NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2021 VT 4
No. 2019-253
State of Vermont Supreme Court
On Appeal from v. Superior Court, Rutland Unit, Criminal Division
Scott Miglorie Lafaso June Term, 2020
Thomas A. Zonay, J.
Travis W. Weaver, Rutland County Deputy State’s Attorney, Rutland, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Joshua S. O’Hara, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. COHEN, J. Defendant Scott Miglorie Lafaso appeals multiple convictions
following a jury trial. He argues that he was deprived of his right to a speedy trial under the Sixth
Amendment to the United States Constitution and that the superior court erred in not excluding
certain trial testimony from the jury’s consideration. We affirm.
¶ 2. Defendant and complainant were once in a romantic relationship and lived together
in Rutland, Vermont. After some time, defendant moved out and, following a period of
intermittent contact, complainant ended their relationship. In September 2017, intent on renewing
affections, defendant twice entered complainant’s home without complainant’s permission. On the second occasion, defendant held complainant down, first on a couch and then on a bed, and
grabbed complainant’s phone out of her hand as she tried to call the police.
¶ 3. On September 11, 2017, the State charged defendant with burglary, unlawful
restraint, stalking, interference with access to emergency services, and two counts of unlawful
trespass.1 Failing to make bail at arraignment that day, defendant was incarcerated pending trial.
His first attorney soon filed a motion to withdraw, which the court granted. The court then
appointed a public defender to represent defendant. That public defender herself successfully
moved to withdraw, as did her replacement. A fourth and final attorney was appointed to represent
defendant on November 27, 2017.
¶ 4. On January 8, 2018, defense counsel filed, and the court approved, a stipulated
schedule agreeing to complete discovery by May 1 and to be ready for a one-day trial by June 1 of
that year. On May 23, defendant filed a pro se motion to dismiss the charges, informing the court
of his dissatisfaction with his continued incarceration and the repeated replacement of, and lack of
information from, his lawyers. Defendant complained that he had “been robbed of [his] rights to
speedy trial,” and asked the court to “take action and protect [his] rights.” The following day, the
court scheduled the case for a jury draw on September 5, 2018. Then, on May 29, the court denied
defendant’s motion to dismiss under Vermont Rule of Criminal Procedure 49 because defendant
was represented, and his attorney had not signed the motion. See V.R.Cr.P. 49(d) (“Every written
motion, written notice or similar paper of a party represented by an attorney shall be signed by at
least one attorney of record in the attorney’s individual name . . . .”).
¶ 5. On June 7, defendant filed a motion to review the status of counsel, which was
followed by a docketed letter to the court where defendant described continued grievances with
his lawyer and wrote, “I have been locked up now for over ten months, no weight of [the] evidence,
1 Respectively, 13 V.S.A. §§ 1201(c)(3)(A), 2406(a)(3), 1062, 1031, 3705(d). 2 paper work, no lawyer calls. Nothing!” The court held a status conference on July 16, where
defendant agreed to keep his attorney. At that status conference, defense counsel represented to
the court that the parties had engaged in unsuccessful plea negotiations the previous month.
¶ 6. As scheduled, the court convened a jury draw on September 5, 2018, but no jury
was drawn for defendant’s case. The record reflects that the case was not reached because there
was no trial date when defense counsel was available. A new jury draw was held on October 3, at
which defense counsel stated that the parties were engaged in continued plea negotiations but
agreed that if another case scheduled for October 16 were resolved, defendant’s case would be
tried that day. However, that same day—October 3—without explanation in the record,
defendant’s case was instead scheduled for a change-of-plea and sentencing hearing to be held on
December 18. The record is similarly silent as to why that hearing was rescheduled for January
15, 2019, but the January 15 hearing was in turn rescheduled for January 28, this time the record
indicating that defense counsel requested the change because he was unavailable on January 15.
¶ 7. At the January 28 hearing, defense counsel informed the court that the plea
negotiations had been fruitless and the case would have to be tried after all. Defendant said the
following at that hearing: “I’ve been in jail for eighteen months here. I would like to wrap this up.
