2014 VT 16


State v. Reynolds (2012-239)
 
2014 VT 16
 
[Filed 14-Feb-2014]
 
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@state.vt.us 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.
 
 

2014 VT 16

 

No. 2012-239

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Lamoille Unit,


 


Criminal Division


 


 


Stanley Reynolds


November Term, 2013


 


 


 


 


Dennis
  R. Pearson, J.


 

Christopher C. Moll, Lamoille County Deputy State’s
Attorney, Hyde Park, for 
  Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.            
CRAWFORD, J.   Defendant appeals from his conviction of
sexual assault.  He contends that the case should have been dismissed on
speedy trial grounds and that he is entitled to a new trial based on statements
made in closing argument by the prosecution.  We affirm. 
¶ 2.            
Defendant was charged on March 3, 2010 with a single count of sexual
assault without consent and released on bail.  He was initially defended
by Attorney Richard Goldsborough.  Preparation and trial of the case were complicated because two of the State’s witnesses,
including the complaining witness, are deaf and required the assistance of
American Sign Language (ASL) interpreters.  Trial was originally scheduled
for January 2011 and continued to March 8, 2011.  The case then commenced
as scheduled, but after jury selection and two days of trial, the court
declared a mistrial on March 10, 2011.  The mistrial was requested by both
sides due to significant problems with the sign-language interpretation
process. 
¶ 3.            
On July 1, 2011, the court scheduled a status conference for August
1.  At the conference, the court set the case for a retrial to commence
October 17, 2011.  The case was scheduled as the first on the list for
jury selection, with trial to follow immediately afterward.  On August 1,
Attorney Goldsborough moved to withdraw on the ground that defendant had spent
all his available money on legal fees and could no longer afford private
counsel.  At the same time, Attorney Goldsborough filed a motion to
dismiss the case on speedy trial grounds.  On August 8, the court
permitted Attorney Goldsborough to withdraw and assigned Attorney Daniel
Maguire to represent defendant at the State’s expense. 
¶ 4.            
The court issued an entry order on September 2 setting the motion to
dismiss for a hearing.  The order included the following language:
Given complexity of case, [the] need for
prior ruling on pending motions, and substitute counsel’s recent appearance; given
substantial lead time needed to arrange for interpreters, the October 17, 2011
jury draw/trial for this action is continued. 
On September 14, the court held a
second status conference at which it rescheduled the trial for December
12.  
¶ 5.            
On November 3, 2011, the court issued a detailed entry order concerning
the scheduling of the case.  The court recounted the history of prior
trial dates, the mistrial, the appointment of Attorney Maguire, and Attorney
Maguire’s commitment to try a serious felony case in Washington Criminal
Division in December 2011.  That case was older than defendant’s case and
involved a defendant who was held for lack of bail.  The court also
recognized the “special issues” presented by the need for highly qualified ASL
interpreters available only with substantial advance notice.  The court
acknowledged the problem of delay:
The court is, of course, mindful that
Defendant has already filed a motion to dismiss this action and this charge
against him, on the grounds that his speedy trial rights have already been
irreparably compromised.  Further delay will, of course, only complicate
the resolution of those claims.  That motion remains pending, and has not
yet been decided by the court.  Nonetheless, for the reasons stated, and
despite the lack of any formal motion for continuance of this case filed by the
Defendant, this court will cancel the jury draw and trial in this matter now
set for December 12, 2011. 
The court rescheduled the trial
for February 13-16, 2012.  Trial commenced as scheduled on February 13 and
concluded with a guilty verdict on February 17, 2012.  Defendant was
sentenced to serve five years to life and is currently incarcerated.  
¶ 6.            
On appeal, defendant argues that the two-year delay between arraignment
and the second trial violated his speedy trial rights under the United States
and Vermont Constitutions.  He further claims that the conviction must be
reversed due to prejudicial statements made by the prosecutor in his closing argument.

