State v. Recor

• Decision Date: 20 May 1988
• Docket Number: No. 86-379,86-379
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. John E. RECOR.

Page 1382

549 A.2d 1382

150 Vt. 40

STATE of Vermont v. John E. RECOR.

No. 86-379.

Supreme Court of Vermont.

May 20, 1988.

Karen Shingler, Chittenden County Deputy State's Atty., Burlington, for plaintiff-appellee.

Thomas J. Donovan, Burlington, for defendant-appellant.

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

DOOLEY, Justice.

Following a jury trial in District Court, Unit No. 2, Chittenden Circuit, defendant was convicted of sexual assault on a child, in violation of 13 V.S.A. § 3252(3). Defendant appeals his conviction and assigns as error, four points. First, defendant claims that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and by Chapter I, Article 10 of the Vermont Constitution. Second, he argues that the trial judge committed reversible error by permitting testimony relating to a prior bad act. Third, defendant contends that the State's expert witness was improperly allowed to testify as to the credibility of the complaining witness. And, finally, he argues that the State's expert witness was permitted to give hearsay testimony which went beyond the exception for statements made for purposes of medical diagnosis or treatment under V.R.E. 803(4). We affirm.

The facts supporting defendant's first claim are as follows. On February 27, 1985, the police issued a citation to defendant to appear and answer on March 25th. The arraignment date was subsequently continued to July 8, 1985 and a trial date set for November 20, 1985. Defendant filed various motions in the interim. One motion--a motion to require a psychiatric examination of the victim--resulted in a continuation of the trial date. Although the trial date was reset for January 15, 1986, the matter was again continued because the State amended the information to state a time of offense and the defendant filed a motion for a continuance along with various other motions. The trial was set for March 5, 1986 but was again continued. On March 7, 1986, defendant moved for dismissal based on lack of a speedy trial. The court denied the motion, and the defendant was tried on April 24th. Defendant was never incarcerated prior to trial.

We begin our analysis of defendant's claim by noting--as we have in the past--that "it is 'impossible to determine with precision when the right [to speedy trial] has been denied.' " State v. Unwin, 139 Vt. 186, 195, 424 A.2d 251, 257 (1980) (quoting Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972)). And, we further observe that "[t]he right to a speedy trial is a constitutional guarantee that cannot be 'quantified into a specified number of days or months.' " State v. Snide, 144 Vt. 436, 442, 479 A.2d 139, 143 (1984) (quoting Barker, 407 U.S. at 523, 92 S.Ct. at 2188). However, there are four factors that are relevant in determining when such a denial has occurred: the length of the delay, the reason for the delay, defendant's assertion of his or her right, and prejudice to the defendant. Id. 144 Vt. at 442, 479 A.2d at 143. Applying these factors to the instant case, we conclude that defendant's claim that he was denied a speedy trial is without merit.

As prejudice is the most important factor in analyzing speedy trial issues, State v. Bristol, 143 Vt. 245, 249, 465 A.2d 278, 280 (1983), we address this element first. Defendant contends that he was subjected to anxiety, embarrassment, and loss of employment because he was compelled to wait an inordinate amount of time before his case came to trial. This claim of prejudice fails because defendant has not shown any prejudice.

In determining the existence of prejudice, "[t]he most important consideration ... is prejudice to the defense at trial." Unwin, 139 Vt. at 197, 424 A.2d at 257. In the instant case, defendant's alleged prejudice focuses exclusively on the stigma naturally attendant to charges of sexual abuse against a child and not on an inability to prepare a defense. Defendant's claim, thus, amounts to nothing more than an "unsupported assertion that delay is per se prejudicial." Bristol, 143 Vt. at 249, 465 A.2d at 280. This claim has no basis in our case law and is not sufficient to show prejudice here.

Not only has defendant failed to demonstrate prejudice, but the record is barren as to any assertion of his right to a speedy trial by a demand for such. While defendant did base several motions to dismiss on the claim that he was not afforded a speedy trial, "[a] motion to dismiss based on an alleged violation of the right to a speedy trial is not the equivalent of a demand for an immediate trial." Unwin, 139 Vt. at 196, 424 A.2d at 257. Further, the motions began in March, 1986--over twelve months after he was charged and less than two months before the trial. Thus, defendant's claim is further weakened by his failure to assert the right he claims to have been violated.

