State v. Brillon

Burgess, J.,

¶ 52. dissenting. Today the majority frees a convicted woman beater and habitual offender, not because of any infirmity in the evidence or unfair prejudice in the trial by which a jury found him guilty, but because the defendant delayed the proceedings for almost twenty-two months. Despite repeated early efforts by the prosecution and the court to commence trial, defendant engaged in a pattern of disqualifying his lawyers and monkey-wrenching his scheduled trials in this and related cases. The defender general’s inability to secure additional lawyers in the middle of defendant’s postponement may have delayed this matter for another ten to fourteen months, but this gap in assigned counsel resulted in no demonstrated prejudice to defendant or his case. Nor is the majority’s release of defendant compelled under the Speedy Trial Clause by any other factor dictated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Because the majority vacates the conviction and dismisses the charge when the law does not require it, I respectfully dissent.

¶ 53. The majority insists that it relies upon the “undisputed record” in this case, ante, ¶ 5, but cannot point to any fact in that record, apart from defendant’s unproven assertions, to support defendant’s claim that his own repeated postponements of trial were due to unpreparedness, caseload, or lack of diligence on the part of his assigned counsel. Nor can the majority point to any fact in that undisputed record justifying defendant’s forced disqualification of his first two lawyers and his election to skip two *502 scheduled trials. From that same record, the majority cannot cite a single example of undue prejudice to defendant, personally or to his defense, violative of his speedy trial rights as defined by Barker . Remand is not, as suggested by the majority, a pretext to affirm the conviction; rather, it is necessary to establish whether the facts required by Barker , and missing here, exist to reverse on speedy trial grounds.

¶ 54. The majority posits that the trial court could have exerted more control over its docket by denying new counsel when defendant disqualified his court-appointed lawyers by manufacturing unnecessary ethical conflicts. Ante, ¶ 5. If the majority is serious on this point, then the trial court and the defender general had no further obligation to secure a replacement lawyer after defendant disqualified his first and second assigned counsel by insisting on a position that one could not ethically represent and by threatening the other. Defendant could have demanded immediate trial or invoked his right to self-representation at any time, but did neither. Instead, defendant insisted on the assistance of counsel to which he was no longer entitled. That he purports now to be dissatisfied with the time it took to overcome his sabotage is hardly of constitutional import and certainly no violation of the Sixth Amendment.

¶ 55. The majority’s contrary assertion notwithstanding, the lion’s share of delay in this case is attributable to defendant, and not to the state. Nearly a year passed without trial between arraignment on July 30, 2001 and the appointment of a third counsel in June 2002, on account of defendant’s requests for continuances, his motions to replace counsel on the eve of one trial and several months before his anticipated second trial date, his additional motions practice, and defendant’s avoidance of trial by his tactic of forcing counsel to resign. Defendant threatened his second lawyer, leading him to withdraw from the case, and conversed with his first lawyer in such a way as to preclude that counsel’s zealous representation. The final eleven months before trial is entirely attributable to defendant as time during which his last assigned counsel requested repeated extensions, prepared for trial and filed motions — none of which was challenged by defendant as unreasonable or less than diligent.

¶ 56. Defendant’s claims of ineffective assistance of counsel to justify dismissal of his lawyers were not substantiated by the trial court. Somehow, now, these same claims are accepted by the *503 majority at face value without supporting evidence. 3 It is not for this appellate court, but for the trial court, to make evidentiary findings regarding post-trial claims that incompetent counsel led to an undue delay of trial. See State v. Boyea, 171 Vt. 401, 427 , 765 A.2d 862, 880 (2000) (Johnson, J., dissenting) (“[I]t is not our job to supplement the record. . . . This constraint is inherent in the nature of an appellate court; we must bow to the controlling force of the record and consider only those facts that were established below.”) (quotations omitted). The trial court never reached that particular issue when addressing defendant’s motions to dismiss for lack of speedy trial, basing its decision instead on defendant’s own contributions to the delay and the lack of any actual prejudice to the defense from the delay. The majority’s further assumption that more than two years of delay is attributable to ineffective representation is plainly contradicted by the record. When the trial court did consider whether counsel was ready for trial in a pretrial motion, it rejected defendant’s claims that his lawyer was unprepared. That ruling is not challenged. Defendant’s subsequent complaint — that assigned counsel were too overworked to adequately represent him — was found by the court to be unsupported by the evidence. That determination is not challenged. No ruling was reached on defendant’s claim that his second lawyer was ineffective, because defendant threatened that lawyer, leading him to withdraw from the case, when defendant could not prove his allegations of inattention and incompetence. The majority’s undisputed record shows that defendant demonstrated no professional inattention in the work of his first two lawyers. The majority nevertheless assumes nonfeasance, despite the trial court’s unchallenged conclusion to the contrary.