I’m trying to live my life here, not spend it all in jail here.” When the court explained that the
matter would be set for the next available jury draw, defendant protested: “Another time, so I’ll be
sitting another six, eight months in jail. This is ridiculous.” The court scheduled the matter for a
February 27 jury draw, when a jury was finally empaneled. Defendant received his trial on March
19, 2019, 554 days—just over eighteen months—after arraignment.
¶ 8. As expected, the matter was tried in one day, the evidence consisting of testimony
from complainant and six other witnesses, as well as photographs and an audio recording. The
jury returned guilty verdicts on all charges and the court later entered judgment accordingly.
3 ¶ 9. On appeal, defendant argues that the eighteen-month delay before trial violated his
right to a speedy trial under the Sixth Amendment to the U.S. Constitution, warranting a reversal
of the convictions and dismissal of the charges. Defendant further argues that if the charges are
not dismissed, he is entitled to a new trial because the superior court erred in not striking certain
trial testimony, a matter we discuss more fully after examining the speedy trial claim.
I. Right to Speedy Trial
¶ 10. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. The speedy trial
guarantee applies to the states by operation of the Due Process Clause of the Fourteenth
Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). We begin our consideration
of defendant’s argument by outlining the purposes and characteristics of the speedy trial right,
which inform and frame our analysis. The right protects the interests of criminal defendants,
including preventing oppressive pretrial incarceration, minimizing the anxiety and concern
associated with pending criminal charges, and limiting the possibility that their defenses will be
impaired. Barker v. Wingo, 407 U.S. 514, 532 (1972). The right also advances societal interests
like reducing the inefficiency in the fair and accurate administration of justice stemming from
backlogged court dockets, limiting the economic pressures caused by overcrowded pretrial
detention centers, and safeguarding society from extended pretrial release of dangerous offenders.
See id. at 519-21. Additionally, while some pretrial delay is appropriate—for example, to conduct
discovery—delay can be used by both sides for inappropriate purposes, such as to erode an adverse
witness’s memory or cause the outright loss of evidence. See id. at 521. Finally, it is impossible
to identify the precise point at which the speedy trial right is violated, and the only available
remedy for its violation is strong medicine—dismissal of the charges. Id. at 521-22.
¶ 11. Given the purposes and characteristics of this “slippery” right, we are instructed to
employ a balancing test, weighing relevant factors in the specific context of the case at hand. Id.
4 at 522, 530. These factors include the “[l]ength of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” Id. at 530. These should be considered
along “with such other circumstances as may be relevant,” and no one factor is necessary or
sufficient to find a deprivation of the speedy trial right. Id. at 533.
A. Length of Delay
¶ 12. The length-of-delay factor serves two roles: First, because some pretrial delay is
inevitable in criminal proceedings, to trigger examination of the other factors, the defendant must
show “that the interval between accusation and trial has crossed the threshold dividing ordinary
from presumptively prejudicial delay.” Doggett v. United States, 505 U.S. 647, 651-52 (1992)
(quotation omitted). Like the rest of the analysis, this threshold test is “dependent upon the peculiar
circumstances of the case.” Barker, 407 U.S. at 530-31. For example, “the delay that can be
tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy
charge.” Id. at 531. Second, if the defendant makes this showing, we balance the length of the
delay along with the other factors. State v. Reynolds, 2014 VT 16, ¶ 19, 196 Vt. 113, 95 A.3d
973.
¶ 13. Defendant has shown that an eighteen-month delay between arraignment and trial
under the circumstances of this case triggers examination of the other factors. See State v. Turner,
2013 VT 26, ¶ 8, 193 Vt. 474, 70 A.3d 1027 (using arraignment as starting date). This was not a
complex case. While multiple charges were involved, some of them felonies, they were all based
on the same allegations from complainant. The trial, as expected, took only one day, and the
evidence consisted of testimony from complainant and six other witnesses, photographs, and an
audio recording. There were no co-defendants or expert witnesses, and there was no DNA or other
forensic evidence. Accordingly, we move on to consider the other factors and weigh the eighteen-
month delay in our balance. As a general matter, the eighteen-month delay for this relatively
simple case weighs in favor of defendant.
