State v. King

• Decision Date: 23 December 2016
• Docket Number: No. 15–053,15–053
• Citation: 165 A.3d 107
• Parties: STATE of Vermont v. Geoffrey KING
• Court: Vermont Supreme Court

165 A.3d 107

STATE of Vermont

v.Geoffrey KING

No. 15–053

Supreme Court of Vermont.

February Term, 2016

December 23, 2016

Motion for Reargument Denied February 22, 2017

Michael Kainen, Windsor County State's Attorney, White River Junction, for Plaintiff–Appellant.

Joshua O'Hara, Appellate Defender, Montpelier for Defendant–Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Tomasi, Supr. J., Specially Assigned

SKOGLUND, J.

¶ 1. Pursuant to Vermont Rule of Appellate Procedure 5(a), the superior court has—with the parties' consent—certified a question of law for our review in connection with the prosecution of defendant Geoffrey King. Specifically, the court and parties ask this Court to determine what legal standard the court should apply to determine whether the State's approximately three-year delay in bringing charges against defendant violated defendant's due process rights under the U.S. and Vermont Constitutions. We conclude that, to establish the State's preaccusation delay violated a defendant's due process rights under either the U.S. Constitution or the Vermont Constitution, the defendant must demonstrate actual substantial prejudice and prosecutorial misconduct intended to gain a tactical advantage or to advance some other impermissible purpose that violates fundamental conceptions of justice. Because defendant fails to meet either prong of this standard, we affirm the superior court's denial of his motion to dismiss.

¶ 2. In August 2008, the Department for Children and Families (DCF) contacted Detective Patrick Call to report an alleged sexual assault by defendant on the complainant. The detective interviewed defendant regarding the alleged assault between September and November, 2008. Sometime prior to the end of 2008, the detective referred the case to the Windsor County State's Attorney's Office. Subsequently, the detective interviewed two witnesses in February 2009.

¶ 3. One of the witnesses initially interviewed was A.F., a friend of the complainant. A.F. said that once—when she and the complainant were teenagers and the complainant was sleeping over—she asked the complainant why she "was kind of weird about [guys]." The complainant told A.F. that she was abused when she was little. In the interview, A.F. explained to the detective that she believed the complainant meant that defendant had had vaginal sex with the complainant. Following this interview with A.F. in February 2009, no activity in the criminal case occurred until August 2012.

¶ 4. Prior to the renewed activity, DCF indicated in a January 10, 2009, letter that the reported sexual assault had been substantiated. Although defendant did not appeal the substantiation decision, he subsequently requested that the substantiation be expunged; the DCF Commissioner denied the expungement request on June 25, 2012.

¶ 5. On August 6 or 7, 2012, the complainant's mother contacted the Windsor County State's Attorney's Office to inquire about the case. As a result of her message, the new deputy state's attorney (DSA) tasked with prosecuting sex crimes reviewed the case referral file, to determine the status of the case. After reviewing the file, the DSA contacted the complainant's mother. In their conversation, the new DSA indicated that the state's attorney's office did not want to file charges against defendant without assurances from the complainant that she wanted to move forward and, further, that he believed an email string in the file indicated that the office never received this confirmation from the complainant after the initial investigation. The complainant's mother then told the DSA that the complainant wished to pursue charges. Subsequently, the DSA contacted Detective Call to conduct a follow-up investigation before the State filed charges.

¶ 6. On August 30, 2012, the State charged defendant with aggravated sexual assault of a child under ten, in violation of 13 V.S.A. § 3253(a)(8), and lewd and lascivious conduct with a child, in violation of 13 V.S.A. § 2602. The DSA conceded that the affidavit of probable cause did not include any substantive evidence gathered after February 11, 2009.

¶ 7. Prior to trial, defendant filed a motion to dismiss arguing that the three and a half year gap between the conclusion of the initial investigation in February 2009, and the filing of charges in late August 2012, violated his due process rights under Chapter One, Articles 4 and 10 of the Vermont Constitution. After an evidentiary hearing on February 13, 2014, the superior court denied defendant's motion to dismiss. The court first concluded that the Vermont Constitution did not require a different standard than the analysis under the federal constitution for determining whether a preaccusation delay violated the due process clause. That federal standard, according to the superior court, required defendant to prove two things—that he was substantially prejudiced by the delay and that the State intentionally delayed to gain a tactical advantage over him—neither of which defendant had proved. In particular, the court determined that any discrepancy in the witnesses' testimony as a result of the delay could actually benefit defendant by opening the witness to impeachment.

