State v. Burke, 2012 VT
50.
First Principle: When you file over 190 pre-trial
motions, you are not going to have much luck convincing the SCOV that you were
denied a right to a speedy trial.
Second Principle: If you threaten the prosecutor,
your defense attorney, the court, and witnesses, you will likely be shackled
during the trial—no matter how bad it looks.
Third Principle: When you are on trial for sexual
assault, and the primary issues are consent and credibility, you do yourself no
favors if you become agitated, aggressive, and angry every time you are in
court.
Fourth Principle: Do not repeatedly insult the court
and attorneys. If you feel you have to
make over a hundred insults in a single hearing, you are probably on the wrong
track and are probably repeating yourself.
o
Fifth Principle: When you have violated the first
four principles, it is probably a good time to go to the mirror and ask, Am I
really doing myself any good with all this?
(Hint: No.)
So what happened?
In July 2004, Defendant met Complainant at a job resource
center in Burlington. The two struck up
a conversation, and Defendant invited Complainant to his home. The two shared some wine and marijuana.
Complainant states that she began to feel unusually dizzy
and blacked out. When she came to, she
was in Defendant’s bedroom where he was forcing himself on her sexually.
Defendant denies this.
He states that after the wine and smoking session, he went to bed and
was awoken by Complainant who was on his bed throwing up. Defendant states that he cleaned things up,
and Complainant rewarded him with sex.
The story continues.
Depending on whom you believe, either Defendant forcibly or Complainant
voluntarily shaved her armpits and pubic area with Defendant’s razor.
Twenty-four hours after this incident, Complainant went to
Fletcher Allen reporting that Defendant raped her. Police begin an immediate
investigation, but it stalled and lingered for nearly a year and a half.
Finally, in October 2005, police arrested and arraigned
Defendant for sexual assault. At this
point, Defendant began acting in a wild manner, and—one might argue—his real
troubles began.
At his arraignment, Defendant requested a speedy trial and a
quick jury draw. The trial court offered
Defendant a November or December jury draw, but Defendant balked and requested
it be put off to February so that he could collect discovery. The trial court granted the request.
From that point, Defendant launched a series of “strategic”
maneuvers. These included the
aforementioned 190 motions, threats to attorneys and the court,
disqualification motions toward the judge, and constant, uncontrolled outbursts
in the courtroom.
Eventually, Defendant’s case worked its way to a jury in
2010. After a four-day trial, Defendant
was convicted of sexual assault and sentenced to prison.
On appeal, Defendant raises six different grounds to
overturn his judgment. The SCOV, after
recounting in greater detail, his pre-trial behavior, goes through each one in
a brief but thoughtful manner.
First, Defendant argues that he was denied a speedy
trial. The SCOV looks at four factors
that determine a violation of this right: 1) was there a lengthy delay; 2) who
caused the delay; 3) to what extent did Defendant assert the right to a speedy
trial; and 4) did any prejudice accrue.
Everyone in the case agrees that five years is a lengthy
delay, but Defendant does not get past the second factor. The SCOV finds that he was almost exclusively
responsible for the delays. Between his
various motions, issues in conducting discovery, and disagreements with
stand-by defense counsel and the court, Defendant almost single-handedly
created each of the consecutive delays.
As a result, the SCOV refuses to allow Defendant to claim or benefit
from any prejudice that resulted. The
issue of a speedy trial is denied.
Defendant’s next issue concerns evidence that Complainant
and a friend allegedly made a false report of sexual assault in a prior
case. Defendant argues that this
evidence should have come in under the exception to Vermont’s Rape Shield
law. Problem is that the alleged false
report did not involve Complainant but Complainant’s friend. Therefore, it was neither about Complainant’s
prior sexual conduct nor about a prior claim of sexual assault on the Complaint. The Rape Shield law does not apply.
Instead, the trial court ruled that the alleged false report
was banned under Rule of Evidence 403.
This rule states that evidence may be excluded if it is more prejudicial
than probative. The SCOV finds that the
trial court correctly ruled the evidence would have required a mini-trial to
establish and did not effectively show that it was more or less likely that
Defendant sexually assaulted Complainant.
At best, it would have shown that Complaint may have lied about a
similar type of action involving a friend, but this allegation was far from
definitive and was too tenuous to go to the jury given the potential that the
jury might incorrectly give it disproportionate weight.
That takes care of issue two. The SCOV moves along to issue three in which
Defendant complains that he was not allowed to put on evidence that Complainant
was charged with property theft in 2004 and convicted of aggravated assault in
2005.
The trial court blocked both pieces of evidence under Rule
of Evidence 609. That rule limits a
party from attacking a witness with proof of a prior conviction unless the
crime involved truthfulness or falsification and the evidence is more probative
of the witness’ credibility than it is prejudicial. Here the alleged convictions do not involve
either truthfulness or falsification.
The theft is not even a conviction.
Therefore, the SCOV rules that the evidence was properly excluded.
Defendant’s fourth challenge goes to the trial court’s
appointment of defense counsel and requirement that Defendant be shackled
during the trial. To the second issue,
the SCOV cites precedent for the fact that when a Defendant misbehaves, makes
threats, is disruptive, and presents a danger, the trial court has discretion
to shackle. In this case, Defendant had
shown all of those behaviors and had refused to cooperate. The trial court tried to minimize the
appearance of the shackles by bringing Defendant into the courtroom before the
jury and adding a skirt to the defense table to hide the shackles. These steps, rules the SCOV, were sufficient
and properly balanced the terrible appearance of a defendant in shackles with
legitimate safety and decorum issues.
Next the SCOV rules that while a defendant has a right to
refuse a public defender and legal services, the trial court has the discretion
to assign counsel where the actions of the defendant demonstrate that the
absence of counsel will undercut the fundamental constitutional principle of a
fair trial. On both issues, the SCOV
affirms.
For his fifth challenge, Defendant argues that his sentence is
improperly indeterminate. The answer to
this is simple. A sentence is valid if
three criteria are met: 1) the maximum sentence does not exceed the statutory
maximum for the particular crime; 2) the minimum sentence does not go below the
statutory minimum for the particular crime; and 3) the maximum and minimum sentences
are not the same amount of time. Here
Defendant’s sentence meets all three criteria and is upheld as valid.
Finally, Defendant challenges the denial of his Rule 33 motion
for a new trial. He argues the evidence
shows that the Complainant was a savvy adult who consented to have sex. The SCOV affirms the trial court’s
denial. The issue for the jury was not
whether the parties had sex, but whether it was consensual. Defendant claimed it was. Claimant said it was not. Ultimately, the jury believed Claimant, and the
SCOV will not set aside such a factual determination.
The value of this case is somewhat questionable. Defendant’s behavior as recounted in the
record was so extreme and outrageous that many of the trial court’s rulings
appear to be more than fully justified. It
will be difficult for future defense attorney or prosecutors to use this case
or much of the SCOV’s analysis because of the extreme nature of the facts.
The truth is that Defendant’s behavior is a bit of an
aberration. Defendant appears to have
given into his worst instincts and let loose an id-driven defense that lacked
control as well as reason. While it
makes for interesting reading, it does not make for either precedent or
exemplary citation.
Of course, now the trial courts can look forward to a series
of Post-Conviction Relief motions from Defendant in which he can give vent to
his various grievances with the trial court and his assigned counsel.
It is unlikely, though, that he will recognize his single
greatest adversary in any of these filings.
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