¶ 57. In the course of its appellate fact finding, the majority omits or ignores several matters relevant to its concern that either the court or the defender general neglected defendant’s legal welfare. The immediate case was one of three related *504 prosecutions pending against defendant and involving the same complainant — one older felony, and a newer habitual-offender felony filed in April 2003. In its May 12, 2003 entry order in this and all pending cases against defendant, the trial court acknowledged difficulties in finding counsel to assign to the instant case but, taking advantage of the fact that the local public defender was not conflicted off the new, habitual-offender felony, assigned the public defender to that case and prioritized it to be tried first. Thus, despite unavailable counsel and lack of progress in the instant case during 2003, the court strove to bring defendant to trial on the related docket. In the same entry order, the trial court also noted that defendant was

held for lack of bail in this [the new habitual-offender] docket as well as the others. Should his bail status change so that he is being held solely on those cases for which the defender general has yet to provide representation, the court will immediately schedule a bail review hearing in those cases.

(Emphasis added.) Defendant reported no change in bail status to the court.

¶ 58. But for defendant’s repeated maneuvers to dismiss his lawyers and avoid trial through the first eleven months following arraignment, the difficulty in finding additional counsel would not have arisen. At least twice in this case, and in two related cases, defendant tried to avoid scheduled trials by claiming without success that his lawyers were incompetent, unprepared or overworked. 4 Failing in those efforts, defendant next undertook to disqualify his counsel by threatening one lawyer, and, as in yet *505 another related case, by putting his other assigned counsel in an ethical bind to preclude or impede continued representation. 5

¶ 59. As indicated by the majority, defendant’s third and fourth counsel appeared to accomplish little or nothing on his behalf over the next eight months, and, in the interims following their termination, defendant was twice without counsel for a total of almost six months. Neither defendant nor the defender general would have faced difficulty in finding available and effective counsel, however, had defendant not contrived to disqualify counsel and delay trial in the first place. That defendant did not want trial is further reflected by his similar obstruction in the newer habitual-offender case when, again faced with an imminent trial date eighteen months later, defendant first attempted to have his lawyer dismissed as overworked and unprepared, and, failing in that ploy, then forced a mistrial and disqualification of counsel by ensnaring his lawyer in some fraud upon the court.

¶ 60. Also missing from the majority’s narration is defendant’s express waiver of speedy-trial rights in February 2002, after declining two opportunities to go to trial. The majority intones that defense counsel should not be forced to trial without reasonable preparation, but there is no evidence or findings to support defendant’s claim that he had to forfeit trial rather than proceed unprepared. The trial court rejected his lawyer’s argument that documents and new witnesses still to be sought were necessary to the defense. This judge’s decision has not been challenged.

¶ 61. After his waiver, defendant made no demand for speedy trial. Nevertheless, the majority recites several times, but erroneously, that defendant “repeatedly and adamantly demanded to be tried.” Ante, ¶ 38. Defendant is fond of claiming that he repeatedly asserted his right to trial, but the record shows that he did not. Instead, defendant filed serial motions to dismiss the case or dismiss his counsel, but never actually demanded a prompt trial. It is long settled that motions to dismiss for lack of speedy trial are no substitute for demanding an expedited trial. State v. Keith, 160 Vt. 257, 268 , 628 A.2d 1247, 1254 (1993); State v. French, 152 Vt. 72, 77 , 564 A.2d 1058, 1061 (1989); State v. Unwin, 139 Vt. 186, 196 , 424 A.2d 251, 257 (1980). This is because *506 defendants, like this defendant, could otherwise move for dismissal without being themselves prepared for trial. Unwin, 139 Vt. at 196 , 424 A.2d at 257 (recognizing that “[a] demand for a trial would require that the defense be prepared.”).

