State v. Brillon

reasons, 41. For the above agree with the trial court that Windsor’s proceeds insurance awere collateral source. Under rule, the collateral-source may DOC not reduce its indemnity liability to Windsor the amount of Windsor’s insurance pro ceeds.

Affirmed.

2008VT 35 State of Vermont v. Michael Brillon

[955 A.2d 1108] No. 05-167 Reiber, C.J., Dooley, Johnson, Skoglund Present: Burgess, JJ.

Opinion Filed March Reargument Motion April Denied Sorrell, General, Attorney H. and David Tartter and William Treadwell, R. Attorneys General, John for Montpelier, Assistant Plaintiff-Appellee. Nelson, Middlebury,

William A. Defendant-Appellant. for Johnson, 1. J. In appeal, this we take the extraordinary step of vacating dismissing charges the convictions and the defendant because he not prosecuted was within a time frame that satisfied his constitutional to a trial. Defendant was charged with domestic striking girlfriend assault after his during an in July altercation his Because assaultive behavior was a of a previous release, also violation of condition the was charge felony enhanced to a domestic felony, assault. The enhanced turn, allowed the State prosecute to defendant as a habitual offender, him making eligible for life a sentence. Defendant during remained incarcerated the nearly three years passed finally before he was brought to trial. the Following he was sentenced to serve twelve-to-twenty years prison. During pendency of this appeal, the State agreed a reduced sentence if dropped but, defendant remand, appeal, on district court refused to accept stipulated settlement. nowWe hold that the convictions charges must vacated and the against defendant dismissed because he not prosecuted in a timely manner.

¶ 2. In arriving decision, at this we acknowledge that much of the in prosecuting defendant resulted from inaction of of assigned several represented counsel who during defendant the three he years trial. below, awaited As we discuss detail however, the inaction of assigned counsel not does relieve the of duty, state1 its through implementation of justice the criminal system, provide defendant with a constitutionally guaranteed Indeed, speedy trial. the defender general’s part office is justice system criminal When, an arm the state. inas for, a presses denied, but is a speedy trial because of assigned inaction counsel or breakdown the public capitalize 1 We do not referring word “state” when to the combination government justice up system. capitalize entities make the criminal We Thus, referring appellee. word “State” when opinion, in this when we attribute state, referring justice system are general to the criminal who, prosecutors, part, actively sought individual the most to have brought timely manner. provide to the defend- system system, the failure defender the trial is attributable guaranteed speedy constitutionally ant a Johnson, P.2d v. People and not defendant. See prosecution, banc) (Cal. 1980) (en the the of (stating purpose 738, 747 protect trial is to defendants speedy to a or its neglect of the state oppression the or -willful caused the and judiciary the but officers, only prosecution, “not including defendants”). indigent assign represent the judges whom those case, ¶ in us this the limited record before 3. Because of a growing an aberration or represents sure if this case cannot be If in services Vermont. provision general in the of defender crisis to the defender inadequate given result resources it is the of office, the Legislature the to address it would behoove general’s of anew with the dilemma before we are confronted problem danger- releasing potentially dismissing charges prematurely and community. into the ous individuals dissent, we take this Contrary assertion of the do not 4. to the In of role of the trial courts. lightly disregard in the decision or into a “woman view, releasing society this Court is the dissent’s intentionally guilty is and offender” who beater” “habitual attor- proceedings by “ensnaring” his “sabotaging]” his criminal interest, trial, and in a to create conflicts of avoid neys “ploy” ultimately upon seeking a “fraud the court” dismissal commit ¶¶ 52, 54, Post, 59. the Apparently, on lack of trial. speedy based court, office, attorney’s views the trial state’s dissent helpless to passive players prevent office as general’s defender ¶¶ Post, 52, 58. “monkey-wrenching” “maneuvers.” scenario, not to have appear such a court would Under over, for, its own responsibility proceedings. ultimate control or “tactics,” the dissent considers presumed Because of defendant’s “unfortunate, for defendant lengthy delay securing ¶¶ Post, The us urges 82. dissent per se prejudicial.” but defend- case, so that its assertions about largely to remand on motion for hearing at a his proved ant’s motives can be second trial. a theory solely responsible 5. To its that defendant bolster trial, the dissent examines bringing case separate charges involving proceedings

“related” criminal defend factfinding that attributes motives to extensive engages time, Post, accuses Ironically, at the same dissent ant. the majority of engaging “appellate fact finding” and expanding the record in an effort “to judgment render on defendant’s bare ¶¶ Post, allegations.” 57, 58 n.4. judgment, however, Our is not based on “defendant’s bare allegations,” but rather on the undis- puted record the only case that is relevant determining the speedy-trial issue. That record includes the entire — procedural history the case including trial court’s actions, the counsel, statements of withdrawing periods time defendant counsel, was without the period of time it took to bring and the actions of the state’s attorney and defendant. reveals, The record below, as detailed that an unacceptable amount of the delay was not attributable to defend- ant, but to the system. The glosses dissent over these systemic factors, instead attributing delays the supposed defendant’s — upon fraud the court even though nothing the record or the trial court’s findings support this view. What the dissent misses is that, notwithstanding motives, defendant’s actions and it is ulti- mately the trial court’s responsibility to control the proceedings by denying new counsel or continuances if it believes that the defendant is attempting to manipulate the system.

¶ Therefore, 6. we see point no in remanding this case for the trial court to revisit defendant’s motion to dismiss for lack of a speedy trial. The facts, material apparent record, from the are essentially undisputed. Remanding post-conviction-relief-like for a hearing at which all of assigned defendant’s counsel would be examined to uncover defendant’s underlying motivations would do nothing to further our resolution of the legal ultimate question we Rather, must decide. the undisputed facts need to be examined in light of the relevant legal factors. After doing so here based on us, record before it is plain that defendant was not prosecuted within a time frame that satisfied his constitutional right to a speedy trial.

¶ 7. Before examining law, the relevant we first set forth the historical procedural Later, facts. within the context of applying the relevant factors law, established our we will review the factual details concerning the delay in prosecuting defendant.

¶ 8. The events that led to this appeal stem from defendant’s relationship with his girlfriend, former with whom he had a child born in April 2000. As the result of charges arising from an incident in which defendant allegedly slashed the tires on his others, a among imposed, court car, district girlfriend’s harassing his from defendant prohibiting of release condition after the three weeks approximately July On girlfriend. release, girlfriend of of conditions imposition court’s check-in required for a station police to the local defendant drove home so mobile girlfriend’s return to were to they before left girlfriend daughter. Apparently, visit their defendant could impres- under the she was off defendant because dropping after Eventually, girlfriend’s arrested. to be going that he was sion home, mobile girlfriend’s a ride to defendant gave sister him leaving girlfriend confronted angrily defendant where at the door appeared girlfriend station. The police at the during the point At one a baseball bat. holding home mobile daughter leave with her confrontation, attempted to girlfriend so, in the struck her to do attempted car. As she her called, was arrested. and defendant face. The were police circumstances, a domestic-assault aggravating 9. Absent year no more than one punishable a misdemeanor charge is circumstances, § Due to a combination prison. 13 V.S.A. and then felony an enhanced however, charged with defendant was The life sentence. facing potential a habitual offender as domestic second-degree aggravated felony charge enhanced on his assault from the fact that defendant’s resulted assault prohibiting of release pretrial violated the condition also girlfriend 1044(a)(1) § girlfriend. See V.S.A. harassing from second-degree aggravated guilty person (providing assault if commits domestic person assault domestic and, so, doing “violates person to another bodily injury causes the time in effect at a criminal court order conditions of specific Moreover, person”). that other protect imposed of the offense three prior of felonies on had been convicted because as a habitual occasions, charged also prosecution § 11. See 13 V.S.A. offender. incident, 27, the district 2001 days July after the 10. Three incarcerated. order, remained and defendant a no-bail

court issued 2002, evidentiary hearing bail 16, following an February On times, trial court ordered continued several had been Finally, after several trial. pending held without bail defendant be judges, and rotations of continuances, attorneys, changes more 15, 2004, on June days beginning three trial was held over a Defendant arraigned. after defendant had been nearly years three

483 was found guilty and sentenced to serve twelve-to-twenty years in prison. On appeal, defendant argues that the trial by court erred (1) denying his motion to bifurcate the aggravating element of the domestic-assault charge, refusing to allow defendant stipulate the existence of the aggravating element in lieu of the State’s evidence, and improperly instructing the jury regarding that (2) element; aggravating allowing prosecutor to ask defendant if he had (3) committed perjury prior a proceeding; refusing to allow defendant to retract his waiver of a jury trial on the issue (4) whether he offender; was a habitual denying his motion to dismiss the charges against him for lack of speedy trial. We need not address the first three issues because our resolution of the speedy-trial issue determines the outcome of appeal.

