Defendant appeals his conviction by jury of first degree arson. He raises four issues on appeal: (1) whether his right to a speedy trial was violated, in part due to a mistrial; (2) whether his right to confront his accusers was violated by evidentiary rulings of the trial court; and (3) whether the court properly denied defendant’s motion for judgment of acquittal where the verdict depended on the uncorroborated testimony of an accomplice, and (4) whether the judge’s charge to the jury on the issue of uncorroborated testimony was adequate. We affirm.
*75 Defendant was promised a $1,000 payment for burning a home on Lake Elmore late at night on September 22, 1981. At the time, defendant was thirty-three years old and living with Dorothy Page, who was eighteen. Page was the only witness who could place the defendant at the lake that night. Defendant discussed the crime with Page before its commission, and threatened her life afterward if she should tell anyone of it. She was in the car with defendant when he drove to Lake Elmore, and she dropped him off there and picked him up after he set the fire.
In November 1982, Page had a son out of wedlock with defendant. In the summer of 1984 she came forward with the details of the crime. It is the defendant’s contention that the witness’s disclosure was partially or wholly motivated by her desire to keep the defendant from their son. Earlier that year she and defendant had terminated their relationship in a fight, after which defendant was convicted of aggravated assault against her.
Defendant was arraigned on the arson charge on December 3, 1984, in Lamoille District Court, while still serving the sentence on the assault conviction. Witness Page was granted immunity and testified at trial, which commenced on April 3, 1985. That proceeding resulted in a mistrial. An attempt to draw a second jury in July resulted in a change of venue to Chittenden District Court. The second trial, in Chittenden, did not begin until January 29, 1986.
I.
Speedy Trial Claim
Defendant’s first claim of error is based on the trial court’s denial of his motions to dismiss for lack of speedy trial. We hold that the trial court’s determination was not an abuse of discretion. See
State v. Roy,
The initial step in our review is to determine how much time passed between defendant’s arrest and the date of trial. The length of time, if unreasonable, triggers further inquiry.
State v. Yudichak,
The effect of a mistrial in the context of a speedy trial claim has not previously been considered by this Court. Keeping in mind that potential violations must be reviewed on an ad hoc basis, see
State v. Roy,
Normally, the period from when a defendant files a motion through the trial court’s decision on it is also excluded from the tabulation of delay. See A.O. 5, § 4;
State v. Yudichak,
Our calculation will not, however, exclude the period during which defendant’s initial motion to dismiss was considered. The delay between filing that motion and the court’s ruling was four months and three weeks. During this period, the action had been transferred from Lamoille to Chittenden District Courts. Inexplicably, it took two months for the action to appear on the Chittenden docket after change
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of venue was granted. After the case was docketed, the trial court took nearly three months to rule on the motion. Therefore, we calculate the delay at approximately eight months, a delay sufficient to trigger further review under the test set out in
Barker v. Wingo,
The
Barker
test requires us to consider not only the length of delay, but also defendant’s assertion of his right to a speedy trial, the prejudice to defendant rendered by the delay, and the reason for the delay.
State v. Unwin,
More importantly, defendant’s presentation on appeal shows no prejudice to his ease, nor does he demonstrate that the delay was a deliberate attempt by the State to prejudice his case. See
State v. Roy,
Defendant maintains that, with the exception of his several motions, the delay was entirely the fault of the trial court. He directs us to
State v. Franklin,
where we held that an unexplained delay of some eighteen months was a violation of defendant’s right to a speedy trial.
Defendant further argues that the trial court’s evaluation of the speedy trial claim was error because it placed the “burden on the defendant to demonstrate his entitlement to relief after a prima facie showing of delay.” Defendant would have us use a “shifting burden” analysis, suggested by Justice Brennan’s concurrence in
Dickey v. Florida,
*79 Defendant- also claims that the trial court failed to adequately consider his third motion to dismiss for violation of speedy trial rights, filed and heard on the day that the second trial commenced. The court’s failure to make findings of fact was, defendant argues, an abuse of discretion. We disagree and note that only two months had passed since the trial court ruled, with ample findings, on defendant’s initial motion. We will not disturb that ruling for what amounts to a three-week delay, after deducting time for consideration of defendant’s motions, especially where defendant failed to demonstrate that prejudice resulted.
