State v. Allan, 79-436-C
| Citation | 433 A.2d 222 |
| Decision Date | 05 August 1981 |
| Docket Number | No. 79-436-C,79-436-C |
| Parties | STATE v. Michael ALLAN. A. |
| Court | United States State Supreme Court of Rhode Island |
In this case the defendant, Michael Allan, appeals from his conviction after a jury trial in the Superior Court. He was charged with delivery of a controlled substance, marijuana, to an undercover police officer in violation of Schedule I of G.L.1956 (1968 Reenactment) § 21-28-2.08 and § 21-28-4.01(A)(2)(a), as enacted by P.L.1974, ch. 183, § 2.
The defendant was arraigned in the Superior Court on September 9, 1976, and released on $2,000 personal recognizance. Twelve days later he filed a motion for a speedy trial. On May 28, 1979, defendant, through counsel, called the case ready for trial before a justice of the Superior Court. Later, on June 1, 1979, he filed a motion to dismiss based on the alleged failure of the state to afford him a speedy trial.
On June 6, five days before the trial commenced, defendant filed a motion to continue the case until September 5, 1979. He asserted that an important defense witness was out of the country in military service and would not be available until the September date. This motion for a continuance was not actually brought to the attention of the trial justice until June 8, the date the trial began. The motion was argued and denied by the justice along with the motion to dismiss for lack of a speedy trial.
The denial of the motion to dismiss on the speedy-trial issue and the denial of the motion for a continuance are the basis for this appeal. No appeal has been taken from the denial of defendant's motion for new trial.
At trial, Salvatore Lombardi, a special police officer for the town of Lincoln on loan to the town of Smithfield, testified for the prosecution. While working in an undercover capacity on June 14, 1976, he was in the area of Austin Avenue, Smithfield. At approximately 8:55 p. m., he approached defendant, who was in a parked car, and asked him if he had a certain drug for sale. The defendant said he did not but that he had some good "pot", and Officer Lombardi paid him $50 for a glassine bag containing what later tests proved to be marijuana. Officer Lombardi based his in-court identification of defendant on the June 14 encounter and on an introduction to defendant which had taken place about ten days before that.
The defendant denied that he had made the sale of marijuana to Officer Lombardi. He testified that on the date in question, June 14, his wife had given birth to their first child at Women and Infants Hospital in Providence. He visited her that night in the company of his brother and a friend named Joseph Panzarella (Panzarella). He testified they did not leave the hospital until sometime after the time visiting hours officially ended at 8 p. m. After spending some time with his wife alone in her hospital room, he and Panzarella went to the nursery to view his infant son. Thereafter Panzarella and defendant left the hospital. They stopped at a liquor store and purchased some vodka and beer and then went to defendant's mother's home where they drank until two o'clock the following morning. Mrs. Allan, the defendant's wife, corroborated her husband's testimony about his visit to her at the hospital.
The witnesses for the prosecution other than Officer Lombardi were Brian D. Burke and a state toxicologist. The defendant and his wife were the only defense witnesses. Only Officer Lombardi identified defendant as the individual who sold the marijuana to him.
We first consider the speedy-trial issue. The test for determining whether an accused has been denied his right to a speedy trial was set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). This court has applied the test numerous times. State v. DeMasi, R.I., 419 A.2d 285 (1980); State v. Roddy, R.I., 401 A.2d 23 (1979); State v. Crescenzo, 118 R.I. 662, 375 A.2d 933 (1977). In applying this test, the courts consider four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his rights, and (4) the prejudice to the accused. State v. DeMasi, supra. No one of the factors alone is either a necessary or a sufficient condition to establish a deprivation. Rather, they are all related factors and must be considered together with such other circumstances as are relevant. The court must balance all of the facts and circumstances before coming to a decision. Barker v. Wingo and State v. DeMasi, both supra.
The trial here took place thirty-three months after the arraignment. In State v. DeMasi, this court concluded that a lengthy delay standing alone is insufficient to establish that the right to a speedy trial has been violated. However, "a delay of twenty-six months between indictment and trial (is) 'presumptively prejudicial', a finding that triggers the necessity for an inquiry into the other three factors." Id. 419 A.2d at 289. 1
The record indicates that the delay in reaching this case for trial was caused by the case backlog and the priority that is given to more serious felonies. This delay, of course, is not defendant's fault and that factor would weigh against the state.
In balance, however, defendant's assertion of the lack of a speedy trial does not persuade us. There was a speedy trial motion filed twelve days after arraignment, and it was not renewed until after defendant called the case ready for trial. The defendant in DeMasi had made an oral motion for a speedy trial one month after indictment and a written motion twenty months later. This court said that that activity hardly constituted a "banging on the courthouse doors" that this court found persuasive in Tate v. Howard, 110 R.I. 641, 656, 296 A.2d 19, 27 (1972); State v. DeMasi, 419 A.2d at 290. The defendant in this case was far less aggressive in asserting his right to a speedy trial than was DeMasi. We find his arguments far less persuasive.
The remaining factor is prejudice resulting from the delay. The only fact defendant can point to is the unavailability of his alibi witness, Panzarella, who was out of the country on military duty. With the absence of any evidence that would indicate diligence on his part in determining the availability of this witness, it is our conclusion that the passage of time alone is not the cause of prejudice to him.
On our review of the record of the hearing on defendant's motion for a continuance, we find it apparent that when he called his case ready eleven days before asking for a continuance, he had not, in fact, ascertained whether or not he was...
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