2013 VT 26


State v. Turner (2011-140)
 
2013 VT 26
 
[Filed 12-Apr-2013]
 
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.
 
 

2013 VT 26

 

No. 2011-140

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Essex Unit,


 


Criminal Division


 


 


John Turner


October Term, 2012


 


 


 


 


M. Kathleen
  Manley, J. (motion to dismiss); Walter M. Morris, Jr. (final judgment)


 

William H. Sorrell, Attorney General, and Ultan Doyle and David Tartter,
Assistant Attorneys 
  General, Montpelier, for
Plaintiff-Appellee.
 
Allison N. Fulcher of Martin &
Associates, Barre for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.  On September 3, 2008, defendant John Turner
was arraigned on one count of lewd or lascivious conduct with a child and one
count of unlawful restraint of a victim less than sixteen years of age. 
His first trial occurred in March 2010, and resulted in a hung jury.  His
second trial occurred in July 2010, and he was convicted of unlawful restraint
and acquitted of lewd or lascivious conduct.  He now appeals, claiming his
conviction must be reversed because he was denied his constitutional right to a
speedy trial.  We affirm the conviction. 
¶
2.            
Upon his arrest and arraignment in 2008, the court assigned public
defender services and appointed Attorney Douglas Willey.  Defendant
notified Attorney Willey that he wanted to have a speedy trial.  An
investigator from Attorney Willey’s office informed defendant of the need for discovery,
depositions, motions and other matters necessary to prepare for trial. 
Defendant was advised it was premature to file a motion for speedy trial at
that point.  In November 2008, following a status conference, a discovery
stipulation was filed with the court, indicating that the parties would be
trial ready by June 1, 2009.  Depositions were taken and transcripts
ordered.  In June 2009, the case was scheduled for an August jury draw.
 Meanwhile, more depositions were conducted and further witness leads were
developed.  As a result, Attorney Willey filed a motion to continue the
jury draw scheduled for August 12, 2009. 
¶
3.            
On September 9, 2009, defendant filed an unsigned pro se motion to
dismiss all charges on the grounds that his right to a speedy trial had been
violated.  He also sent a multi-page letter to the judge venting his
frustration with counsel, alleging that his counsel was not providing adequate
representation and expressing his desire to have a quick resolution to the charges. 
A signed copy of the motion to dismiss was filed on October 6, 2009.  Both
documents were sent to Attorney Willey and the state’s attorney.  Based on
defendant’s allegations, Attorney Willey filed a motion to withdraw, which was
granted at an October 13 status conference.  Attorney Joseph Benning was appointed on October 20, 2009 to represent
defendant.  A hearing on the motion to dismiss was set for December 10,
2009.  The hearing was rescheduled for December 21 after the State
requested a continuance for medical reasons.  On that day, the court heard
and denied a motion to exclude in-court identification of defendant. 
¶
4.            
The court heard defendant’s motion to dismiss on February 8 and February
22, 2010.  At the hearing, Attorney Willey acknowledged that he had no
direct contact with defendant from September 2008 until May 2009, but claimed
his office maintained contact with defendant through a staff investigator.
 The investigator testified about his investigation of leads provided by defendant
and of discussions with defendant as to how the defense should be conducted.  Defendant
testified as to his dissatisfaction with Attorney Willey’s representation of
him and stated that he did not want to go to trial while represented by
Attorney Willey.  He further testified he was aware that a change of
attorneys would further delay a trial date.  
¶
5.            
