This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Rutland Unit, Criminal Division. Cortland Corsones, J.
Kevin R. Klamm, Rutland County Deputy State's Attorney, Rutland, and John R. Treadwell, Assistant Attorney General, Montpelier, 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 his conviction for sexual assault following a jury trial in Rutland Superior Court on May 22-24, 2012. On appeal, defendant argues that (1) the trial court erred by allowing certain hearsay testimony to be considered by the jury; (2) the trial court erred in scheduling a six-day delay between jury selection and trial without obtaining a waiver from defendant; and (3) the State's use of inflammatory language and arguments regarding complainant's character during closing arguments was plain error. We reverse defendant's
conviction and remand for a new trial on the first ground without reaching defendant's other arguments.
[¶2] Defendant was charged with sexual assault under 13 V.S.A. § 3252(a)(1) on October 15, 2008. At a hearing on March 27, 2012, the trial was set for May 22-24.
[¶3] At trial, complainant testified that on July 28, 2008, she went out in downtown Rutland with friends, including her boyfriend, Jason Poljacik. She consumed approximately six drinks and admitted to being intoxicated. Eventually, complainant arrived at a party of ten to twelve people, including defendant, at the house of Nate Barrett and Nathan Cook. Earlier that night, Poljacik separated from the group to socialize with other friends, arriving at the party after the others, which " frustrated and irritated" complainant. After Poljacik arrived, they decided that she would spend the night at the friend's house and that Poljacik would walk to the home they shared in Mendon so that they could get " a little bit of space" before talking things over in the morning.
[¶4] Shortly after Poljacik left, complainant went to Barrett's bedroom and made calls to a girlfriend, then to Poljacik. She testified that they both acknowledged that they had been drinking and making bad decisions, apologized and said they loved each other, and promised to talk about it in the morning. Complainant then fell asleep on the floor next to the bed. She awoke to an unknown person performing oral sex on her. Disoriented from being awakened, she told the unknown person to stop several times. The person then rolled her onto her back, and initiated sexual intercourse. Complainant continued to say stop, pushed the person off and ran out of the room. At this point, she was still wearing the same t-shirt and skirt she had been wearing earlier that evening. When she stood up, she recognized the perpetrator as defendant, whom she claimed to have met earlier that evening. Using vulgar terms, defendant stated to complainant that he had enjoyed himself.
[¶5] Complainant made her way to Cook's bedroom, where he was sleeping. According to complainant, defendant chased after her and tried to follow her into Cook's room, but she shut the door to keep him out. Complainant unsuccessfully attempted to wake Cook by calling his name several times, then went downstairs before collapsing in front of her roommate and Barrett. She was very emotional and told them that " he had his fingers in me," although she did not recall whether she said she was raped. She took a shower, still fully dressed. Her roommate and Barrett then drove her home and told Poljacik what had ...