State v. Downing
| Decision Date | 02 November 2020 |
| Docket Number | No. 20-275,20-275 |
| Citation | 247 A.3d 150 |
| Parties | STATE of Vermont v. David DOWNING |
| Court | Vermont Supreme Court |
Rosemary Kennedy, Rutland County State's Attorney, and L. Raymond Sun, Deputy State's Attorney, Rutland, for Plaintiff-Appellee.
Matthew Valerio, Defender General, Rebecca Turner, Joshua O'Hara, and Mary Kay Lanthier, Appellate Defenders, and Lena Capps, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ.
¶ 1. Defendant David Downing was held without bail prior to trial under 13 V.S.A. § 7553a, which provides him with a right to bail if a trial is not held within sixty days and the delay is not attributable to the defense under Chapter II, § 40 of the Vermont Constitution and 13 V.S.A. § 7553b. He appeals, arguing that § 40 gives him a right to bail immediately if there is no possibility that he can receive a trial within sixty days and that the sixty-day period in § 40 begins from the time when he was first held without bail. We hold that defendant can be held for sixty days even if there is no possibility he can be tried in that time and that the sixty-day period began when defendant was first held without bail, and remand.
¶ 2. Defendant is charged with two counts of burglary into an occupied dwelling under 13 V.S.A. § 1201(c)(3)(A), simple assault under 13 V.S.A. § 1023(a)(1), unlawful mischief under 13 V.S.A. § 3701(c), violation of an abuse-prevention order under 13 V.S.A. § 1030(a), and aggravated assault under 13 V.S.A. § 1024(a)(1). At his arraignment on September 2, 2020, the court granted the State's motion under 13 V.S.A. § 7553a to hold defendant without bail pending a weight-of-the-evidence hearing. Defendant requested that the court hold the hearing promptly. The hearing was scheduled for October 1, 2020.
¶ 3. At the weight-of-the-evidence hearing, the court found that the evidence of guilt was great. The court also found that the State proved, by clear and convincing evidence, that defendant posed a substantial risk of physical violence to the victim and that no condition or combination of conditions could reasonably prevent this violence. The court rejected defendant's argument that it had no authority to hold defendant without bail under § 7553a because there was no possibility that a trial would be held within sixty days, as required by Chapter II, § 40 of the Vermont Constitution and 13 V.S.A. § 7553b.1 The court also concluded that the sixty-day period began on the date that it issued its decision on the weight of the evidence, rather than the date when bail was initially denied. Accordingly, the court ordered defendant held without bail. At the conclusion of the hearing, the court confirmed that no jury selection dates had been scheduled and no juror summons had been distributed for Rutland County.2
¶ 4. Defendant appealed to this Court, and a de novo hearing was held on October 15, 2020 by Justice Robinson under § 7556(d) and Vermont Rule of Appellate Procedure 9(b)(1)(A). In that appeal, defendant argued that the weight of the evidence was not great as to the aggravated-assault charge; that he could not be held without bail under § 7553a because there was no possibility that his trial would begin within sixty days of being held; and that the sixty-day period began when he was initially held without bail at arraignment, and not after the weight-of-the-evidence hearing.
¶ 5. The Court first found that the weight of the evidence supporting the aggravated assault charge was great.3 State v. Downing, 2020 VT 97, ¶ 14, ––– Vt. ––––, 245 A.3d 758 (mem.). The Court next considered defendant's argument that because a jury trial was not likely to begin within sixty days, defendant could not be held without bail during that period.4 The Court concluded that § 7553a permits defendant to be held without bail for up to sixty days, notwithstanding the court's inability to bring defendant to trial within that time. Id. ¶ 15. It determined that both the operative language and structure of the constitutional and statutory provisions supported the interpretation that if a trial does not begin within sixty days, the remedy is that the trial court must hold a bail hearing. Id. ¶ 26. Thus, the Court held that the sixty-day rule limits the length of the pretrial detention but is not a condition precedent to issuing a hold-without-bail order. Id. ¶ 24.
