State v. Keith

Annotate this Case
STATE_V_KEITH.91-582; 160 Vt. 257; 628 A.2d 1247

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 91-582

 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Franklin Circuit

 James E. Keith                               February Term, 1993

 Ronald F. Kilburn, J. (motions to suppress)
 Edward J. Cashman, J. (trial)

 Howard E. VanBenthuysen, Franklin County State's Attorney, and Jo-Ann L.
    Gross, Deputy State's Attorney, St. Albans, for plaintiff-appellee

 Charles Martin and Edward Wayland, Law Clerk (On the Brief) of Martin &
    Paolini, Barre, for defendant-appellant

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

      GIBSON, J.   Defendant appeals from a jury conviction of first-degree
 arson, in violation of 13 V.S.A. { 502.  He argues that the trial court
 committed reversible error by refusing to suppress two statements he made on
 separate occasions to different police officers.  He contends that in both
 instances his intoxicated state prevented him from making a knowing and
 intelligent waiver of his constitutional rights, as required by Miranda v.
 Arizona, 384 U.S. 436, 478-79 (1966), and that the court should have
 suppressed the second statement because the police did not obtain a signed
 waiver of his right to counsel, as required by 13 V.S.A. { 5237.  He also
 argues that the court abused its discretion by refusing to dismiss the
 prosecution for lack of a speedy trial.  We affirm.
      On December 19, 1989, Swanton Police Chief Michael McCarthy arrested
 defendant and transported him to the police station for questioning
 regarding incidents involving the passing of forged checks.  Chief McCarthy
 noticed that defendant had been drinking but had no problem "functioning."
 At the station, Chief McCarthy read defendant his Miranda rights from a form
 consisting of eight parts, each followed by a question asking defendant
 whether he understood the preceding part.  Defendant's responses included
 comments such as, "That's right," "Not guilty," "Yeah, anytime," and "What
 do I want a lawyer for.  No."  Chief McCarthy described defendant's demeanor
 as "indifferent" and "cocky."  Defendant acknowledged his responses by
 initialing the waiver form.
      Defendant then gave a statement explaining his actions concerning the
 forged checks.  After this statement was transcribed and signed, he became
 increasingly upset while explaining that the alleged victim, Philip Seymour,
 had not paid him for work previously performed.  During the course of this
 conversation, defendant stated that "he would get even with [Mr. Seymour],
 he'd just burn his barn down."  Although Chief McCarthy was taken aback by
 the comment, he did not alter the already transcribed statement to include
 the comment.  Two weeks later, upon learning that Mr. Seymour's barn had
 burned down, he wrote out an affidavit concerning defendant's comment for
 Sergeant Bombardier of the state police, who was assigned to the fire
 investigation unit.
        On New Year's Eve, December 31, 1989, Mr. Seymour's barn was
 destroyed by fire.  Upon learning that defendant had made threatening
 statements about burning the barn and had been at the scene of the fire in
 an intoxicated state, Sergeant Bombardier decided to talk with defendant.
 On January 1, 1990, the day after the fire, the officer found defendant on
 Mr. Seymour's property, which was a violation of a prior court order.
 Sergeant Bombardier took defendant into custody and transported him to the
 state police barracks, where he read defendant his Miranda rights.  Defend-
 ant responded to most of the questions by saying, "Yes.  Not Guilty."
 Although he was aware that defendant had been drinking, Sergeant Bombardier
 believed that defendant understood his rights and was "playing head games"
 with his responses.  Although defendant was willing to talk, he refused to
 sign the waiver form, saying, "Every time I sign something I get in
      Following his refusal to sign the waiver form, defendant continued to
 answer in the affirmative when Sergeant Bombardier asked him if he under-
 stood his rights and wanted to talk.  Defendant then provided a number of
 inconsistent versions of his whereabouts and actions on the night of the
 fire.  Officer Bombardier wrote out a statement, which defendant signed.
 The statement indicated that on the night of the fire defendant saw one of
 Mr. Seymour's hired hands, who had threatened Mr. Seymour earlier in the
 day, walking from the barn two or three minutes before the fire began,
 carrying a red can.  Shortly after defendant signed the statement, he
 submitted to an alcosensor test, which showed his blood-alcohol content to
 be .203%.  He was then taken to the correctional center because he would
 neither agree to remain at the detoxification center voluntarily nor arrange
 to have someone pick him up.
      On January 23, 1990, defendant was charged by information with first-