¶ 11. Both the federal and Vermont constitutions guarantee defendants a (“In trial. U.S. Const. amend. VI all criminal prosecutions, the accused shall enjoy the right to a speedy and public by an impartial .”); jury . . . Vt. Const. ch. I, art. 10 (persons have a right in all criminal prosecutions to “a speedy public trial an by impartial jury”). There is also a Vermont administrative order establishing periods time for bringing defend ants to trial cases, criminal Administrative Order No. 5 (“PROMPT DISPOSITION OF CRIMINAL CASES”), but this Court has ruled that the order does not grant criminal defendants procedural or substantive rights. Snide, See State v. 436, 144 Vt. 441, 139, (1984) 479 A.2d 142-43 (noting that a speedy-trial violation is predetermined by the operation of Administrative 5, Order No. and that the order cannot be invoked a defendant as a matter of right).

¶ 12. apply We a well-recognized, albeit amorphous, balanc ing test set forth the United States Supreme Court in Barker v. Wingo, 514, 407 (1972), U.S. and adopted by Court, this determine whether there has been a violation of the constitutional right to a speedy trial. See French, State v. Vt. (1989)

A.2d 1060-61 (noting that the Barker test was Court). adopted by The balancing test weighs the conduct of the prosecution and the (1) defendant while examining the length (2) of the delay, (3) the reason for the delay, the extent to which (4) defendant asserted the right, the prejudice to the defendant. Barker, See 530; 407 U.S. at Keith, State v. 160 Vt. 257, 266-67, (1993). 628 A.2d

¶ review test, characterized our we have this employing In independently have yet court and the trial as deferential In doing, the law. so the facts to and applied the record examined discussion, that we review stated, without routinely we have v. E.g., discretion. State an abuse of for decisions speedy-trial Keith, 643; 160 Vt. 245, A.2d 99, 33, 177 864 Beer, Vt. 2004 VT of that standard Tracking the citations 266, at 1253. at 628 A.2d 549, Chamberlin, 131 Vt. us to State v. cases leads previous (1973), implementing we held 30, wherein 551, A.2d 32 310 within “entirely rule was predecessor No. 5’s Administrative Order evolved holding the trial court.” This authority of discretionary for re standard an abuse-of-discretion assigning into over time claims. speedy-trial on constitutional rulings trial court viewing 195, 251, 256 Unwin, 186, 424 A.2d Vt. v. 139 Compare State not 5 but does (1980) permits Order that “Administrative (noting has not a criminal case which court to dismiss a trial require that the stating and period,” within a certain to trial proceeded court, will not the trial discretion of “is for the sound issue 17, 36, 557 Roy, 151 Vt. with State v. appeal”) disturbed on (1989) in the of review 884, (citing Unwin standard 896 A.2d 75, French, 564 A.2d 152 Vt. at analysis); speedy-trial context of a ruling that a trial court’s proposition for the (citing Roy at 1060 a trial is reviewed speedy for lack of on a motion to dismiss Lavalette, 426, 429, discretion); 154 578 v. Vt. State an abuse 266, (1990) (same); Keith, 628 A.2d at 160 Vt. at 108, 110 A.2d proposition). French for the same (citing 1253 the discretion to certainly trial court has 14. While the 5, to the and we will defer Order No. implement Administrative an abuse of that that order absent implementation trial court’s a defend discretion, determining whether our review of decisions trial has been violated is speedy to a right ant’s constitutional cases, with a presented In we are in all such respects. deferential — is, the trial court’s fact whether of law and question mixed and, turn, whether the the record are findings supported the defendant determination that legal the court’s supports record In a trial. of his constitutional deprived to our review of a sense, analogous the standard of review criminal case. evidence suppress a motion to ruling court’s on ¶ 12, 878 A.2d Pontbriand, VT 178 Vt. v. See State on motions to rulings of review to a mixed standard (applying 7, 177 Vt. Freeman, 2004 VT v. State suppress); (mem.) (same). court, factfinder, A.2d 295 Because the trial as position is in the best to determine the weight sufficiency evidence, apply to the clearly-erroneous standard under lying court; hand, on facts found the other we review de novo legal question the ultimate of whether findings and underlying facts demonstrate violation of a defendant’s consti State, tutional to a Cf. right speedy Berry trial. v. 2004 WY ¶ 17, 222 93 (stating question P.3d that “the constitutional of whether a defendant has been denied a is speedy trial” examined novo). de extent otherwise, To the that our case prior suggests law it is overruled.

¶ Having review, 15. set forth the standard of we now examine the four factors at that are the heart of the balancing test for determining whether there has been a violation of the factor, to constitutional trial. The speedy first which serves role, a dual the length delay. is of the “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry other go into the factors Barker, into the balance.” 407 U.S. at If the length 530. the delay of is extreme enough to be prejudicial presumptively regard without to the reasons for the delay, it triggers review of the other factors to balanced in determining whether there speedy-trial Id.; is a violation. see Keith, at 160 Vt. at 628 A.2d 1253 (noting that because the first factor serves as a trigger factors, for review of the other it is unnecessary to examine the reasons for the as delay part of the calculation). length-of-delay If review of the other factors is triggered, the first factor then is balanced with along the other factors in determining speedy-trial whether a violation exists. See ¶ Stock, State v. 2006-NMCA-140, 13, 147 P.3d 885 (applying same

test to speedy-trial evaluate claim under New Mexico Constitu tion).

¶ 16. In weighing the of the length delay, must consider “the extent which to the delay stretches beyond the bare mini mum trigger judicial claim,” needed to examination of Doggett States, v. United 505 (1992), U.S. 652 as as the well nature of Barker, the case. See 407 at U.S. 531 (noting “the delay that can be ordinary tolerated for an street is considerably crime serious, less than for a complex conspiracy charge”); Stock, (“Where 2006-NMCA-140, a case is simple relatively easy to prosecute, delay will more weigh heavily against the State reason delay.”). Irrespective is less excuse for because there defend- an incarcerated bringing delay, egregious delay for the in a speedy-trial the state must be factored ant to trial Barker, it because, emphasized as the Court Supreme analysis bring a defendant government’s responsibility ultimately that “the (holding U.S. at 529 timely matter. See 407 trial in a assure and the prosecutors on the courts primary [is] burden 2006-NMCA-140, trial”); Stock, brought are that cases responsibility has the ultimate that because the state (holding manner, “the sheer fact timely to trial in a defendants bringing count for liberty restraint on should incarceration or other lengthy even the defendant analysis” in the when something delay). for the responsibility bears some court, the dissent parties, As the trial defend three-year bringing in this acknowledge necessary length far exceeds the minimum ant to trial Keith, factors. See 160 Vt. at review of other trigger the (holding twenty-month delay “far exceeds A.2d at 1253 that three of the other delay trigger of needed to review length Unwin, (holding 424 A.2d that “a factors”); 139 at at 257 Vt. incarcerated involving than six in a case an delay of more months the other factors be long enough require to considered”). Moreover, is extreme length delay the of the because heavily weighs this factor particularly complex, the case is not ¶ Stock, 2006-NMCA-140, (stating 18 in favor of defendant. Cf. heavily factor favor of the defendant weighs the first case year delay [simple] in this “the three and one-half because egregious”). was particularly — ¶ “flag litigants the all seek 18. The second factor —(1986) Hawk, 474 U.S. 315 United States v. Loud

capture,” of the delay. delay part for the Deliberate on the is the reason obviously weigh the defense hamper state intended would Barker, at 531. More in favor of defendant. 407 U.S. heavily courts, “should be delay, reasons for such as overcrowded neutral since heavily should be considered less but nevertheless weighted rest with such circumstances must responsibility the ultimate for reasoning with applied Id. Courts have the same government.” the public E.g., of defenders. to the crowded calendars respect trial Johnson, speedy P.2d at that the to a (holding right 606 747 defenders provide enough public failure to “may also be denied counsel, appointed so that an indigent or must choose [defendant] right to a trial right representation between and the counsel”). by competent Stock, 19. For example, court considered “the difficult