5 B. Reason for the Delay
¶ 14. We turn to the reason for the delay in bringing defendant to trial. Valid reasons for
delay, such as missing witnesses, justify a delay. Barker, 407 U.S. at 531. Intentional delays
caused by the State to hamper the defense weigh heavily against the State. Id. More “neutral”
reasons like negligence or overcrowded courts are less weighty but do weigh against the State
because “the ultimate responsibility for such circumstances must rest with the government rather
than with the defendant.” Id. Other delays caused by the court have also been counted against the
State. See, e.g., Vermont v. Brillon, 556 U.S. 81, 85 (2009) (explaining that delay caused by “trial
court’s failure to appoint replacement counsel with dispatch” may be attributed to State);
Reynolds, 2014 VT 16, ¶ 22 (attributing to State, trial court’s delay in scheduling status conference
after mistrial). Delays caused by the defendant or defense counsel, whether retained or appointed,
are attributable to the defendant. Brillon, 556 U.S. at 90-91.
¶ 15. Here, we must determine which party, if any, bears responsibility for the various
components of the 554-day pretrial delay, and the weight assigned to the reasons for the delay.
The first period we consider is between arraignment on September 11, 2017 and November 27,
2017, during which three defense attorneys moved to withdraw and a fourth was appointed. As
defendant acknowledges, because this seventy-seven-day delay was caused by his attorneys, it is
attributable to him. See id. at 92 (holding that delays caused by defense counsel’s failure “to move
the case forward” were not attributable to State).
¶ 16. We next consider the period between defense counsel’s appointment on November
27 and defendant’s pro se motion to dismiss on May 23, 2018. On January 8, 2018, defense
counsel filed a stipulated schedule agreeing to complete discovery by May 1 and to be ready for
trial by June 1. It is possible that counsel did not communicate the agreed timeline to defendant,
causing the latter to file his pro se motion to dismiss. But the fact remains that the defense agreed
to the pretrial timeline in the stipulation. We are presented with no evidence suggesting that
6 anything other than diligent preparation by both sides took place during this time. We accordingly
attribute the period between November 27 and May 23 to the parties’ need for discovery and
general trial preparation. Thus, we do not count these 177 days against the State. See Turner,
2013 VT 26, ¶ 9 (observing that rules of criminal procedure, in particular V.R.Cr.P. 15(a),
contemplate several months of discovery for felony cases and declining to weigh this period in
favor of defendant); State v. Vargas, 2009 VT 31, ¶ 13, 185 Vt. 629, 971 A.2d 665 (mem.) (same);
see also Reynolds, 2014 VT 16, ¶ 21 (holding that period that would have fallen within normal
limits for trial preparation had it resulted in a verdict was “lost time” that could not be attributed
to either prosecution or defense).
¶ 17. The next period under review is between May 23 and the September 5, 2018 jury
draw, which the State argues is attributable to defendant because he filed multiple motions
regarding his attorney during this time. See State v. Burke, 2012 VT 50, ¶ 16, 192 Vt. 99, 54 A.3d
500 (attributing delays caused by defense motions to defendant). Unlike in Burke, however,
defendant’s motions did not cause this delay. On May 23, defendant indeed filed his pro se motion
to dismiss. But the very next day, the court scheduled the matter for a jury draw on September 5—
over three months away. Then, on May 29, just six days after it was filed, the court denied the
motion but did not reschedule the jury draw to an earlier date. Another defense motion followed
on June 7 with a resolution on July 16, but still the matter was kept on the September draw.
Defendant’s motions are not to blame for the delay between May 23 and September 5. We attribute
this 105-day delay to the court’s scheduling needs and accordingly to the State. See Barker, 407
U.S. at 531 (holding that delays caused by overcrowded courts weigh against government because
“the ultimate responsibility for such circumstances must rest with the government rather than with
the defendant”).
