State v. Austin, 81-357-C

• Decision Date: 21 June 1983
• Docket Number: No. 81-357-C,81-357-C
• Citation: 462 A.2d 359
• Parties: STATE v. Thomas H. AUSTIN. A.
• Court: Rhode Island Supreme Court

Page 359

462 A.2d 359

STATE v. Thomas H. AUSTIN.

No. 81-357-C.A.

Supreme Court of Rhode Island.

June 21, 1983.

Dennis J. Roberts II, Atty. Gen., Barry N. Capalbo, Sp. Asst. Atty. Gen., for plaintiff.

Robert B. Mann, Providence, for defendant.

OPINION

BEVILACQUA, Chief Justice.

The defendant, Thomas Austin, was tried and convicted before a jury in the Washington County Superior Court on an information charging him with breaking and entering a business establishment in the nighttime with intent to commit larceny on May 14, 1977, in violation of G.L. 1956 (1969 Reenactment) § 11-8-4. His motion for a new trial was denied, and he is now before us on appeal and assigns as error certain evidentiary and other rulings.

The record discloses that at approximately 3:45 a.m., on May 14, 1977, Patrolman Glen Browning, in response to a silent alarm, proceeded to the Twin Willows Lounge, located on Boston Neck Road in Narragansett, Rhode Island. He spotted a figure inside the building and, after calling for assistance, drove to the rear of the lounge where he saw two people emerge through a broken sliding glass door. Browning pursued them on foot as they fled to the front of the building and onto Boston Neck Road.

After a short distance one suspect ran off the road into a wooded area while the other suspect continued his flight down the road even after Browning had identified himself and fired a warning shot. The patrolman apprehended the second suspect when he turned off the road into the woods. This suspect, subsequently identified as defendant Thomas Austin, was placed under arrest and handcuffed.

Browning then escorted Austin back toward the lounge. When the patrolman turned away from Austin to assist other police officers in apprehending the other suspect, Austin fled. The police recaptured him, still handcuffed, approximately four hours later in the vicinity of the lounge.

I

The defendant initially claims that the trial justice erred in denying his motion to dismiss the charge because of a lack of a speedy trial, in violation of the Sixth Amendment to the United States Constitution and art. I, sec. 10, of the Rhode Island Constitution, which guarantee a defendant a speedy public trial. Alternatively, defendant contends that dismissal was warranted under Rule 48(b) of the Superior Court Rules of Criminal Procedure because of unnecessary delay in bringing him to trial.

Although a speedy trial is guaranteed by both Federal and State Constitutions, a court must determine if and when the accused is denied this "fundamental right." In judging whether there has been a violation of this constitutional right of the accused, the court must consider the criteria set out by the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See Tate v. Howard, 110 R.I. 641, 296 A.2d 19 (1972). The four factors to be considered are (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the right by the accused, and (4) the prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. Accordingly, we shall analyze defendant's claim in light of these four factors.

A. Length of the Delay

The time that elapsed between defendant's arraignment and his trial was over three and one-half years. Needless to say, all parties agree that the length of the delay warrants an examination of the remaining three factors.

B. Reason for the Delay

The defendant emphatically asserts that none of the delay is attributable to him. However, the record indicates otherwise. After reviewing the circumstances of this case, we conclude that defendant contributed to the delay in two ways.

First, the case was continued several times at the request of a private attorney, on behalf of defendant. The defendant, however, argues that because his attorney never received an order of appointment from the court and never filed an entry of appearance, the attorney's actions and the delay resulting therefrom cannot be attributable to him. These arguments are without merit.

The record shows that initially the court referred defendant to the Public Defender, who subsequently referred him to a private attorney because of the conflict of interest arising out of the Public Defender's representation of a codefendant. The defendant met with the attorney and agreed to have him as his counsel. Thereafter, the Attorney General's office and the Superior Court dealt with the attorney as defendant's counsel from 1977 to 1980. During this period, the attorney requested continuances on defendant's behalf and delayed the progress of this case several times when conflicts arose in his trial schedule. In the latter part of 1980, the attorney apparently dropped out of the case and defendant was without counsel. The defendant was again referred to the Public Defender. After the Public Defender reestablished a conflict of interest, the court referred defendant to another private attorney, who ultimately represented defendant at trial.