question whether a defendant’s constitutional to a speedy trial is violated he is and awaiting when incarcerated trial for more than three but the years, delay part is in attributable to the neglect 2006-NMCA-140, public his overworked defenders.” 1. in that delay Much case resulted from the defendant’s assigned seeking numerous continuances and failing with the proceed expeditiously case. The court stated that it would delays be unfair to they attribute to the defendant when were “solely attributable to his counsel” and not for were the defend- State, Similarly, ant’s benefit. Id. v. Middlebrook 802 A.2d (Del. 2002), the Delaware Supreme speedy- Court addressed a claim in trial a case which an incarcerated defendant waited nearly years four problems, including for because of several motion, the trial delay ruling court’s on a pretrial rotation of the case among judges, several the granting of eleven continuances, which requested by several of were defense counsel. While that a acknowledging significant part resulted counsel, from sought by continuances defense the court concluded weighed state, fact had to be which had the ultimate responsibility bring defendant to trial timely 274-75; manner. Id. at see Magnusen, also State v. 2d So. (Miss. 1994) (“A more neutral reason such negli- as or gence courts weighed overcrowded should be heavily less but nevertheless should considered since the ultimate responsibility such must rest circumstances with the government rather than omitted.)) (Emphasis with defendant.” ¶20. With in mind, these principles we examine the reason for in the instant case. Defendant arraigned on July 2001, three days after incident that to the led charges against him. He prison remained in on a through hold-without-bail order trial, his which took June the place arraignment, 2004. At district court that ordered defendant be held without pending bail an evidentiary which hearing, defense counsel asked to be at held later 15, date. The evidentiary hearing was August scheduled for on August prosecutor but public and the stipu- defender lated continuing hearing because defense counsel was moving practice day. his former private that Defense counsel incarcerated, had consented to defendant, although indicated that a letter with filed defendant September On the continuance. for more held without bail he had been that complaining the court telephone numerous notwithstanding yet, days, and sixty than engaged him or letters, not contacted counsel had his calls his defense. discovery preparation any before the on October but was convened hearing 21. A bail be contin- hearing that the counsel asked defense hearing began, judge, to recuse the who to file a motion he intended ued because stemming proceeding over a relief-from-abuse presided had also Defense charges. the criminal that led to from the same incident the motion delay resulting from stated that explicitly counsel day, next claim. The any speedy-trial toward not be counted would judge, which motion to recuse the pro filed a se defendant by the adminis- on October 9 and judge the trial was denied 28, noting that December on November On judge trative even for five months without had been incarcerated matter set asked that the hearing, the State having had bail tentatively court scheduled February 2002. The for trial February. trial for

¶22. 16, 2002. finally January held on hearing The bail was bail. opinion denying a written day, That the court issued same sought a continuance day, The next defense counsel necessary to trial, investigation that further February arguing the motion and set trial. The trial court denied prepare for day. next begin the trial to February for with jury draw continue, again counsel filed a motion February defense On him it for impossible case load had made asserting that his understood trial. He assured the court prepare for respect would not count with delay resulting from the motion court denied Again, claim. the district any speedy-trial potential time to motion, ample counsel had had noting that defense Defendant, by telephone was participating for trial. who prepare continue, at expressed frustration hearing in the on the motion him that finally telling for inability ready to be counsel’s he was fired. draw, later, jury day before the scheduled days 28. Three withdraw, be a stating might that there filed a motion to him because discharged that defendant had

conflict of interest and trial. He ready being over his unhappiness of defendant’s reassigning suggested had general also defender reported the case to another attorney whom he had mind. At the hearing motion, on the the court warned defendant that granting the motion to withdraw would mean delay. further The court asked defendant whether he would rather have attorney a new go than forward with his current attorney. Defendant responded that he had no choice because his current attorney was not prepared to go forward with a trial. The court then granted the motion to withdraw, appointed a attorney, new and ordered a status confer- ence to be held in thirty days. later, A days few the newly assigned reported interest, a conflict of 1, and on March appointed court a third attorney represent defendant.

¶ 24. Nearly later, three months May on defendant filed a pro se motion seeking yet another attorney because of his third attorney’s alleged failure to defendant, communicate with to file motions, or to any share discovery material so that defendant could make informed decisions his regarding defense. Defendant claimed in the motion that his third attorney had told him that he (the attorney) could not diligent because of his heavy case load. A hearing on the motion was held on June 11. Complaining that his attorney had him spoken to on only two occasions for a few minutes March, since being assigned in defendant told the court that he wanted to be brought to trial. For his part, defense counsel stated that he had spoken to defendant at length about trial strategy and that he would make prior deposition testimony available to defendant. He further stated that he had ample time before trial to file a motion limine and that he would look at whether the habitual-offender charge could be attacked. Near the end of the hearing, defense counsel moved to withdraw from the case, indicating that defendant had threatened him during break in the proceedings. The court granted the motion to withdraw because of an irreconcilable breakdown in the attorney-client relationship, but warned defendant that he was not entitled to manage every aspect of his defense and that assigning a new attorney would result in further delay. That same day, the court appointed a fourth attorney to represent defendant.

¶25. At a status conference on August defendant’s fourth counsel stated that he needed an additional sixty days to prepare for trial because of heavy case load and because “there seems to be a lot of discovery prior attorneys [defendant’s] never got to for one reason or another.” The State asked the court to allow a minimal amount of time for discovery, further noting that for the sole depose peripheral witnesses seeking defendant was ordered the victim’s character. The court attacking purpose by September to disclose its additional witnesses defense tried in October. On it the case to be expected indicated expressing letter to the trial court defendant wrote a August contacted his witnesses and that his new counsel had not concern later, Two months on to his calls or letters. responded had not indicated in the intervening any no action of sort October with docket, a motion to dismiss his counsel because defendant filed to contact him attempts not to numerous attorney responded had trial. nothing prepare had done to for November 26. hearing 26. A on the motion was scheduled hearing. in at the part presided The fifth to take this case judge process getting that he was the Defense counsel indicated the of criminal defense work and that his private practice out of expired had in June. general’s contract with the defender office him had indicated to general He further stated that the defender the more going reassign capable that he was case someone the dealing making any findings regarding with it. Without defendant, attorney’s representation current adequacy of the the trial court the motion to withdraw and instructed granted — — another counsel defendant’s fifth general assign defender possible. as soon as

¶27. entry general A court docket indicates that the defender attorney day, a defendant that Novem- assigned represent new 26, 8, conference, January attorney at a 2003 status ber but only told the court that he had been advised December 2002 to the case. he had been might assigned Apparently, that he conflict, if a he had told to review the case file to see he had but attorney the file. The stated that he would review yet received formally assigned represent the case as soon as he was office to general’s defendant. The court ordered the defender 15, days. January fourteen On assign new within advised the court that the fifth counsel had been general defender case, to the and the court issued a formal notice of assigned 25, the counsel filed a assignment February a week later. On new deadlines, that he discovery stating motion to extend and motion three The court previous granted had been out of state the weeks. motion, noting acquiescence. the State’s 11, 2003, four and one-half months after the April 28. On having anything and without done previous attorney’s withdrawal withdraw, attorney defendant’s fifth filed a motion to stating general securing that the defender would be new counsel because of modifications his firm’s contract the defender with months, general’s office.2 For the four defendant was following counsel. entirely May pro without On filed se justice, citing motion to dismiss his case the interests of him bringing general to trial. On June the defender funding Legisla- notified the court that it had obtained from the felony attorney ture for a serious unit and that a new would be hired for the position represent commencing and could sixth, August on 1. The new attorney, appeared at an conference, August status at which the court scheduled another status give attorney conference to the new a chance to review case. At the next status September conference on