 degree arson.  He remained in jail because of his failure to pay the $5000
 cash bail.  He filed motions to suppress in April and May of 1990, and a
 hearing on the motions was held on June 7, 1990.  In October, defendant
 sought and was granted release into his mother's custody, subject to certain
 restrictions.  On November 15, he was arrested for violating one of the
 conditions of release.  He remained in jail for failure to pay the $1000
 cash bail.  On December 20, the trial court denied defendant's motions to
 suppress.  A jury drawing was held a month later, but a mistrial was
 declared after jurors overheard defendant complain about having been in jail
 for a year.  Another mistrial was declared on April 16, 1991 because the
 jurors had discussed the case prior to being brought into the courtroom.
      On May 6, 1991, defendant filed a motion to dismiss for lack of a
 speedy trial.  A hearing on the motion was set for July 15, but the hearing
 did not take place until September 10 because of two motions to continue by
 each of the parties.  Defendant's motion to dismiss was denied, and the jury
 trial took place on October 9-10, 1991.  Defendant was found guilty and
 sentenced on November 12, 1991 to four to ten years to serve.  This appeal
      Defendant first contends that his Miranda rights were not knowingly and
 intelligently waived because he was intoxicated on the two occasions when he
 made statements to the police.  Defendant relies on the Miranda decision and
 other case law interpreting the federal constitution.  Because the United
 States Supreme Court has held that "coercive police activity is a necessary
 predicate to the finding that a confession is not 'voluntary' within the
 meaning of the Due Process Clause of the Fourteenth Amendment," Colorado v.
 Connelly, 479 U.S. 157, 167 (1986), defendant's primary argument is that his
 waiver was not "knowing and intelligent."  He also contends, however, that
 his statements were involuntary because they were taken by the police
 despite the fact that they knew he was drunk.
      The State must prove by a preponderance of the evidence that a waiver
 of Miranda rights is voluntary, knowing, and intelligent.  State v. Caron,
 155 Vt. 492, 504, 586 A.2d 1127, 1134 (1990).  The trial court must favor
 every reasonable presumption against a waiver of these rights, but it alone
 determines the weight and sufficiency of the evidence and the credibility of
 the witnesses.  See State v. Stanislaw, 153 Vt. 517, 529, 573 A.2d 286, 293
 (1990); State v. Malinowski, 148 Vt. 517, 520, 536 A.2d 921, 923 (1987).  On
 appeal, we give great deference to the trial court's findings of a waiver
 under the totality of the circumstances.  Stanislaw, 153 Vt. at 529, 573 A.2d  at 293.   We will uphold the court if its ruling is not clearly
 erroneous and is supported by credible evidence, even though evidence to the
 contrary exists.  Id.
      The question of whether Miranda rights have been validly waived must be
 determined on the particular facts and circumstances of each case, "includ-
 ing the background, experience and conduct" of the defendant.  North
 Carolina v. Butler, 441 U.S. 369, 374-75 (1979); Malinowski, 148 Vt. at 522,
 536 A.2d  at 924.  This totality-of-the-circumstances approach may include
 consideration of such factors as the defendant's experience with the police
 and familiarity with the warnings, in addition to the defendant's age,
 level of intelligence, level of education, reading ability, and physical and
 mental condition.  See Malinowski, 148 Vt. at 522, 536 at 924; State v.
 Usry, 533 A.2d 212, 216 (Conn. 1987).  Intoxication is an important factor
 that bears on the waiver's validity, but it does not, of itself, require the
 conclusion that a waiver was invalid.  Indeed, courts have generally not
 suppressed statements based solely on the defendant's claim of being under
 the influence of drugs or alcohol.  See, e.g., State v. Norris, 768 P.2d 296, 302-03 (Kan. 1989) (despite testimony that defendant had consumed half
 a case of beer and some whiskey before interrogation, defendant's responses
 and behavior indicated he made a valid waiver of his rights); Commonwealth
 v. Shipps, 507 N.E.2d 671, 676 (Mass. 1987) (though defendant appeared
 glassy-eyed and smelled of alcohol during interrogation, he had no
 difficulty understanding what was said to him); see generally 1 W. LaFave &
 J. Israel, Criminal Procedure { 6.9, at 527 (1984) ("defendants have
 generally been unsuccessful in claiming that their Miranda waivers should be
 held invalid because they were either intoxicated or under the influence of
      Here, defendant argues that his intoxicated state and inappropriate
 responses to questions concerning his understanding of his rights indicate
 that his waiver of those rights was not knowing or intelligent.  We dis-
 agree.  The only testimony presented at the suppression hearing was by the
 interrogating officers.  Regarding the first interrogation prior to the