¶ 18. The court convened the jury draw on September 5, but no jury was drawn for
defendant’s case because there was no trial date when defense counsel was available. The twenty-
7 eight days between September 5 and October 3, when a new draw was held, count against
defendant because of his attorney’s unavailability for trial in September. See Brillon, 556 U.S. at
92 (holding that defense counsel’s failure “to move the case forward” not attributable to State);
State v. Windish, 590 N.W.2d 311, 316 (Minn. 1999) (declining to weigh delay caused by defense
counsel unavailability against State).
¶ 19. At the October 3 jury draw, defense counsel affirmed that the parties were engaged
in continued plea negotiations but agreed to try defendant’s case on October 16 if another case
scheduled for that day were resolved. Instead, on October 3, without elaboration in the record, the
case was set for a change-of-plea and sentencing hearing, scheduled for December 18.
¶ 20. Seventy-six days are at stake between October 3 and December 18. Relying on
authority from the U.S. Court of Appeals for the Second Circuit, defendant argues that because the
delay was caused by plea negotiations, it weighs against the State. See United States v. New
Buffalo Amusement Corp., 600 F.2d 368, 378 (2d Cir. 1979) (weighing one year of plea
negotiations against government and holding that “[g]ood faith plea negotiations by a defendant
should not be equated to a waiver of speedy trial rights, and, under the circumstances, the
government must assume responsibility for the risk of institutional delays where the bargain
ultimately is unsuccessful”); see also United States v. Tigano, 880 F.3d 602, 615 (2d Cir. 2018)
(applying New Buffalo to weigh plea negotiation delay against government and adding that “time
spent in plea bargaining is a gamble taken by the government regarding the defendant’s speedy
trial rights and is properly counted against the government”).
¶ 21. Other federal courts have not adopted this seemingly per se rule. See, e.g., United
States v. Apicelli, 839 F.3d 75, 85-86 (1st Cir. 2016) (declining to weigh against government delay
caused by defense counsel motions relating to plea negotiations and personal reasons); United
States v. Sodano, 592 F. App’x 114, 116 (3d Cir. 2014) (declining to weigh against government
continuances to pursue plea negotiations filed jointly by defendant and government); see also
8 Millard v. Lynaugh, 810 F.2d 1403, 1406 (5th Cir. 1987) (declining to weigh against government
time spent in plea negotiations, though unclear whether negotiations were made in good faith).
State courts seem to be equally divided. Compare State v. Samora, 2016-NMSC-031, ¶ 13, 387
P.3d 230 (N.M. 2016) (weighing plea negotiation delay against State and observing that “the
possibility of a plea agreement does not relieve the State of its duty to pursue a timely disposition
of the case” (quotation omitted)), with State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App.
1999) (en banc) (“We decide delay caused by good faith plea negotiations is a valid reason for the
delay and should not be weighed against the prosecution.”).
¶ 22. We do not add our voice in this case to the ongoing debate of who bears the
responsibility for good-faith plea negotiations in a speedy trial analysis because the record is too
sparse for us to draw any conclusions on this issue. Given the absence of a reviewable record, we
attribute these seventy-six days of unexplained delay to the State based on Barker’s holding that
reasons like negligence or overcrowded courts weigh against the government because “the ultimate
responsibility for such circumstances must rest with the government rather than with the
defendant.” Barker, 407 U.S. at 531; see also State v. Unwin, 139 Vt. 186, 195-96, 424 A.2d 251,
257 (1980) (attributing delay of unknown cause to State on this basis); McNeely v. Blanas, 336
F.3d 822, 827-28 (9th Cir. 2003) (weighing delay against government where record was unclear
on reasons and citing cases). Although we count these seventy-six days against the State, due to
the sparsity of the record, we cannot assign this delay great weight.
¶ 23. We move on to consider the remaining delays. The record is silent as to why the
December 18 change-of-plea hearing was rescheduled for January 15, 2019. Again, we attribute
these twenty-eight days of unexplained delay to the State. The January 15 hearing was in turn
rescheduled for January 28 at the request of defense counsel, who was unavailable on the 15th.