attorney noted a need for further discovery and asked for more time to make sense of the file. The court told defense counsel to review all pending motions and inform the court by November 7 which ones needed to be ruled on. On November the court accepted a stipulation by defense counsel and the State to extend November deadline to 22. At December a December 8 status conference, the deadline was sixty extended another days because the files were incomplete and additional documents were needed from the previous State and attorneys. defense A stipu- further lated 20, extension of the February deadline to granted. was 23, February On defense counsel filed a motion to dismiss for lack of a speedy trial and in justice. the interests of The trial court denied the in decision, motion an April 19 that much ruling of the in delay bringing defendant to trial was the result of defendant’s own actions and that defendant had failed to demonstrate actual 2 Meanwhile, April in charging the State filed an information defendant with abuse-prevention a violation of an separate order and aas habitual offender. A opened, appointed public docket was and defendant was a different defender. Citing defendant, attorney irreconcilable differences with the filed a December withdraw, 2003 motion to which the court denied. The case went to trial February attorney but defendant’s during filed another motion to withdraw hearing displeasure the representation. because of defendant’s with his The State response court, did not file a within the time frame set the and March 2004 granted withdraw, mistrial, the court assigned the motion to declared a the public recently matter assigned represent defender who had been pending charges. July defendant on the other In the State dismissed the charge prejudice. violation-of-an-APO with In pretrial delay. ruling, as a result of the so the court prejudice speedy demands for a emphasized repeated also that defendant’s in the of a for trial from request trial had been made absence indicating they or a statement from counsel that were trial. ready for finally trial took June after place 30. Defendant’s twelve-to-twenty-year

which he was convicted and sentenced to a appeal pending, term of incarceration. While the was the State stipulated and defendant that the sentence would be reduced but, if on remand from this dropped appeal, half Court, accept stipulation. the trial court refused to considering delay 31. Before to whom the should be attributed factor, and how much should be to this we note that weight given court, motion, merely the trial denying and then listed number factors attributable to summarily concluded that most attributable defendant. with conclusion to the extent that the disagree We attorneys trial court attributed to defendant the failure of his time, Examining specific periods move his ease to trial. period July conclude that the between and November 2001 should against delay during not count the state because much of the period was the result of defendant’s motion to recuse the trial Further, judge. period February between November 2001 and all, if heavily, against 2002 should not count at the state because prosecution diligently attempted both the and the court to move time; hand, during the case forward on the other the case did ready not move forward because of defense counsel’s failure to be not because of defendant’s actions. Nor should the period February between and June 2002 count against state because compelled assigned the trial court was to allow the new counsel to after him during withdraw threatened a break reveals, however, proceedings. attorney The record did little very during to move defendant’s case forward the several defendant, months he represented notwithstanding defendant’s persistent repeatedly demands to be tried. The dissent refers to periods position these time of its that defendant support him, intentionally sabotaged proceedings against the criminal but we do not count them the state. Nevertheless, even that none of the time assuming above state,

periods remaining can be counted most of the be, years notwithstanding argu- two can and should the State’s

493 State, to the contrary. only period ment to the According an delay eight-month that not be attributed to defendant is should delay July resulting November 2002 and from between over the of new counsel for defendant. uncertainty assignment Further, State even that for “neutral” contends that was heavily against thus should weighed reasons and not view, In government. periods the State’s the other between June and June should be attributed to from they practice defendant because resulted attorneys or dismissing immediately they either before trial before had an his case. opportunity review The State describes defendant’s dissatisfaction his attorneys resulting with as from unwillingness their his adopt questionable strategy trial and tactics.

¶ 33. Our review of the record as detailed above does not facts, this comport with assessment of the not which is based on any trial court findings. recognize While we may that defendants attempt to manipulate the system creating delay that could conceivably support claims, later speedy-trial the record does not support here, the State’s suggestion this occurred and the district made finding. court no such To contrary, the record reveals that defendant consistently sought to be tried compe- tent quickly counsel as possible. as While defendant moved for the attorneys case, removal of several of the assigned to his he did so because did they forward, not do anything move his case any disagreements because of he may have them had with over as strategy, the State contends. ¶ 34. emphasize To point, summarize the relevant and material facts of the two-year between period June 2002 and June in mind keeping that defendant had already been incarcer- ated at the start of that period on nearly year felony charge stemming from a violation of a pretrial condition of attorney, release. Defendant’s fourth assigned who was in June at an August stated 2002 status conference he needed an additional two prepare months to and yet he apparently little or nothing finally did at conceded a Novem- ber 2002 status conference contract with defender general expired giving had and he up criminal defense work. A fifth attorney was not formally assigned January until he was four allowed withdraw and one-half months later having without done because of a anything change his contract had At that defendant point, office. general’s the defender with years, two approximately without a trial for incarcerated been until for the next four months without counsel entirely he was yet Despite in 2003. the August took over assigned next counsel the to several delay, prosecution stipulated the already significant 2004. finally trial was held June continuances before a more facts, significant portion we conclude that a 35. these Given to trial must be attributed delay bringing of the defendant the state, delay by of the was caused though even most the move the case assigned of counsel to inability unwillingness or is of the criminal general’s part office forward. The defender ultimately responsibility it is the court’s justice system, and timely in a manner system prosecutes that that defendants assure some of the constitutional mandates. While comports that with defendant, signifi a certainly in this case is attributable justice system provided to the criminal portion cant is attributable weigh heavily against factor does not by Although the state. this the was not the result of deliberate the state because defense, “neutral,” in nor do we consider it attempt hamper responsibility prosecute ultimate defendant light of state’s timely in a manner. responsible In for most of arguing 36. defendant was Trombly, relies on v. where held

delay, the State State client relationship attorney out of the between “delay arising defendant, from attributed to the and omitted consider- must be 293, 300, 963, (1987), abrogated 967 on ation.” 148 Vt. 532 A.2d 105-10, Tahair, 101, A.2d v. 172 Vt. grounds by other State (2001). not to the instant Trombly comparable 1082-86 a two-month Trombly, In we excluded from consideration case. after by changes assigned occasioned period A.2d at 967. of a conflict of interest. Id. at We discovery relatively by brief caused period also excluded attorney accusing attorney and later discharging his attorney him.” Id. at “conspiring with state’s A.2d at 967. contrast, delayed trial was By defendant’s months, of the failure of several years,

several even because to move his case forward. As anything counsel to do assigned above, he tried consistently requested discussed only after a attorneys He the removal of his promptly. sought significant period passed time without them doing anything Thus, his case. only is the length delay significantly cases, different in the two but so are the delay. reasons for the Rather than stemming from ordinary delays by occasioned changes in assigned counsel or problems attorney-client with an relationship caused the defendant’s unfounded conspiracy claims, caused, delays this case were for the most part, by the failure of counsel, several of assigned over an time, period inordinate to move his case forward.

¶ 38. The third factor “examines aggressiveness with which the defendant Keith, asserted his to a speedy trial.” 160 Vt. at Here, 628 A.2d at 1254. as revealed the detailed above, facts set forth defendant repeatedly and adamantly de tried, manded to be and eventually filed motions to dismiss for a lack of a speedy both pro se and through In past counsel. cases, we have emphasized “that a motion to dismiss for lack of a speedy trial is not the equivalent of a demand for an immediate Id. case, trial.” In however, early from on and on several occasions, defendant stated unequivocally that he wanted to be tried as soon possible. as When his attorneys did not move his case forward within a period time, reasonable he asked the court replace to them with someone who would. While defendant grudgingly consented to continuances to allow his attorneys to case, prepare his he did so only because it was apparent that the attorneys, by admission, their own were not prepared to go Johnson, forward with a trial. Cf. 606 P.2d at 744 (holding that an attorney may not waive a right defendant’s to speedy a trial to accommodate the interests of other clients rather than benefit the defendant). Just as a defendant cannot be forced to choose between the right to counsel and the right to forego an insanity ¶ Tribble, defense, State v. see 132, 2005 VT 179 Vt. 892 A.2d 232 (holding that the trial court by erred treating the defendant’s refusal to proceed with an insanity defense as a counsel), waiver of his right to defendant cannot be forced to choose between his right to a speedy trial and his right to effective counsel. As the en banc California Supreme stated, Court a defendant’s right to a speedy trial may be denied by the failure of the state provide to “enough public appointed defenders or counsel, so that an indigent [defendant] must choose between the right to a speedy trial and right to representation by Johnson, competent (“A counsel.” 606 P.2d at 747-48 496 who, counsel, barring but only capable

deserves not circumstances, infringing upon him can defend without exceptional trial.”). a right speedy that, demonstrates plainly In this the record 39. a right asserted his on, aggressively early from in favor of defendant. trial; weighs this factor accordingly, speedy factor, the trial court noted of this third In its brief discussion trial, usually without proceed “repeated requests court Apparently, counsel.” from his then any such demand the third factor support weighing its intended this statement above, with disagree the reasons stated defendant. For the court’s conclusion. — the most and final factor analysis important 40. Our by the lack of prejudiced

the extent to which the defendant was — apparent of an requires light clarification past federal law and statements made our conflict between 568, 570-71, Franklin, 396 A.2d cases. In v. 136 Vt. State (1978), passage eighteen held that over “[t]he this Court defendant, by about brought months from citation to a matter of law and a prejudice so as to constitute as long later over rights.” the defendant’s constitutional We violation of the “use of a per to the extent that it established ruled Franklin 410, 420, finding Percy, State v. Vt. prejudice. se test” for (1992). Percy balancing that the emphasized A.2d We adopted Supreme the United States Court test set forth of each of the individual factors requires weighing this Court to a a defendant’s constitutional to determine whether denied. Id. speedy trial has been in later Unfortunately, some of the statements we made extreme, suggesting the opposite cases moved toward

speedy-trial to prejudice prerequisite actual is a explicit showing that an of Keith, 270, at began It 160 Vt. finding speedy-trial a violation. reluctant that “courts are noting 628 A.2d at with this Court — only remedy of dismissal the remedy to resort to the radical them,” to a stating right “that the constitutional available to to the defense virtually prejudice trial nonexistent when speedy is Later, “virtually qualifier the nonexistent” dropped is absent.” we there is no for the that proposition “[w]here and cited Keith trial, a claim cannot speedy-trial to the defense at prejudice (1996); 28, 35, 676 A.2d 343 Turgeon, v. 165 Vt. prevail.” State