¶ 8. Defendant's trial commenced on September 17, 2014. The State's case rested on the complainant's testimony and the testimony of A.F., who testified at trial that she believed defendant forced the complainant to perform oral sex on defendant. Defendant's cross-examination of A.F. focused on the inconsistencies between A.F.'s initial interview with Detective Call, her June 28, 2013 deposition in preparation for trial, and her trial testimony; specifically, whether the alleged assault involved oral or vaginal sex. A.F. testified that, based on their conversation as teenagers, she inferred that the complainant meant vaginal sex and that she relayed this assumption to Detective Call in their initial February 2009 interview; however, in preparation for her deposition on June 28, 2013, she contacted the complainant, who clarified that the alleged assault involved oral sex, not vaginal.

¶ 9. Defendant similarly attacked the inconsistencies in the complainant's testimony. The complainant's initial statement in 2009 involved great detail, then her deposition five years later, in 2014, contained less detail, and finally, her trial testimony contained more detail. The complainant explained the discrepancies by testifying that she did not review her initial 2009 interview prior to her deposition, but that she did review the interview prior to her trial testimony, which refreshed her recollection of the details.

¶ 10. In the parties' closing arguments, the State acknowledged that the complainant's memory of the events was inconsistent. But the State justified those inconsistencies by referring to the five-year delay between the complainant's initial report and the trial. The State further noted that the discrepancies were actually a sign of the complainant's honesty, because "[s]he didn't put in every detail one could possibly put in if one wanted to get somebody in trouble." By contrast, defendant again focused on the complainant's inconsistencies in his closing, noting that "already we have different sworn testimony in a deposition, different sworn testimony here at trial, and different unsworn interview testimony." And defendant further categorized A.F.'s inconsistent testimony as "evasive."

¶ 11. The trial resulted in a hung jury. Subsequently, defendant filed a motion for mistrial and dismissal with prejudice; in this motion, defendant again claimed that the action should be dismissed because the State's preaccusation delay violated his due process. In considering the motion, the court noted that, at trial, defendant took advantage of the inconsistencies between the complainant and A.F.'s prior depositions and trial testimony; as a result, "the inconsistent testimony was far more prejudicial to the State than to the Defendant." The court further relied on its previous order dismissing defendant's pretrial motion, noting, "Nothing that occurred during the jury trial changes the Court's decision on the motion." The court subsequently denied defendant's motion.

¶ 12. In anticipation of a retrial, the superior court certified this question of law for our review: under the U.S. and Vermont Constitutions,¹ what is the proper standard for evaluating whether a preaccusation delay violates a defendant's due process rights?

¶ 13. Broadly speaking, statutes of limitation provide the chief protection against the government bringing overly stale charges. United States v. Marion , 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In limited circumstances, however, the Due Process Clause of the Fifth Amendment requires dismissal of a charge if the preaccusation delay violates a two-pronged test: "[T]he due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." United States v. Lovasco , 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) ; see also Marion , 404 U.S. at 322, 92 S.Ct. 455.

¶ 14. Consensus exists that a defendant must demonstrate actual substantial prejudice to satisfy one prong of the test, not speculative or premature prejudice. See, e.g., Lovasco , 431 U.S. at 789, 97 S.Ct. 2044 ("[P]roof of actual prejudice makes a due process claim concrete and ripe for adjudication."); United States v. Automated Med. Labs., Inc. , 770 F.2d 399, 404 (4th Cir. 1985) (dismissing due process claim because defendant was prejudiced only slightly, if at all, by loss of witnesses' testimony).

¶ 15. But the federal circuit courts disagree about the showing a defendant must make to prove unjustifiable prosecutorial reasons for the preaccusation delay. A majority of the circuits require the defendant to demonstrate "improper prosecutorial motive," while two circuits "hold that the proper inquiry is to balance the prejudice to the defendant against the...