Thus, these thirteen days count against defendant. At the January 28 hearing, defense counsel
informed the court that the plea negotiations were unsuccessful and requested a trial. The
9 remaining delay stemmed from the court’s scheduling needs to hold a jury draw and set a trial
date. We accordingly weigh the last fifty days between January 28 and March 19 against the State.
¶ 24. Even assuming the State is responsible for some aspects of the delay with respect
to which the record is unclear, the State is only responsible for approximately 259 days of delay
during the 554 days between defendant’s arraignment and trial. We find no suggestion in the
record that any of the periods of delay attributable to the State were deliberate attempts to delay
trial in order to hamper the defense, limiting the weight we assign to those delays. See Barker,
407 U.S. at 531. Most of the pretrial delay is attributable to the withdrawal of several defense
attorneys, the stipulated discovery and trial-ready schedule designed to accommodate the ordinary
needs of trial preparation, and defense counsel’s unavailability. The reasons for the pretrial delay
do not weigh significantly in favor of defendant.
C. Defendant’s Assertion of the Speedy Trial Right
¶ 25. We next consider the defendant’s assertion of the right to a speedy trial. Based on
our analysis in Unwin, 139 Vt. at 196, 424 A.2d at 257, the State argues that this factor is
“satisfied” only by a demand for an immediate trial. It maintains that because defendant only
moved for dismissal, and never formally moved for an immediate trial, Barker’s third factor does
not weigh in defendant’s favor. We clarify the law on this issue.
¶ 26. Barker held that “the defendant’s assertion of or failure to assert his right to a
speedy trial is one of the factors to be considered in an inquiry into the deprivation of the [speedy
trial] right.” 407 U.S. at 528. Consistent with its instruction to undertake “a functional analysis
of the right in the particular context of the case,” id. at 522, Barker entrusts courts to consider the
specific circumstances of the case under the third factor, such as a defendant’s knowing failures to
object to delays, defense counsel acquiescence in long delay, and “the frequency and force” of the
defendant’s speedy trial objections, id. at 528-29. There, the Court relied on several facts to hold
that the defendant did not want a speedy trial, namely, a lack of action for several years, failure to
10 object to motions for continuances, and filing a motion to dismiss but not a motion for an
immediate trial. Id. at 534-36. The fact that the defendant did not really want a speedy trial,
combined with minimal prejudice, outweighed the “extraordinary” pretrial delay in that case. Id.
at 533-34.
¶ 27. In accord with Barker’s teaching to consider the specific circumstances of the case
under the third factor, including the “the frequency and force” of the defendant’s speedy trial
objections, the analysis we undertook in Unwin and in subsequent speedy trial cases was to
determine “the extent to which,” or “the aggressiveness with which,” the defendant asserted his
right to a speedy trial—not whether the defendant “satisfied” the third Barker factor by filing a
demand for immediate trial.
¶ 28. In Unwin, the defendant moved to dismiss without ever demanding an immediate
trial. 139 Vt. at 196, 424 A.2d at 257. We observed that “[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.”
Id. In this and subsequent sentences, we merely distinguished a motion to dismiss on speedy trial
grounds from a motion for an immediate trial and suggested that the latter is a stronger assertion
of the right because a demand for immediate trial “would give the state the opportunity to promptly
schedule a trial” and require that the defense be prepared to go to trial. Id. Although the analysis
could have been clearer, Unwin weighed the absence of a motion for a prompt trial as one of the
considerations bearing on how aggressively defendant asserted the right. It did not hold, as the
State suggests, that failure to move for an immediate trial constitutes a per se failure to assert the
speedy trial right. This is evident from the language we borrowed from United States v. Avalos,
541 F.2d 1100, 1115 (5th Cir. 1976), which held that where the defendants raised the speedy trial
issue in a motion to dismiss but did not demand an immediate trial, the defendants did not
“aggressively” assert their desire for a speedy trial. See Unwin, 139 Vt. at 196, 424 A.2d at 257
(quoting this language). It is further evident from the fact that we also considered other indications
11 of the defendant’s desire for a trial in the form of discovery motions demanding the production of
items from the State, which, we observed, also were not the equivalent of demands for a speedy
trial. Id.