 fire, Chief McCarthy testified that, while it was apparent defendant had
 been drinking, he had no problem walking to the cruiser or getting in or
 out of the vehicle.  He also testified that defendant's conversation "made
 sense."  Defendant points out that Chief McCarthy testified that he would
 not have let defendant drive without first testing his level of
 intoxication.  But this fact does not indicate that defendant was incapable
 of waiving his rights.  We have previously noted that "the concern for the
 effects of the use of intoxicants with respect to the operation of motor
 vehicles is different in both kind and quantum from the concerns about
 mental condition as related to homicide."  State v. Pease, 129 Vt. 70, 75,
 271 A.2d 835, ___ (1970).  The mere fact that defendant may have been too
 intoxicated to operate a vehicle legally does not indicate that he did not
 know what he was doing when he waived his rights.  See People v. Moore, 97 Cal. Rptr. 601, 603 (Cal. Ct. App. 1971) (intoxication, even to extent of
 physical impairment, is not necessarily equivalent of mental impairment).
      Defendant also points to the fact that he provided inappropriate
 responses in answering questions concerning the waiver of his rights.  We
 are not persuaded by this argument.  Chief McCarthy testified that he "very
 much felt" that defendant was being "cocky" with his responses.  He also
 testified that defendant's statement immediately following the waiver of his
 rights was coherent and informative regarding the charges against him.
 Given defendant's numerous prior encounters with police, his demeanor at the
 time of the interview, and his subsequent willingness to talk, defendant's
 responses do not indicate that he failed to understand the rights he was
      Much of defendant's argument concerning the second statement is the
 same.  He also notes, however, that Sergeant Bombardier had seen defendant
 preparing to drink a large quantity of whiskey the day of the interview,
 that an alcosensor test given to defendant shortly after the interview
 revealed a .203 blood-alcohol level, more than twice the legal limit, and
 that defendant's statement was so confused and inconsistent that it
 indicated defendant was drunk at the time.  These additional facts are not
 dispositive.  Regarding defendant's blood-alcohol level, that level alone
 does not show that he was unable to understand or waive his rights, since
 the effect of a given amount of alcohol depends on a number of factors, and
 there is no established standard correlating blood-alcohol content with
 mental impairment.  Moore, 97 Cal. Rptr.  at 603 (because there is no
 established standard for cerebral impairment, a blood-alcohol reading of
 .229, standing alone, neither proves nor disproves a defendant's capacity
 to understand the waiver of Miranda rights).
      Sergeant Bombardier testified that though it was obvious defendant had
 been drinking, he understood what was going on and he made it clear that he
 wanted to talk.  Sergeant Bombardier believed that defendant was "playing
 mind games" with his responses.  The officer testified that defendant's
 statement was inconsistent and confusing, not because defendant was too
 drunk to think straight, but because he kept switching his version of the
 sequence of events when the officer pointed out that certain statements were
 inconsistent with known facts or prior statements.  Upon review of the
 record, we conclude that there is substantial credible evidence in support
 of the trial court's conclusion that defendant voluntarily, knowingly, and
 intelligently waived his Miranda rights.
      Defendant also argues that the second statement should have been
 suppressed because he refused to sign a written waiver of his right to
 counsel, as required by 13 V.S.A. { 5237 and our decision in Caron.  Section
 5237 provides that a person "may waive in writing, or by other record" the
 right to be represented by an attorney at state expense.  We have recently
 held that this provision requires "more than a police officer's written
 memorandum of an oral waiver given by a suspect."  Caron, 155 Vt. at 510,
 586 A.2d  at 1138.  The State argues that defendant's signature at the
 bottom of his subsequent statement to police is sufficient because the
 statement contains the acknowledgment that it "is given of my own free will
 and accord" absent any threats or coercion.  We disagree.
      In Caron, we held that { 5237 was satisfied where the officer read the
 defendant his Miranda rights from a waiver form that listed the individual
 Miranda rights, each followed by a question asking whether the defendant
 understood the individual right.  The defendant answered yes to each
 question and the officer checked the form indicating that the defendant had
 acknowledged understanding those rights, including the right to counsel.
 The defendant signed the form just below a provision indicating that he had
 been advised of those rights, that he understood them, and that he chose to