497 (2000) Crannell, 387, 408, v. 750 A.2d 1019 see State Vt. the (quoting Turgeon proposition). same ¶ 42. overrule to the extent that We now these cases that actual trial a they suggest demonstrating prejudice at in all prerequisite finding speedy-trial cases a violation under That proposition explic United States Constitution. has been Barker, itly rejected In Supreme United States Court. stated that claims of prejudice Court “should be assessed of the light interests of defendants which the trial speedy right “(i) designed protect,” including was to prevent oppressive (ii) incarceration; pretrial anxiety to minimize and concern (iii) accused; possibility to limit the that the defense will be impaired.” 407 U.S. at 532. While acknowledging prejudice that serious, pertaining id., the last interest was the most the Court factors, that emphasized none of the four including prejudice, is “either a necessary or sufficient condition to the finding of a trial,” deprivation right Rather, of a speedy id. at 533. cautioned, Court the related factors “must be considered together with such other circumstances as may be relevant. ... in a difficult and sensitive balancing process.” Id. Later, Court reaffirmed that Barker it had

“expressly rejected the notion that an affirmative demonstration of prejudice necessary prove denial of the constitutional (1973) speedy Arizona, to a trial.” v. Moore U.S. curiam) (per (holding the state court committed a “funda mental error” that a concluding showing of to the prejudice claim). defense at trial was essential to establishing speedy-trial More recently, emphasized the Court has that “consideration of prejudice demonstrable, is not specifically limited and . . . affirmative proof particularized prejudice [that] is not essential to every speedy trial claim.” Doggett, 505 U.S. at 655. In explaining principle, the Court “impairment noted that one’s defense is the most difficult form of trial prejudice to prove because time’s erosion of exculpatory evidence and ” testimony rarely Barker, ‘can (citing shown.’ Id. at U.S. 532). “Thus, generally recognize have to that excessive presumptively compromises reliability of a in ways or, party prove matter, Id.; neither can for that identify.” see 5 W. LaFave, al., (3d 2007) 18.2(e), § et Criminal Procedure at 132 ed. (stating Doggett “makes it clear” that the prejudice factor any showing affirmative that may favor a defendant even absent defenses, elicit ability specific the to raise delay weakened evidence). items of testimony, produce specific or specific ¶44. mind, of in now examine defendant’s claims With this we in prejudice Defendant asserts both in the instant case. prejudice itself, incarceration, in further in and of lengthy pretrial his possible of the loss of his defense at trial because impairment The trial court ruled that defendant memory key of of witnesses. actually been impaired failed to demonstrate that his defense had certain whom defendant any regard With witnesses degree. may present exculpatory testimony claimed have been able to but him delay bringing for the the court ruled to demonstrate arguments preju- defendant’s were too attenuated dice. considering 45. In the extent to which defendant has cannot of prejudice, ignore significant period

demonstrated Barker, trial. pending time that he remained incarcerated See (stating disadvantages lengthy U.S. at 532-33 obvious incarceration, impact the detrimental on the pretrial including defense); preparing individual and the inevitable hindrance ¶81, incarceration is one Berry, (“Lengthy pre-trial 2004 WY of the rise to It is a and distinct giving prejudice. separate factors .”). anxiety length delay factor from . . . “As the pre-trial increases, grows stronger and the presumption prejudice degree prejudice of actual that must be shown becomes corre Stock, Here, 2006-NMCA-140, spondingly lesser.” even actions, delay from defendant’s own excluding resulting length egregious, particularly was when one considers or entirely effectively defendant was incarcerated and without periods counsel for substantial of time. argues give weight 46. The State that we should less incarceration because he was also lengthy pretrial being held on other that reduced his chances of

being charges agree freed on bail trial. with defendant pending We speculative. charges The that the State refers argument State’s allegedly driving to stemmed from defendant’s within 1000 feet of girlfriend’s abuse-prevention house violation of an order and (the friend), it him asking police then a friend to tell that was defendant, July house. In girlfriend’s who drove $5000, the first at with conditions of charge bail was set on release. The same amount was set on the charge May second 2001, concurrent to the first The charge. charge initially first dismissed without prejudice May 2001 and eventually dismissed with prejudice, as was the charge. second The State’s suggestion that defendant would have nearly been detained for three years irrespective of the this case is pure speculation.

¶ 47. Defendant also claimed that the delay impeded excessive his ability to mount a defense the charges, contending that the delay had caused one witness’s memory fade and had him prevented from obtaining the testimony of at least one other witness. Defendant’s principal claim concerns a corrections officer who saw defendant shortly after the incident that led to the domestic-assault In charge. a deposition, the officer testified that defendant had showed him a bruise on his back caused being struck by a baseball bat. The officer further testified that he sure, thought, but was not that defendant had claimed he was struck girlfriend. Before represented defense the trial court that that, the officer would testify upon admission prison to the facility, defendant showed the officer a red mark across his back and told the officer that his girlfriend had struck him with a baseball bat. The court reserved ruling on the admissibility of the hearsay statements until it heard them. As it out, however, turned the officer was unable testify by the time of trial condition, because of his physical and the trial court ruled that the hearsay statements were inadmissible. Defendant also prejudice claims in that he was not able to locate one of police officers who was at the scene of the domestic assault and who allegedly would have provide been able to exculpatory testimony as to what occurred.

¶48. In rejecting claim, speedy-trial defendant’s the trial court ruled that defendant’s arguments were too attenuated to demonstrate degree of prejudice necessary to dismiss the charges against him. agree that, We with the alone, court standing defendant’s claims of evidentiary prejudice, although fairly specific, do not appear caution, to be however, substantial. We that even moderately speculative claims of evidentiary prejudice must be given careful consideration because of difficulty in demonstrat ing time’s erosion of potentially exculpatory testimony. Middlebrook, 802 A.2d at 277 (stating that whether a delay has hurt the defense cannot be resolved with mathematical precision, given evidentiary prejudice is the most difficult form of 18.2(e), LaFave, § at 131 supra, prejudice prove); speedy-trial demanding respect with overly that “courts should not be (stating [evidentiary] prejudice”). proof — this case light 49. In entire circumstances incarceration, much of lengthy pretrial defendant’s particularly — we conclude that not attributable to defendant which is v. People the state. Cf. weighed against factor must be prejudice 1992) Charles, (stating Div. (App. 580 N.Y.S.2d evidentiary claim of was some prejudice the defendant’s although of the state’s significant that fact is not because speculative, what significant delay cause for the between good failure to show trial). some Although arrest and raises to his speculative, regarding prejudice albeit claims legitimate, defense, exists in this case is principal prejudice reason him while he was prosecuting because of the inordinate incarcerated. sum, In each of the four Barker factors principal reluctant, Accordingly, the State this case. we are

weigh against extraordinary remedy dismissing to exercise the compelled, but who was charges involving a case a habitual offender very serious criminal convicted of what we consider — Barker, 407 at aggravated offense domestic assault. See U.S. (stating “amorphous” quality that of the constitutional unsatisfactorily to a trial leads to “the severe” but indictment). note “only possible remedy” of dismissal of the We authority that the trial court acted and although well within its rejecting stipulation discretion in that would have dismissed half, by in for defendant’s sentence appeal exchange reducing this already has served one half of his approximately defendant concerned, however, sentence. We are the circumstances in in could resulting charges the dismissal of this case arise in a case a murder or conceivably again, perhaps involving felony. another serious justice system, particu 51. the criminal and We within