¶ 29. As we made clearer after Unwin, Barker’s third factor is a matter of degree.
Depending on other circumstances, one or multiple motions for an immediate trial may be a strong
showing that a defendant asserted his right to a speedy trial aggressively. But more feeble actions
by a defendant, like a motion to dismiss on speedy trial grounds or objections to continuances,
may also show that the defendant asserted the right. See, e.g., Reynolds, 2014 VT 16, ¶ 24
(considering “the extent to which defendant asserted his right to a speedy trial,” and holding that
motion to dismiss weighed in defendant’s favor, but not heavily); Turner, 2013 VT 26, ¶ 11
(considering “the aggressiveness with which . . . defendant asserted his right to a speedy trial,” and
holding that defendant did not aggressively assert right based on several facts, including filing one
motion to dismiss, no demand for immediate trial, and no opposition to extensive discovery or
counsel motion to withdraw (alteration in original) (quotation omitted)); Vargas, 2009 VT 31, ¶ 15
(considering “the aggressiveness with which . . . defendant asserted his right to a speedy trial,” and
holding that defendant did not aggressively assert right based on multiple facts, including filing
one demand for speedy trial, opposing his counsel’s motion to withdraw, and failing to take further
action (alteration in original) (quotation omitted)).
¶ 30. Here, in considering the aggressiveness with which defendant asserted his right to
a speedy trial, we accord some weight to defendant’s motion to dismiss, his multiple complaints
regarding the prolonged pretrial incarceration, and his expressed eagerness to expedite the
proceedings. Defendant’s failure to move for an immediate trial militates in the opposite direction,
but it does not amount to an ipso facto failure to assert the right.
¶ 31. In his pro se motion to dismiss, defendant complained about his pretrial
incarceration, asserted that he had “been robbed of [his] rights to a speedy trial,” and asked the
12 court to “take action and protect [his] rights.” Following his June 7 motion to review the status of
counsel, defendant wrote a letter to the court complaining that he had been incarcerated for over
ten months without sufficient information from his lawyer about the case. Later, at the January 28
hearing, he protested, “I’ve been in jail for eighteen months here. I would like to wrap this up.
I’m trying to live my life here, not spend it all in jail here.” When the court explained that the
matter would be set for the next jury draw, defendant continued, “Another time, so I’ll be sitting
another six, eight months in jail. This is ridiculous.”
¶ 32. Weighing strongly against these statements, however, is defendant’s failure to
move for an immediate trial. Defendant complained multiple times about how long the
proceedings were taking, and we add these to our balance. But balancing those complaints with
his failure to move for a trial or take other action, we cannot find that he aggressively asserted his
right to a speedy trial. This factor does not weigh in favor of defendant.2
D. Prejudice to the Defendant
¶ 33. Finally, we consider prejudice to the defendant. This factor is assessed in light of
the defense interests the speedy trial right is designed to protect, including “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. Prejudice to the
last of these interests is the most serious “because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system.” Id. However, “affirmative proof of particularized
prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at 655. Moreover,
“excessive delay presumptively compromises the reliability of a trial in ways that neither party can
2 Because we give defendant’s motion to dismiss all the weight it is entitled to under the speedy trial analysis, we need not consider defendant’s argument that the trial court erred in denying the motion on Rule 49 grounds. 13 prove or, for that matter, identify.” Id. This presumptive prejudice “is part of the mix of relevant
facts, and its importance increases with the length of delay.” Id. at 656.
