State v. French, 86-302

• Decision Date: 30 June 1989
• Docket Number: No. 86-302,86-302
• Citation: 564 A.2d 1058,152 Vt. 72
• Parties: STATE of Vermont v. Edward T. FRENCH, Jr.
• Court: Vermont Supreme Court

Page 1058

564 A.2d 1058

152 Vt. 72

STATE of Vermont v. Edward T. FRENCH, Jr.

No. 86-302.

Supreme Court of Vermont.

June 30, 1989.

Joel Page, Lamoille County State's Atty., Hyde Park and Robert Katims, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Martin and Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

PECK, Justice.

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.

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, 151 Vt. 17, ----, 557 A.2d 884, 895-96 (1989) (determination of speedy trial violation is within the discretion of the trial judge); State v. Unwin, 139 Vt. 186, 195, 424 A.2d 251, 256 (1980), cert. denied, 450 U.S. 1033, 101 S.Ct. 1746, 68 L.Ed.2d 229 (1981).

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, 151 Vt. 400, ----, 561 A.2d 407, 411 (1989). Here the tally is complicated by a mistrial. Defendant would have us consider the entire period from the date the information against defendant was filed to the date of the second trial. He claims that the delay exceeds the ninety-day limit, applicable by Administrative Order of this Court where defendant is in custody. A.O. 5, § 2. See State v. Trombly, 148 Vt. 293, 299, 532 A.2d 963, 967 (1987), cert. denied, 486 U.S. 1029, 108 S.Ct. 2009, 100 L.Ed.2d 597 (1988). We agree that the delay exceeded the limit of Administrative Order 5, § 2. We do not find, however, that the delay warrants reversal. See State v. Roy, 151 Vt. at ----, 557 A.2d at 896 (A.O. 5 permits but does not require dismissal of case).

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, 151 Vt. at ----, 557 A.2d at 895, we will consider the period commencing after the mistrial separately. This practice emulates the federal Speedy Trial Act, which allows for a separate seventy-day period from the date of the mistrial to the new trial. See 18 U.S.C. § 3161(e) (1982) (setting time from mistrial); id. at (c)(1) (setting seventy-day period for initial trial). Even excluding the time from the filing of the information to mistrial, however, the remaining period is approximately ten months.

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, 151 Vt. at ----, 561 A.2d at 410-11; State v. Trombly, 148 Vt. at 300, 532 A.2d at 968. Here, two out of these ten months are clearly attributable to defendant's pretrial motions (three motions to dismiss for lack of speedy trial and one motion for interlocutory appeal).

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 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, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2191-93, 33 L.Ed.2d 101 (1972) and adopted by this Court. See State v. Unwin, 139 Vt. at 195, 424 A.2d at 257; see also A.O. 5, § 5 (responsibility of prosecuting attorney to invoke concurrent jurisdiction of another court if condition of the docket will delay proceedings).

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, 139 Vt. at 195, 424 A.2d at 257. In asserting his right, defendant has filed only motions to dismiss, not motions to expedite the trial proceedings. See State v. Yudichak, 151 Vt. at ----, 561 A.2d at 411; State v. Unwin, 139 Vt. at 196, 424 A.2d at 257 (motion to expedite distinguished from motion to dismiss for lack of speedy trial). At the same time that defendant filed one of his motions to dismiss, he also requested a continuance to review the transcript provided by the State to prepare his case. During the second trial yet another motion to continue was requested and denied. This combination of motions to dismiss and to continue makes defendant's assertion of his right less convincing, and suggests that defendant may have actually benefited from the delay.

More importantly, defendant's presentation on appeal shows no prejudice to his case, nor does he demonstrate that the delay was a deliberate attempt by the State to prejudice his case. See State v. Roy, 151 Vt. at ----, 557 A.2d at 896. Defendant points out that the prejudice to an incarcerated defendant may include anxiety, embarrassment, or deprivation of witnesses for his case, but does not indicate that he has been prejudiced in any of these ways. Cf. Moore v. Arizona, 414 U.S. 25, 26 n. 1, 94 S.Ct. 188, 189 n. 1, 38 L.Ed.2d 183 (1973) (eighteen months after defendant was charged, one of two key witnesses was deported); Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970) (two of defendant's material witnesses died, one witness disappeared and police records were destroyed during seven years between information and trial). Moreover, the potential for prejudice to defendant's case is minimized here by the preservation of witness testimony in the depositions and transcript from the first trial.

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. 136 Vt. 568, 570-71, 396 A.2d 138, 139-40 (1978). The fact that the delay is unexplained, however, does not automatically render it unconstitutional. While we do not calculate the length of the delay in the present case beyond an approximation, it does not approach the length of the delay in State v. Franklin. See also Dickey v. Florida, 398 U.S. at 37-38, 90 S.Ct. at 1568-69 (seven years' delay and obvious damage to defendant's case did not require a remand for a determination of prejudice). This delay is not so long that it constitutes a "per se" violation of defendant's rights. See State v. Franklin, 136 Vt. at 570-71, 396 A.2d at 139.

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, 398 U.S. at 56, 90 S.Ct. at 1578, in which defendant proves delay and the State must prove the delay was necessary or justifiable. We note, however, that in subsequent speedy trial analyses by the United States Supreme Court, the "shifting burden" approach was not adopted. The Court instead used a balancing test. Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193. ¹ We find it unnecessary to adopt Justice Brennan's minority position, which places an increased burden on the State, in order to protect the defendant's rights. ²

Defendant also claims that the trial court failed to adequately consider his third motion to dismiss for violation...