State v. Larry L. Labrecque ( 2022 )

ENTRY ORDER
2022 VT 20SUPREME COURT DOCKET NO. 22-AP-093
APRIL TERM, 2022
State of Vermont } APPEALED FROM:
}
}
v. } Superior Court, Windsor Unit,
} Criminal Division
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Larry L. Labrecque } Case No. 689-7-18 Wrcr
Trial Judge: John R. Treadwell
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant appeals the criminal division’s orders denying bail on March 1, 2022,
denying home detention on March 21, 2022, and denying bail review on March 25, 2022. We
affirm each of the criminal division’s orders.
¶ 2. Defendant is charged with three felonies: repeated aggravated sexual assault of a
child under 13 V.S.A. § 3253a(a)(8), repeated aggravated sexual assault under id. § 3253(a)(9),
and sexual assault of a victim under the age of eighteen who is entrusted to the actor’s care under
id. § 3252(d). Each charge carries a maximum sentence of life imprisonment. See id. § 3253a(b);
id. § 3253(b); id. § 3252(g).
I. Procedural History
¶ 3. Defendant has sought to be released on conditions numerous times since he was
initially held without bail in November 2018 following the criminal division’s weight-of-the-
evidence hearing. He most recently appealed the criminal division’s denial of bail to this Court in
January 2022 in State v. Labrecque (LaBrecque III), 2022 VT 6, __ Vt. __, __ A.3d __ (mem.),
having previously appealed the criminal division’s denial of bail in July 2021 in State v. Labrecque
(LaBrecque II), 2021 VT 58, __ Vt. __, 261 A.3d 632 (mem.) and August 2020 in State v.
Labrecque (LaBrecque I), 2020 VT 81, __ Vt. __, 249 A.3d 671 (mem.). We summarized the
lengthy procedural history of this case in LaBrecque III and need not repeat the prior adjudication
of this issue here. See 2022 VT 6, ¶¶ 3-9. Instead, we commence the procedural history starting
from the last time defendant was before us in January 2022.
¶ 4. When we issued LaBrecque III in January, jury draw and trial were scheduled in
defendant’s underlying criminal case for early February. However, during the first scheduled day
of trial, a necessary State witness had symptoms of illness that, considering Administrative
Directive PG-13 related to COVID-19 safety protocols in Vermont courthouses, prevented her
from testifying in person. Defendant did not waive his Confrontation Clause right to allow the
witness to testify remotely, so the court continued the trial. The criminal division was unwilling
to reschedule the trial for jury draw with the same panel, which the parties acknowledged would
be problematic, and the panel would complete its service after March 2022. There were a limited
number of trial days scheduled for the Windsor Criminal Division in April, so the trial was
rescheduled for May 2022.
¶ 5. Defendant renewed his request for release on bail or conditions, and the criminal
division held a hearing on the issue on February 8, 2022, the same day that trial was continued.
During this hearing, defendant presented testimony from the president of Easter Bail Bond
Agency, Inc., who also testified at a previous hearing on home monitoring in November 2021.
The testimony from February 8 established there were no changes in circumstances since his
November testimony, which we previously considered in LaBrecque III, 2022 VT 6, ¶¶ 7, 20, 23.
¶ 6. In its March 1, 2022 order, the criminal division found insufficient factual grounds
for defendant’s request to reconsider the order holding him without bail. The criminal division
systematically considered various statutory provisions, determining that none provided an avenue
for defendant to seek reconsideration. It found that: review of monetary bail under 13 V.S.A.
§ 7554 does not apply to individuals held without bail pursuant to id. §§ 7553 and 7553a;
imposition of the least restrictive conditions of release when a criminal trial is continued under id.
§ 7557 also does not apply to individuals held without bail pursuant to id. §§ 7553 and 7553a; and
“[t]here is no statute expressly providing for trial court reconsideration or review of a prior decision
to hold a defendant without bail pursuant to 13 V.S.A. §§ 7553 or 7553a.”