Having failed to show prejudice and having failed to demand a speedy trial, defendant cannot support his claim that his constitutional right was violated on this point. This being so, it is unnecessary for us to settle whether the delay in this case was fourteen months (as defendant claims) or nine and one-half months (as the State claims). It is likewise unnecessary for us to apportion responsibility for whatever delay existed, although the record indicates that both parties contributed to some degree. There are no grounds for reversal based on defendant's claim that he was denied a speedy trial.

In his second assignment of error, defendant argues that the trial court improperly permitted the complaining witness to testify as to a prior, similar assault. This, defendant contends, was reversible error.

The charges in the instant case were based on an assault alleged to have occurred in July or August of 1984. However, the complaining witness also contended that defendant assaulted her in 1982. Before trial began, defense counsel and the prosecution agreed that no reference would be made to the alleged prior incident. The record shows that, in fact, no such reference was made during the State's direct examination of the complaining witness. During cross-examination of the complaining witness, defense counsel attacked her credibility by attempting to show a pronounced bias against defendant. Specifically, counsel questioned the witness about her long-term dislike of the defendant, and the witness ultimately admitted that she had disliked defendant since 1979 and had hated him since at least 1982. When pressed for reasons for this hatred, the witness--who had been cautioned by the prosecution not to mention the 1982 assault--responded that the defendant was not her natural father, that he disciplined her, and that he compelled her to do household chores. After cross-examination was completed, the prosecutor motioned the court for permission to question the witness--on redirect--about the 1982 incident which, the State contended, was the primary basis for the witness' dislike of the defendant. The court, reasoning that defense counsel had opened the door by attempting to show both bias and its cause, ruled that such questioning would be proper. On redirect, the witness testified that one reason for her dislike of defendant was that he had sexually assaulted her in 1982.

Defendant contends that this testimony was improper because it was highly prejudicial and went to establish a character trait with which the jury could infer defendant had acted in conformity. V.R.E. 404(b) prohibits the introduction of evidence of other crimes, wrongs or acts to prove the character of a person to show that he acted in conformity therewith. Defendant argues that the admission of the testimony about the 1982 assault violated V.R.E. 404(b). This argument is not persuasive.

Defense counsel sought to impeach the credibility of the complaining witness by painting an incomplete picture of unwarranted bias. The State's response was to complete this picture with appropriate detail. The purpose of the witness' testimony on redirect, thus, was not to establish the character of the defendant and was not violative of the prohibition in V.R.E. 404(b). See State v. Parker, 149 Vt. 393, ---, 545 A.2d 512, 514-18 (1988). The rule recognizes that evidence that may be inadmissible for the prohibited purpose may be admitted for other permissible purposes. The use here was for a permissible purpose. See State v. Fortier, 149 Vt. 599, ---, 547 A.2d 1327, 1328 (1988).

We recognize that we must not create a license for the prosecutor to engage in "overkill" nominally justified by the defendant's actions in raising a line of questions. Thus, in State v. Batchelor, 135 Vt. 366, 376 A.2d 737 (1977), the Court reversed where the prosecutorial response went far beyond the inquiry opened by the defendant. That case was a DUI case in which the defendant, on cross-examination of the arresting officer, attempted to show bias because the witness had previously told the defendant that he had an alcohol problem. The defense did not inquire as to the reasons for the alleged prejudice of the officer. On redirect, the prosecution--in an effort to show why the statement was made--elicited testimony from the officer regarding two previous arrests of defendant for DUI, and also about the officer's observations of defendant's automobile parked at local night clubs. Reversing defendant's subsequent conviction, the Court held that defense counsel's questions regarding the existence of prejudice did not open the door for a full exposition of the reasons for such prejudice. Id. at 369, 376 A.2d at 740.

In the instant case, unlike Batchelor, defense counsel attempted not only to demonstrate bias by the complaining witness, but also attempted to provide a reason for the bias. Once the issue of why the complaining witness disliked the defendant was raised on cross-examination, it was proper for the State to present a...