¶ 62. Denying one of these later motions to dismiss, the trial court noted that

[defendant's current counsel has not demanded trial nor indicated that she is ready for trial .... This court remains ready to schedule jury draw and trial within a reasonable time of . . . counsel’s demand for same.

Despite this invitation, no such request for trial was forthcoming. This finding also remains unchallenged.

¶ 63. Similarly, the majority’s concern that delay in this case may have been due to inadequate public-defender resources is unsupported by the record. While the defender general obviously had trouble finding counsel during the fourteen months following defendant’s threat to his second lawyer, this difficulty appeared no more attributable to lack of resources than to ordinary conflicts of interest, attorney retirement, contract modification, and defendant’s own misconduct. None of the delay was shown to be caseload related. Defendant claimed so, or said his lawyers claimed as much, but proved none of it. Two lawyers were disqualified due to conflicts, while defendant forced two others off the case by his own behavior. Another assigned counsel quit the practice of criminal law and yet another withdrew due to a contract change. Cases cited by the majority addressing speedy-trial violations arising from overcrowded courts or overburdened public defenders are not particularly enlightening on this record that shows that defendant deliberately passed up two different trial dates, squandered another, and forced the discharge of three prepared court-appointed lawyers.

The Barker Test

¶ 64. To determine a speedy trial violation, we must consider and balance the four factors laid out by the Supreme Court in Barker : (1) the length of the delay; (2) reasons for the delay; (3) whether defendant asserted his rights; and (4) prejudice to defendant. 407 U.S. at 530 . If any rule governs speedy-trial analysis, it is that there is no absolute standard. “[T]he right to speedy trial is a more vague concept than other procedural rights. *507 It is, for example, impossible to determine with precision when the right has been denied.” Id. at 521 . Thus, we are required to approach this case on an ad hoc basis as to the consequence of delay upon the constitutional interests behind the right to speedy trial: prevention of oppressive pretrial detention, minimization of pretrial anxiety of the accused and limitation of the impairment of the defense. Id. at 532 . “Of these, the most serious is the last [factor], because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.

Length of Delay

¶ 65. This was not a case where the court acceded to stagnation. Knowing that two of defendant’s other cases had slowed due to problems with available lawyers, the court advanced defendant to trial in the parallel habitual-offender felony case that was not mired in conflicts with counsel. Since the shortage of lawyers was, in large part, precipitated by defendant, and it was unlikely that defendant would have been preparing for two life-penalty felony trials simultaneously had he but one counsel, the hiatus here while counsel prepared for trial in the other serious case was not material.

¶ 66. Delay of fourteen months is presumptively prejudicial, but not grounds to dismiss per se. An even longer delay would not entitle defendant to the majority’s “get-out-of-jail-free” card under the Speedy Trial Clause. See Barker, 407 U.S. at 534 (holding that five-year delay attributable to prosecution, including ten months of incarceration, was extraordinary, but did not justify writ of habeas corpus for lack of speedy trial when defendant acquiesced to three years of delay without prejudice); see also Moore v. Arizona, 414 U.S. 25, 28 (1973) (holding that a three year delay warranted remand for an assessment, under Barker); State v. Percy, 158 Vt. 410, 420 , 612 A.2d 1119, 1126 (1992) (rejecting claim of per se speedy-trial violation where trial court inaction for eleven months contributed to twenty-eight months passing between reversal of original conviction and retrial). “[Presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria ...” Doggett v. United States, 505 U.S. 647, 656 (1992). Given defendant’s repeated efforts to postpone trial in this case for almost two years, the absence of prejudice, and the court’s countervailing efforts to get to trial in the companion case only to be sabotaged by defendant, the lengthy delay attributable *508 to the defender general carries little, if any, weight against the state.

Cause of Delay

¶ 67. Inattention to defendant’s right to speedy trial “is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense.” Id. at 657 . It was defendant who alienated and disqualified one lawyer on the brink of trial in this case, and again alienated and disqualified another lawyer who was ready for trial four months later. If defendant had not so deliberately delayed the instant matter, the defender general would not have been faced with finding yet another counsel to assign. Having twice duly provided defendant with counsel and opportunity to proceed to trial, the weight of subsequent delay in finding another counsel falls only lightly on the state. Already a light burden due to mere negligence, as opposed to design, the weight against the state is slighter still considering defendant’s repeated instigation of delay.