¶ 34. Here, defendant experienced some prejudice in being incarcerated for eighteen
months prior to trial. He was doubtless disadvantaged by the restraints on his liberty and the
anxiety and concern associated with pending criminal charges. We take this degree of prejudice
into account, as well as the presumptive prejudice to the reliability of the trial stemming from
eighteen months of pretrial delay. However, defendant does not maintain that his ability to defend
himself at trial was impaired in a specific way, such as the loss of exculpatory evidence or
witnesses or the erosion of a defense witness’s memory. We faced similar facts in Turner and held
that eighteen months of pretrial incarceration unaccompanied by demonstrated prejudice to the
defendant’s case or other showing of prejudice was insufficient for this factor to weigh in the
defendant’s favor. 2013 VT 26, ¶¶ 8, 13. The analogous circumstances of this case lead us to the
same conclusion.
¶ 35. In sum, the only Barker factor significantly favoring defendant is the length of the
pretrial delay. Under the circumstances of this case, defendant was not deprived of his Sixth
Amendment right to a speedy trial.3
II. Evidentiary Arguments
¶ 36. We turn to defendant’s argument that he is entitled to a new trial because the
superior court erred in not striking certain trial testimony from the jury’s consideration. On direct
examination, the prosecutor asked complainant to describe what occurred the first time defendant
entered her house without her permission. As complainant was describing the incident, the
prosecutor asked whether she called the police. When complainant answered in the negative, the
3 Defendant filed a motion to strike certain portions of the State’s appellate brief referencing material beyond the record on appeal. Because we do not rely on any material beyond the record in resolving defendant’s speedy trial claim, defendant’s motion to strike is moot. 14 prosecutor asked, “Why not”? Complainant answered, “I just—I—he’s been in trouble, I didn’t
want him in any more trouble,” adding, “I didn’t want him to go to jail, just wanted him to go
away.” The prosecutor immediately returned to questions relating to the incident.
¶ 37. Later, on cross examination, defense counsel pursued a line of questioning
regarding continued contact between defendant and complainant after defendant moved out of
complainant’s house. The following exchange took place between defense counsel and
complainant:
Counsel: So, in July or so, you’re communicating with him about moving his remaining things [from complainant’s house]?
Complainant: Yeah, it was difficult to communicate with him in July.
Counsel: Meaning you didn’t have his phone number or just in talking to him? Did you have his phone number, for example?
Complainant: Well, it was on State Street, up at the top of the hill there.
Counsel: State Street? What was on State Street? I’m sorry. His phone number was on—
Complainant: No, Marble Valley.
We take judicial notice that there is a penal institution in Rutland known as the Marble Valley
Regional Correctional Facility. See V.R.E. 201(b). After complainant’s reference to Marble
Valley, defense counsel immediately returned to questions concerning the location of defendant’s
effects and their continued contact. In the same line of questions, complainant later testified: “It
didn’t matter if the week before I said to come to my house. But I said don’t come in my fucking
house, you don’t come in my fucking house.”
¶ 38. Defendant argues on appeal that complainant’s statement that he had been in
trouble before, her reference to time spent at Marble Valley, and her use of profanity were
irrelevant to the issues at trial and accordingly should have been excluded under Vermont Rule of
15 Evidence 402. He also argues that even if these statements were relevant, they should have been
excluded under Rule 403 because their probative value was substantially outweighed by the danger
of unfair prejudice. He asks us to reverse the convictions and remand for a new trial.
¶ 39. Defendant acknowledges that he did not move to strike, object to, or seek a curative
instruction for, any of the challenged testimony. Our review is thus only for plain error. See
V.R.Cr.P. 52(b); V.R.E. 103(d). Plain error exists where “(1) there is error; (2) the error is obvious;
(3) the error affects substantial rights and results in prejudice to the defendant; and (4) the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.” State v.
Gauthier, 2016 VT 37, ¶ 10, 201 Vt. 543, 145 A.3d 833 (quotation omitted).
¶ 40. Even assuming obvious error, complainant’s statements that defendant had been in
trouble before and that he had spent time at Marble Valley do not rise to the level of plain error
warranting reversal of the convictions. We have often cautioned trial courts to be vigilant against
admission of a defendant’s uncharged misconduct “because once jurors learn of uncharged
misconduct, they tend to use an entirely different calculus of probabilities in deciding whether to
convict.” State v. Lawrence, 2013 VT 55, ¶ 18, 194 Vt. 315, 80 A.3d 58 (quotation omitted).
