State v. Labrecque

249 A.3d 671

STATE of Vermont

v.Larry L. LABRECQUE

SUPREME COURT DOCKET NO. 20-213

Supreme Court of Vermont.

August Term, 2020

September 3, 2020

ENTRY ORDER

¶ 1. Defendant Larry L. Labrecque appeals the trial court's denial of his motion to reconsider its decision to continue holding him without bail prior to trial, despite the delay in hearing his case. He argues that the length of his pretrial detention offends due-process rights protected under the Fifth and Fourteenth Amendments of the United States Constitution and Article 10 of the Vermont Constitution, requiring his immediate release on conditions. We affirm.

I. Procedural History

¶ 2. Given the nature of defendant's claim, we recount this case's procedural history in some detail. He has been held without bail, pursuant to 13 V.S.A. § 7553, since his July 23, 2018 arraignment on charges of sexual assault of a minor stepchild, 13 V.S.A. § 3252(d) ; aggravated sexual assault, 13 V.S.A. § 3253(a)(9) ; and aggravated sexual assault of a child under sixteen, 13 V.S.A. § 3253a(a)(8). The charges arose from a report by his stepdaughter, A.J., then seventeen years old. She alleged that defendant had been sexually assaulting her over the course of two years.

¶ 3. All three charged offenses are punishable by a maximum sentence of life imprisonment; thus, defendant could be held without bail if the court found that the evidence of his guilt was great as to any one of them. 13 V.S.A. § 7553. On the basis of the court's probable-cause findings, defendant was temporarily held without bail at arraignment. See State v. Passino, 154 Vt. 377, 383, 577 A.2d 281, 285 (1990) (holding that based on initial probable-cause determination at arraignment, "the court can hold a defendant charged with an offense punishable by life imprisonment without bail for such time as is necessary to enable the parties to prepare for a full bail hearing"). At defendant's request, the court held a weight-of-the-evidence hearing on November 14, 2018. The State offered into evidence a recording of a sworn interview with A.J. in which she alleged that defendant had sexually assaulted her on multiple occasions.

¶ 4. After considering A.J.’s statement, the court issued an on-the-record ruling. It concluded that, viewed in the light most favorable to the State, the evidence of defendant's guilt as to all three charged offenses was great. Taking up defendant's subsequent oral motion for bail review, the court first explained that although the presumption in favor of release had switched based on the weight-of-the-evidence finding, the relevant facts had not changed since its initial bail determination at arraignment, which it therefore incorporated into the ruling.¹ The court further explained that—based on defendant's history of multiple failures to appear, simple assault on a law-enforcement officer, violation of come-to-court orders, an attempt to elude law enforcement, and probation revocation—it was not confident in his ability to abide by conditions of release intended to mitigate the risk of flight from prosecution and protect A.J. Therefore, the court continued the hold-without-bail order; defendant did not appeal.

¶ 5. Defendant's case was initially assigned a trial-ready date in May 2019, which was pushed back to November 2019 by agreement of the parties. Then, on September 30, 2019, defendant's counsel moved to withdraw from the case, citing an unresolvable conflict. Her motion was granted, and present counsel assigned, in October of that year. The parties filed an amended discovery stipulation which provided for trial readiness in March 2020. A jury draw was scheduled for April 2020.

¶ 6. On March 13, 2020, defendant filed a motion for bail review under 13 V.S.A. § 7554(d), arguing that the delay in bringing his case to trial caused by his attorney's withdrawal represented a material change in circumstances, and asking that the court exercise its discretion to release him on conditions. Then, on March 16, this Court issued Administrative Order 49, suspending all nonemergency trials and hearings until at least April 15 due to the COVID-19 pandemic. One day later, defendant supplemented his bail-review motion, arguing that the court should also find a change in circumstances based on the scheduling uncertainties caused by the pandemic. He submitted a doctor's affidavit alleging that the Department of Corrections (DOC) failed to respond appropriately to the ongoing public health crisis and argued that the court should exercise its discretion to release him on this basis.

