Sunday, April 20, 2014

Need 4 Speed: Fast Enough?

State v. Reynolds, 2014 VT 16

By Jeffrey M. Messina

Speedy-trial rights are oft asserted, but rarely do they win the case for a defendant. Imagine a drag-racing movie where the mechanics just work on the cars until nearly the end of the movie. You’d probably want your money back, right?

Defendant was charged with a single count of sexual assault in early March, 2010. Trial was first scheduled for January 2011 but was continued to March 2011. Although the hearing began as scheduled, after two days, the court declared a mistrial due to significant problems with the sign language interpretation process. Oh yeah, two of the state's witnesses—including the complainant—were deaf and required the assistance of American Sign Language (ASL) interpreters.


Nothing further occurred until a status conference on August 1, in which the court calendared a new trial date of October 17, 2011. Also on August 1, attorney #1 moved to withdraw; but before he did he filed a motion to dismiss on speedy trial grounds. Enter attorney #2. On September 2, the trial court scheduled a hearing on the motion to dismiss and continued the October 17 trial date. On September 14, trial court rescheduled trial for December.

On November 3, 2011 the trial court rescheduled trial for mid-February 2012 because attorney #2 would be trying another serious felony case in December and the necessary ASL interpreters were only available with substantial advance notice. It is important to note the hearing on the motion to dismiss never happened.

When defendant finally had his day in court, he was sentenced to serve five to life.

Defendant appealed, arguing the two-year delay from arraignment to the second trial violated his right to a speedy trial under both the U.S. and Vermont Constitutions. He also claimed reversible error due to prejudicial statements made by prosecutor in closing arguments.

In its analysis of the speedy-trial claim, the SCOV cites the four balancing factors of Barker v. Wingo, 407 U.S. 514 (1972): (1) length of delay; (2) reason for delay; (3) extent defendant asserted his right to a speedy trial; and, (4) prejudice to defendant caused by the delay. However, before the SCOV could balance the factors, it had to grapple with three preliminary issues.

The first issue is whether or not to even consider Barker as a trial judge never issued a ruling concerning the motion to dismiss on speedy-trial grounds. Defendant wanted the case remanded for more information that the trial court considered and applied to schedule the case two years after arraignment. The SCOV says it has all the information needed—and where delay is the main issue of appeal, remanding doesn't make sense unless absolutely necessary.

The second issue is whether the trial court should have dismissed the case for noncompliance with timelines as set forth in Administrative Order (A.O.) 5. As the SCOV notes, Section 3 of A.O. 5 gives trial courts discretion to dismiss cases not trial-ready within six months of arrest. The SCOV indicates the imposed timelines of A.O. 5 are not practical and don't reflect the necessary time to bring a serious felony case to trial.

The third issue is whether the Vermont Constitution provides a more stringent standard for delay under speedy trial than the U.S. Constitution. The SCOV says “no.” On to the Barker four . . . .

The length of time between arraignment and the second trial in this case was 23 months. That timeframe was sufficient for the SCOV to evaluate the remaining three factors.

The SCOV identifies three specific periods of delay and refers to the reasons for each: one-year period from arraignment to first trial (which would've fallen within normal limits for trial preparation); five months between mistrial in August 2011 status conference (delay attributable to the court and the prosecution); and, six months for the final preparation leading to second trial (mainly due to the substitution of counsel and scheduling the ASL interpreters).

The SCOV gives the third factor—the extent defendant asserted his right to a speedy trial—to the defense, but it doesn't mean much. The SCOV says that after defendant filed the motion to dismiss in August 2011, progress toward trial number two was steady.

The SCOV admits prejudice caused to defendant by delay is difficult to prove, but states delay can also weigh against the prosecution, which bears the burden of proof. The SCOV indicates the record only contained “evidence of no more than a moderate degree of prejudice to the defendant.”

Balancing the four factors, the SCOV holds that the defendant was not deprived of his right to a speedy trial.

Defendant also claimed reversible error because the trial court improperly allowed statements by the prosecution during closing argument. The SCOV weighs statements in the context of the trial as a whole, not separately.

The prosecutor’s first allegedly improper statement is: “She (Complainant)’s lived with this for two years. Help to show [her] that there is justice.” The SCOV says the prosecutor’s statement was an improper appeal to the jury's sympathies but that viewed in the broader context of the trial, the statement was harmless error because it was a small part of a much longer recitation of the facts and was not part of a broader theme. Uh, weren’t we just talking about speedy-trial rights?

The second questionable statement was made on rebuttal to defendant's closing. Defendant’s closing addressed 37 calls or text messages from complainant to her friends, arguing the calls and texts demonstrated she was not frightened of defendant and the sex had been consensual. The witness denied sending the calls and texts. In rebuttal, the prosecutor said complainant likely “butt dialed,” because most everybody she knows with a cell phone has done it.  Yes, butt dialed.

The SCOV finds the statement improper, but because defendant did not object at trial, the SCOV reviews for plain error only and doesn’t find any. So, defendants, cover your butt and always object.

Finally defendant argued that prosecutor’s third statement—that the 30-year age difference between the defendant and complainant made it unlikely she would have consensual sex with him—was unfair or discriminatory. The SCOV disagreed, calling it an appropriate argument as circumstantial evidence against the defense of consent.

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