarily turned it down. No greater opportunity to litigate short of actual litigation can be imagined.").
Finally, the fifth element is whether applying collateral estoppel in this action is fair. It is reasonably foreseeable that a civil action could follow in connection with an altercation where one of the parties is accused of reckless endangerment. Additionally, as the court discussed above, Tucker had an incentive to litigate his criminal case. Finally, the burden of proof in this civil action is lower than that of Tucker's criminal proceeding, which "militates in favor of applying preclusion." Geico Gen. Ins. Co. , 2018 WL 8666291, at *4. The court finds that applying preclusion to the issue of Tucker's recklessness is fair.
III. Tucker's Remaining Arguments
Tucker's opposition to the issue of preclusion includes his desire to have an opportunity to explain the reasons for his plea of guilty and to dispute that he ever had a handgun during his September 26th altercation with Choma. Tucker concedes his guilty plea should be admitted into evidence as a hearsay exception, but argues that partial summary judgment should be denied because "there is a plea here that should be allowed to be explained." (Doc. 33 at 6.) "[T]he option that Mr. Tucker faced, after almost three years of a pending criminal matter hanging over his head, to get done with it was to take a guilty plea to a misdemeanor reckless endangerment charge." (Id. at 7.) Moreover, Tucker wants to explain that he did not plead nolo contendere , or "no contest," because "it was never an option." (Id. at 8–9.)
Tucker also wants to contest the factual allegations that substantiate the guilty plea. His attorney stated at the June 24th motion hearing that Tucker would be able to produce witnesses at trial "including some local doctors, [who] are going to testify that [Tucker] never had a handgun. It was a flashlight." (Id. at 9.) Tucker would argue "that [he] used the flashlight to try to identify who was in [a] vehicle" that nearly ran over his wife. (Id. at 10.)
Choma, in turn, reiterated his opposition:
But [Tucker's] ability to raise these other arguments that he could have raised in a criminal trial that he was holding a flashlight, that he didn't threaten Mr. Choma, that he didn't hurt his mother. Those should be precluded. [Tucker] had the opportunity in the criminal matter to do it. Instead, he elected to take the guilty plea. He should be bound by that.
(Id. at 12.)
Tucker relies on Russ v. Good , 90 Vt. 236, 97 A. 987 (1916) (" Russ I "), and Russ v. Good , 92 Vt. 202, 102 A. 481 (1917) (" Russ II "), for the proposition that although admissible, his guilty plea should receive no preclusive effect. In the Russ I decision, which involved an assault and battery dispute between stonecutters that led to defendant pleading guilty for breach of peace, the Court found that "[defendant] was allowed to explain that he entered his plea to save money, acting under the advice of the chief of police, who told him that a plea of guilty would be the cheapest way out of it." 97 A. at 988. The Court found defendant's plea was "admissible" and that "an admission is always open to explanation, and is to be weighed and considered in light of the explanation." Id. at 988–89. The Court, however, did not find that the admission amounted "to an estoppel" for lack of mutuality. Id. at 989.
The court has reviewed these cases and the factual record before it, and finds no reason to disturb its collateral estoppel analysis. Unlike the Court in Russ I , the court here does find that the elements of collateral estoppel have been satisfied. This conclusion is consistent with the application of collateral estoppel in Vermont trial courts. See Geico Gen. Ins. Co. , 2018 WL 8666291 ; Normandy , 2005 WL 8149913. Finally, as Judge Toor articulated in Geico General Ins. Co. , "it would be fundamentally unfair to allow [defendant] to contest the issues ... after he admitted in criminal court that he [committed them]." 2018 WL 8666291, at *4.
Therefore, the court finds that Tucker is precluded from denying that he pleaded guilty to Vermont's reckless endangerment statute by "plac[ing] another person in danger of death or serious bodily injury, when well-armed with a loaded and operable pistol" he pointed that pistol in the direction of Choma, in violation of 13 V.S.A. § 1025.
At trial the court anticipates instructing the jury that Choma has met his burden of proof on the element of reckless conduct. The admissions at the change of plea colloquy, if offered, will also be admissible. The court will not permit defense counsel to reopen argument or testimony on the second element which has been decided.
Choma will still have the burden of proof on the first element (outrageous conduct) and the third (causation of severe emotional distress). The court has no authority to direct Tucker's testimony on these issues beyond the requirement of placing him under oath. In other words, the court will not interrupt Tucker if he testifies on these elements in a manner inconsistent with his prior testimony before the state criminal court.
CONCLUSION
For the reasons articulated here, Choma's Motion for Partial Summary Judgment (Doc. 15) is GRANTED.