¶ 7. However, the criminal division acknowledged case law in which we have held that
a defendant may seek review of an order holding them without bail pursuant to 13 V.S.A. § 7553a
if they “present[] an adequate basis for review, [though] there are limits to the bases on which a
court can conduct such a review.” State v. White, 2020 VT 62, ¶ 12, 212 Vt. 658, 237 A.3d 1235(mem.). The criminal division noted that while this Court has not directly addressed this issue
when, as here, a defendant is held pursuant to 13 V.S.A. § 7553, there appeared to be no reason
why a defendant held under § 7553 would not be entitled to review after providing an adequate
factual basis for such review. See State v. Tarbell, 2021 VT 68, ¶ 14, __ Vt. __, 261 A.3d 1123(mem.) (affirming trial court’s denial of defendant’s motion to review hold-without-bail decision
where defendant was held under 13 V.S.A. § 7553 and failed to persuade court to release him on
conditions but clarifying “that nothing said here should be construed to alter defendant’s existing
rights to seek a review of the hold-without-bail decision in the future, including a motion based on
a proposed set of conditions supported by evidence that was not introduced at the reconsideration
hearing”).
¶ 8. The criminal division could not find an articulated standard for reconsideration of
§ 7553 bail decisions, but it reasoned, “[i]t cannot be that review or reconsideration must be
permitted without some showing of a change in circumstances. The alternative would be substitute
reconsideration for appellate review—in effect providing for horizontal appeal in the trial courts.”
As a result, the court concluded that, for a defendant to justify reconsideration of a prior order, the
defendant “must present new relevant facts or evidence or establish a basis for concluding that
there has been a substantial change in circumstances sufficient to warrant reconsideration.”
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¶ 9. Alternatively, the court noted that defendant’s motion could be considered a motion
to reconsider or revise an interlocutory order, in which case the court would need to consider the
three factors from United States v. Loera, 182 F. Supp. 3d 1173 (D. N.M. 2016). These factors
involve considering: (1) “how thoroughly the earlier ruling addressed the specific findings or
conclusions that the motion to reconsider challenges;” (2) “the case’s overall progress and posture,
the motion for reconsideration’s timeliness relative to the ruling it challenges, and any direct
evidence the parties may produce . . . to assess the degree of reasonable reliance the opposing has
placed in the [c]ourt’s prior ruling;” and (3) whether the movant has presented new controlling
authority, new evidence, or a clear indication of judicial error. Id. at 1206-07.
¶ 10. Ultimately, the criminal division determined that defendant did not identify any
facts or circumstances that changed since the court last denied his request for release in November
2021; this indicated, under either the standard it articulated above or the Loera standard, that
defendant failed to establish sufficient grounds for bail reconsideration.
¶ 11. Having found that defendant did not have sufficient grounds for bail
reconsideration, the criminal division then assessed whether continued pre-trial detention would
nevertheless violate defendant’s substantive due process rights, ultimately concluding that it would
not. In assessing defendant’s due process rights, the court applied the three factors from United
States v. Briggs, as we did in each of defendant’s three previous appeals. 697 F.3d 98, 101 (2d
Cir. 2012); see LaBrecque I, 2020 VT 81, ¶ 17; LaBrecque II, 2021 VT 58, ¶ 20; LaBrecque III,
2022 VT 6, ¶ 18. The criminal division acknowledged that this Court had engaged in a Briggs
analysis in LaBrecque III fewer than six weeks prior, and that the continuance of the trial was the
only change in circumstances since then. The criminal division further noted that both it and this
Court “had previously identified the deficiencies and shortcomings of defendant’s proposal,” but
that he had failed to present testimony or evidence to address these concerns.
¶ 12. As to the first Briggs factor, the court found that the evidence of defendant’s alleged
risk to public safety and alleged risk of flight was great because of the seriousness of the charge,
the significant weight of evidence of the alleged crime, and defendant’s criminal history indicating
disrespect for conditions of release and authority. Further, the court found uncompelling
defendant’s argument that the risk of flight and risk to public safety could be mitigated by
electronic monitoring, citing, among other things, our previous concerns about defendant’s failure
to provide information regarding law enforcement response time. See LaBrecque III, 2020 VT 6,
¶ 23.
¶ 13. Regarding the second factor, the criminal division found that the delay attributable
to the State did not constitute a due process violation. It acknowledged our determination in
LaBrecque III that the pre-pandemic delay in this case was primarily attributable to defendant.
2022 VT 6, ¶¶ 25-26. Concerning the trial continuance due to witness availability, the criminal
division cited a United States Supreme Court decision noting that “a valid reason, such as a missing
witness, should serve to justify appropriate delay.” Barker v. Wingo, 407 U.S. 514, 531 (1972)
(emphasis added). Even assuming the State was responsible for delay due to witness
unavailability, it was not intentional or imposed for unwarranted purposes.
