State v. Brann

• Decision Date: 15 June 1972
• Citation: 292 A.2d 173
• Parties: STATE of Maine v. Barry BRANN. STATE of Maine v. Gary STAPLES.
• Court: Maine Supreme Court

Page 173

292 A.2d 173

STATE of Maine v. Barry BRANN.

STATE of Maine v. Gary STAPLES.

Supreme Judicial Court of Maine.

June 15, 1972.

Jonathan R. Luce, County Atty., Farmington, for plaintiff.

Calvin B. Sewall, Wilton, for Brann.

Noyes & Beal by Robert J. Beal, Rangeley, for Staples.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

On April 2, 1970 the Franklin County Grand Jury returned to the Superior Court a separate indictment against each of the two present defendants. Except for the identification of the defendant, the indictments were identically worded. They charged, in three counts, commission of the offense of robbery in violation of 17 M.R.S.A. § 3401.

On January 18, 1971 each defendant filed a motion for a dismissal of the indictment against him. The motion of defendant, Brann, identified itself as filed pursuant to Rule 48(b) M.R.Crim.P. and asked dismissal of the indictment because there had been 'unnecessary delay' in bringing Brann to trial. The motion alleged that (1) Brann had not been notified, and had not otherwise become aware until October 1970, of the pendency against him of the April 2, 1970 indictment; (2) commencing with February 1970, he had been under the custodial control of New Hampshire authorities, being

'confined by New Hampshire authorities first at a New Hampshire County Jail and thereafter at the New Hampshire State Prison at Concord, New Hampshire where he is now (as of January 18, 1971) serving a sentence imposed by a New Hampshire Court'

and (3) Maine law enforcement officers knew of his whereabouts at least from and after February 1970. ¹

The motion filed by the defendant, Staples, made no explicit reference to any criminal rule. It asserted, as one ground to support dismissal, that defendant, Staples, had been deprived 'of a speedy trial as guaranteed by the state and federal constitutions' because of

'unnecessary delay in bringing Defendant (Staples) to trial, inasmuch as Defendant (Staples), who was indicted on this charge on April 2, 1970, and who requested prompt trial on or about May 13, 1970 in writing, has not until January 18, 1971 been brought to trial, although he has been available to the Court since February 1970.' ²

As a second ground of dismissal, the motion maintained that

'although on or about May 13, 1970, Defendant (Staples) in writing to the Franklin Clerk of Courts requested final disposition of the Indictment, over 180 days have now elapsed (as of January 18, 1971, the date of the motion) without the matter having been brought to trial, contrary to the intent of Title 34, Sections 1391 and 1392 of MRSA 1964.'

After an evidentiary hearing, in which defendant, Staples, stipulated a lack of actual prejudice and the defendant, Brann, left the issue open for proof but produced no evidence of actual prejudice, the presiding Justice denied each defendant's motion to dismiss. ³

On January 20, 1970 each defendant was separately arraigned and each entered a plea of not guilty. Under Rule 13 M.R.Crim.P., the Court ordered a consolidated trial of the two indictments since they concerned a single underlying factual situation as to which the offenses and the defendants could have been joined in one indictment.

Prior to trial (but after arraignment) the State elected to proceed on only one, and the same, count of the three counts in each of the indictments. Trial before a jury commenced on January 20, 1971 and was concluded on the same day. The jury found each defendant guilty of robbery. ⁴

On January 21, 1971 each defendant was sentenced and a separate judgment of conviction (including a commitment order) was entered. Each defendant has appealed to this Court from the judgment of conviction entered against him.

Both defendants have made the same statement of points on appeal-that the motion to dismiss filed by each should have been sustained because (1) there had been 'unnecessary delay' in providing trial, dismissal being '. . . required by Maine Rules of Criminal Procedure, Rule 48(b)', and (2) there had been a

'violation by the State of . . . (each) Defendant's right to receive a speedy trial as required by the constitution of Maine, Article I, Section 6.'

Although the point on appeal which relates to an alleged violation of the constitutional guarantee of a speedy trial specifies only the Constitution of Maine, the decision of the Supreme Court of the United States in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (by which the Federal Sixth Amendment guarantee of speedy trial became binding upon the States under the Federal Fourteenth Amendment) mandates that the law of the State of Maine may validly guarantee no less speedy trial protection than is federally afforded. We, therefore, treat the claim of the right to speedy trial under the Maine Constitution as including, automatically and at minimum, those benefits provided by the Federal Sixth Amendment guarantee of speedy trial.

