State v. Brillon, 05-167.

• Docket Nº: No. 05-167.
• Citation: 2010 VT 25, 995 A.2d 557
• Case Date: March 19, 2010
• Court: United States State Supreme Court of Vermont

995 A.2d 557
2010 VT 25

STATE of Vermont
v.
Michael BRILLON.

No. 05-167.

Supreme Court of Vermont.

March 19, 2010.

995 A.2d 558

Christina Rainville, Bennington County Chief Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

William A. Nelson, Middlebury, and Dan Barrett, ACLU Foundation of Vermont, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

SKOGLUND, J.

¶ 1. This appeal is before us a second time following the United States Supreme Court's reversal of our prior decision,

995 A.2d 559

wherein we concluded that defendant had been deprived of his right to a speedy trial in violation of the Sixth Amendment to the U.S. Constitution. See Vermont v. Brillon, 556 U.S. ___, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009) (remanding case after rejecting this Court's analysis of speedy-trial balancing test under the Federal Constitution). On remand, defendant urges us to consider the speedy trial issue under the Vermont Constitution. Defendant also reasserts the additional claims of error raised in his original appeal, including that the trial court erred in: (1) refusing to bifurcate the aggravating element based on violation of a condition-of-release order from the underlying offense of domestic assault, (2) declining to accept defendant's stipulation to the existence and purpose of the order; (3) permitting the prosecutor to question defendant about whether he had committed perjury in a different case; and (4) denying defendant's request to withdraw his waiver of a jury trial to the habitual offender charge. We do not reach the speedy trial issue under the Vermont Constitution because we conclude that defendant failed to adequately raise this ground in his original appeal. As to the additional claims of error, we conclude that the trial court erred in denying defendant's request to bifurcate the aggravation element of the domestic assault charge. Thus, we reverse and remand for a new trial

¶ 2. We briefly recount the facts, which are set forth in detail in our original decision, State v. Brillon, 2008 VT 35, 183 Vt. 475, 955 A.2d 1108 hereinafter Brillon I. The charges involve defendant's girlfriend of several years with whom he had a child. In July 2001, after the two were no longer together, defendant was charged with felony domestic assault after allegedly striking his former girlfriend in an altercation. Because the assaultive behavior would also violate a court order previously imposed to protect the alleged victim, what would ordinarily constitute a misdemeanor domestic assault was elevated to a felony domestic assault. 13 V.S.A. § 1044(a)(1) (enhancing domestic assault to second-degree aggravated domestic assault if the person commits domestic assault that causes bodily injury to another person and, in doing so, "violates specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person").¹ The criminal court order in effect at the time of the charged offense was a condition-of-release order imposed following an incident wherein defendant was charged with unlawful mischief for allegedly slashing the tires on his girlfriend's car in June 2000. The condition-of-release order required that defendant not "harass" his girlfriend or cause her "to be harassed." About three weeks after the imposition of the conditions of release, defendant's now ex-girlfriend drove defendant to the local police station for a required check-in before they were to return to her home so that defendant could visit his daughter. The ex-girlfriend left after dropping off defendant because she apparently believed that he was going to be detained. Defendant was not detained by police, and eventually got a ride with his ex-girlfriend's sister to his ex-girlfriend's house. Defendant was angry about being left behind, and an argument ensued. At some point, his ex-girlfriend started to leave her home with their daughter, and defendant allegedly struck his ex-girlfriend in the face. The police were called, and defendant was arrested,

995 A.2d 560

charged with felony second-degree aggravated domestic assault and contempt of court based on a violation of a condition of release, 13 V.S.A. § 7559(e). The aggravated domestic assault felony was also charged as a predicate for habitual offender treatment, authorizing life imprisonment. See 13 V.S.A. § 11