Assertion of Right

¶ 68. Defendant’s failure to demand trial was no waiver of speedy trial indefinitely, but is still a factor in evaluating his claim of deprivation. Barker, 407 U.S. at 528 . Given the trial court’s unassailed finding that defendant made no such assertion, this factor cannot weigh in his favor. Defendant’s consistent actions to dismiss his lawyers and delay trial belie his purported interest in either. “It is incumbent on defendant to assert his right to a speedy trial in order to obtain reversal here as a result of delay.” State v. Roy, 151 Vt. 17, 37 , 557 A.2d 884, 896 (1989) (noting Barker Court’s emphasis that “‘failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial’ ”) (quoting Barker, 407 U.S. at 532 )). Defendant’s demonstrated disinterest in speedy trial weighs against him.

Prejudice

¶ 69. The presumptive prejudice of the delay attributable to the state is not conclusive, but rebuttable. Doggett, 505 U.S. at 658 (noting that where the presumed prejudice “is neither extenuated, as by the defendant’s acquiescence, . . . nor persuasively rebutted, the defendant is entitled to relief’). Except for claiming that the memory of one witness was compromised and the address of *509 another witness was lost by the passage of time, defendant failed to proffer evidence that the Sixth Amendment’s protection against oppressive confinement, pretrial anxiety or impairment of the defense were prejudiced by delay in this case.

¶ 70. The trial court correctly rejected the impaired-defense claim as unfounded. The testimony that would have resulted from the allegedly failing memory of one witness would have been excluded on evidentiary grounds unrelated to delay, while defendant’s bald assertion, that unspecified “exculpatory information” was lost when the witness’s address was lost, lacked any basis in the record. On appeal, defendant complains about these rulings, but offers no explanation as to why the court was wrong on the facts or the law. Following the majority’s admonition that “even moderately speculative claims of evidentiary prejudice must be given careful consideration,” ante, ¶ 48, the trial court’s denial of this claim is still supported by the record. Recollected or not, the statement sought from the witness was inadmissible hearsay. The claimed, but never identified, exculpatory evidence was not moderately speculative, but purely speculative.

¶ 71. It is not at all evident how the defender general’s fourteen-month delay, sandwiched in the middle of defendant’s twenty-two month prolongment of this case, was otherwise prejudicial. We are concerned that “[ijnordinate delay . . . may seriously interfere with . . . defendant’s liberty . . . and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends,” Moore, 414 U.S. at 27 (quotation omitted), but none of these fears were realized here. We know that defendant twice preferred continued incarceration to an opportunity for trial and acquittal more than twenty-four months earlier. Defendant argued no greater anxiety or oppression in his jail time during the delays attributable to the defender general than from the eleven months of jail time wasted by defendant in forcing his lawyers off the case, or the eleven months of jail time accumulated while his new attorney requested extensions and prepared for trial. Considering defendant’s contribution to the extra delay and his demonstrated lack of interest in speedy trial, any extra incarceration attendant to difficulty in securing replacement counsel seems not so oppressive, and carries little weight against the state.

¶ 72. The delay attributable to the defender general proved simply immaterial to some of defendant’s pretrial detention. *510 Commencing April 11, 2003, defendant was held, regardless of any delay, for over twenty-one months for lack of $6,000 bail in the companion cases. Thus, the delay attributable to the defender general in this case from April 11 until appearance of new counsel on August 1, 2003, had nothing to do with his continued incarceration during that time, reducing the potential prejudice of delay-related pretrial detention to ten months at worst. In contrast, absent other significant attending prejudice, four years of delay, including ten months pretrial detention, was of insufficient weight to warrant release of a convicted defendant in Barker, 407 U.S. at 534 .