Furthermore, we conclude that the designation as a point of appeal of a violation of the Rule 48, M.R.Crim.P. directive against 'unnecessary delay in bringing a defendant to trial' provides, in this appeal, no opportunity for defendants to be afforded protections additional to those conferred by the constitutional (federal or state) rights to a speedy trial. While there might be circumstances in which the discretionary authority conferred by Rule 48(b) M.R.Crim.P. could be appropriately operative even though constitutional protections might be insufficient to require such dismissal, here the presiding Justice exercised his Rule 48(b) discretion by refusing to order a dismissal of the indictments. Upon review, we should not consider this action by the presiding Justice an abuse of discretion requiring reversal were we to conclude that no violation of the constitutional directives as to speedy trial had occurred. ⁵

Disposition of the present cases will be governed, therefore, by decision of the issue pertaining to the 'speedy trial' guarantee contained in Article I, § 6 of the Constitution of Maine and the Federal Constitution's Sixth Amendment as it controls the State of Maine under the Fourteenth Amendment.

We consider, first, the speedy trial protections provided by the Federal Constitution since, as previously shown, these are the minimal protections which must be afforded the defendant.

By the decision of Smith v. Hooey, Judge, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) as reaffirmed in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) the State of Maine is under federal constitutional obligation to make a 'diligent good-faith effort' to bring before the appropriate Maine Court for trial one who is incarcerated in another jurisdiction and has a criminal charge pending against him in Maine-at least if such defendant has made a demand for trial. ⁶

In the present situation the defendant, Staples, had made a demand while he was incarcerated in New Hampshire. None was made, however, by the defendant, Brann.

Notwithstanding this factual difference in the two cases, we conclude that both cases may be decided without need to evaluate whether, under the doctrine of Smith v. Hooey, and Dickey v. Florida, a demand by the defendant is always essential to invoke the federal constitutional guarantee of speedy trial or whether it is unnecessary if the State which is seeking to prosecute knows that the defendant is being held incarcerated in another jurisdiction.

Such inquiry may be avoided because the present cases must be decided adversely to the defendants, and the relief sought by the defendants denied, on the ground that there is a lack of proof of actual prejudice to such interests of the defendants as are protected by the constitutional guarantee of speedy trial (federal or state).

In Dickey v. Florida, supra, the concurring opinion of Brennan, J., expressly directs attention to the role of prejudice in relation to the constitutional guarantee of speedy trial and the complexities generated by it. The opinion emphasizes that especially when the defendant is seeking a dismissal of the charges against him, rather than that he be afforded a trial without further delay:

'The discharge of a defendant for denial of a speedy trial is a drastic step, justifiable only when further proceedings against him would harm the interests protected by the Speedy Trial Clause.' (p. 52, 90 S.Ct. p. 1576) (emphasis supplied)

For this reason, the opinion makes the further observation:

'Thus it is unlikely that a prosecution must be ended simply because the government has delayed unnecessarily, without the agreement of the accused.' (p. 52, 90 S.Ct. p. 1576) (emphasis supplied)

Having acknowledged this much, the concurring opinion of Justice Brennan in Dickey further recognizes that although

'prejudice seems to be an essential element of speedy-trial violations', (p. 53, 90 S.Ct. p. 1576) (emphasis supplied)

there are additional problems concerning appropriate allocations, either generally or in the light of special circumstances, of the ultimate burdens of proof and the burdens of coming forward with evidence.

Although first acknowledging that:

'When the Sixth Amendment right to speedy trial is at stake, it may be . . . realistic and necessary to assume prejudice once the accused shows that he was denied a rapid prosecution.' (p. 55, 90 S.Ct. p. 1577) (emphasis supplied),

Justice Brennan additionally recognizes:

'The difficulty in such an approach, of course, lies in determining how long a prosecution must be delayed before prejudice is assumed. It is likely that generalized standards would have to be developed to indicate when during the course of a delay there arises a probability of substantial prejudice. Until delay exceeds that point, the burden most probably would remain on the accused to show that he was actually harmed.' (p. 55, 90 S.Ct. p. 1577) (emphasis...