¶ 14. The criminal division concluded that the third and final factor, the length of the
detention itself, weighed in defendant’s favor. However, it noted that “the length of detention
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alone is not dispositive and will rarely by itself offend due process.” United States v. El-Hage,
213 F.3d 74, 79 (2d Cir. 2000) (quotation omitted); LaBrecque III, 2022 VT 6, ¶ 27. Ultimately,
the court found that the balance of the three factors weighed in favor of continued detention for
the legitimate regulatory purpose of protecting the public.
¶ 15. Defendant subsequently filed an application for home detention on March 9, 2022.
The criminal division denied the motion as a matter of law on March 13, 2022, citing the statute
providing that “[a] defendant held without bail pursuant to section 7553 or 7553a . . . shall not be
eligible for release to the Home Detention Program on or after June 1, 2018.” 13 V.S.A.
§ 7554b(b). The criminal division noted that defendant would remain ineligible for release to
home detention as long as there was an active order holding him without bail.
¶ 16. On March 24, 2022, defendant filed a motion for bail review asking the criminal
division to release him on cash bail so that the court could consider his application for home
detention. The criminal division denied his motion on March 25, 2022, noting its prior decisions
on March 1 and 13 and finding that “[d]efendant has neither presented new relevant facts nor
evidence nor established a basis for concluding that there has been a substantial change in
circumstances sufficient to warrant consideration of the March 1, 2022, Entry Order.”
¶ 17. Defendant appeals each of the above orders.
II. Legal Standard
¶ 18. As stated in LaBrecque III, “[a]lthough we review the trial court’s underlying bail
determination for an abuse of discretion, we review whether a due process violation has occurred
de novo.” 2022 VT 6, ¶ 16 (quotations omitted). There is a presumption in favor of incarceration
when a defendant is held pursuant to 13 V.S.A. § 7553, which a defendant may overcome by
“persuading the court to exercise its discretion to set bail or conditions of release.” LaBrecque III,
2022 VT 6, ¶ 17 (quotation omitted). A trial court may consider the statutory factors listed in 13
V.S.A. § 7554(b), which include:
[T]he nature and circumstances of the offense charged; the weight
of the evidence against the accused; and the accused’s family ties,
employment, character and mental condition, length of residence in
the community, record of convictions, and record of appearance at
court proceedings or of flight to avoid prosecution or failure to
appear at court proceedings. Recent history of actual violence or
threats of violence may be considered by the judicial officer as
bearing on the character and mental condition of the accused.
Id. § 7554(b)(2). Despite the trial court’s broad discretion, the defendant’s substantive due process
rights “limit[] a trial court’s discretionary authority to hold a defendant prior to trial under § 7553
if pre-trial detention is either punitive or excessive.” LaBrecque III, 2022 VT 6, ¶ 17 (quotation
omitted).
¶ 19. When an ongoing pre-trial detention calls into question a defendant’s due process
rights, we consider the three Briggs factors to determine whether the pre-trial detention is
regulatory or punitive in its purpose, i.e., :
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the strength of the evidence justifying detention, the government’s
responsibility for the delay in proceeding to trial, and the length of
the detention itself. The longer the detention, and the larger the
prosecution’s part in prolonging it, the stronger the evidence must
be if it is to be deemed sufficient to justify the detention’s
continuance.
Briggs, 697 F.3d at 101.
III. Analysis
¶ 20. On appeal, defendant argues that the criminal division erred in concluding that 13
V.S.A. § 7557 is inapplicable here, the criminal division’s decision on the home detention
application was inconsistent with a prior discussion on the record to defendant’s detriment, and
the criminal division abused its discretion in finding that the Briggs factors do not weigh in favor
of release. We address each of these arguments in turn.
A. Applicability of 13 V.S.A. § 7557
¶ 21. Defendant first argues that § 7557, the statute governing bail upon postponement
of trial, should apply to him. The statute reads in its entirety:
When a District or Superior court postpones the trial of a criminal
case or the examination of a person charged with a criminal offense,
the court may impose the least restrictive conditions or combination
of conditions permitted under subdivision 7554(a)(1) of this title
which will reasonably assure the person’s appearance before the
court on the day to which the trial or examination is postponed.