I. 
Speedy Trial Claims
¶ 7.            
The Sixth Amendment guarantee of a “speedy and public trial” was
extended to state prosecutions through the Due Process Clause of the Fourteenth
Amendment in 1967.  Kloper v. North Carolina, 386 U.S. 213, 223 (1967). 
In Barker v. Wingo, the U.S. Supreme Court
gave modern shape and content to the guarantee.  407
U.S. 514 (1972).  The Court noted that the right to a speedy trial
differs from other constitutional rights in several respects.  There is no
intermediate remedy for a violation of the speedy trial right such as the
exclusionary rule or a new trial.  Id. at 522.
 The only possible remedy is dismissal of the charge.  Id. 
Additionally, “there is a societal interest in providing a speedy trial which
exists separate from, and at times in opposition to, the interests of the
accused.”  Id. at 519.  Other
constitutional rights, such as the guarantee of defense counsel, primarily
benefit the criminal defendant.  The promise of a “speedy and public
trial,” however, is of concern to all parties.  Id.
at 519-22.
¶ 8.            
The Barker decision identifies four factors to be balanced by
courts in determining whether too much time has elapsed between arraignment and
trial.  Id. at 530.  These are the
length of the delay, the reason for the delay, the extent to which defendant
asserted his speedy trial right, and any prejudice to the defendant caused by
the delay.  Id.  The Barker decision rejected a system
of fixed deadlines in favor of a discretionary standard which requires the
courts to balance these factors.  Id. at 529-30.  