 waive them.  Id. at 497-98, 586 A.2d  at 1130-31.  Here, defendant explicitly
 stated that he would not sign the waiver form; later, he signed a statement
 that made no mention of the right to counsel but merely contained an
 acknowledgement that the statement was made of his own free will.  Given
 these facts, Caron does not support a finding of a written waiver of the
 right to counsel.
      Although we cannot accept the State's argument that { 5237 was satis-
 fied in this instance, we find no reversible error because the admission of
 the statement was harmless.  Rather than making any claim of prejudice,
 defendant contends that our case law, particularly State v. Zehner, 142 Vt.
 251, 253, 453 A.2d 1126, 1127 (1982), requires reversal here.  We disagree.
 Zehner and the other cases relied on by defendant refused to uphold con-
 victions founded on involuntary confessions, regardless of whether there
 was other evidence sufficient to support the convictions.  Here, however,
 the admitted statement was not a confession.  See People v. Taylor, 169 Cal. Rptr. 290, 298 (Cal. Ct. App. 1980) (harmless-error inquiry appropriate
 because statements were admissions rather than a confession).  Further, the
 United States Supreme Court has recently ruled, in a 5-4 decision, that
 admission of an involuntary statement or confession is subject to harmless-
 error analysis.  Arizona v. Fulminante, 111 S. Ct. 1246, 1265 (1991).
      The statement to Sergeant Bombardier was nothing more than defendant's
 attempt to point the finger at another person.  It was inculpatory only to
 the extent that it might have revealed inconsistencies in defendant's
 explanation of what happened on the night of the fire.  At trial, Sergeant
 Bombardier did testify on direct that defendant gave several inconsistent
 accounts of what happened that night.  The only specific example he gave,
 however, was that defendant said he saw someone else set the fire in the
 barn's hayloft, which, according to the Sergeant, was not visible from the
 particular room of a nearby house defendant claimed to be in at the time.
 This testimony was an insignificant part of the evidence presented during
 the two-day trial.  Indeed, in denying defendant's motion to dismiss at the
 close of the State's case, the trial court did not even mention defendant's
 statement to Bombardier.  Neither did the prosecuting attorney mention the
 statement during his closing argument.  The heart of the State's case was
 defendant's statements to Chief McCarthy and two other persons concerning
 his intention to burn down the barn or his affirmation of having done so.
 Upon review of the record, we conclude that the admission of defendant's
 statement to Sergeant Bombardier was harmless because it is clear beyond a
 reasonable doubt that the jury would have rendered a guilty verdict absent
 the offending evidence.  See State v. Lynds, ___ Vt. ___, ___, 605 A.2d 501, 503 (1991) (to avoid reversal, we must find that constitutional error
 was harmless beyond reasonable doubt).
      Defendant also contends that he was denied a speedy trial, in violation
 of his constitutional right to due process and this Court's Administrative
 Order No. 5, { 2.  He bases his claim on the 20-month delay between his
 arraignment and trial.  He points out that where a defendant is in custody,
 as here, our administrative order contemplates that trial will be held
 within ninety days of the arraignment, excluding periods of delay caused,
 among other things, by pretrial motions or continuances granted by the court
 with the consent of the defendant.  We conclude that the court acted within
 its discretion in denying defendant's motion to dismiss.  See State v.
 French, 152 Vt. 72, 75, 564 A.2d 1058, 1060 (1989) (determination of claim
 of speedy trial violation is within discretion of trial judge).
      The failure to bring a defendant to trial within the time limits set by
 our administrative order does not necessarily mean that the defendant was
 denied a speedy trial or that the case against him must be dismissed.  State
 v. Venman, 151 Vt. 561, 574, 564 A.2d 574, 583 (1989); see State v. Snide,
 144 Vt. 436, 441, 479 A.2d 139, 142 (1984) (administrative order "neither
 grants nor deprives a criminal defendant of any procedural or substantive
 rights").  Thus, rather than quibble over calculations of time periods to
 determine whether Administrative Order No. 5 was satisfied, we examine the
 circumstances of this case according to the standards set forth in Barker v.
 Wingo, 407 U.S. 514, 530 (1972) and analyzed in several of our prior
 decisions.  See, e.g., Venman, 151 Vt. at 574-75, 564 A.2d at 583-84; see
 also State v. Percy, ___ Vt. ___, ___, 612 A.2d 1119, 1126 (1992)
 (regardless of length of delay, applying four Barker factors as balancing,
 not per se, test is appropriate).  Those four factors are the length of the
 delay, the reason for the delay, defendant's efforts at obtaining a speedy
