Isaac v. Perrin, 81-1154

• Decision Date: 25 September 1981
• Docket Number: No. 81-1154,81-1154
• Citation: 659 F.2d 279
• Parties: Daniel P. ISAAC, Petitioner, Appellant, v. Everett I. PERRIN, et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 279

659 F.2d 279

Daniel P. ISAAC, Petitioner, Appellant, v. Everett I. PERRIN, et al., Respondents, Appellees.

No. 81-1154.

United States Court of Appeals First Circuit.

Submitted Sept. 18, 1981.

Decided Sept. 25, 1981.

Eleanor Krasnow, Manchester, N. H., on brief for petitioner, appellant.

Gregory H. Smith, Atty. Gen., and Paul W. Hodes, Asst. Atty. Gen., Crim. Justice Div., Concord, N. H., on brief for respondents, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.

COFFIN, Chief Judge.

Appellant appeals the federal district court's denial of his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 on the grounds that his constitutional right to a speedy trial was violated. Appellant was arrested on August 19, 1977, and arraigned in a New Hampshire state district court under N.H. RSA 632-A:2 for aggravated felonious sexual assault. Unable to meet bail, he was confined in the Hillsborough County Jail. Appearing with his court-appointed attorney on September 14, 1977, appellant waived his probable cause hearing and his case was turned over to the state superior court pursuant to the state's two-tiered criminal system. See N.H. RSA 596-A:7. A grand jury indictment was returned on October 4, and his arraignment was scheduled for November 2 in superior court. On that date, his attorney failed to appear and the court appointed a public defender to represent appellant. The public defender protested that his already heavy caseload would preclude him from trying appellant's case until the January 1978 term. The case was accordingly scheduled for February 15, 1978. Bail was continued, and appellant remained incarcerated in county jail.

The prosecutor was advised by letter of January 24, 1978, that the complaining witness, a nine year old girl residing in Indiana, was not yet emotionally prepared to testify in court. The child's psychologist recommended deposition testimony instead. The prosecutor sought a motion for a videotape deposition but this request was denied by a New Hampshire court. He then attempted to procure the girl's testimony pursuant to the Uniform Act to secure attendance of witnesses outside the state in criminal proceedings. N.H. RSA Chap. 613. An Indiana court denied this request and decided that the girl would not be available, pending psychiatric treatment, for three more months. The prosecutor accordingly sought a continuance in New Hampshire superior court on February 15, and appellant objected on speedy trial grounds. A hearing was held the same day, and the court granted a continuance until May 22, 1978. Bail was reduced to $500 but appellant was unable to meet this amount.

In early May, however, the court realized that a jury would not be available on May 22, and so notified appellant who suggested that the trial be moved forward to the week of May 9 when a jury was available. The trial was instead rescheduled for June 19, 1978. Appellant then moved to dismiss the case on speedy trial grounds; a hearing on that motion was held on June 2, and the court ruled that the motion would be granted if the trial was not held on June 19. The trial was held as scheduled, and appellant was found guilty, leading to his present incarceration in New Hampshire State Prison. After an unsuccessful appeal to the New Hampshire Supreme Court, appellant acquired new counsel and filed the present habeas corpus petition in federal court.

Appellant makes two arguments on appeal. First, he reasserts the claim made to the district court below and to the state courts that his Sixth Amendment right to a speedy trial was denied. Second, he alleges that the district court erred in denying his motion for a federal evidentiary hearing. Appellant argues strenuously that because the material facts were not adequately developed at the state court hearings, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), required the district court to hold a hearing to resolve the disputed factual issues. We hold that even if appellant's allegations with respect to the disputed material issues ¹ are assumed to be true, his right to a speedy trial was not violated. An evidentiary hearing is therefore unnecessary. See, e. g., Jones v. Morris, 590 F.2d 684, 687 (7th Cir.), cert. denied, 440 U.S. 965, 99 S.Ct. 1513, 59 L.Ed.2d 780 (1979); Spinkellink v. Wainwright 578 F.2d 582, 590 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Morris v. Wyrick, 516 F.2d 1387, 1392 (8th Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 268, 46 L.Ed.2d 251 (1975).

