Wednesday, June 20, 2012

Moving Target

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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