 trial, and the prejudice to the defendant.  Barker, 407 U.S.  at 530, 532.
      It is unnecessary to examine the reasons for the delay as part of the
 calculation of the length of the delay, as we have done on occasion in the
 past; we simply note that the 20-month delay here far exceeds the length of
 delay needed to trigger a review of the other three factors.  See 2 W.
 LaFave & J. Israel, supra, { 18.2, at 406 (some courts mistakenly consider
 the reasons for delay in applying the length-of-delay factor); see also
 State v. Unwin, 139 Vt. 186, 195, 424 A.2d 251, 257 (1980) ("delay of more
 than six months in a case involving an incarcerated defendant is long
 enough to require that the other factors be considered"), cert. denied, 450 U.S. 1033 (1981).
      With respect to the second Barker factor, we conclude that much of the
 delay is not attributable to the court or the prosecution.  Following the
 arraignment on January 23, 1990, a March 25 motion deadline date was set at
 a February 22 status conference.  In response to defendant's motion, that
 deadline was extended to April 13.  Defendant filed motions to suppress on
 April 18 and May 3.  In May, defendant's counsel withdrew and another
 attorney was appointed.  The hearing on the motion to suppress was held on
 June 6.  On October 9, the court granted defendant's motion to review bail
 and released defendant into his mother's custody.  Defendant remained free
 until November 14, when he was arrested for violating one of the conditions
 of his release.  On December 20, 1990, the court denied defendant's motion
 to suppress.  A jury drawing was held on January 22, 1991, but the court
 declared a mistrial when, in the presence of the jurors, defendant
 complained about having spent a year in jail for nothing.  Thus, in the
 first year, the only significant delay attributable to the State or the
 court is the inordinate amount of time -- six months -- that it took for the
 trial court to rule on the motions to suppress.
      The next jury drawing was set for February 26, 1991, but the court
 granted defendant's motion to continue and the jury drawing was not held
 until April 16.  The court declared another mistrial, however, because the
 jurors had discussed the case beforehand.  On May 6, defendant filed a
 motion to dismiss for lack of a speedy trial.  Despite that motion, defend-
 ant filed two more motions to continue, one on May 13 and the other on July
 2.  A jury drawing was eventually set for August 20.  The State then filed
 motions to continue on August 2 and August 15.  A jury drawing was scheduled
 for September 10, but the State was not ready for trial on that date.
 Finally, a jury drawing was held on October 8, and the trial began the next
 day.  These dates reveal that less than two months of the delay after the
 first mistrial were directly attributable to the State.  See French, 152 Vt.
 at 76, 564 A.2d  at 1060 (time from information to mistrial is calculated
 separately for purposes of lack-of-speedy-trial claim).  Allowing the court
 some time to respond to defendant's motions to suppress, we estimate that
 the court or the State was responsible for approximately seven months of
 unreasonable delay, none of which constituted a deliberate attempt by the
 prosecution to hinder the defense.  See Unwin, 139 Vt. at 195-96, 424 A.2d 
 at 257 (reasons for delay other than deliberate attempt to hinder defense
 should be weighted less heavily against the State).  Much of the rest of the
 delay can be traced to defendant's motions or reasonable court scheduling.
      The third Barker factor examines the aggressiveness with which the
 defendant asserted his right to a speedy trial.  Id. at 196, 424 A.2d  at
 257.  While the timing of the request for a speedy trial must be considered,
 we have repeatedly stated that a motion to dismiss for lack of a speedy
 trial is not the equivalent of a demand for an immediate trial. Id.; French,
 152 Vt. at 77, 564 A.2d  at 1061.  Here, defendant never requested an
 immediate trial.  Although he did request a ruling on the motions to
 suppress shortly before it was rendered in December 1990, and he filed his
 first motion to dismiss based on lack of a speedy trial in May 1991,
 subsequent delays attributable to defendant make this factor weigh against
      The most important factor is whether defendant was prejudiced.  Unwin,
 139 Vt. 197, 424 A.2d  at 257.  Prejudice may take the form of lengthy pre-
 trial incarceration, anxiety suffered by the defendant, or impairment of
 the defense at trial, but the most important consideration is the latter.
 See State v. Recor, 150 Vt. 40, 42, 549 A.2d 1382, 1384-85 (1988).  Indeed,
 where there is no showing of prejudice to the defense at trial, we have
 denied lack-of-speedy-trial claims despite the fact that the defendant was
 jailed for a significant period before trial.  See, e.g., State v. Roy, 151
 Vt. 17, 35-36, 557 A.2d 884, 895-96 (1989) (defendant in custody during