¶ 9.            
Because the trial court must make both factual and legal decisions in
considering the Barker factors, we apply a mixed standard of review. 
State v. Brillon, 2008 VT 35, ¶ 14, 183 Vt.
475, 955 A.2d 1108, rev’d on other grounds
by Vermont v. Brillon, 556 U.S. 81
(2009).  We will not disturb the trial court’s factual findings concerning
the reasons for delay or the showing of prejudice unless they are clearly
erroneous.  State v. Turner, 2013 VT 26, ¶ 6, ___ Vt. ___, 70 A.3d 1027.  However, we review the ultimate legal
conclusion about whether the pre-trial delay resulted in a constitutional
violation on a de novo basis.  Id.  
¶ 10.         Three
preliminary issues need to be addressed.  The first is whether we should
consider the merits of the Barker speedy trial analysis in the absence
of an articulated ruling from the trial court on the motion to dismiss. 
Defendant correctly points out that the trial judge never issued a ruling,
written or oral, concerning the motion to dismiss on speedy trial
grounds.  Instead, the court scheduled the second trial, effectively
denying the motion without explanation.  Defendant argues that we should
remand the case for a fuller description of the factors which the trial court
considered and applied in exercising its discretion to schedule the case for
trial some two years after arraignment.  The second trial took place more
than a year ago.  A remand would likely result in a review of the cold
record by the trial judge that is essentially identical to the review now
required of the appellate court.  In an appeal in which delay is the
central claim, it is hardly desirable to return the case for further proceedings
below unless absolutely necessary.  We hold that a remand is not necessary
in this case, because the docket entries and transcripts of the pre-trial
conferences provide a sufficient basis to review the trial court’s decision to
proceed with the second trial.  
¶ 11.         The
second preliminary issue is whether the trial court abused its discretion by
failing to dismiss the case for noncompliance with the timelines set forth in
Administrative Order 5.  Section 3 of the order provides that all criminal
cases shall be trial-ready within six months of the date of arrest.  Cases
that go unresolved beyond the deadline without good cause may be dismissed by
the trial court.  A.O. 5 § 3.  In addition,
the order provides that cases in which defendants are in custody “shall proceed
to trial within 90 days from the date of arraignment.”  Id.
§ 2.  
¶ 12.         Administrative
Order 5 has never been held to bind the trial courts to its time frames. 
The order is part of the internal operating procedures of the trial courts and
does not provide any rights to defendants.  State v.
Snide, 144 Vt. 436, 441, 479 A.2d 139, 142-43 (1984) (“[Administrative
Order 5] cannot be invoked by defendant as a matter of right, and a speedy
trial violation is not predetermined by its operation.” (citations omitted)).  “Exercise of the order is
entirely discretionary, and it is for the trial court to determine, in each
case, whether dismissal shall result.”  Id. at 441, 479 A.2d at 143.  
¶
13.        
The trial court did not abuse its discretion by failing to dismiss this
case for noncompliance with the order.  The order, which was promulgated
in 1972, has proved to set impossibly short deadlines for the pre-trial
preparation of serious felony cases, which may take a year or longer to reach
trial.  See, e.g., Turner, 2013 VT 26, ¶ 8 (involving
eighteen-month delay between arraignment and trial in prosecution for lewd and
lascivious conduct);  State v. Menize,
No. 2011-287, 2012 WL 5974994, at *2 (Vt. Sept. 26, 2012) (unpub.
mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx (involving fifteen-month
delay between arraignment and trial in aggravated sexual assault case). 
There are numerous legitimate reasons for the extended timeframes in these
cases, including the need for discovery and the identification of witnesses,
primarily but not exclusively by the defense; scientific testing and expert
testimony of a sophistication not contemplated in 1972; and the practice of
conducting depositions of the State’s witnesses prior to trial.  A rush to
judgment is no more desirable than a period of unnecessary delay.  Other
less-desirable reasons for delay include crowded court schedules and
conflicting commitments by the relatively small group of lawyers available to
defend serious felony cases.  
¶ 14.         Administrative
Order 5 is the only Supreme Court directive purporting to set timelines for the
trial of cases.  Since its promulgation, however, Vermont courts have
implemented case flow management standards intended to reduce or eliminate
delay in all proceedings.  The time has come to acknowledge that the
six-month and three-month deadlines set out in Administrative Order 5 no longer
reflect the length of time required to bring a serious felony case to trial in
our state or the prudent approach to timely processing of criminal cases. 
We will refer the issue of non-binding time frames for the resolution of
criminal charges and the possible revision or repeal of Administrative Order 5
to the Criminal Rules Committee.   
¶ 15.         The
third preliminary issue is whether the case is subject to a more stringent
standard for delay under the speedy trial provisions of the Vermont
Constitution.[1]  We note
that concerns about the time taken to reach trial have been a source of
criticism and a basis for legal reform for as long as there have been courts.[2] 
Vermont was not alone in including promises of a speedy trial in its early
constitutional statements.  See, e.g., N.H. Const. pt.
1, art. 14 (1784); Mass. Const. pt. 1, art. 11 (1780).  Because the Sixth Amendment had no possible
application to state criminal prosecutions until after the Fourteenth Amendment
was enacted, see Barron v. City of Baltimore, 32 U.S. 243, 250-51 (1833)
(holding that the Bill of Rights applies only to federal government and not to
states), it is unsurprising that parallel guarantees developed in state and
federal constitutions.   
¶ 16.         So