II.
Confrontation Clause
Defendant next argues that his right to confrontation, guaranteed under the federal and state constitutions, was violated by two evidentiary rulings of the trial court. First, the trial court ruled, on a motion in limine, that witness Page was not subject to cross-examination as to prior conduct (passing bad checks). Second, during trial, the court sustained the prosecution’s objection to cross-examination of Page regarding an inconsistent statement in her testimony at the first trial.
The threshold question in examining a confrontation clause claim is whether the defendant “was prohibited from engaging in otherwise appropriate cross-examination.”
Delaware v. Van Arsdall,
*80
For the purpose of this argument, we assume that evidence of the witness’s passing bad checks is relevant and an appropriate means of testing credibility on cross-examination. See 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 608[05], at 608-46 (1988). But see
State v. Larose,
Defendant also sought to cross-examine Page to show inconsistency in her testimony by requiring her to reiterate her statement, recorded during the first trial, that her account of the facts during depositions was “more close to the truth” than her statements made during the trial. Defendant admits that the question was objectionable, but contends that the answer should be admitted because it reiterates testimony on the record, was relevant on the issue of credibility pursuant to V.R.E. 613, and was appropriately used for impeachment.
Again, the trial court’s ruling was within its discretion. This approach to impeachment, tantamount to a demand that the witness admit perjury, Was more prejudicial than probative. Furthermore, the examination was cumulative, especially in view of the extensive questioning put to the witness regarding the inconsistency of her testimony on the facts. See V.R.E. 403. Therefore, neither line of cross-examination was admissible evidence, nor “appropriate” evidence in the context of Van Arsdall, and the trial court’s *81 rulings cannot be considered a violation of defendant’s rights under the confrontation clause.
In passing, we note that defense counsel cross-examined the witness on the motivation for her testimony, specifically inquiring into her desire to keep defendant from associating with their son, as well as her immunity from prosecution for arson, and had an opportunity to establish veracity through examination on inconsistencies in the witness’s recall of the facts. These inquiries into the witness’s veracity meet the requirements of the confrontation clause. See
State v. Raymond,
III.
Uncorroborated Accomplice Testimony
In the third and fourth questions presented, defendant claims that the trial court erred by allowing the conviction to stand based upon uncorroborated accomplice testimony, and by failing to instruct the jury on the unreliability of such testimony. Defendant contends that the court should have granted his motion for judgment of acquittal where completely uncorroborated testimony was the only link between the defendant and the crime. 4
On review of a motion for judgment of acquittal, the sole issue raised is whether the evidence, viewed in the light most favorable to the State, fairly and reasonably tends
*82
to show the defendant’s guilt, so that a jury would be justified in finding guilt beyond a reasonable doubt.
State v. McBurney,
As to defendant’s argument with respect to the jury charge on the same issue, it is flawed at the outset because no objection was made at trial, nor was an alternative instruction proffered by the defense. Absent “plain error,” the issue is not preserved for appeal. See
State v. Snide,
Affirmed.
Notes
But see
Barker v. Wingo,
While Justice Brennan’s concurrence in
Dickey v. Florida,
relied on by defendant, would not require a showing of prejudice in order for the charges to be dismissed, it would require a demonstration of “the reason for the delay, and ... the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard.”
We note that the defendant does not distinguish between the rights afforded him by the Sixth Amendment of the United States Constitution and Chapter I, Article 10 of the Vermont Constitution. We have not distinguished between these protections in the past. See
State v. Covell,
The State argues that defendant did not make a second motion after all the evidence had been entered and before the verdict was announced, and therefore is precluded from appellate review under
State v. Cole,