State v. Anthony

• Decision Date: 22 July 1982
• Docket Number: No. 79-491-C,79-491-C
• Citation: 448 A.2d 744
• Parties: STATE v. William H. ANTHONY and John A. DePari. A.
• Court: Rhode Island Supreme Court

Page 744

448 A.2d 744

STATE v. William H. ANTHONY and John A. DePari.

No. 79-491-C.A.

Supreme Court of Rhode Island.

July 22, 1982.

Dennis J. Roberts, II, Atty. Gen., Madeline Quirk, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Chief Appellate Atty., Janice M. Weisfeld, Asst. Public Defender, for defendants; John A. MacFadyen III, Asst. Public Defender, on brief.

OPINION

KELLEHER, Justice.

This criminal appeal arises from the fatal stabbing of Peter Lombardi, an inmate at the Adult Correctional Institutions (ACI), on February 28, 1975. In connection with this incident a grand jury returned an indictment against William H. Anthony, John A. DePari, and Robert M. Demirjian on April 4, 1975, charging them with murder and conspiracy to commit murder. The indictment against Demirjian was subsequently dismissed upon his demise in February 1976. The defendants Anthony and DePari entered pleas of not guilty. A bail hearing for the defendants was combined with a violation hearing for defendant Anthony who had previously received a five-year suspended sentence and five years' probation on an unrelated charge. During this hearing the state's primary witness, Paul Fairhurst, a fellow inmate of the defendants and an unindicted coconspirator, implicated both defendants in Lombardi's murder. His testimony, however, was proffered only after he had been granted transactional immunity by the Presiding Justice of the Superior Court at the request of the Office of the Attorney General.

Relying upon Fairhurst's testimony, the trial justice concluded that if a jury was to believe his account of the incident, there was a fair likelihood that defendants could be found guilty of first- or second-degree murder and, in regard to that charge, ordered them held without bail. On the charge of conspiracy to commit murder, bail was set for each at $20,000 with surety.

Fairhurst's bail-hearing account of the murder was related during three days of testimony in April of 1975. More than two years later, however, he recanted his testimony and refused to testify in any further proceedings against defendants even though this would subject him to the imposition of a jail sentence for contempt. In response to the inquiries of the trial justice during a July 6, 1977 hearing on defendants' motions to dismiss, Fairhurst stated that he would not testify at trial against Anthony and DePari because it would be a "lie." The trial justice took no action against Fairhurst at that time, but ordered the state prosecutor to see that the case was assigned to the September 1977 calendar for trial. Although the state and both defendants were ready to proceed in September, the month passed without the commencement of trial; a Superior Court justice who had not been previously involved with the case sua sponte continued the proceedings for thirty days to afford Fairhurst time to reconsider and avoid the imposition of contempt sanctions. This reflective period apparently had little effect on Fairhurst, for at the end of the thirty days he remained adamant in his refusal.

The defendants were finally brought to trial on October 11, 1977. Fairhurst took the stand after being called by the prosecution but simply indicated that he would not testify. Portions of his bail-hearing testimony were later read to the jury by a court stenographer, followed by the trial justice's explanation that in addition to immunity from prosecution the state had promised Fairhurst a transfer to an out-of-state prison. The jury returned guilty verdicts against both defendants on the murder and conspiracy counts. As a result, under the then-operative provisions of G.L.1956 (1969 Reenactment) § 11-23-2, as amended by P.L.1973, ch. 280, § 1, defendants were subject to the mandatory penalty of death. Imposition of the judgment, however, was arrested pending the outcome of appellate review of the various constitutional challenges that had been lodged against this statutory penalty. In State v. Cline, R.I., 397 A.2d 1309 (1979), the court ruled this mandatory death penalty constitutionally impermissible and on March 16, 1979, remanded the case now before us to the Superior Court for further proceedings, including the imposition of sentence. State v. Anthony, R.I., 398 A.2d 1157 (1979).

On remand a hearing was held on defendants' motions for a new trial. After four days of testimony the trial justice denied these motions, and on June 7, 1979, defendants were sentenced to the ACI for life on the murder charges and given ten-year consecutive sentences on the conspiracy charges. The principal challenges to these convictions presented by defendants on appeal are predicated upon the constitutional rights of speedy trial and confrontation guaranteed by the Sixth Amendment to the United States Constitution and article I, section 10, of the Rhode Island Constitution.