long as the speedy trial guarantee is viewed as equal or coterminous under the
U.S. and Vermont Constitutions, there is no need to assert the primacy of one
guarantee over the other.  On some issues, the Vermont provision may
provide a different degree of protection against court delay than the Sixth
Amendment.  See State v. Savva, 159 Vt.
75, 84, 616 A.2d 774, 779 (1991) (“We have often noted that our constitution
may afford greater protection of individual rights than the federal one
does.”).  In other areas, the two Constitutions may provide similar
protection of individual rights. 
¶ 17.         The
evidence, either historical or textual, that “speedy” means faster in Vermont
than it does in other states and in the federal courts is thin.  In more
than two centuries since the adoption of the first Vermont Constitution in
1777, the Vermont Supreme Court has never discerned a more stringent standard
than the Sixth Amendment.  See Brillon,
2010 VT 25, ¶ 5 (declining to adopt different standard under Vermont
constitution because issue was inadequately briefed); State v. Venman, 151 Vt. 561, 574-76, 564 A.2d 574, 583 (1989)
(applying Barker test to speedy trial claim made under both U.S. and
Vermont constitutions); State v. Hall, 145 Vt. 299, 308, 487 A.2d 166,
171 (1984) (holding that Vermont Constitution does not provide greater
protection against appellate delay than U.S. Constitution); State v. Mahoney,
124 Vt. 488, 490-91, 207 A.2d 143, 145 (1965) (using same standard to analyze
claim made under both constitutions).  The pertinent language of Article
10, which has traditionally been considered to be the operative speedy trial
provision of our constitution, see, e.g., Mahoney, 124 Vt. at 490, 207
A.2d at 145, is nearly identical to that of the Sixth Amendment.  Compare
Vt. Const. ch. I, art. 10 (“That in all prosecutions
for criminal offenses, a person hath a right to . . . a
speedy public trial . . . .”), with U.S. Const. amend. VI
(“In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial . . . .”).
 Further, the provisions guaranteeing justice “promptly and without
delay,” in Chapter I, Article 4, and “without . . . unnecessary
delay,” in Chapter II, § 28, have the same general meaning as a “speedy
and public trial.” 
¶ 18.         The
principal difficulty in accepting the argument that the Vermont Constitution
sets a higher standard is that it is difficult to articulate a formula that
improves upon Barker.  The strength and utility
of the Barker standard lies in its flexibility and lack of fixed
deadlines.  The speedy trial guarantee would certainly operate with
greater predictability if it imposed fixed timelines for the operation of the
trial courts.  However, as the Barker decision notes, this is a
remedy open to the legislature but not one normally derived from constitutional
principles.  Barker, 407 U.S. at 523.
 At present, the Barker factors and the case law that has been
developed under the Sixth Amendment continue to provide an appropriate standard
by which to measure the timeliness of trials under both the U.S. and Vermont
Constitutions.
¶ 19.         We
turn now to the application of the Barker factors to this case.
 Our first task is to determine whether the length of the delay was
presumptively prejudicial.  See Barker, 407 U.S. at 530 (“Unless
there is some delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance.”).  In this
case, twenty-three months elapsed between defendant’s arraignment and the
second trial.  This delay is long enough to trigger evaluation of the
remaining factors.  See Turner, 2013 VT 26, ¶ 8
(eighteen-month delay is presumptively prejudicial); State v. Vargas,
2009 VT 31, ¶ 13, 185 Vt. 629, 971 A.2d 665 (mem.)
(nine-month delay sufficient to trigger review).
 We therefore must balance the length of the delay along with the other
factors. 
¶ 20.         The
next factor is the reason for the delay.  In this case, there were three
distinct periods of delay: the period up to and including the first trial, from
March 2010 to March 2011; a period of inactivity from the mistrial until the
court’s status conference and the entry of Attorney Maguire into the case, from
March 2011 to August 2011; and the final period of preparation leading up to
the second trial, from September 2011 to February 2012. 
¶ 21.         The
first period lasting one year would have fallen within normal limits for trial
preparation had it resulted in a verdict.  Instead, it was “lost time”
since the mistrial left both sides without a resolution.  But the time
lost due to the mistrial cannot be attributed to either the prosecution or the
defense.  Genuine difficulties developed with the process of ASL
interpretation.  While the responsibility for providing adequate
interpretation services lies with the government, this delay was for neutral
reasons and does not weigh in defendant’s favor.  See Barker, 407
U.S. at 531.  
¶ 22.         As to
the second period, the five-month delay between the mistrial and the court’s
August 2011 status conference is attributable to the court and the
prosecution.  The State concedes that this period of delay weighs in favor
of defendant’s motion to dismiss. 
¶ 23.         The
final six-month period is largely attributable to the substitution of defense
counsel and the need to develop a team of ASL interpreters.  These factors
required the court to cancel trial dates in October and December 2011 before
finally convening the trial in February 2012.  The reasons for the final
six-month delay are either neutral (i.e., the time required to obtain multiple
ASL interpreters) or attributable to the defense (i.e., Attorney Maguire’s
scheduling conflict in another serious felony case and his need for time to
study defendant’s substantial case file).  See Brillon,
556 U.S. at 94 (“[D]elays caused by defense counsel
are properly attributed to the defendant, even where counsel is assigned.”). 
¶ 24.         The
third factor, the extent to which defendant asserted his right to a speedy
trial, weighs in defendant’s favor, but not heavily.  Defendant filed a
motion to dismiss in August 2011 at the status conference after the five-month
hiatus.  Coming as it did almost a year and a half after arraignment, the
