State v. Barnes

• Decision Date: 06 December 1979
• Docket Number: No. 78-224-C,78-224-C
• Citation: 122 R.I. 451,409 A.2d 988
• Parties: STATE v. Elbert BARNES and Dennis R. Gomes. A.
• Court: Rhode Island Supreme Court

Page 988

409 A.2d 988

122 R.I. 451

STATE v. Elbert BARNES and Dennis R. Gomes.

No. 78-224-C.A.

Supreme Court of Rhode Island.

Dec. 6, 1979.

[122 R.I. 460] Dennis J. Roberts II, Atty. Gen., John E. Migliaccio, Asst. Atty. Gen., for plaintiff.

Mary E. Levesque, Asst. Public Defender, for defendant Dennis R. Gomes.

Anthony E. Grilli, Providence, for defendant Elbert Barnes.

OPINION

DORIS, Justice.

This is an appeal from a judgment of conviction for simple assault entered following a jury trial in the Superior Court. The defendants claim that the trial justice abused his discretion in denying the defendants' motion for a continuance and that he erred in denying their motion for a new trial.

The defendants, Elbert Barnes and Dennis R. Gomes, were inmates at the Adult Correctional Institutions (ACI). On November 19, 1976, there was a disturbance at the ACI during which a group of inmates dragged a fellow inmate, one Jackie Hogue, from his cell and threw him over a railing to the floor some twelve feet below. ¹ Barnes, Gomes, and another inmate were charged with assault with intent to murder Hogue. Prior to the trial, Hogue left Rhode Island because the state had dismissed the charges against him. Hogue could not be located at the time of the trial and the state therefore proceeded without him. The defendants did not learn of Hogue's disappearance until the day before the trial. On the first day of trial, defendants moved for a continuance on the grounds that Hogue, if available, would contradict the state's witnesses and would testify that neither Barnes nor Gomes had assaulted him. The defendants, however, had made no efforts to locate Hogue before the trial and could give no assurances either that he would be available later or that he would testify on their behalf. The trial justice, noting this omission and the absence of any evidence demonstrating the materiality of Hogue's testimony to the defense, denied the motion.

At trial two officers from the ACI, Ronald Toher and Louis Ricci, testified that Barnes, Gomes, and other inmates had entered Hogue's cell, beaten him, and thrown him over the railing. Two other officers who had been present at the disturbance could identify neither defendant as Hogue's assailant. A defense witness, an inmate at the ACI at the time of the assault, testified that he did not see Gomes touch Hogue in any way as Hogue went over the railing. After hearing this evidence, the trial justice granted defendants' motion for a judgment of acquittal on the charges of assault with intent to murder. The trial justice stated that the lesser-included offense of simple assault clearly had been established, and he instructed the jury on that offense. The jury found both Barnes and Gomes guilty of assault.

The defendants subsequently moved for a new trial, alleging that the verdict was against the law, against the evidence, against the law, and the evidence and the weight thereof. The trial justice, after noting that he was obliged to pass on the weight of the evidence and the credibility of the witnesses, stated that the only testimony that was critical to the state's case was that of Officers Toher and Ricci. Stating that the jury had relied on this testimony, the trial justice also noted that the testimony had been "to some degree challenged successfully by" defense counsel. Nonetheless, he emphasized that he was satisfied that there was sufficient evidence to support the jury's finding; and, accordingly, he denied the motion for a new trial.