¶ 6. The Court next considered defendant's argument that the sixty-day period began when defendant was first held without bail—in this case, at defendant's arraignment on September 2, 2020. The Court determined that it was bound by controlling precedent to conclude that the period began when the trial court issued its decision following the weight-of-the-evidence hearing, as held in State v. Lontine, 2016 VT 26, ¶ 9, 201 Vt. 637, 142 A.3d 1058 (mem.). Id. ¶ 29. This appeal followed.5
¶ 7. On appeal, defendant argues that detention under § 7553a is dependent on the trial court having the ability to bring defendant to trial within sixty days before ordering pretrial detention. Otherwise, holding defendant without bail violates due process and constitutes "punitive and arbitrary imprisonment." Defendant also argues that the plain language of §§ 40 and 7553b command that the sixty-day period begins at the earliest point that a defendant is ordered to be held without bail.
¶ 8. The meaning of the Vermont Constitution and corresponding statutes raise questions of law that we consider de novo. State v. Lohr, 2020 VT 41, ¶ 4, ––– Vt. ––––, 236 A.3d 1277. Because the constitutional provision at issue in this case and its statutory counterparts are essentially identical, "we look primarily to the intent of the voters in adopting the amendment, but we also consider the intent of the Legislature in adopting the statutory counterpart[s]." Id. ¶ 5 (quotation omitted). "When construing parallel constitutional and statutory provisions, we begin with the familiar plain-language analysis." Id.
¶ 9. The Vermont Constitution provides that:
A person accused of a felony, an element of which involves an act of violence against another person, may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person's release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence.
Vt. Const. ch. II, § 40 ; see also 13 V.S.A. § 7553a (mirroring this language). The Constitution further provides that:
Except in the case of an offense punishable by death or life imprisonment, if a person is held without bail prior to trial, the trial of the person shall be commenced not more than 60 days after bail is denied. If the trial is not commenced within 60 days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set bail for the person.
Vt. Const. ch. II, § 40 ; see also 13 V.S.A. § 7553b (mirroring this language).
¶ 10. The constitutional and legislative amendments were adopted in concert. The Vermont electorate adopted § 40 by constitutional amendment in 1994, at which point the statutory counterparts also became effective. See 1993, No. 143 (Adj. Sess.), §§ 2-3, 6. Before the voters and the Legislature adopted these amendments, a person could be held without bail only when the offense was punishable by life imprisonment and the evidence of guilt was great. See id. § 1. This is because "[o]ur constitutional values require that liberty is and must remain the norm and detention prior to trial or without trial is the carefully limited exception." State v. Sauve, 159 Vt. 566, 573, 621 A.2d 1296, 1300-01 (1993) (quotation omitted).
¶ 11. This amendment created another limited exception. We have explained that the amendment was adopted by Vermont voters and the Vermont Legislature "to permit pretrial detention, in appropriate circumstances, of those accused of violent crimes so as to prevent further harm to the victims of the crimes and to others." State v. Madison, 163 Vt. 360, 363, 658 A.2d 536, 539 (1995) (per curiam). At the same time, Vermont voters adopted the sixty-day rule to "prevent undue and oppressive incarceration prior to trial," among other purposes. Lohr, 2020 VT 41, ¶ 17, 236 A.3d 1277. Thus, the sixty-day rule embodies "the balance the voters and the Legislature struck between security and liberty." Id. ¶ 14.
¶ 12. We begin with defendant's argument that if his trial cannot begin within sixty days, he cannot be held without bail under § 7553a. We agree with the analysis and the conclusion of the single-Justice order in Downing, 2020 VT 97, ¶¶ 15-28, 245 A.3d 758.
¶ 13. Defendant argues that the Court's interpretation violates due process by isolating the operative language from the requirement to hold prompt trials. Defendant points to State v. Madison, where we said that the amendment to § 40 protects due process rights by creating a "requirement that persons held without bail on charges for crimes not punishable by life imprisonment must be tried within sixty days after bail is denied." 163 Vt. at 375, 658 A.2d at 546. Defendant reasons that if the court cannot commence trial within the sixty-day period, then the Constitution prohibits defendant from being held without bail.
¶ 14. We disagree. Section 7553a entitles a defendant held without bail on charges for a violent felony to a trial within sixty days, as Madison recognized. Id. The ability of the court to commence trial within sixty days, however, is not a condition precedent to ordering pretrial detention. Instead, the sixty-day rule serves as a limitation on the length of time that defendant can be detained before trial. The text, structure, and purpose of the constitutional provision and corresponding statutes compel this result.
¶ 15. To hold a defendant...
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