State v. Lavalette

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-424


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Stephen P. Lavalette                         Unit No. 2, Chittenden Circuit

                                             January Term, 1990


Edward J. Cashman, J.

William H. Sorrell, Chittenden County State's Attorney, Burlington, and Jo-
   Ann Gross, Appellate Attorney, Montpelier, for plaintiff-appellee

Charles S. Martin and Catherine Gjessing, Law Clerk (On the Brief), of
   Martin & Paolini, Barre, for defendant-appellant


PRESENT:   Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     PECK, J.  Defendant appeals his conviction for sexual assault, claiming
that the trial court erred in excluding evidence of a prior sexual relation-
ship with the victim, and that his right to a speedy trial was violated.  We
affirm.
     At trial, the court refused to permit testimony about the victim's
earlier sexual contacts with the defendant.  Their last encounter occurred
approximately eighteen months before the incident at issue in this case.
The court cited the Vermont Rape Shield Statute, 13 V.S.A. { 3255(a), in
support of its ruling, and concluded that the statements sought to be
excluded had no probative value.  The jury returned a guilty verdict.
     In State v. Gonyaw, 146 Vt. 559, 507 A.2d 944 (1985), this Court
considered the application of the rape shield statute in a case where the
victim and the defendant had a prior sexual relationship.  13 V.S.A. {
3255(a)(3) requires that the evidence satisfy a two-part test in order to
be admitted.  First, the evidence must bear on the complaining witness's
credibility or be material to a fact at issue; second, its probative value
must outweigh its private character.  The analysis of these factors, and the
ultimate determination of admissibility, lies within the discretion of the
trial court.
     In Gonyaw, we held that a pattern of "[c]onsensual sexual activity over
a period of years, coupled with a claimed consensual act reasonably
contemporaneous with the act complained of, is clearly material on the issue
of consent."  146 Vt. at 563, 507 A.2d  at 947.  The holding was limited to
consideration of evidence of past sexual conduct by the complainant with the
defendant, and the opinion noted that in addition to the "reasonably
contemporaneous" requirement, "the relationship between the parties must
support a reasonable belief that there was consent to renewed sexual
activity."  Id.
     Here, sexual contact ceased some eighteen months before the assault.
It was within the discretion of the trial court to exclude the statements,
because of the length of time involved.  The acts were not reasonably
contemporaneous, and the parties' conduct over a year before the incident
had little probative value in determining consent on the night in question.
     Defendant maintains that his right to confront witnesses against him
was violated by the court's ruling, since he was unable to cross-examine the
complainant about evidence of their previous sexual relationship.  A
threshold question in considering the issue is "whether the defendant 'was
prohibited from engaging in otherwise appropriate cross-examination.'"
State v. French,     Vt.    ,    , 564 A.2d 1058, 1062 (1989) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)).  Confrontation on cross-
examination is not an absolute right, and may be abrogated "to accommodate
other legitimate interests in the criminal trial process."  Chambers v.
Mississippi, 410 U.S. 284, 295 (1973).  Furthermore, a compelling state
interest, such as a rape victim's right to the protection of the Rape Shield
Statute, may outweigh the defendant's right to confrontation.  See State v.
Dunbar,     Vt.    ,    , 566 A.2d 970, 973-74 (1989) (courtroom placement
that obstructed mutual viewing by defendant and five-year old sexual
assault complainant did not violate defendant's confrontation right).  Once
the trial court had determined that the evidence sought to be introduced was
irrelevant and had no probative value on the issue of consent or credibility
of the witness, cross-examination on that issue was inappropriate under the
Rape Shield Statute.
     Defendant also alleges a violation of his right to a speedy trial.  The
first step in our review of defendant's claim is to calculate the length of
time between defendant's arrest and the date of trial.  The length of time,
if unreasonable, leads to further inquiry.  State v. Yudichak, 151 Vt. 400,
405, 561 A.2d 407, 410-11 (1989).  Defendant claims that the delay in this
case exceeds the ninety-day limit provided for in Administrative Order 5, {
2.  We disagree.
     Computation of time and evaluation of the merits of a claim of delay
are issues within the trial court's discretion, and this Court will not
disturb the trial court's determination in the absence of abuse of that
discretion.  State v. Roy, 151 Vt. 17, 36, 557 A.2d 884, 896 (1989); State
v. Williams, 143 Vt. 396, 401, 467 A.2d 667, 669 (1983).  Periods of delay
occasioned by pretrial motions, continuances granted by the court, absences
of the defendant and changes of counsel are omitted in determining whether a
defendant's trial was delayed more than ninety days.  A.O. 5, { 4; State v.
Trombly, 148 Vt. 293, 299, 532 A.2d 963, 967 (1987), cert. denied, 486 U.S. 1029 (1988).  We find no abuse of discretion here, particularly since some
of the pretrial delay was attributable to defendant.
     Examination of the pretrial period reveals that fifty-two days elapsed
while the defendant asserted his right to locate private counsel and left
the jurisdiction, and twenty days passed after the public defender moved to
withdraw and new counsel was appointed.  Motions and continuances took up
ninety-six days of the period before trial.  After excluding these
intervals, the time in question was approximately eighty-four days, which is
insufficient to trigger further inquiry under A.O. 5.  In view of the above,
we hold the trial court's determination that defendant's right to a speedy
trial was not violated did not constitute error.
     Affirmed.



                                        FOR THE COURT:



                                        __________________________________
                                        Associate Justice