¶ 7. The trial court held a hearing on defendant's request for bail review the following day. Defendant conceded that the evidence of his guilt remained great, but asked that the court revisit its decision not to grant discretionary release. He proposed to stay at his wife's residence—a one-bedroom apartment she shares with her son—subject to a twenty-four-hour curfew. He noted that A.J. no longer resided there, did not visit, and was rarely in touch with her mother. Defense counsel also offered the following arguments in support of the request: defendant had lived in Hartford for a significant period of time and had longstanding ties to its community, including coaching football and being "involved with his kids’ lives in the church"; defendant qualified for public-defender services at arraignment, and his family's financial circumstances had not improved during the twenty months he had been incarcerated thus far; defendant's criminal history involved only misdemeanor charges resulting from actions occurring almost two decades prior to the allegations at issue in this case; since entering DOC custody in 2018, defendant had incurred only one minor disciplinary report; and defendant was experiencing neuropathic mobility issues which had yet to be treated, and as a result "he has a hard time moving off the couch."

¶ 8. The court denied defendant's motion, indicating that a judge had already performed, in 2018, "a full consideration ... as to whether or not there were a condition or a set of conditions that could be set that would reasonably assure the return of [defendant] and a protection of public safety." It found "no indication that those factors" had "changed in any way since the original determination was made." The court acknowledged defendant's argument that alleged mobility challenges mitigated the risk of his flight, but did not see this as "a significant change at this point." It did not find the argument that his lack of means decreased his risk of flight persuasive. And with respect to the risk to public safety, and specifically A.J.’s safety, the court found no change at all—A.J. was not living at the residence when defendant had originally proposed his conditional release there. As a result, the court found, the only remaining reason to set conditions "would be a determination that the COVID-19 factors warrant such a change." It concluded that the doctor's affidavit was stale and did not support a conclusion that the DOC was not fulfilling its obligation to safely house those in its custody. In short, although the trial delay occasioned by the pandemic was "a substantial concern to the court," it could not overcome the court's concerns regarding danger to the community or risk of flight that had supported the hold-without-bail order throughout the proceeding's pendency. The court concluded by noting that defendant was "at the top of the trial list" and indicated it would do everything possible to move the proceeding forward promptly.

¶ 9. Defendant filed a motion to reconsider this determination on April 1, along with an updated affidavit from the same doctor. By order of the Chief Superior Judge, his motion to reconsider was consolidated with several other pending bail motions that also asked the court to consider the effect of the COVID-19 outbreak on continued incarceration or detention. On April 2, the trial court issued an order delaying the scheduled April jury draw, observing that even if the Governor's Stay-Home order and the Court's restrictions on access to Judiciary buildings were not extended beyond April 15, the need for social distancing would remain critical to public safety. The courthouse was "not of a sufficient size to accommodate the number of jurors required for jury selection while maintaining social distancing."

¶ 10. At a status conference on May 12, defendant indicated he was not seeking an evidentiary hearing on his motion to reconsider. He argued that given the Judiciary's inability to "provide any security in when a trial would take place," continuation of the hold-without-bail order would amount to punitive incarceration in violation of his due process rights, and the court should exercise its discretion to release him. He filed a supplemental memorandum in support of this argument on May 18.

¶ 11. A lengthy joint evidentiary hearing was held in one of the consolidated matters at which the court took evidence on the DOC's response to the COVID-19 outbreak. These findings were incorporated into its order on the motion to reconsider.

¶ 12. In that order, the court concluded that changes to defendant's conditions of confinement arising from COVID-19 were unrelated to his risk of flight, and "[t]o the extent that it is possible to construct an argument that the conditions in a facility may impact a defendant's mental condition it is attenuated and would not be entitled to significant weight." Turning to defendant's due-process argument, the court found that the conditions of his confinement were not imposed "with the express intention to punish" and his continuing detention did not violate due process, given that it was grounded in the court's lack of confidence that he could abide by conditions of release. Defendant appealed this ruling. 13 V.S.A. § 7556(e).

¶ 13. On the date of oral argument before this Court, defendant had been held pending trial for 767 days, or two years, one month, and five...