Motion for Reargument Denied March 12, 2014
[Copyrighted Material Omitted]
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Lamoille Unit, Criminal Division. Dennis R. Pearson, J.
Christopher C. Moll, Lamoille County Deputy State's Attorney, Hyde Park, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.
[¶1] Defendant appeals from his conviction of sexual assault. He contends that the case should have been dismissed on speedy trial grounds and that he is entitled to a new trial based on statements made in closing argument by the prosecution. We affirm.
[¶2] Defendant was charged on March 3, 2010 with a single count of sexual assault without consent and released on bail. He was initially defended by Attorney Richard Goldsborough. Preparation and trial of the case were complicated because two of the State's witnesses, including the complaining witness, are deaf and required the assistance of American Sign Language (ASL) interpreters. Trial was originally scheduled for January 2011 and continued to March 8, 2011. The case then commenced as scheduled, but after jury selection and two days of trial, the court declared a mistrial on March 10, 2011. The mistrial was requested by both sides due to significant problems with the sign-language interpretation process.
[¶3] On July 1, 2011, the court scheduled a status conference for August 1. At the conference, the court set the case for a retrial to commence October 17, 2011. The case was scheduled as the first on the list for jury selection, with trial to follow immediately afterward. On August 1, Attorney Goldsborough moved to withdraw on the ground that defendant had spent all his available money on legal fees and could no longer afford private counsel. At the same time, Attorney Goldsborough filed a motion to dismiss the case on speedy trial grounds. On August 8, the court permitted Attorney Goldsborough to withdraw and assigned Attorney Daniel Maguire to represent defendant at the State's expense.
[¶4] The court issued an entry order on September 2 setting the motion to dismiss for a hearing. The order included the following language:
Given complexity of case, [the] need for prior ruling on pending motions, and substitute counsel's recent appearance; given substantial lead time needed to arrange for interpreters, the October 17, 2011 jury draw/trial for this action is continued.
On September 14, the court held a second status conference at which it rescheduled the trial for December 12.
[¶5] On November 3, 2011, the court issued a detailed entry order concerning the scheduling of the case. The court recounted the history of prior trial dates, the mistrial, the appointment of Attorney Maguire, and Attorney Maguire's commitment to try a serious felony case in Washington Criminal Division in December 2011. That case was older than defendant's case and involved a defendant who was held for lack of bail. The court also recognized the " special issues" presented by the need for highly qualified ASL interpreters available only with substantial advance notice. The court acknowledged the problem of delay:
The court is, of course, mindful that Defendant has already filed a motion to dismiss this action and this charge against him, on the grounds that his speedy trial rights have already been irreparably compromised. Further delay will, of course, only complicate the resolution of those claims. That motion remains pending, and has not yet been decided by the court. Nonetheless, for the reasons stated, and despite the lack of any formal motion for continuance of this case filed by the Defendant, this court will cancel the jury draw and trial in this matter now set for December 12, 2011.
The court rescheduled the trial for February 13-16, 2012. Trial commenced as scheduled on February 13 and concluded with a guilty verdict on February 17, 2012. Defendant was sentenced to serve five years to life and is currently incarcerated.
[¶6] On appeal, defendant argues that the two-year delay between arraignment and the second trial violated his speedy trial rights under the United States and Vermont Constitutions. He further claims that the conviction must be reversed due to prejudicial ...