¶ 3. Following his arrest in July 2001, defendant was held on a no-bail order until his case was finally tried in June 2004. During the almost three years between his arrest and his trial, defendant was represented by assigned counsel through the Defender General's office and had six attorneys. Following defendant's eventual trial, the jury returned a guilty verdict on the domestic assault and contempt charges, and defendant was sentenced to twelve-to-twenty years in prison. Defendant appealed his conviction, asserting several claims of error, including that he was denied his right to a speedy trial. U.S. Const. amend. VI. This Court examined the delay under the balancing test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and concluded that all factors were in defendant's favor. We held that the length of delay was extreme, and that almost two years of the delay was attributable to the state. Brillon I, 2008 VT 35, ¶¶ 17, 32, 183 Vt. 475, 955 A.2d 1108. We attributed this time period to the state judicial system as a whole, not the prosecution, because during that time defendant was either without counsel or his counsel did very little to move defendant's case forward, and we held that "ultimately it is the court's responsibility to assure that the criminal justice system prosecutes defendants in a timely manner." Id. ¶ 35. We concluded that defendant had aggressively demanded to be tried and his lengthy pretrial incarceration resulted in prejudice. Id. ¶¶ 39, 49. Thus, we held that defendant was deprived of his right to a speedy trial and entitled to dismissal of the charges against him. Id. ¶ 50.

¶ 4. On petition from the state's attorney, the Supreme Court of the United States accepted certiorari on the question of whether delays caused by a public defender could be charged against the state. The Supreme Court held that this Court "erred in ranking assigned counsel essentially as state actors in the criminal justice system," Vermont v. Brillon, 556 U.S. at ___, 129 S.Ct. at 1287, and in mistakenly counting against the state periods of time when defendant's public defender failed to move defendant's case forward, id. at ___, 129 S.Ct. at 1291-92. The Court further held that defendant's "deliberate attempt to disrupt proceedings" by forcing the withdrawal of his first and third attorneys should be weighed heavily against defendant. Id. at ___, 129 S.Ct. at 1292. Thus, the Court concluded that the record did not demonstrate that defendant was denied "his constitutional right to a speedy trial." Id. at ___, 129 S.Ct. at 1293. The case was remanded back to this Court.

I.

¶ 5. First, we address defendant's argument that we should again examine his claim that his right to a speedy trial was violated, but this time under the protections of the Vermont Constitution. See Vt. Const. ch. I, art. 10 (affirming that persons have a right in criminal prosecutions to "a speedy public trial by an impartial jury"). Defendant claims that our original analysis was correct and that the holding of Brillon I should be reinstated on state constitutional grounds. In deciding whether to engage in this analysis, we are mindful that we are "the final judicial interpreters of the Vermont Constitution," and we encourage litigants to address claims under our state charter. Chittenden

995 A.2d 561

Town Sch. Dist. v. Dep't of Educ., 169 Vt. 310, 319, 738 A.2d 539, 546 (1999). Nonetheless, we will not address state constitutional claims where they are insufficiently raised and inadequately briefed. On remand from the U.S. Supreme Court, we requested briefing from the parties on, among other things, "whether this Court should find a speedy-trial violation under the Vermont Constitution, given the current state of the record." Despite our direction, the parties' briefs were unresponsive to the issue of preservation. Having reviewed the record, we conclude that the state constitutional claim was not adequately raised or briefed, and therefore decline to analyze defendant's speedy-trial argument under the Vermont Constitution

¶ 6. Advocates have a "duty to diligently develop and plausibly maintain" state constitutional issues. State v. Gleason, 154 Vt. 205, 212, 576 A.2d 1246, 1250 (1990). Merely citing the Vermont Constitution, without providing any analysis of how the state constitutional provision compares with its federal analog, does not adequately present the issue for our review, especially where the argument was not presented in the trial court. See State v. Maguire, 146 Vt. 49, 54, 498 A.2d 1028, 1031 (1985) (declining to address state constitutional argument where it was insufficiently raised and inadequately briefed). Although defendant cited the Vermont Constitution in his pleadings to the trial court and his original brief on appeal, he did not provide any "substantive analysis of the Vermont Constitution, nor did he set forth any rationale as to how our analysis of this constitutional claim should differ under the Vermont Constitution in comparison with the federal constitution." State v. Raymond, 148 Vt. 617, 619 n. 1, 538 A.2d 164, 165 n. 1 (1987); see State v. Chapman, 229 Conn. 529, 643 A.2d 1213, 1219 (1994) (concluding that the defendant's state constitutional claim was not adequately raised where the defendant's brief included no "reference to the language or history of the relevant constitutional provision, no reference to prior constitutional decisions of this or other states, and no reference to policy considerations").

¶ 7. Likely for...