larly judiciary, duty responsibility have the and to assure Association, not American Bar Standards happen. this does See (2d Justice, 12-1.2, commentary at 12-9 ed. for Criminal Standard 1986) (“The (not merely absolute trial court should be vested with calendar.”). ultimate) over the trial To the extent responsibility in not an aberration but rather happened that what this case is the result of a lack of funding support justice the criminal state, system in this we encourage Legislature to examine any unfulfilled needs and address the problem. See generally Gideon’s Broken Promise: Justice, America’s Continuing Quest Equal for A Report on the American Bar Hearings Association’s on the Right (2004) to Counsel in Criminal Proceedings (concluding thou- sands of individuals processed are through America’s every courts year with either no lawyer or lawyers time, who do not have the resources, or provide inclination to effective representation). The district court’s decision denying motion to dismiss lack a speedy trial is reversed and the matter is for remanded to the district court with directions to set aside the convictions, sentence, vacate the prejudice dismiss with charges against in this criminal case. Burgess, J., dissenting. Today the majority frees a con-

victed woman beater offender, and habitual any because of in infirmity the evidence or unfair in prejudice the trial by which a jury found him guilty, but because the defendant delayed the proceedings for almost twenty-two months. Despite repeated early efforts by the prosecution and the court to commence engaged pattern of disqualifying lawyers monkey-wrenching his scheduled trials this and related cases. The defender general’s inability to secure lawyers additional the middle of defendant’s postponement may delayed have this matter months, another ten to fourteen but this gap assigned counsel resulted no demonstrated prejudice to defend- ant or his case. Nor majority’s release of defendant compelled under the Speedy Trial Clause any other factor dictated the United States Supreme Court in Barker v. Wingo, (1972). 407 U.S. 514 majority Because the vacates the conviction and dismisses the charge when the it, law does not require I respectfully dissent.

¶ 53. The majority insists that it upon relies the “undisputed ante, record” but point cannot any fact in that record, apart from defendant’s unproven assertions, to support defendant’s claim that his own repeated postponements of trial were due to unpreparedness, caseload, or diligence lack of on the part his assigned counsel. Nor can the majority point any to fact that undisputed record justifying defendant’s forced dis- qualification of his first lawyers two and his election to skip two cite record, cannot majority From that same trials. scheduled defendant, toor personally to prejudice of undue single example a by defined rights trial as defense, speedy of his violative his majority, pretext a to not, by the Barker. Remand suggested is as conviction; rather, necessary to establish whether it is affirm the Barker, here, exist to reverse missing and by required the facts grounds. on trial

¶ exerted trial court could have that the majority posits 54. The denying new counsel when by its docket more control over manufactur- lawyers by court-appointed his disqualified Ante, majority If the conflicts. unnecessary ethical ing trial court and the defender then the point, serious on this replacement lawyer a obligation further secure general had no assigned and second counsel his first disqualified after defendant ethically represent that one could not position on a by insisting Defendant could have demanded the other. by threatening and any at self-representation immediate trial or invoked his time, Instead, insisted on the assistance neither. but did longer purports entitled. That he of counsel to which he was no the time it took to overcome his to be dissatisfied with now certainly and no hardly import of constitutional sabotage is of the Sixth Amendment. violation notwithstanding, majority’s contrary 55. The assertion defendant, in this case is attributable

lion’s share passed without trial between Nearly year not to the state. of a third appointment 2001 and the arraignment July on requests of defendant’s for in June on account counsel continuances, counsel on the eve of one replace his motions to date, second trial anticipated trial months before his and several and defendant’s avoidance of practice, his additional motions threatened resign. Defendant by forcing his tactic of counsel him to withdraw from lawyer, leading his second lawyer preclude his first such as conversed with way The final eleven months before representation. counsel’s zealous during to defendant as time which entirely trial is attributable extensions, prepared assigned requested repeated last — challenged trial and filed motions none of which diligent. or less than defendant as unreasonable counsel to of ineffective assistance of 56. Defendant’s claims by the trial lawyers were not substantiated justify dismissal of his Somehow, now, are accepted these same claims court.

503 at face majority value without evidence.3 It not for supporting court, court, this appellate but for the trial to make evidentiary findings regarding post-trial claims that incompetent led delay 401, 427, an undue of trial. Boyea, See State v. 171 Vt. (2000) (“[I]t 862, (Johnson, J., 765 A.2d 880 dissenting) is not our job supplement the record. .. . This constraint is inherent in court; the nature of an appellate we must bow to the controlling force of the only record and consider those facts that were below.”) omitted). established (quotations The trial court never reached that particular issue when addressing defendant’s motions dismiss for lack of basing its decision instead on defendant’s own contributions to the and the lack of any prejudice actual to the delay. defense from the The majority’s further assumption that more years than two is attrib- utable to representation ineffective is plainly by contradicted record. When the trial court did consider whether counsel was motion, ready pretrial for trial rejected it defendant’s claims lawyer his was unprepared. ruling That is not challenged. — Defendant’s subsequent complaint that assigned counsel were — too overworked to adequately represent him was found court to be unsupported evidence. That determination is challenged. ruling No was reached on defendant’s claim that ineffective, lawyer second was because defendant threatened that lawyer, leading him to withdraw from the when defend- ant prove could not his allegations of inattention and incompe- tence. The majority’s undisputed record shows that defendant professional demonstrated no inattention the work of his first lawyers. two majority nonfeasance, The nevertheless assumes despite the trial court’s unchallenged conclusion to the contrary. In 57. the course of appellate its fact finding, majority ignores omits or several matters relevant to its concern that either the court or the general neglected defender legal welfare. The immediate case was one of three related 3 Cadorette, This eiTor is reminiscent of a similar situation in State v. where a majority prejudice, any evidence, of this Court inferred without from the defend ¶¶ unproven 11-15, ant’s claim of ineffective assistance of counsel. 2003 VT 175 (Morse, J., dissenting) Vt. A.2d (pointing out that “on this record we way knowing happened during have no prosecution what the course of the defense,” woefully “[t]he Court assumes defendant was defended based on colloquies fact-finding hearing,” outside the context of a and that “this Court has jumped gun attempt against and denied the State an to defend the ineffective defendant”). alleged by assistance of counsel claims the same involving against defendant pending prosecutions — habitual-offender and a newer felony, one older complainant entry order May In its felony April filed defendant, acknowl- the trial court cases pending and all to the instant case assign counsel to finding difficulties edged the local defender but, public of the fact taking advantage new, assigned felony, habitual-offender not conflicted off it to be tried first. prioritized that case and public defender to progress lack of Thus, counsel and despite unavailable bring defendant to during the court strove instant case order, entry In the trial the related docket. the same trial on also noted that defendant was court in new habitual-offender] held for lack of bail this [the his bail status as well as the others. Should docket cases being solely so that he is held on those change for general yet provide represen- has to which defender tation, schedule a bail review immediately the court will in those cases. hearing added.) no in status to reported change Defendant bail

(Emphasis the court. maneuvers to dismiss his repeated 58. But for defendant’s following eleven months

lawyers through and avoid trial the first difficulty finding in additional counsel would arraignment, case, cases, in and in two related have arisen. At least twice by claiming trials without tried to avoid scheduled lawyers incompetent, unprepared that his were or over- success efforts, next Failing those undertook worked.4 and, yet one as in disqualify by threatening lawyer, his counsel majority’s judgment expansion on defendant’s bare The of the record to render below, presented findings allegations, rather than on evidence or made should transcripts welcome consideration of relevant docket entries and from by May entry order in this case. That related cases covered appellate presen companion incorporated cases were not into records reason, then, expect surprise given parties had no tations here is no majority finding by the merits of defendant’s factual claims. The fact this Court on influencing companion by parties opens The were referred to as the door. cases case, impacting examine the total circumstances of bail and in this so let us only by that the called for Barker. Examination of that record illustrates as neglect majority jumps assumption government of an accused anxious for to its actually the context of what was trial without the benefit of evidence and without in the trial court at the time. afoot another by related his other putting assigned counsel in an ethical preclude bind to or impede representation.5 continued