motion was neither too early (prior to any reasonable perception of undue
delay) nor so late as to suggest a waiver or abandonment of speedy trial
rights.  Raising the issue at the appropriate time, however, does not
change the duration of the delay or its reasons.  The primary result is
that the defense does not lose ground by seeming to acquiesce in the
delay.  As the entries from the trial court indicate, after the speedy
trial issue was raised in August 2011, the court and the parties remained
conscious of defendant’s position that the case should be brought to trial for
a second time without further delay.  Defendant preserved the issue in his
motion to dismiss, but this is not a case in which repeated calls for a trial
went unanswered.  After August 2011, the record shows steady progress
towards the second trial some six months later.
¶ 25.         Nor
does the fourth factor, the prejudice to defendant, strongly favor defendant.
 As we have noted in the past, the prejudice caused to a defendant through
delay is difficult to prove.  Brillon, 2008 VT 35, ¶ 48.  Defendant does not claim to
have suffered some objectively demonstrable prejudice such as the
unavailability of a witness or the loss of other evidence.  Delay can
weigh at least as much against the prosecution, which bears the burden of proof
and the greater risk of forgetful or confused witnesses.  Barker, 407 U.S. at 521.  But the notion that a
defendant is prejudiced by delay even if he—like this defendant—is out on bail
is inherent in the very guarantee itself.  Whether the prejudice is described
in positive terms such as anxiety and stress or in negative terms such as the
loss of testimony or evidence which the defense may not even know is lost, it
is plain that it was disadvantageous to defendant to be called to trial two
years after the alleged offense.  See Barker, 407 U.S. at 532
(identifying “the possibility that the defense will be impaired” as “the most
serious” form of prejudice caused by delay). 
¶ 26.         Defendant’s
principal claim regarding prejudice is that the memory of witnesses had
deteriorated over time.  However, the examples pointed to by defendant are
relatively minor.  The principal issue in the case was the credibility of
the complaining witness, and there is no claim that by the time of the second
trial, she had forgotten the events which constituted the sexual assault or her
other activities on the day of the crime.  The record contains evidence of
no more than a moderate degree of prejudice to defendant caused by the
twenty-three months between arraignment and the second trial.  
¶ 27.         In
balancing these four factors, we note that the only delay that was clearly
attributable to the State was the relatively short five-month period after the
mistrial.  The first year of delay was due to neutral reasons, namely the
original period of preparation and the mistrial.  The final six months of
delay was largely attributable to the second defense attorney’s legitimate need
to prepare for trial.  While defendant asserted his right to a speedy
trial at the appropriate time, this must be balanced with the facts that he was
out on bail for the entire period of delay and has identified few specific
claims of prejudice.  Under these circumstances, we conclude that
defendant was not deprived of his right to a speedy trial. 
II.
Prosecutorial Misconduct Claims
¶ 28.         Defendant
next claims that the trial court erred by permitting the prosecution to engage
in emotional appeals to the jury in three separate instances during closing
argument.  In determining whether reversal is warranted due to an
allegedly improper closing argument, we consider both whether the argument was
improper and whether it “impaired the defendant’s right to a fair trial.” 
State v. Hemond, 2005 VT 12, ¶ 11, 178
Vt. 470, 868 A.2d 734 (quotation omitted).  In considering the second
element, we look at the following “nonexclusive” factors: 
the blatancy of the challenged statement,
the impact on the theory of the defense, the persistence and frequency of the
statement, the opportunity for the court to minimize potential prejudice, the
strength of the evidence supporting the relevance of the statement, the overall
strength of the State’s case, the apparent motivation for making the remarks,
and whether the statement was inflammatory and attacked defendant’s character.
Id.
¶ 12 (citations omitted).  In short, we weigh the statements
in the context of the trial as a whole and not in isolation. 
¶ 29.         The
first allegedly improper statement identified by defendant occurred during the
final moments of the State’s closing argument, when the prosecution delivered
the following appeal to the jury: 
STATE:  Folks, the state has the
burden to prove beyond a reasonable doubt that [defendant] sexually assaulted
[the complaining witness].  You have that.  You’ve heard her
testimony.  You’ve witnessed her demeanor.  She’s lived with this for
two years.  Help to show [her] that there is justice. 
MR. MAGUIRE:  Objection.
THE COURT:  Overruled.  Overruled.
MR. SHOVE:  Return a verdict of
guilty.  Thank you.   
¶ 30.         The
general rule is that counsel “should confine argument to the evidence of the
case and inferences that can properly be drawn from it.”  State v. Karov, 170 Vt. 650, 653,
756 A.2d 1236, 1239 (2000) (mem.) (quotation omitted).  Counsel must avoid appealing to
the prejudice of the jury, and should not “play on the jury’s sympathy or seek
to inflame their passions.”  State v. Blakeney,
137 Vt. 495, 504, 408 A.2d 636, 642 (1979), abrogated on other grounds by
State v. Trombley, 174 Vt. 459, 807 A.2d 400
(2000) (mem.).  Such conduct may require a new
trial in the proper case.  Id. 
¶ 31.         A
call for justice may be acceptable when it is directed to the jurors’ duty to
do justice in a general sense.  See State v. Nguyen, 172 P.3d 1165,
1172 (Kan. 2007) (noting that “it is permissible, if not expected, for a
prosecutor to argue for justice in general”); State v. Evans, 586 N.E.2d
1042, 1051 (Ohio 1992) (stating that “[t]here is nothing inherently erroneous
in calling for justice”).  However, an appeal to the jurors to do justice