The court advised the parties that, in all likelihood, the trial would
go forward before a decision was rendered on the speedy-trial issue.  And,
in fact, that is what happened.  The trial took place March 17 and March
18, 2010 and resulted in a mistrial due to a hung jury.  Nonetheless, the
motion hearing judge issued her decision regarding the speedy-trial issue on March
22, 2010, denying defendant’s motion to dismiss and concluding that his
constitutional right to a speedy trial was not violated.  Defendant
appeals that decision. 
¶
6.            
In reviewing a decision which determines whether a defendant’s
constitutional right to a speedy trial has been violated, the trial court’s
legal conclusions are reviewed de novo and its findings of fact are reviewed
under a clearly erroneous standard.  State v. Brillon,
2008 VT 35, ¶ 14, 183 Vt. 475, 955 A.2d 1108, rev’d
on other grounds sub nom. Vermont v. Brillon,
__ U.S. __, 129 S.Ct. 1283 (2009).  On appeal,
defendant challenges only the trial court’s legal conclusions, and therefore,
our review is de novo. 
¶
7.            
To assess whether there has been a violation of the constitutional right
to a speedy trial, this Court has adopted the four-factor balancing test set
forth in Barker v. Wingo, 407 U.S. 514, 530
(1972); see State v. Vargas, 2009 VT 31, ¶ 11, 185 Vt. 629, 971 A.2d
665; see also Brillon, 2008 VT 35, ¶ 14.
 Our most recent decision on this issue was State v. Vargas, 2009
VT 31, wherein we explained that we weigh the conduct of the prosecution and
the defendant while looking at (1) the length of delay; (2) the reason for
delay; (3) the extent to which the defendant asserted the speedy trial right;
and (4) any prejudice to the defendant from the delay.  Id.
¶ 11.  The first step is to determine whether the length of the
delay was presumptively prejudicial.  If not, it is unnecessary to inquire
into the other balancing factors, for the right to a speedy trial was not
violated.  See id. ¶¶ 11-12.  However, if the delay is
long enough to be presumptively prejudicial, then that factor is balanced along
with the remaining factors in determining whether a speedy-trial violation
exists.  Brillon, 2008 VT 35, ¶ 15.   
¶
8.            
In this case, approximately twelve months passed from the date of
arraignment to the date of the speedy trial complaint; it was another six
months before the conclusion of the first trial.  PC4.  The
total delay was about eighteen months.[1] 
This delay is sufficient to require consideration of all of the factors. 
See Vargas, 2009 VT 31, ¶ 13 (finding that a delay of nine months was
sufficient to require consideration of the factors); State v. Benjamin,
2007 VT 52, ¶17, 182 Vt. 54, 929 A.2d 1276 (concluding that eight-month delay
from complaint to disposition is not per se prejudicial but is sufficient to
trigger analysis of the other factors); State v. Unwin,
139 Vt. 186, 195, 424 A.2d 251, 257 (1980) (“We believe that a delay of more
than six months in a case involving an incarcerated defendant is long enough to
require that the other factors be considered.”).
¶
9.            
Thus, we turn to the reason for the delay.  Like in Vargas,
the crime at issue is a serious felony, and the rules of criminal procedure
contemplate several months of discovery.  See 2009 VT
31, ¶ 13 (noting that Vermont Rule of Criminal Procedure 15(a) affords parties
ninety days to take depositions).  The delays at issue were not in
the commencement of the hearings but in the completion of pretrial hearings and
the discovery process.  See Benjamin, 2007 VT 52, ¶ 17
(distinguishing delays in commencement of hearings from delays in completion of
hearings timely commenced).  Further, the case had multiple witnesses,
eight of whom the State called at the defendant’s first trial.  Several
months of discovery were needed to prepare for the trial.  Therefore, as
the trial court found, this factor does not weigh in favor of the defendant.
 