¶ 59. As by majority, indicated defendant’s third and fourth appeared counsel to accomplish little or on his nothing behalf over months, and, eight the next in the interims following their termination, defendant was twice without a total of almost six months. Neither defendant nor the general defender would have faced difficulty finding available and effective counsel, however, had defendant not contrived to disqualify coun- sel and trial in the place. first That defendant did not want trial is further reflected his similar obstruction the newer when, habitual-offender case again faced with an imminent trial eighteen later, date months defendant first attempted to have his lawyer dismissed as and, overworked and unprepared, failing that ploy, then forced a disqualification mistrial and of counsel ensnaring lawyer his upon some fraud the court. missing 60. Also from majority’s narration is defendant’s

express waiver of speedy-trial rights February after declining two opportunities to go trial. The majority intones that defense counsel should not be forced to trial without reason- preparation, able but there is no evidence or findings support defendant’s claim that he had to forfeit trial rather than proceed unprepared. The trial court rejected lawyer’s argument documents and new witnesses still to sought necessary were the defense. This judge’s decision has not been challenged. waiver, 61. After his defendant made no demand for speedy Nevertheless, trial. the majority times, recites several but erro- neously, that defendant “repeatedly and adamantly demanded to ¶ Ante, be tried.” 38. Defendant is fond of claiming that he repeatedly asserted right his but the record shows that he Instead, did not. defendant filed serial motions to dismiss the case counsel, or dismiss his but never actually demanded a prompt trial. long It is settled that motions to dismiss for speedy lack of trial are no substitute for an expedited trial. State v. demanding Keith, 257, 268, 160 Vt. 1247, (1993); 628 A.2d State v. 1254 French, 72, 77, 152 Unwin, Vt. 564 v. (1989); A.2d 1061 State 186, (1980). Vt. 424 A.2d This is because argued by As contesting the State discharge when defendant’s efforts to his assigned felony second counsel in presented this the older docket still three pattern other seeking incidents of defendant’s dismissal of counsel or continu ances when confronted with trial dates. defendant, for dismissal defendants, could otherwise move like this Unwin, 139 Vt. at for trial. prepared themselves being without for a trial that demand (recognizing “[a] 424 A.2d at 257 prepared.”). be that the defense require would dismiss, the trial later motions to one of these Denying 62. court noted not demanded trial nor current counsel has

[defendant's court for trial .... This ready indicated that she is jury draw and trial within ready remains to schedule . . . counsel’s demand for same. reasonable time of invitation, forthcoming. for trial was request this no such Despite finding unchallenged. also remains This this case Similarly, majority’s concern public-defender resources may inadequate have been due general obviously record. the defender unsupported by the While during following counsel the fourteen months finding had trouble difficulty appeared no lawyer, defendant’s threat to his second ordinary than to conflicts of more attributable to lack of resources modification, interest, retirement, and defend- attorney contract shown to caseload own misconduct. None of the ant’s so, lawyers claimed or said his claimed as related. Defendant much, were due to proved lawyers disqualified but none of it. Two conflicts, by two others off the case his while defendant forced quit practice assigned own behavior. Another change. withdrew due to a contract yet criminal law and another addressing speedy-trial violations majority Cases cited public or overburdened defenders arising from overcrowded courts on this record that shows particularly enlightening are not dates, trial deliberately passed up squan- two different another, court- discharge prepared and forced the of three dered lawyers. appointed

The Barker Test violation, must consider 64. To determine a speedy Court Supreme and balance the four factors laid out (3) (2) (1) delay; for the length delay; Barker: reasons (4) rights; prejudice whether defendant asserted speedy-trial If rule any governs defendant. 407 U.S. at 530. it is that there is no absolute standard. analysis, “[T]he rights. than other vague concept procedural trial is a more

507 is, It for example, impossible to determine precision with when has right Thus, been denied.” Id. at 521. we are required approach this case on an ad hoc basis as to the consequence of upon constitutional interests behind the trial: prevention detention, of oppressive pretrial minimization of pretrial anxiety of the accused and limitation of the impairment of these, the defense. Id. at 532. “Of the most serious last [factor], because the inability of a defendant adequately to prepare his case skews the system.” fairness of the entire Id.

Length Delay ¶ 65. This was not a case where the court acceded to stagnation. Knowing that two of defendant’s other cases had slowed due to problems with available lawyers, the court advanced defendant to trial parallel habitual-offender felony case that was not mired conflicts with counsel. Since was, shortage lawyers in large part, precipitated defendant, and it was unlikely defendant would have been preparing for two life-penalty felony trials simultaneously counsel, had he but one the hiatus here while prepared the other serious case was not material.

¶ 66. Delay of fourteen months is presumptively prejudicial, but grounds per dismiss se. An even longer delay would not entitle defendant to the majority’s “get-out-of-jail-free” card under Speedy Barker, Trial Clause. See 407 U.S. at 534 (holding that five-year delay prosecution, attributable to ten including months of incarceration, was extraordinary, but did not justify writ of habeas for lack corpus of speedy trial when defendant acquiesced to three years of delay without prejudice); see Arizona, also Moore v. 414 (1973) U.S. (holding that a year three delay warranted assessment, remand for an Barker); under State v. Percy, 158 Vt. 410, 420, (1992) 612 A.2d (rejecting claim per se speedy-trial violation where trial court inaction for eleven months contributed to twenty-eight passing months between reversal of retrial). original conviction “[Presumptive prejudice cannot carry alone a Sixth Amendment claim without regard to the other Barker criteria ...” Doggett States, v. United 505 U.S. (1992). Given repeated efforts to postpone trial in case for almost two years, prejudice, absence of and the court’s countervailing efforts to get to trial in the companion case only sabotaged defendant, lengthy delay attributable little, weight against if any, carries general the defender state. of Delay

Cause ¶ trial “is obvi- right speedy to 67. Inattention to defendant’s intent to harm than a deliberate weighed lightly to be more ously alienated 657. It was defendant who accused’s defense.” Id. at in and the brink of trial this lawyer one on disqualified lawyer ready who was for disqualified alienated and another again deliberately If had not so four months later. trial matter, general the defender would have delayed the instant assign. Having another counsel to finding yet faced with been opportunity counsel and duly provided defendant with twice delay finding another weight subsequent of proceed Already light on the state. burden due only lightly counsel falls weight against negligence, opposed design, to mere as slighter considering repeated instigation still state delay. Right

Assertion of ¶ failure to demand trial was no waiver of 68. Defendant’s indefinitely, evaluating trial but is still a factor his claim speedy Barker, the trial court’s 407 U.S. at 528. Given deprivation. assertion, that defendant made no such finding unassailed weigh cannot in his favor. Defendant’s consistent actions to factor trial interest lawyers purported dismiss his belie his right “It on defendant to assert his to a either. is incumbent of delay.” trial order to obtain reversal here as result speedy (1989) 17, 37, (noting 557 A.2d Roy, State v. Vt. emphasis Barker that “‘failure to assert will Court’s that he was denied a prove make it difficult for a defendant 532)). ”) Barker, trial’ 407 U.S. at Defendant’s speedy (quoting weighs against disinterest him. demonstrated

Prejudice of the attributable to the presumptive prejudice 69. The conclusive, 505 U.S. at 658 Doggett, state is not but rebuttable. extenuated, prejudice that where the “is neither (noting presumed rebutted, acquiescence, persuasively the defendant’s . . . nor as relief’). claiming that the Except the defendant is entitled to compromised one was and the address of memory of witness time, another witness was passage lost defendant failed evidence proffer protection that the Sixth Amendment’s confinement, oppressive pretrial anxiety impairment or prejudiced by delay defense were in this case. correctly rejected 70. The trial court the impaired-defense

claim testimony as unfounded. The that would have from resulted the allegedly failing memory of one witness would have been excluded on evidentiary grounds delay, unrelated to while defend- assertion, ant’s bald that unspecified “exculpatory information” lost, was lost when the witness’s address was lacked any basis the record. appeal, complains On rulings, about these but offers no explanation why as to the court wrong on or the facts law. Following majority’s admonition that “even moderately speculative claims of evidentiary prejudice must be given consideration,” ante, careful the trial court’s denial of this claim is still supported by not, the record. Recollected or sought statement from the witness was inadmissible The hearsay. claimed, identified, but never exculpatory evidence was mod- erately speculative, but purely speculative.