Denial of a Motion for Continuance

A motion for a continuance is within the sound discretion of the trial justice and will not be reversed by this court absent an abuse of discretion. State v. Levitt, 118 R.I. 32, 41, 371 A.2d 596, 601 (1977). The trial justice, however, must exercise his discretion consistently with a criminal defendant's sixth amendment right to compulsory process for obtaining witnesses on his behalf. State v. Patriarca, 112 R.I. 14, 37, 308 A.2d 300, 315 (1973). A reasonable adjournment of the trial may thus be necessary to effectuate the defendant's constitutional right to a full defense. State v. Carillo, 113 R.I. 32, 39-40, 317 A.2d 449, 454 (1974). A defendant is not entitled to a continuance, however, as a matter of course. Whether the denial of a motion for a continuance violates the defendant's due process rights depends on the circumstances of each case, "particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Leonardo, R.I., 375 A.2d 1388 (1977). In order to establish that a denial constitutes an abuse of discretion, a defendant must show "that the testimony of the absent witness would be material; * * * that he had used due diligence to procure the attendance of the witness or his deposition; * * * that it is reasonably certain that the presence or testimony can be procured at the time to which the trial would be postponed; and * * * that such testimony be not merely cumulative." State v. Patriarca, 112 R.I. 14, 38, 308 A.2d 300, 315 (1973).

Barnes and Gomes claim that Hogue's presence was necessary because his testimony would contradict that of Officers Toher and Ricci and because he could not identify defendants as his assailants. Though the trial justice found that defendants did not demonstrate the materiality of Hogue's testimony, defendants now claim that the "probable inability of" Hogue to identify them was material to their defense.

The "material facts" of an issue of fact are those necessary to determine the issue. Black's Law Dictionary 881 (5th Ed. 1979). It is doubtful that any testimony given by Hogue would have determined the issue of defendants' guilt because the testimony would not necessarily have exculpated defendants. The defendants argue that "Hogue may well have testified" that defendants did not assault him and that he could recognize his assailants. Although Hogue did fail to identify either of defendants when shown photographs of them despite his earlier statement that he could identify the attackers, the claim of defendants regarding the likely content of Hogue's testimony appears speculative. The same factors that defense counsel cited in challenging the perception of the state's witnesses the poor lighting, the commotion and confusion would apply equally to Hogue and could account for his failure to identify the photographs of defendants. Additionally, in the very short time that Hogue had been incarcerated at the ACI prior to the assault, he most likely had not had the opportunity to become sufficiently acquainted with either Barnes or Gomes to identify them. Because Hogue's testimony would not in any likelihood affirmatively exculpate defendants, it appears to us to lack the materiality regarding the guilt of defendants as required by State v. Patriarca, 112 R.I. 14, 38, 308 A.2d 300, 315 (1973).

As this court intimated in Patriarca, a court may properly deny a motion for a continuance if the movant fails to establish any of the four conditions set out in that opinion. The defendants' failure to show that Hogue's testimony was material to their defense therefore provides adequate grounds for upholding the trial justice. In addition, it is our opinion that defendants have failed to carry their burden under the remaining elements of the Patriarca test as well.

The defendants argue that they had "every right to assume that the State would call" Hogue to testify at trial. They rely on the lack of notice until the day before trial as reason for not having acted to procure Hogue's attendance at trial. Granted, the little time defendants had before trial probably precluded them from successfully obtaining Hogue's attendance or testimony. Yet, it appears somewhat inconsistent with the concept of due diligence that defendants, believing Hogue's testimony to be exculpatory, took no steps during the ten months before trial to insure that Hogue would be present. The failure of defendants to have taken the initial steps necessary to secure Hogue's presence may further attenuate their claim of due diligence. Prior to granting a motion, a court may require that a defendant seeking a continuance take at least the initial steps necessary to obtaining the presence of a witness for trial. United States v. Uptain, 531 F.2d 1281, 1289 (5th Cir. 1976). The defendants' attorneys must therefore exercise all reasonable diligence to prepare for trial despite time constraints. Id. at 1291. The trial court may require such efforts as a means of insuring "that the motion (for a continuance) is made for reasons other than delay." Id.

In these circumstances we hold that defendants, by failing to take any positive action in procuring Hogue's presence at trial, failed to exercise reasonable diligence in preparing for the trial.

The third of the Patriarca guidelines, a reasonable certainty that the testimony sought can be procured at the later time, appears clearly unsatisfied. In fact, defendants sought the continuance "in order to attempt to locate Mr. Hogue, * * * and determine if Mr. Hogue were available to testify, and if he would testify for the defense." The defendants, being unable to show that Hogue would testify for the defense, have failed to show that Hogue's testimony would not be merely cumulative, the final...