on behalf of the victim or the local community is generally viewed as
unprofessional and improper.  See State v. Bible, 858 P.2d 1152,
1206 (Ariz. 1993) (holding that it was improper for prosecutor to tell jury
that victim had rights and that the jury had to protect those rights as well as
the defendant’s rights); State v. Camacho, 924 A.2d 99, 133 (Conn. 2007)
(holding that prosecutor’s “references to the voices of the victims crying out
for justice and to their grieving relatives clutching memories of the past”
were improper); State v. Martinez, 236 P.3d 481, 497 (Kan. 2010) (ruling
that it was improper for prosecutor to ask jury to let the minor victim of
attempted rape know that “she did the right thing” in reporting the alleged
crime).  Such arguments are very close to emotional calls for sympathy and
vindication for victims.  Since the prosecutor speaks with great authority
on behalf of the state as a whole, he or she should not suggest to the jury
that their role is to take sides with the victim.  The prosecutor’s
invitation to the jury to “show [the complaining witness] that there is
justice” was an improper appeal to the jury’s sympathies.  
¶ 32.         Viewed
in the broader context of the trial, however, it was harmless error for the
trial court to overrule defendant’s objection to the prosecutor’s
comment.  The statement was uttered in the course of a much longer
recitation of the facts and was not part of a broader theme.  As a
rhetorical exhortation, it had no connection to the facts of the case.  It
was expressed in the nature of a flourish—overly excited, isolated, and not
repeated.  In reviewing the impact of the two sentences concerning the
victim’s wait for justice, we conclude that it is clear beyond a reasonable
doubt that the statements were not sufficiently prominent to have affected the
jury’s verdict.  State v. Mumley, 2009 VT
48, ¶ 20, 186 Vt. 52, 978 A.2d 6.   
¶ 33.         The
second allegedly improper statement was made by the prosecutor in rebuttal to
defendant’s closing argument.  In attacking the complaining witness’s
credibility, defendant argued that the record showed that the witness had sent
thirty-seven calls or text messages to her friends in the hours following the
crime while she was working with defendant, demonstrating that she was not
frightened of him and that the intercourse had been consensual.  The
witness denied sending the calls and text messages.  In rebuttal, the
prosecutor argued that the calls and text messages may have resulted from
inadvertent dialing: 
Mr. Maguire has argued before you today
that [the complaining witness] has lied.  And as I indicated earlier,
that’s not true.  A lie is an intentional misrepresentation of the truth.
 [She] owns the one about the marijuana.  Everything else is
interpretation of language. 
One of the pieces of evidence that you’re
going to have is a printout of a phone record.  Shows a
number of phone calls or text messages that were sent from the phone that
belonged to [the complaining witness] to her friend.  [She] has
testified here adamantly that she did not make those phone calls—or send those
texts.  The defense—their argument is it’s her phone, her phone calls.
 Most everybody I know has a phone, a cell phone and I can’t think of a
single person that hasn’t ever butt dialed.  It happens.  I’m not
going to try to convince you that all of those phone calls were accidental.
 [She] sat on her phone.  I simply put before you that just because
there was a message sent from the phone to someplace else and the phone
belonged to [her] is not conclusive that she was using the phone at the time. 
Defendant did not object to this
line of argument.  Accordingly, we review for plain error. Hemond,
2005 VT 12, ¶ 14.  This standard requires “a showing that the
error strikes at the heart of defendant’s constitutional rights or results in a
miscarriage of justice.”  State v. Ayers, 148 Vt.
421, 426, 535 A.2d 330, 333 (1987). 
¶ 34.         The
prosecutor’s statements that inadvertent dialing “happens” and that the
prosecutor knows lots of people who have had this experience were improper.
 See Karov, 170 Vt. at 653, 756 A.2d at 1239 (stating that counsel “should confine argument to
the evidence of the case and inferences that can properly be drawn from it”). 
The argument was not based on testimony.  The experience of other people
who have bumped or sat on their phones is irrelevant without some foundational
testimony about how the phenomenon could explain the complaining witness’s thirty-seven
calls and texts.  
¶ 35.         However,
this is not a case in which the prosecutor’s misconduct violated a fundamental
constitutional guarantee or resulted in a miscarriage of justice. 
Evidence about the cause or frequency of inadvertent dialing could have been
admitted.  The argument was sloppy and improvisational, but the subject
itself would have been appropriate if properly introduced through
testimony.  Even the prosecutor’s embrace of his last-minute theory was
qualified: “I’m not going to try to convince you that all of those phone calls
were accidental.”  The court instructed the jury to base its decision
solely upon the evidence.  Under these circumstances, the prosecutor’s
statements do not rise to the level of fundamental misconduct required by the
“plain error” standard. 
¶ 36.         The
third allegedly improper statement was the prosecutor’s argument that the
thirty-year disparity in age between defendant and the complaining witness made
it unlikely that she would consent to have sex with him.  Our review of
this statement is also limited to plain error, because defendant failed to
object to it during trial.  Hemond, 2005 VT 12, ¶ 14.  Defendant argues that this
was an unfair or discriminatory argument.  We disagree.  The
prosecutor pointed out the difference in age as circumstantial evidence against
the defense of consent.  It was an appropriate argument in this case
because the difference in age between defendant and the complaining witness,
defendant’s marital status, and his family connection to the complaining
witness through marriage all militated against a consensual romantic
relationship.
Affirmed.  