¶ 71. It is not at all evident how the defender general’s fourteen-month delay, sandwiched in the middle of defendant’s twenty-two case, month prolongment of this preju- was otherwise “[ijnordinate dicial. We are concerned that delay may . . . seriously interfere with . . liberty . defendant’s . . may . and . . . disrupt his employment, resources, drain his financial curtail his associations, subject him public obloquy, anxiety and create in him, family friends,” Moore, his and his 414 U.S. at 27 (quotation omitted), but none of these fears were realized here. We know that defendant twice preferred continued incarceration to an opportunity for trial and acquittal more than twenty-four months earlier. argued Defendant greater anxiety no or oppression his jail during time the delays attributable to general the defender than from the eleven jail months of time wasted by defendant in forcing lawyers off the or the eleven jail months of time accumulated while his new attorney requested extensions and for prepared trial. Considering defendant’s contribution to the delay extra his demonstrated lack of interest any extra incarceration attendant difficulty securing replace- ment counsel oppressive, seems not so weight carries little against state. delay 72. The attributable to the defender general proved

simply immaterial to some of defendant’s pretrial detention. held, 11, 2003, any of regardless defendant was

Commencing April $6,000 lack of bail twenty-one for over months for delay, Thus, to the defender delay cases. attributable companion 11 until of new counsel April appearance in this case from general 1, 2003, nothing had to do with his continued incar- August on time, potential prejudice during reducing ceration months at In con- detention to ten worst. delay-related pretrial trast, four significant attending prejudice, years absent other detention, was of insufficient delay, including pretrial ten months Barker, to warrant release of a convicted defendant weight at 534. U.S. majority easily speculative 73. The too dismisses as State’s incarcerated on the

point that defendant would have remained here. Defendant’s charges regardless delay ongoing other detention attributable to the defender regardless was not but certain. Defendant turned down general speculative, of its the trial court’s invitation reconsideration hold-without- order. to make the modest bail in his other imposed bail Unable dockets, pretrial the issue of defendant’s continued de- pending any tention after of the new counsel was moot. In assignment event, ten pretrial months of detention attributable itself, cannot, by be reason to reverse on Sixth Amendment grounds. Id. disruption 74. Nor was financial domestic or hardship, public at risk for to his

disgrace According public defendant. defender application, unemployed significant defendant was and without assets at the time of his arrest. records show that Court defendant’s former domestic the victim the partner, pending prosecutions, multiple secured relief-from-abuse orders him defendant from her and prohibiting contacting limiting par- criminality already ent-child contact. Defendant’s chronic convictions, matter of record includ- public showing prior fourteen and, justice, felonies for stolen ing obstructing concealing property minor, thirty-one, at sexual assault of a so that defendant’s age before, public ignominy hardly was achieved well and was exac- by, any delay erbated this case. claimed, prove prejudice 75. Defendant failed to allege any particular prejudice, possible,

otherwise failed to real or clarifies resulting delay majority properly from this case. The acknowledge impairment our caselaw to that actual of the defense not the ultimate test for a Amendment violation. See is Sixth Moore, 414 U.S. at 26-27 (recognizing that “prejudice actionable a defendant caused by delay ... is not confined to the possible defense”). prejudice to his Prejudice can arise from unnecessary incarceration, disruption shame, or family, finances or anxiety. Nevertheless, Id. at 27. characterized, and however showing of “[a] prejudice required is to establish a violation of the Sixth Amend- Clause, ment Speedy Trial and that necessary ingredient entirely missing (1994) here.” Reed v. Farley, U.S. added). (emphasis Thus, none of the speedy-trial factors mandated for our

review require Barker reversal of this conviction and dismissal charge against defendant. length The delay securing unfortunate, effective counsel was per but not prejudicial. se The government twice fulfilled its obligation to secure representation for defendant and to proceed to a timely trial before defendant created further in his case. But for defendant’s repeated tactics to disqualify his lawyers and delay trial there would have been no difficulty in counsel, finding substitute so the defender general was not the primary cause of delay. Defendant neither proved nor actually pled any imposition on reputation, relation- ship, or peace of mind. Even assuming that defendant sustained natural anxiety or disruption from being charged and imprisoned pending trial in this it was enough to deter defendant from twice manufacturing delay of trial to pass up the opportunity for acquittal and release in this matter. Nor does defendant distinguish the burdens of incarceration in this case from the same burdens presumably arising from being simultaneously held for lack of bail in the companion cases. Most significantly, under Barker, caused no impairment to the defense. 407 U.S. at 533 (discussing the prevention of impairment to the defense as the “most serious” interest protected by clause). the speedy trial Accordingly, factor of prejudicial impact, in any of its various forms, carries no weight against the state.

¶ 77. Wanting dismissed, the case just as clearly did not actually want a speedy trial. Defendant waived and then failed to assert to speedy while his consistent efforts to avoid trials confirmed his disinterest in going to trial. “More important than the absence of serious prejudice, is the fact that [defendant] did not want a speedy trial.” Id. at 534.

¶ 78. The majority glosses over the foregoing facts and prefers grant relief based on yet as unproven allegations of prejudice on the counsel. Based delay assigning by neglectful caused best, and at record, unsupported are complaints off the attorneys If the forced at worst. contrary to the evidence ineffective, unprepared, or or incompetent, were by case defendant cannot know delay, from any prejudice if defendant sustained now Relying precedent, on our record before us. from the ¶¶ 40-42, its overturned, ante, post-trial the trial court ended see to assert his that failed it was evident defendant once inquiry cause, the that, and length and whatever its rights speedy-trial full The to the defense. impact no actual adverse delay had delay of and other delay, of cause balancing length of spectrum completed by as Barker was prejudices required potential below. is not the conclusion that defendant supports The record 79. proceed that trial would ruling The court’s initial

entitled to relief. is not chal- unpreparedness of protestations over defendant’s below, appeal, to dismiss In his other motions lenged. lawyers, but unprepared about repeats his lament rejection erred in its of this how the trial court specifies nowhere us, defend- considering even without claim. the record before On dockets, companion of trial his ant’s similar obstructions which any prejudices upon defendant failed to demonstrate trial. the speedy for lack of On require Barker dismissal would of record, length failed to show that same delays deemed not to longer than much egregious was more record, defendant failed under Barker. On require dismissal favor; he did not show Barker factors his tip remaining outweighed by were contributions to the why his own — or that he state’s, speedy-trial right his or that he asserted — required by all as Barker as speedy trial even wanted relief. precondition to — majority found significant The most facts defendant, years two state, responsible than for rather his trial disrupt no choice but

delay, that defendant had and that he lawyers unprepared, his were schedule because prejudiced trial and was right speedy his repeatedly asserted — supported by found below nor delay were neither as a result of the motion to dismiss If the trial court’s denial of the record here. record, the available the Barker factors on cannot be sustained be, dismissed without I it can the case cannot be although believe delay, cause of findings prejudice, Barker necessary trial. speedy and was denied a sought indeed whether defendant ¶ 81. Finally, affording before defendant release and dismissal on charges assumptions premised nothing based on but events, purported opportunity version of State should have an Otherwise, rebuttal. we surrender control more those jury invested verdicts than in avoiding vindicating Supreme Barker, trial. As the Court recognized speedy is often (observing not a defendant’s friend. 407 U.S. at 521 an “[d]elay is not uncommon defense tactic” as “wit- fade”). nesses . . . become unavailable or their memories . . . The majority’s procession judgment necessary the without evidence actually confirm perception its that the Barker prepon- factors state, evidence, or against derate its assumption, defendant, delay prejudiced only can encourage dilatory jailhouse lawyers tactics and in subverting others interested court. ¶ 82. If majority finds the trial court’s Barker analysis deficient, remedy the proper necessary is to remand for the evidentiary where proceedings privilege can be waived readiness and tactics attorneys, as well as defend- ant’s tactics and his intentions regarding speedy can be fully Otherwise, more explored. while the record supports rejec- tion speedy-trial Barker, claimed violation under there are insufficient facts or evidence the record to support majori- ty’s assumption that defendant should freed. Since no Sixth Amendment grounds presently justify endangering the public unnecessary discharge felon, dissent, this habitual I and am authorized to state that Chief joins Justice Reiber in this dissent.

2008 VT 52 Mary Raynes Rogers v. Earl

[955 A.2d 1135] No. 06-342 Reiber, C.J., Dooley, Johnson, Skoglund Burgess, Present: JJ.

Opinion April Filed

Case Details

Case Name: State v. Brillon

Court Name: Supreme Court of Vermont

Date Published: Mar 14, 2008

Citation: 955 A.2d 1108

Docket Number: 05-167

Court Abbreviation: Vt.