The defendant attempts to divorce himself from the actions of the attorney he was initially referred to by relying on the lack of an entry of appearance by him. The defendant's reliance on this technicality is misplaced. ¹ The attorney-client relationship does not arise solely by virtue of the filing of an entry of appearance. Rather, it is the product of an agreement of the parties and may be implied from their conduct. See State v. Cline, R.I., 405 A.2d 1192, 1199 (1979). A review of the record discloses that an agreement did exist between defendant and the attorney, and the existence of an attorney-client relationship may reasonably be implied from their conduct. This court has previously indicated that when an attorney-client relationship exists, the client may not pick and choose which of his attorney's actions shall bind him. See State v. Carvalho, R.I., 450 A.2d 1102, 1104 (1982); cf. Brown v. State, 328 So.2d 497 (Fla.App.1976) (per curiam) (right to speedy trial waived when defendant's attorney requests continuance with or without consent and knowledge of defendant); People v. Steele, 127 Ill.App.2d 366, 262 N.E.2d 269 (1970) (defendant bound by actions of attorney in requesting continuances thereby delaying trial though defendant never consented to requests). Therefore, defendant may not now divorce himself from his attorney's actions in contributing to the delay by requesting several continuances.

Furthermore, during the time between arraignment and trial on the charges in this case, defendant was in and out of court several times on other criminal charges. The defendant is responsible for any delay resulting from the indictment and trial of these other criminal matters. See State v. Anthony, R.I., 448 A.2d 744, 749 (1982).

The record discloses other factors contributing to the delay, such as the summer recess and the crowded docket. However, such factors are neutral and not weighed against the state as heavily as tactically motivated delays. See Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Anthony, R.I., 448 A.2d at 750.

C. Assertion of the Right

An examination of the record reveals minimal effort on the part of defendant to make his desire for a speedy trial known to the court until the latter part of 1980. In 1977, at defendant's arraignment, defendant made an oral request for a speedy trial. No further oral or written requests were made until October of 1980 when defendant began to express orally his desire for a speedy trial each time he appeared in court. No written request was ever filed by an attorney for defendant. ² The defendant contends that he did not make any request or motion during this period because he thought the case had been dismissed. There is no basis for defendant's belief because his case was regularly assigned and reassigned on the calendar and no notice of dismissal was ever sent out.

The facts that defendant never made a written demand and that over three years elapsed between defendant's initial oral request for a speedy trial and any further demands clearly demonstrate a lack of effort on defendant's part in asserting his right. We cannot say that defendant's conduct constituted the "banging on the courthouse doors" that we found persuasive in Tate v. Howard, 110 R.I. 641, 656, 296 A.2d 19, 27 (1972). See State v. Allan, R.I., 433 A.2d 222, 224 (1981) (speedy-trial motion filed twelve days after arraignment and not renewed until after defendant called case ready for trial not sufficiently aggressive assertion of right); State v. DeMasi, R.I., 419 A.2d 285, 290 (1980) (oral motion for speedy trial one month after indictment and written motion to dismiss for lack of speedy trial twenty months later not persuasive). The lack of aggressive demand for a speedy trial does not alone constitute a waiver, but it is an important factor that militates against defendant's position, particularly when defendant is at least partially responsible for the delay. See State v. Anthony, R.I., 448 A.2d at 750.

D. Prejudice to Defendant

The defendant asserts that the delay prevented a necessary jury view because, during the period between the alleged crime and the trial, structural changes had been made on the Twin Willows because of a fire. The defendant also contends that the owner of the lounge suffered some loss of memory and one of his witnesses was unavailable as a result of the delay.

We cannot find any prejudice to defendant as a result of the delay. In light of the testimony received and the circumstances of the alleged crime, a view of the scene was not necessary. The owner of the lounge had some difficulty in recalling certain facts, but his testimony, or lack thereof, on these subjects did not substantially prejudice the defense. The loss of the witness cannot be prejudicial because defendant in fact waived the appearance of that witness during...