State v. Burke, 86-180-C

• Decision Date: 27 July 1987
• Docket Number: No. 86-180-C,86-180-C
• Citation: 529 A.2d 621
• Parties: STATE v. William BURKE and Kelly Crosby. A.
• Court: Rhode Island Supreme Court

Page 621

529 A.2d 621

STATE v. William BURKE and Kelly Crosby.

No. 86-180-C.A.

Supreme Court of Rhode Island.

July 27, 1987.

James E. O'Neil, Atty. Gen., Annie Goldberg and Thomas Dickinson, Asst. Attys. Gen., for plaintiff.

Daniel McKinnon, McKinnon & Harwood, Pawtucket, for Burke.

William Reilly, Public Defender, Paula Rosin, Barbara Hurst, Asst. Public Defenders, for Crosby.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal by the defendants William Burke and Kelly Crosby from judgments of conviction entered after a jury trial in the Superior Court. The defendants Burke and Crosby were found guilty of seven counts of robbery, and one count of assault with intent to rob. Burke was also convicted of carrying an unlicensed pistol. We affirm.

On December 20, 1982, two armed men wearing masks and gloves entered Foley's Lounge in Cumberland, Rhode Island, robbed several patrons and employees of the bar, and fled. Shortly thereafter, defendants Burke and Crosby were arrested and charged in connection with the robbery. Two employees of the lounge recognized the voice of one of the robbers as that of defendant Burke, a regular patron of Foley's Lounge. A witness at trial testified that defendants Burke and Crosby admitted their involvement in the Foley's Lounge robbery in the course of asking him to retrieve for them certain evidence connecting them with the crime. The defendants raise a number of issues on appeal. Additional pertinent facts will be set forth as is necessary to further the discussion of each issue raised.

I RULE 48(b) MOTION

Both defendants assert that a Superior Court justice clearly abused her discretion in denying their Rule 48(b) motions to dismiss their indictments for lack of speedy trial. The defendants were arraigned on March 7, 1983. Their motions for new trial were heard and denied on September 17, 1984. Eighteen months, therefore, elapsed between the time defendants were indicted and the denial of their Rule 48(b) motions. A trial of the case commenced in September of 1984 but resulted in the declaration of a mistrial. The case was not tried to its conclusion until June, 1985.

The state suggests in its brief that Rule 48(b) of the Superior Court Rules of Criminal Procedure is inapplicable to the case at bar because the rule was repealed prior to defendants' trial in 1985. We disagree. Rule 48(b) was repealed by a Superior Court order dated June 17, 1982, and approved by order of this court dated November 21, 1984. The rule, therefore, was in effect when defendants' speedy trial motions were heard and decided on September 17, 1984.

In State v. Borges, 519 A.2d 574 (R.I. 1986), we held that a defendant's case could not be dismissed under Rule 48(b) when that defendant's motion to dismiss was not filed until after the rule was repealed. In so doing, we held that repeal of the rule did not violate constitutional prohibitions against ex post facto laws. Id. at 576. Similarly, in State v. Nordstrom, 529 A.2d 107 (R.I.1987), we determined that dismissal under Rule 48(b) was not an available remedy when repeal of the rule preceded a hearing on the motion to dismiss. In this case, however, the Rule 48(b) motion was fully litigated and decided prior to repeal of the rule. Because defendants' motions were heard and ruled upon prior to the repeal of Rule 48(b), this case continues to be governed by the rule. See State v. Fenner, 503 A.2d 518, 523 n.1 (R.I. 1986); State v. Boss, 490 A.2d 34, 35 n.2 (R.I. 1985).

The defendants assert that the justice was clearly wrong in denying their motions to dismiss on the ground of "unnecessary delay." We disagree. Rule 48(b) vests great discretion in the trial justice, and this court will not disturb a decision rendered under the rule absent a clear showing of abuse. E.g., State v. Long, 488 A.2d 427 (R.I. 1985); State v. Brown, 486 A.2d 595 (R.I. 1985); State v. Macaskill, 475 A.2d 1024 (R.I. 1984). The defendants argue, and we agree, that delay resulting from the fact that defense counsel is engaged in the trial of another matter, is not delay properly attributable to a criminal defendant. See State v. Anthony, 448 A.2d 744 (R.I. 1982). The responsibility for conflicting trial engagements should not be borne by a defendant since neither the defendant nor his counsel have control over trial scheduling. Fenner, 503 A.2d at 523; Anthony, 448 A.2d at 750.