¶
10.        
The second factor, the reason for the delay, is ultimately a series of
events, the vast majority of which are attributable to defendant either
directly or through his attorney.  As found by the trial court, discovery
took several months with additional evidence and witnesses disclosed after the
anticipated conclusion of discovery.  Thus, discovery was extended. 
Throughout this period, defendant neither objected nor invoked his right to a
speedy trial.  Then, as discovery neared completion, defendant
insisted on new trial counsel.  As noted above, defendant understood that
replacing Attorney Willey with new counsel would delay his trial.  
The only delay that the court attributed to the State—the eleven days from
December 10 to December 21—was “insignificant” in that it was only a few days
with “neutral reasons for delay.”  Given this, the second factor does not
weigh in defendant’s favor.
¶
11.        
The extent to which the defendant asserted the speedy-trial right is the
third factor to be considered.  It requires us to consider “the
aggressiveness with which . . . defendant
asserted his right to a speedy trial.”  Brillon, 2008 VT 35, ¶ 38
(quotation omitted).  It cannot be said that defendant aggressively
asserted his right.  He filed a single motion to dismiss.[2]  Defendant never made a demand upon
the court to schedule an immediate trial.  Defendant did not oppose
extensive discovery.  He did not oppose original counsel’s motion to
withdraw and understood replacing counsel would delay his trial.
 Defendant notified the court of his request for speedy trial a year after
arraignment.  Because defendant did not aggressively demand a speedy trial,
this factor does not weigh in his favor. 
¶
12.        
Finally, the fourth factor looks at the actual prejudice as a result of
the delay.  This is the most important factor.  Vargas, 2009
VT 31, ¶ 16; see also State v. Yudichak, 151
Vt. 400, 405, 561 A.2d 407, 411 (1989).  Defendant below failed to specify
any prejudice as a result of the passage of time.  In Barker, the
U.S. Supreme Court held that prejudice should be assessed “in the light of the
interests of defendants which the speedy trial right
was designed to protect.”  407 U.S. at 532. 
The Court identified prevention of oppressive pretrial incarceration,
minimization of anxiety and concern, and, most importantly, limiting the
possibility that the defense will be impaired.  Id.
at 532.  
¶
13.        
On appeal, defendant merely points to his pretrial incarceration but
fails to specify how he was prejudiced.  Defendant mentions that his main
alibi witness was not called to testify at the second trial.  While
the death or disappearance of a witness during the delay for trial may severely
hinder a defendant’s case, Barker, 407 U.S. at 532, a “vague and
unsupported claim that the delay caused the loss of favorable statements will
not suffice to show prejudice.”  Vargas, 2009 VT
31, ¶ 16 (quotation omitted).  Stated another way, “[a] general
allegation of loss of witnesses . . . is
insufficient to establish prejudice.”  United States
v. Beckham, 505 F.2d 1316, 1319 (5th Cir. 1979) (quotation omitted).
 Here, we are left to
guess how this main alibi witness might have helped defendant, how the
testimony related to the case, and whether the timing of the subsequent trial
played a role in the witness’ absence.  Cf. Vargas, 2009 VT 31, ¶
16.  Without more, defendant’s cryptic statement does not serve to
establish sufficient prejudice for this factor to weigh in his favor.  
¶
14.        
Upon consideration of these four factors, we conclude that defendant’s
constitutional right to a speedy trial was not violated. 
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 15.         BURGESS, J., concurring.  While I concur
in the Court’s decision to reject  defendant’s
claim that he was denied his Sixth Amendment right to a speedy trial, I would
reach this conclusion by a different and more efficient route.  This
alternative would align our speedy-trial jurisprudence with the framework
intended by the U.S. Supreme Court in its seminal decision in Barker v. Wingo, 407 U.S. 514 (1972), and restore the courts’
ability to dispose of  unfounded speedy-trial claims in a more 
expeditious manner.   
¶ 16.         The
test for evaluating speedy-trial claims established by the high court in Barker
requires that we first consider the length of the delay from accusation to
trial.  As the high court explained: “The length of the