Here, however, given the brief and vague nature of the statements, the strong evidence of guilt
introduced at trial, and the trial court’s general jury instructions, the references to previous
misconduct and incarceration did not appreciably result in prejudice to defendant or seriously
affect the fairness or integrity of his trial. Cf. United States v. Castano, 999 F.2d 615, 618 (2d Cir.
1993) (holding that two pieces of evidence of prior misconduct did not warrant reversal of
convictions where introduction had been inadvertent, prosecutor did not emphasize statements,
statements were ambiguous or cryptic, jury was ordered to disregard one of two pieces of evidence,
and evidence of guilt was “overwhelming”); State v. Messier, 2005 VT 98, ¶ 21, 178 Vt. 412, 885
A.2d 1193 (finding no prejudice requiring reversal of conviction where, among other reasons,
objectionable statement was “unsolicited and vague”).
16 ¶ 41. First, the statements were brief and ambiguous. The jury did not learn of any
specific illegal act perpetrated by defendant. The prosecutor and defense counsel did not highlight
or otherwise bring attention to the challenged statements. Indeed, they both immediately pivoted
back to the events at issue. It is possible, moreover, that at least some jurors did not even know
what Marble Valley referred to.
¶ 42. Second, the evidence introduced against defendant was strong. Complainant
described in detail defendant’s two unauthorized entries into her home. She testified that defendant
let himself in the first time uninvited, and that on the second occasion she came home to find
defendant there waiting for her. She testified that on the second occurrence defendant held her
down on a couch for about fifteen minutes as she tried to free herself, that she succeeded in
breaking free and grabbed her phone to call the police, that she went to a bedroom before defendant
grabbed the phone out of her hand, and that defendant then held her down on the bed until
complainant’s mother entered the house and interrupted the exchange. Complainant further
testified that the following day she saw damage on one of her doors and took a photograph of the
damage, which was admitted at trial. She also testified that she and her brother later found a metal
bar in her house of unknown origin, a picture of which was also admitted. Several parts of
complainant’s testimony were corroborated to varying extents by other witnesses, including her
brother, her mother, two friends, and a police officer.
¶ 43. Third, although a curative instruction may have been warranted, the trial court’s
general jury instructions limited any potential prejudice that may have arisen. The court instructed
the jury on its duty “to decide this case based solely on the evidence presented during the trial,”
later repeating that the jury had “to determine the facts from the evidence.” The court instructed
the jury that defendant was presumed innocent of the charges, that the State bore the burden to
prove each of the essential elements of the offenses beyond a reasonable doubt, and that defendant
could not be “convicted based on suspicion or conjecture.” Under these circumstances, we
17 conclude that complainant’s brief and vague references to defendant’s prior misconduct and
incarceration did not prejudice defendant or seriously affect the fairness or integrity of the trial.
¶ 44. As regards complainant’s use of profanity, the trial court committed no error, much
less plain error. On at least one occasion, we have held that a defendant was not prejudiced when
the jury heard his own vulgar and profane language, observing that jurors “must be presumed to
be able to avoid having profanity divert them from their duty.” State v. Davis, 132 Vt. 290, 294,
318 A.2d 664, 666 (1974). Here, complainant’s two uses of profanity were innocuous and as likely
to harm her own credibility in the juror’s eyes as they were to prejudice defendant.4
Affirmed.
FOR THE COURT:
Associate Justice
4 Given our disposition of defendant’s evidentiary arguments on these bases, we need not consider the State’s contention that defense counsel invited error in eliciting the profanity and the reference to Marble Valley, which would require us to determine that counsel considered the issue and made a deliberate choice, and not just failed through neglect to make a proper objection. See State v. Alzaga, 2019 VT 75, ¶ 26, __ Vt. __, 221 A.3d 378 (“Invited error differs from plain error in that it bars review in situations where a party considers an issue and makes a deliberate choice, compared to plain error where a party fails through neglect to make a proper objection.”). 18