The Supreme Court has established a four-part balancing test to determine whether a defendant's constitutional right to a speedy trial has been violated. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors are the length of the delay, the reasons for the delay, the nature of the defendant's assertion of his right to a speedy trial, and the prejudice caused to the defendant as a result of the delay. Id. at 530; see United States v. Johnson, 579 F.2d 122 (1st Cir. 1978).

"The length of the delay is to some extent a triggering mechanism." Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192. Given the relatively simple nature of the charge against appellant, the ten month delay between arraignment and trial is enough to warrant further inquiry into appellant's claim. See United States v. Johnson, supra (eight month delay); United States v. Fay, 505 F.2d 1037 (1st Cir. 1974) (nine month delay).

Different weights are assigned to different reasons for delay. Intentional delay by the prosecution in order to hamper the defense is weighted heavily against the government. More neutral reasons for delay, such as negligence or overcrowded courts, are counted against the government, since the ultimate responsibility for bringing the case to trial rests there, but are weighted less heavily. Finally, delays serving legitimate purposes, such as obtaining a missing witness, are not to be held against the government. Barker, supra, 407 U.S. at 514, 92 S.Ct. at 2184; Johnson, supra, 579 F.2d at 123-24.

The ten month lapse of the time between appellant's arraignment and trial can be divided into four periods. Appellant does not complain about the time between August 19, 1977, when he was first arraigned in state district court, and November 2, 1977, when he was arraigned in state superior court. This is presumably not an unusual length of time for a grand jury indictment and arraignment for a felony charge. Appellant apparently concedes that it is not a "delay" at all, and therefore this time lapse does not count against the government.

Appellant argues that the 31/2 month period between the superior court arraignment and the first scheduled trial date should be weighted heavily against the state. The reason for the delay was that new counsel was appointed for appellant on November 2, when his prior attorney failed to appear at the arraignment. Under New Hampshire's two-tiered criminal system, counsel assigned in district court often does not follow his client to superior court. Appellant argues that since the state intentionally established this system, and since the system often causes delays for defendants unable to retain private counsel, the delay caused in this case should be weighted heavily against the state. ² We are not convinced by this argument. The state undoubtedly had many objectives in establishing its criminal justice system, and we are unwilling to attribute to it a deliberate effort to delay trials. The delays caused by the two-tiered system are similar to those caused by overcrowded courts: while both could be cured by a reorganization of the judicial system or by the infusion of additional funding, each is a "neutral" reason for delay which counts against the state but less heavily than intentional delay. Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192.

The state superior court ordered a continuance from February 15, 1978, the first scheduled trial date, to May 22, 1978, because of the unavailability of the prosecution's complaining witness. The prosecutor was informed by the girl's psychologist that she was emotionally unprepared to face cross-examination at the time. Upon learning of this problem, the prosecutor attempted to elicit her testimony via videotape deposition, and also sought a subpoena to compel her attendance in New Hampshire court. When both efforts were unsuccessful, he moved for a continuance in accordance with an Indiana court's recommendation that a three month delay was necessary. This motion was granted over a speedy trial objection by appellant. We are unable to fault the government for this delay. While it is undisputed that the prosecutor made no effort to prepare the witness emotionally for trial prior to the letter of January 24 from the child's psychologist, we are unwilling to impose this kind of burden on the state. Moreover, in spite of appellant's exhortation that the prosecutor should have taken additional "practical steps" to secure the child's testimony, he fails to make any concrete suggestions, and we can think of none. Like the case of a "missing witness", Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, the psychological unpreparedness of a nine year old victim of a sexual assault justifies appropriate delay here. Cf. Gelfand v. People, 196 Colo. 487, 586 P.2d 1331, 1333 & n.1 (1978) (en banc ) (hospitalization of chief witness who was too ill to bear stress of testifying justifies continuance).

The final delay, from May 22, 1978 to the actual trial date of June 19, was ordered when the state court realized that May 22 was during a week of non-jury trials and no juries would be available. While appellant requested that the trial be moved ahead to May 9 instead of pushed back, this request was apparently denied without a hearing and the continuance ordered. Appellant does not claim that this delay was intended to...