delay is to some extent a triggering mechanism.  Until there is
some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance.”  Id. at 530.  Thus, if a court concludes that the
delay in question fails to meet the threshold standard, the claim fails as a
matter of law and no further inquiry is required.  See, e.g., United
States v. Chahia, 544 F.3d 890, 899 (8th Cir.
2008) (finding that delay between indictment and trial was “too short a time
period to be presumptively prejudicial” and thus concluding that it “need not
consider the remaining factors to find that no Sixth Amendment speedy trial
violation occurred”); State v. Goss, 777 P.2d 781, 785 (Kan. 1989)
(holding that delay was not “clearly presumptively prejudicial as enunciated by
Barker v. Wingo, and hence there is no
necessity for inquiry into the other factors that go into the
balancing”).  
¶ 17.         Although
the Barker court did not elaborate on the “presumptively prejudicial”
inquiry, it did explain that the delay sufficient to “provoke such an inquiry
is necessarily dependent upon the peculiar circumstances of the case.”
 Barker, 407 U.S. at 530-31 (emphasis added).  By way of
example, it observed that the delay  “tolerated
for an ordinary street crime is considerably less than for a serious, complex
conspiracy charge.”  Id. at 531.  In
a later decision, the Court explained that Barker contemplates a “double
enquiry,” requiring a threshold assessment of whether the State has failed to
“prosecute[] [the] case with customary promptness,” and only if this is shown
must the court then consider the length of delay as one factor among many to be
weighed in the balance.  Doggett v. United States,
505 U.S. 647, 652 (1992).  
¶ 18.         Although
seemingly straightforward, the “presumptively prejudicial” trigger has been a
source of continuing uncertainty.  One early commentator observed
that  Barker was “not quite clear” as to how to determine whether a
delay is sufficient to trigger further inquiry, H. Uviller,
Barker v. Wingo: Speedy Trial Gets a Fast Shuffle,
72 Colum. L. Rev. 1376, 1383 (1972), and lower courts have since proven this
observation to be depressingly accurate.  Indeed, despite the Supreme
Court’s express pronouncement that the delay sufficient to trigger a plenary
analysis is “necessarily dependent upon the peculiar circumstances” of the
case, many courts—including our own—have instead opted for rigid timeframes
entirely divorced from the circumstances.  See, e.g., State v. Keith,
160 Vt. 257, 267, 628 A.2d 1247, 1253 (1993) (concluding that it was
“unnecessary to examine the reasons for the delay” in holding that 20-month
delay was sufficient “to trigger a review of the other three [Barker]
factors”), overruled on other grounds by State v. Brillon,
208 VT 35, ¶ 42, 183 Vt. 475, 955 A.2d 1108, rev’d
on other grounds sub nom. Vermont v. Brillon,
___ U.S. ___, 129 S.Ct. 1283 (2009); State v. Unwin, 139 Vt. 186, 195, 424 A.2d 251, 257 (1980) (“We
believe that a delay of more than six months in a case involving an
incarcerated inmate is long enough to require that the other [Barker]
factors be considered.”).  The preference for such bright lines over
context has not, however, led to consistent results.  Compare United
States v. White Horse, 316 F.3d 769, 774 (8th Cir. 2003) (holding that “a
nine and one-half month interval [between accusation and trial] is too short to
be presumptively prejudicial”), with Wells v. Petstock,
941 F.2d 253, 258 (3d Cir. 1991) (holding that seven-month delay was “long
enough to require plenary inquiry into the remaining Barker factors”),
and City of Billings v. Bruce, 1998 MT 186, ¶ 55, 965 P.2d 866 (“[W]e establish
200 days as the necessary length of time to trigger further speedy trial
analysis.”). 
¶ 19.         Treating
the passage of time alone as a “delay” triggering a Barker analysis
distracts from, rather than vindicates, the right to speedy trial.  When
no actual, untoward delay in proceedings can be demonstrated, motions to
dismiss—as in this case—prompt unnecessary pretrial litigation resulting in
true delay.  Reading Unwin to treat as
“delay” the fact that a defendant is not brought to trial within six months of
arraignment, when nothing can be identified as unduly postponed, made late,
restrained, put off or otherwise hindered secures no constitutional right to a
speedy trial and is wasteful—particularly where, as here, defendant agreed to
many of the delays and never expressly demanded that he proceed to trial.
 