I Speedy Trial Issue

The defendants' claim of violation of their right to a speedy trial stems from the passage of some thirty-two months between the time they were first charged with Lombardi's murder, February 28, 1975, and the date they were eventually brought to trial, October 11, 1977. On the basis of this delay defendants sought dismissal of the indictments against them pursuant to Rule 48(b) of the Superior Court Rules of Criminal Procedure as well as the constitutional provisions cited.

Focusing first upon the Rule 48(b) motions, we note that although this rule was designed to implement the right of speedy trial it is actually far broader in scope than the guarantees contained in our Federal and State Constitutions. By its terms it confers upon the Superior Court the power to dismiss an indictment, information, or complaint solely because of unnecessary delay in bringing a defendant to trial. To come within its parameters, a defendant need only demonstrate that he or she is not responsible for the delay in question. The burden of showing justification for the delay then shifts to the state. However, because the rule vests such discretion in the court, a trial justice's ruling on this type of motion will not be set aside on appeal unless it constitutes a clear abuse of discretion. State v. Dionne, R.I., 442 A.2d 876, 881 (1982); State v. Fortier, R.I., 427 A.2d 1317, 1323 (1981); State v. Paquette, 117 R.I. 505, 510-11, 368 A.2d 566, 569 (1977); State v. Grover, 112 R.I. 649, 652, 314 A.2d 138, 139 (1974).

After reviewing the record, we find such an abuse of discretion, but only with respect to defendant DePari's motion. The only portion of the thirty-two-month period directly chargeable to DePari is that occurring from April 28, 1975, to June 5, 1975, as a consequence of his motion to strike the twenty-one-day trial notice he received in April 1975, and to enlarge the time in which to complete discovery. In contrast to this short delay of slightly more than one month, some twenty-eight months elapsed from the close of the discovery period until the commencement of trial. None of this latter period of delay is directly attributable to DePari. We therefore find that DePari's initial request to postpone trial in the very early stages of these proceedings in no way bars him from moving to dismiss the indictment under Rule 48(b). State v. Dionne, 442 A.2d at 881; see Dufield v. Perrin, 470 F.Supp. 687, 692 (D.N.H.1979) (defendant's motion to continue trial in order to consolidate indictment with other charges pending against him which resulted in temporary delay did not constitute a waiver of his speedy-trial right for period of delay occurring after indictments were consolidated).

To justify this lengthy delay, the prosecutor, at the July 6, 1977 hearing on defendants' speedy-trial motions, offered four reasons for the delay. He prefaced his explanation by stressing that the state at all times intended and strongly desired to proceed against both defendants in one consolidated trial. The first reason he gave related to the fact that defendant Anthony's counsel was an extremely busy defense attorney who for four months of this delay period had been engaged in trial in the celebrated "Bonded Vault" case. ¹ As a second reason he indicated that Anthony was already under indictment in another murder case at the time the indictments in the case at bar were returned against him and DePari. Anthony was tried and sentenced under this prior indictment while both he and DePari awaited trial for Lombardi's murder. And third, he noted that on September 26, 1975, DePari's court-appointed counsel was replaced by newly retained private counsel. Fourth and last, the prosecutor pointed out that the Superior Court took control of the trial calendar in January 1977 and thus, he argued, any delay occurring after that date should not be charged to the prosecution.

The first two reasons advanced by the prosecution do not justify the number of months DePari was forced to await trial. Both concern delays arising from Anthony's situation and are not attributable to DePari merely as a codefendant in the absence of some evidence that he acquiesced in or contributed to these delays. See Glass v. United States, 395 A.2d 796, 801 (D.C.App.1978); Commonwealth v. Thomas, 266 Pa.Super.Ct. 381, 384, 404 A.2d 1340, 1342 (1979). Indeed, the record indicates the contrary. Upon learning of these reasons for the delay, DePari's counsel immediately moved for a separate trial to avert any further delay that might result from the consolidation of the indictments. The state opposed any severance, and the trial justice denied the request. Although we recognize that the state has a significant interest in avoiding a duplicity of trials for joint defendants, we do not believe this interest sufficient to warrant the passage of nearly three years before DePari was brought to trial.

The prosecution's remaining grounds for the delay are similarly inadequate with respect to defendant DePari. The state cannot presume that an...