13 V.S.A. § 7557. Defendant argues that the word “may” as it appears above is permissive but
that the statute applies to all individuals whose criminal trials are continued by the superior court.
He concludes that the criminal division was required to consider whether he was entitled to bail.
We are unpersuaded by this argument.
¶ 22. “In construing a statute, our paramount goal is to discern and implement the intent
of the legislature.” Miller v. Miller, 2005 VT 89, ¶ 14, 178 Vt. 273, 882 A.2d 1196. “If the intent
of the Legislature is apparent on the face of the statute because the plain language of the statute is
clear and unambiguous, we implement the statute according to that plain language.” Flint v. Dep’t
of Labor, 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. The use of the word “may” in § 7557
indicates that the criminal division is not required to, but may at its discretion, consider and impose
conditions of release upon the continuance of a criminal trial to ensure the defendant’s appearance
in court. See New England Phoenix Co. v. Grand Isle Veterinary Hosp., Inc., 2022 VT 10, ¶ 18,
__ Vt. __, __A.3d __ (“We generally give the word ‘may’ its plain, ordinary meaning, which
connotes discretion.”). Therefore, the criminal division was not required to make such a
consideration. Because we hold that “may” connotes discretion, we need not address defendant’s
argument that § 7557 applies to him as a defendant held without bail pursuant to § 7553.
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¶ 23. Further, this is not a situation in which the criminal division refused to consider
defendant’s request to be released on conditions without considering the merits. In its March 1,
2022, order, the criminal division acknowledged defendant’s request for reconsideration,
ultimately finding that defendant failed to provide a sufficient basis for his request because he did
not identify new or changed facts or circumstances under either of the court’s proposed standards
of analysis. The criminal division further engaged in an in-depth assessment of defendant’s due
process claims and concluded that, under the Briggs factors, continued pre-trial detention did not
violate defendant’s substantive due process rights. It is therefore unclear what relief defendant
seeks by making this claim, since defendant offers no factual or legal assertions regarding the
criminal division’s conclusions about the insufficient basis for his reconsideration request.
B. Prior Conversations on the Record Regarding Home Detention
¶ 24. Defendant argues that the criminal division should have considered his motion for
home detention because, had he been advised that he only had one chance to apply, he would have
either applied during the hearing on February 8 or appealed the March 1 order directly instead of
applying for home detention later in March. Alternatively, he argues that his reliance on his
conversations with the court should be considered good cause for the delay in filing the appeal
before us now.
¶ 25. Defendant does not point us to any specific language or interactions in the
transcripts to support his argument and, although defendant submitted three transcripts for this
appeal, we do not find any conversations on the record between defendant, or defense counsel, and
the court regarding home detention. To the extent that defendant relies on conversations not a part
of the record before us, we find no evidence of harm and again point to the criminal division’s
thorough due process analysis in its March 1 order. Had defendant directly appealed the March 1
order or applied for home detention earlier, the parties would be exactly where they are now.
Further, in response to defendant’s alternative argument, we note that defendant’s delay in filing
the appeal is not a factor in our analysis.
C. Due Process Analysis
¶ 26. Defendant next argues that the three Briggs factors require his release on home
detention. With regard to the first factor, the strength of the evidence justifying detention,
defendant asserts that the passage of time since his criminal history along with his strong ties to
the community and consistent employment prior to his incarceration, should negate the specifics
of his criminal history. He further argues under the second factor that the government, though its
actions were not malicious, must bear full responsibility for the bulk of the delay. As to the third
factor, defendant cites a series of pre-COVID-19 pandemic cases to argue that his detention of
over forty months violates his right to due process.
¶ 27. The evidence related to the first factor has not changed since LaBrecque III, in
which we considered all the same facts as before us now and the same proposal for home detention.
See 2022 VT 6, ¶¶ 21-24 (concluding electronic monitoring might reduce flight risk but would not
protect public safety because “[d]efendant’s specific criminal history displays a disrespect for
authority and conditions,” public would not be safe if defendant were to disconnect device or leave
area, defendant’s partner would not provide sufficient supervision, and proposed residence has
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access to minors (quotation omitted)). Despite having ample notice of our above reservations,
defendant has not introduced new evidence about law-enforcement response time, proposed
additional supervision or conditions to ameliorate our concerns about his location, or provided any
other information about how his proposed home detention would adequately protect public safety.