¶ 20.         It is
time to restore to this threshold inquiry the context contemplated by the high
court in Barker.  Although the Supreme Court has since noted that
lower courts “have generally found” delays “approach[ing]
one year” to be presumptively prejudicial, Doggett, 500 U.S. at
652  n.1, it has never retreated from its original position in Barker
that the length of delay necessary to address the other speedy-trial factors is
“necessarily dependent” on the fact-specific circumstances of the case, nor
endorsed the position of this Court in Keith that “the reasons for the
delay” are essentially irrelevant to the analysis.  160 Vt. at 267, 424 A.2d at 1253.
¶ 21.         With
this understanding in mind, an analysis of the undisputed record evidence here
provides no basis to conclude that the State failed in any respect to prosecute
this case with its “customary promptness,” Doggett, 505 U.S. at 652, and
thus no grounds to conclude that the delay was “presumptively prejudicial”
necessitating any further inquiry.  The docket entries in this matter
disclose that defendant was arraigned on felony charges in September 2008, and
assigned counsel.  At the first regularly scheduled conference on November
19, 2008, the parties were directed to file a discovery schedule within thirty
days.  Defendant agreed to a discovery schedule timely filed on December
16, 2008, which indicated that several planned depositions would be completed
by March 2009, and the matter would be ready for trial by June 1, 2009.
¶ 22.         Several
depositions were conducted in January 2009, and a pretrial conference was
scheduled in April 2009 for the following month.  Following the
conference, attended by defendant, the matter was set for the next jury draw in
August 2009.  Defendant noticed and conducted several additional
depositions in July 2009, and thereafter moved in early August to continue the
jury draw based on the recent disclosure of additional witnesses.  The
court granted the motion, and the case was scheduled for the next jury draw in
October 2009.  In the interim, in early September 2009, defendant moved to
exclude any in-court identification of defendant, and the court scheduled the
matter for a hearing.
¶ 23.         Thus,
when defendant filed his first pro se motion to dismiss on September 9, 2009,
nothing in the record to that point—or in the motion—suggested that the matter
had proceeded in any manner inconsistent with the normal, orderly pretrial
process.  The same may be said of the ensuing months leading up to
defendant’s first trial in March 2010.  The undisputed record evidence for
this period discloses that, in October 2009—based on defendant’s expressed
dissatisfaction with his assigned counsel—the court granted defense counsel’s
motion to withdraw, appointed new counsel, and scheduled the next status
conference for December 2009; denied defendant’s motion to exclude in December
2009, and scheduled defendant’s motion to dismiss for a hearing in February
2010; conducted a two-day hearing on defendant’s motion in February 2010; set
the matter for the next jury draw in March 2010; disposed of a series of
contested motions by the State to introduce prior bad act evidence in early
March 2010; and ultimately held a two-day jury trial at the end of that month. 
¶ 24.         As
the Supreme Court  cogently observes, “[o]ur
speedy trial standards recognize that pretrial delay is often both inevitable
and wholly justifiable” in order to meet the needs of the parties to identify,
interview, and depose witnesses, file and oppose pretrial motions, and
sometimes—as here—accommodate a defendant’s request to substitute
counsel.  Doggett, 505 U.S. at 656.  Nothing in defendant’s
motion to dismiss or the record before the trial court raised any factual
dispute or suggestion that the delays following defendant’s arraignment were
attributable to any cause other than routine pretrial proceedings, or that the
State had failed to prosecute the matter with diligence.  
¶ 25.         As
this case vividly illustrates, regardless of the length of time between
arraignment and trial, not every motion to dismiss for a speedy-trial violation
based on passage of time alone necessarily meets the “presumptively prejudicial”
test.  Consistent with Barker, the trial court here could easily
and properly have reviewed the motion to dismiss in light of the undisputed
record evidence and rejected the claim at the threshold, without the
additional, unnecessary, and wasteful expenditure of judicial time and
resources of a two-day evidentiary hearing.  In the long run, such an
approach would have been far more protective of defendant’s speedy-trial
rights. 
¶ 26.         I am
authorized to state that Chief Justice Reiber joins
this concurrence.      

 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 





[1]
 Defendant has not claimed that the four-month time period between his
first and second trial amounted to a violation of his right to a speedy trial. 
Therefore, only the eighteen-month time period after his arraignment is at
issue. 


[2]
 As we noted in State v. Unwin, “[a]
motion to dismiss based on an alleged violation of the right to a speedy trial
is not the equivalent of a demand for an immediate trial.”  139 Vt. at
196, 424 A.2d at 257.  A demand would give the
State the opportunity to promptly schedule a trial while a motion to dismiss
would offer only what the U.S. Supreme Court referred to as the “ ‘unsatisfactorily severe remedy of dismissal.’ ”  Id. (quoting Barker, 407 U.S. at
522).  In Barker, the U.S. Supreme Court concluded that a failure
to demand an immediate trial was not enough to result in an automatic waiver of
defendant’s constitutional right.  407 U.S. at 528.
 Nonetheless, it reasoned, “defendant’s assertion of or failure to assert
his right to speedy trial is one of the factors to be considered in an inquiry
into the deprivation of the right.”  Id.; see Unwin,
139 Vt. at 196, 424 A.2d at 257.