¶ 73. The majority too easily dismisses as speculative the State’s point that defendant would have remained incarcerated on the other charges regardless of the delay here. Defendant’s ongoing detention regardless of the delay attributable to the defender general was not speculative, but certain. Defendant turned down the trial court’s invitation for reconsideration of its hold-without-bail order. Unable to make the modest bail imposed in his other pending dockets, the issue of defendant’s continued pretrial detention after assignment of the new counsel was moot. In any event, ten months of pretrial detention attributable to delay cannot, by itself, be reason to reverse on Sixth Amendment grounds. Id.

¶ 74. Nor was financial hardship, domestic disruption or public disgrace at risk for defendant. According to his public defender application, defendant was unemployed and without significant assets at the time of his arrest. Court records show that defendant’s former domestic partner, the victim in the pending prosecutions, secured multiple relief-from-abuse orders against him prohibiting defendant from contacting her and limiting parent-child contact. Defendant’s chronic criminality was already a matter of public record showing fourteen prior convictions, including felonies for obstructing justice, concealing stolen property and, at age thirty-one, sexual assault of a minor, so that defendant’s public ignominy was achieved well before, and was hardly exacerbated by, any delay in this case.

¶ 75. Defendant failed to prove the prejudice claimed, and otherwise failed to allege any particular prejudice, real or possible, resulting from delay in this case. The majority properly clarifies our caselaw to acknowledge that actual impairment of the defense is not the ultimate test for a Sixth Amendment violation. See *511 Moore, 414 U.S. at 26-27 (recognizing that actionable “prejudice to a defendant caused by delay ... is not confined to the possible prejudice to his defense”). Prejudice can arise from unnecessary incarceration, disruption of finances or family, shame, or anxiety. Id. at 27 . Nevertheless, and however characterized, “[a] showing of prejudice is required to establish a violation of the Sixth Amendment Speedy Trial Clause, and that necessary ingredient is entirely missing here.” Reed v. Farley, 512 U.S. 339, 353 (1994) (emphasis added).

¶ 76. Thus, none of the speedy-trial factors mandated for our review by Barker require reversal of this conviction and dismissal of the charge against defendant. The length of delay in securing effective counsel was unfortunate, but not per se prejudicial. The government twice fulfilled its obligation to secure representation for defendant and to proceed to a timely trial before defendant created further delay in his case. But for defendant’s repeated tactics to disqualify his lawyers and delay trial there would have been no difficulty in finding substitute counsel, so the defender general was not the primary cause of delay. Defendant neither proved nor actually pled any imposition on reputation, relationship, or peace of mind. Even assuming that defendant sustained natural anxiety or disruption from being charged and imprisoned pending trial in this case, it was not enough to deter defendant from twice manufacturing delay of trial to pass up the opportunity for acquittal and release in this matter. Nor does defendant distinguish the burdens of incarceration in this case from the same burdens presumably arising from being simultaneously held for lack of bail in the companion cases. Most significantly, under Barker , this delay caused no impairment to the defense. 407 U.S. at 533 (discussing the prevention of impairment to the defense as the “most serious” interest protected by the speedy trial clause). Accordingly, the factor of prejudicial impact, in any of its various forms, carries no weight against the state.

¶ 77. Wanting the case dismissed, defendant just as clearly did not actually want a speedy trial. Defendant waived and then failed to assert his right to speedy trial, while his consistent efforts to avoid trials confirmed his disinterest in going to trial. “More important than the absence of serious prejudice, is the fact that [defendant] did not want a speedy trial.” Id. at 534 .

¶ 78. The majority glosses over the foregoing facts and prefers to grant relief based on as yet unproven allegations of prejudice *512 caused by neglectful delay in assigning counsel. Based on the record, defendant’s complaints are unsupported at best, and contrary to the evidence at worst. If the attorneys forced off the case by defendant were incompetent, ineffective, or unprepared, or if defendant sustained any prejudice from delay, we cannot know from the record before us. Relying on our precedent, now overturned, see ante, ¶¶ 40-42, the trial court ended its post-trial inquiry once it was evident that defendant failed to assert his speedy-trial rights and that, whatever its length and cause, the delay had no actual adverse impact to the defense. The full spectrum of balancing length of delay, cause of delay and other potential prejudices as required by Barker was not completed below.