Defendant states conclusorily that the combination of the length of detention and the added
security of his electronic monitoring proposal substantially outweigh our concerns regarding his
flight risk and risk to public safety. And yet defendant has not in the last three months bolstered
his arguments about safety that we already rejected as insufficient. We therefore again conclude
that the first factor weighs against finding a due process violation.
¶ 28. However, our analysis does not end with the first factor, and we must now turn to
the second factor, the government’s responsibility for the delay. “The longer the detention, and
the larger the prosecution’s part in prolonging it, the stronger the evidence justifying detention
must be if it is to be deemed sufficient to justify the detention’s continuance.” Briggs, 697 F.3d at
101; accord LaBrecque III, 2022 VT 6, ¶ 25. We previously established in LaBrecque I and again
confirmed in LaBrecque III that “most of the delay prior to the pandemic-related suspension of
jury trials is attributable to defendant’s actions.” LaBrecque III, 2022 VT 6, ¶ 25. Further,
although “the State is responsible for the time delay resulting from the government’s decision to
suspend jury trials during the COVID-19 pandemic[,] . . . the pandemic-related delay is not
attributable to intentional governmental interference” because “the government’s legitimate efforts
to protect public health and encourage public safety are not malicious or targeted towards
defendant.” Id.
¶ 29. We previously concluded that this second factor weighed against a due process
violation. However, since we decided LaBrecque III, the trial, which at the time was scheduled
for early February, was continued to May because a critical State witness was exhibiting symptoms
of illness that, pursuant to Administrative Directive PG-13, would prevent her from entering the
court building to testify. Here, as with the prior suspension of jury trials, the delay is attributable
to the government for purposes of a due process analysis but is not related to intentional, malicious,
or targeted interference with defendant’s due process rights. Further, a continuance based on
witness illness is codified in Vermont Rule of Criminal Procedure 50(c)(3): “A party shall not be
entitled to a continuance on the ground of the absence of a material witness whom it is in the power
of such party to summon, except when such witness is sick or otherwise disabled from attending
court . . . .” Although we have not before considered whether witness illness is attributable under
a due process analysis to the party who called the witness, it stands to reason that this justifiable
delay is akin to the pandemic-related delay in that it was not intentional, malicious, or targeted.
This factor therefore weighs against finding a due process violation.
¶ 30. The final factor weighs in defendant’s favor. Defendant has been incarcerated since
the criminal division’s weight-of-the-evidence hearing in November 2018, marking a pre-trial
detention of over forty months. This is undoubtedly at the limit of what is acceptable. However,
as we noted in LaBrecque III, “ ‘the length of detention alone is not dispositive and will rarely by
itself offend due process.’ ” 2022 VT 6, ¶ 27 (quoting El-Hage, 213 F.3d at 76, 79 (finding no due
process violation from defendants’ “extraordinary” thirty-to-thirty-three-month pre-trial detention
because of specific alleged crimes and lack of government responsibility for delay). Further,
defendant fails to cite to any cases commenced during the COVID-19 pandemic in which a court
has found that the length of pre-trial detention justifies release and imposition of bail on due
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process grounds. Although we are not restricted from finding a due process violation merely
because no other court has found one under similar circumstances, the lack of support for
defendant’s position indicates that we are also not compelled to find one here.
¶ 31. As in LaBrecque III, “defendant’s prolonged incarceration is the only factor that
weighs in defendant’s favor.” Id. The evidence justifying defendant’s continued pre-trial
detention remains strong, and the State’s blame for the pandemic-related suspension of jury trials
and the continuance from February to May are due to neutral factors unrelated to this case.
However, a delay in trying the underlying case beyond May 2022 that is not attributable to
defendant would be of grave concern to this Court.
IV. Conclusion
¶ 32. In sum, defendant’s reliance on § 7557 is unpersuasive. We again conclude under
our de novo review of the Briggs factors that defendant’s continued pre-trial detention does not
violate his right to due process. He has introduced no new evidence to change our prior analysis
under the first factor, and the trial’s continuance from February to May is the only changed
circumstance under the second and third factors. Because that delay was justified and defendant
has not otherwise proven that continued detention violates his due process rights, we affirm the
criminal division’s decisions.
Affirmed.
BY THE COURT:
Paul L. Reiber, Chief Justice
Harold E. Eaton, Jr., Associate Justice
William D. Cohen, Associate Justice
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