 


 


FOR THE COURT:


 


 
 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 See Vt. Const. ch. I, art. 4 (“[E]very person
ought to obtain right and justice, freely, and without being obliged to
purchase it; completely and without any denial; promptly and without delay;
conformably to the laws.”); ch. I, art. 10 (“That in
all prosecutions for criminal offenses, a person hath a right
to . . . a speedy public trial by an impartial jury of the
country . . . .”); ch. II,
§ 28 (“The Courts of Justice shall be open for the trial of all causes
proper for their cognizance; and justice shall be therein impartially
administered, without corruption or unnecessary delay.”).
 


[2]
 Early examples include the Code of Hammurabi, ¶ 12 (L.W. King trans.) (1772 B.C.E.) (“If the
witnesses be not at hand, then shall the judge set a limit, at the expiration
of six months.  If his witnesses have not
appeared within the six months, he is an evil-doer, and shall bear the fine of
the pending case.”); the Magna Carta, ¶ 40
(1215) (“To no one will we sell, to no one will we refuse or delay, right or
justice.”); and the Frame of Government of Pennsylvania, Laws Agreed Upon in
England § V (1682) (“That all courts shall be open, and justice shall neither
be sold, denied nor delayed.”).  All of the above are available at
http://avalon.law.yale.edu/ancient/hamframe.asp.