¶ 79. The record supports the conclusion that defendant is not entitled to relief. The court’s initial ruling that trial would proceed over defendant’s protestations of unpreparedness is not challenged. In his other motions to dismiss below, and in this appeal, defendant repeats his lament about unprepared lawyers, but nowhere specifies how the trial court erred in its rejection of this claim. On the record before us, even without considering defendant’s similar obstructions of trial in his companion dockets, defendant failed to demonstrate any of the prejudices upon which Barker would require dismissal for lack of speedy trial. On the same record, defendant failed to show that the length of delay was more egregious than much longer delays deemed not to require dismissal under Barker . On that record, defendant failed to tip the remaining Barker factors in his favor; he did not show why his own contributions to the delay were outweighed by the state’s, or that he asserted his speedy-trial right — or that he even wanted a speedy trial — all as required by Barker as a precondition to relief.

¶ 80. The most significant facts found by the majority — that the state, rather than defendant, was responsible for two years of delay, that defendant had no choice but to disrupt his trial schedule because his lawyers were unprepared, and that he repeatedly asserted his right to speedy trial and was prejudiced as a result of delay — were neither found below nor supported by the record here. If the trial court’s denial of the motion to dismiss cannot be sustained by the Barker factors on the available record, although I believe it can be, the case cannot be dismissed without the necessary Barker findings of prejudice, cause of delay, and whether defendant indeed sought and was denied a speedy trial.

*513 ¶ 81. Finally, before affording defendant release and dismissal of the charges based on assumptions premised on nothing but his purported version of events, the State should have an opportunity for rebuttal. Otherwise, we surrender control to those more invested in avoiding jury verdicts than in vindicating the right to speedy trial. As the Supreme Court recognized in Barker , speedy trial is often not a defendant’s friend. 407 U.S. at 521 (observing that “[d]elay is not an uncommon defense tactic” as “witnesses . . . become unavailable or their memories . . . fade”). The majority’s procession to judgment without the evidence necessary to actually confirm its perception that the Barker factors preponderate against the state, or its assumption, against the evidence, that delay prejudiced the defendant, can only encourage dilatory tactics by jailhouse lawyers and others interested in subverting the trial court.

¶ 82. If the majority finds the trial court’s Barker analysis deficient, the proper remedy is to remand for the necessary evidentiary proceedings where privilege can be waived and the readiness and tactics of defendant’s attorneys, as well as defendant’s tactics and his intentions regarding speedy trial, can be more fully explored. Otherwise, while the record supports rejection of the claimed speedy-trial violation under Barker , there are insufficient facts or evidence in the record to support the majority’s assumption that defendant should be freed. Since no Sixth Amendment grounds presently justify endangering the public by the unnecessary discharge of this habitual felon, I dissent, and am authorized to state that Chief Justice Reiber joins in this dissent.

This eiTor is reminiscent of a similar situation in State v. Cadorette, where a majority of this Court inferred prejudice, without any evidence, from the defendant’s unproven claim of ineffective assistance of counsel. 2003 VT 13, ¶¶ 11-15 , 175 Vt. 268 , 826 A.2d 101 (Morse, J., dissenting) (pointing out that “on this record we have no way of knowing what happened during the course of the prosecution and defense,” that “[t]he Court assumes defendant was woefully defended based on colloquies outside the context of a fact-finding hearing,” and that “this Court has jumped the gun and denied the State an attempt to defend against the ineffective assistance of counsel claims alleged by defendant”).

The majority’s expansion of the record to render judgment on defendant’s bare allegations, rather than on evidence presented or findings made below, should welcome consideration of relevant docket entries and transcripts from defendant’s related cases covered by the May 12, 2003 entry order in this case. That the records of the companion cases were not incorporated into the appellate presentations here is no surprise given that the parties had no reason, then, to expect fact finding by this Court on the merits of defendant’s factual claims. The majority opens the door. The companion cases were referred to by the parties as influencing bail and impacting trial in this case, so let us examine the total circumstances of delay as called for by Barker . Examination of that record only illustrates that the majority jumps to its assumption of government neglect of an accused anxious for trial without the benefit of evidence and without the context of what was actually afoot in the trial court at the time.

As argued by the State when contesting defendant’s efforts to discharge his second assigned counsel in this case, the older felony docket presented still three other incidents of defendant’s pattern of seeking dismissal of counsel or continuances when confronted with trial dates.