Even if we were to determine, however, that court scheduling constituted the sole reason for delay in this case and that no portion of the delay was, therefore, properly attributable to defendants, we cannot say that the justice abused her discretion in declining to dismiss the indictments under Rule 48(b). We have stated that delay occasioned by the fact that a defendant's counsel was engaged in another trial is a neutral event for which neither the defendant nor the state is responsible. Fenner, 503 A.2d at 523. Rule 48(b) applies only to "unnecessary" delays. Delays attributable to conflicting trial engagements are not "unnecessary" within the meaning of Rule 48(b). Indeed, the very nature of the judicial process contemplates delays which arise due to conflicts in court scheduling since nearly all counsel are, at any given time, responsible for the representation of more than one client and the scheduling of cases for trial may not always accommodate the schedules of the trial attorneys. Conflicting engagement of counsel is perhaps the most intractable problem encountered in the assignment of cases, both civil and criminal. In every jurisdiction the trial bar, and particularly the criminal trial bar, consists of relatively few attorneys (including public defenders) who represent a great many clients. See generally Barratt, Criminal Justice: The Problem of Mass Production, in The Courts, The Public and The Law Explosion 85 (Harry W. Jones ed. 1965); Rosenberg, Court Congestion: Status, Causes and Proposed Remedies, In The Courts, The Public and The Law Explosion (Harry W. Jones ed. 1965). We take judicial notice of the well known fact that in Rhode Island the criminal trial bar, including trial lawyers on the staff of the Public Defender and Attorney General, consists of less than 100 persons (out of a total of more than 3000 lawyers). In Providence and Bristol counties alone, 3,181 felony cases were disposed during 1986. In Kent county, 677 felony cases were disposed. Throughout all counties, 4,368 felony cases were filed during this period. See Court Statistics: A Quarterly Management Report 2-3 (December 1986). These figures illustrate the fact that a relatively small number of attorneys, both prosecutorial and defense, are required to participate in the processing of a very large number of cases. Until a method is devised to solve the problem of conflicting engagements, delays in scheduling are and will be a necessity and an unavoidable attribute of the judicial system. Consequently, delays resulting from conflicting engagements cannot be termed "unnecessary" for purposes of applying Rule 48(b). The motion justice, therefore, did not abuse her discretion in denying defendants' motion to dismiss for unnecessary delay.

II THE TESTIMONY OF DENISE LAMOUREUX

The defendants both argue that a Superior Court justice erred in declining to suppress the testimony of Denise Lamoureux concerning conversations that she had with both defendants on November 4, 1984. Ms. Lamoureux had been present during the robbery which took place on December 20, 1982. At that time she recognized the voice of one of the robbers as that of William Burke. She also recognized his profile under a stocking mask that he wore.

On October 29, 1984, Ms. Lamoureux was working as a waitress at the St. James Hotel in Woonsocket. She was approached by Burke who asked her whether she knew that he was one of the robbers at Foley's Lounge. He then ended the conversation by saying, "Well, you do what you have to do and I will do what I have to do." Burke then proceeded to watch her from the far end of the lounge for the rest of the evening.

After reflecting on this conversation for a couple of days, Ms. Lamoureux went to the Woonsocket Police and told them that she was in fear of going to work and didn't know what to do. Officer Gordon Tempest suggested that she go to work, but that she wear a sound transmitter while working. The transmitter would be monitored by policemen in plainclothes. The next Friday Ms. Lamoureux went to work and was approached by both defendants Crosby and Burke. She stated to Crosby, "My gripe is not with you. It is with Billy and if I talk to somebody, it is going to be him." Burke was behind her and came over at Crosby's signal. Ms. Lamoureux asked Burke what he meant by the statement, "You do what you have to do and I will do what I have to do." Burke responded that she had no reason to be afraid of him. He then asked her how much money she had lost in the robbery. The following colloquy ensued as set forth in Ms. Lamoureux's testimony at the trial.

"A. I said, 'One hundred dollars.' It wasn't the same. I said one hundred dollars.

"Q. After you said that, did he say something?

"A. He said, 'I will give you two hundred dollars if you forget you heard my voice.'

"Q. Did he say, 'My voice.'?

"A. 'If you forget you heard my voice.'

"Q. Did he say, 'My' or did he use his name?

"A. He used his name.

"Q. What do you remember exactly what he said, Miss Lamoureux in reference to the money?

"A. All he said was, 'I will give you two hundred dollars to forget you heard Billy Burke's voice that night.' And then I didn't say nothing and he proceeded to offer me three hundred, four hundred and five hundred dollars."

It should be noted that the recording of Ms. Lamoureux's conversation was not used, although she did use the transcript of the recording in order to refresh her recollection. The testimony that she gave in court was her own testimony unassisted by and unsupplemented by the recording that had...