 seven-month period from arrest to trial); Unwin, 139 Vt. at 197, 424 A.2d  at
 257-58 (despite "lengthy pre-trial incarceration," fourth factor not
 weighted heavily in favor of the defendant where he failed to make any
 specific claims of prejudice); see also 2 W. LaFave & J. Israel, supra, {
 18.2, at 410 ("As for prejudice [arising from pretrial incarceration], it is
 noteworthy that in Barker the defendant's incarceration for 10 months was
 not deemed sufficiently oppressive to call for a ruling in his favor.  Lower
 courts have reached the same conclusion as to substantially longer periods
 of imprisonment.").
      Defendant does not make any specific claims of prejudice here, but the
 obvious prejudice is the long period of incarceration prior to trial.  That
 significant length of jail time is somewhat diminished by the fact that
 defendant was freed relatively early on, albeit with strict conditions, only
 to be arrested a month later for a violation of those conditions.
 Notwithstanding this fact, we recognize that any pretrial restraint on
 defendant's liberty is prejudicial, and we are troubled by the extended
 pretrial incarceration in this case.  But considering all the Barker
 factors, and applying them to the facts and circumstances here, we cannot
 conclude that the court abused its discretion in denying defendant's motion
 to dismiss for lack of a speedy trial.
      We note that defendant makes no specific argument that the Vermont
 Constitution offers more protection than that provided by the United States
 Supreme Court's interpretation of the federal constitution.  In upholding
 the court's denial of defendant's speedy-trial motion, we recognize that
 the federal test provides only a limited right to a speedy trial.  Rather
 than guarantee prompt disposition of criminal cases, the right requires the
 dismissal of criminal charges only against a very few defendants who have
 suffered egregious delays and prejudicial consequences due to the
 government's failure to process their cases in a timely manner.  2 W. LaFave
 and J. Israel, supra, { 18.3, at 410-11.  The delays generally must be
 egregious both in duration and result because, as noted, the courts are
 reluctant to resort to the radical remedy of dismissal -- the only remedy
 available to them.  See Barker, 407 U.S.  at 522 (dismissal of indictment
 means a defendant who may be guilty of a serious crime will go free).
      The reluctance of courts to employ this remedy is exemplified by a
 recent opinion of the Second Circuit Court of Appeals.  See Flowers v.
 Warden, Connecticut Correctional Inst., 853 F.2d 131 (2d Cir.), cert.
 denied, 488 U.S. 995 (1988).  Although the defendant had made numerous
 assertions of his right to a speedy trial and, because of docket congestion,
 had spent seventeen months in jail while awaiting trial on a murder charge,
 the court reversed the district court's judgment dismissing the indictment.
 Id. at 134.  The bases of the court's decision were that there was no bad
 faith on the part of the prosecution and the defendant had suffered no
 prejudice to his defense.  Id.  In support of the decision, the court
 surveyed numerous previous cases in which it had denied speedy-trial claims.
 An examination of these cases provides insight into the difficulty of
 prevailing on a constitutional speedy-trial claim and, indeed, suggests that
 the constitutional right to a speedy trial is virtually nonexistent when
 prejudice to the defense is absent.
      We do not mean to imply that there is no risk of dismissal where delay
 results in actual prejudice.  The State and and the trial courts must be
 aware that unreasonable delay may result in dismissal.  But we need to gain
 more widespread control over delay in the administration of criminal cases.
 Our failure to adequately address such delay only exacerbates the problem.
      It may be necessary to look to our own constitution for a satisfactory
 solution that has not been forthcoming under the federal test.  See State v.
 Dean, 148 Vt. 510, 515-16, 536 A.2d 909, 913 (1987) (suggesting that Chapter
 I, Article 4 and Chapter II, { 28 of the Vermont Constitution may offer
 additional protection against unreasonable delay in criminal cases).
 Reliance on the Vermont Constitution may be necessary because, unlike most
 states and the federal government, Vermont has no statutory right to a
 speedy trial to back up the infrequently employed federal constitutional
 right.  As we noted, Administrative Order No. 5 does not provide procedural
 or substantive rights to defendants.  Not only defendants, but the public as
 well, should have some reasonable guaranty that criminal cases will be heard
 in a timely manner.  See Barker, 407 U.S.  at 519-20 (society has an interest
 in avoiding lengthy pretrial incarceration and bringing charges to trial
 without delay).

                                    FOR THE COURT:

                                    Associate Justice

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