State v. Crapo

• Decision Date: 26 February 1974
• Docket Number: No. 1743-E,1743-E
• Citation: 112 R.I. 729,315 A.2d 437
• Court: Rhode Island Supreme Court
• Parties: STATE v. Richard N. CRAPO. x. &c.

Page 437

315 A.2d 437

112 R.I. 729

STATE v. Richard N. CRAPO.

No. 1743-Ex. &c.

Supreme Court of Rhode Island.

Feb. 26, 1974.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., R. Raymond Greco, Sp. Asst. Atty. Gen., for plaintiff

Toro Law Associates, Inc., Eugene F. Toro, Providence, for defendant.

OPINION

PAOLINO, Justice.

This case is before us on the state's bill of exceptions under G.L. 1956 (1969 Reenactment) § 9-24-32 ¹ to a decision of a Superior Court justice granting defendant's motion to dismiss an indictment against him on the ground that the defendant's right to a speedy trial had been violated.

This appeal raises a novel question, namely, whether in the circumstances of this case, a pre-indictment delay of nearly three years was sufficient to justify dismissal of the indictment.

The transcript of the hearing on defendant's motion to dismiss discloses the following pertinent facts. On September 10, 1968, defendant was arrested by the Providence Police Department and charged with carrying a firearm without a license in violation of § 11-47-8. On September 11, 1968, defendant, while represented by counsel, was arraigned in the District Court, Sixth Division and pleaded not guilty. He was then released on bail and the case was continued. The record shows that nothing further took place until defendant was secretly indicted nearly three years later.

At the time of his arrest by the Providence police, defendant was on parole from a Massachusetts prison. As a result of the Rhode Island charge, he was adjudged a violator of the Massachusetts parole and was ordered to serve the remaining two and one-half years of his original term. He began serving this term in February 1969. After serving a portion of that term he again became eligible for parole. However, he was advised by the parole board that it was not their policy to reparole anyone who was subject to an outstanding and unresolved warrant. Pursuant to the parole board's advice that he dispose of this pending charge, defendant in February or March of 1969 wrote to the District Court requesting that he be brought to trial as quickly as possible. Getting no response, he wrote a second letter to the District Court about three weeks later and again requested that his case be brought to trial. Again he received no response.

In March or April of 1969, he wrote to his attorney requesting that his case be brought to court so that he could dispose of the matter. His attorney replied that the date of the trial was a matter over which he had no power since he did not control the court calendar.

The defendant then wrote to Lieutenant William Lawton of the Providence Police Department, who was the chief investigator of his case. He asked Lieutenant Lawton if he could bring the matter to court because he had been frustrated by other attempts. He received no reply from Lieutenant Lawton.

The defendant testified that the parole board persisted in their refusal to reparole him while the Rhode Island warrant was outstanding. In addition to the denial of parole he was also precluded from engaging in any of the rehabilitation programs sponsored by the prison, such as work release or forestry.

In the summer of 1971, defendant wrote a letter to the Attorney General of this state requesting that the pending charges against him be dismissed. As a result of this letter defendant was secretly indicted on August 31, 1971, and arraigned on September 28, 1971. ²

At the hearing on November 29, 1971, defendant, represented by present counsel, filed a motion to dismiss the indictment on the ground that his sixth-amendment right to a speedy trial had been violated. The decision on the motion was given on December 8, 1971. The trial justice recounted the efforts made by defendant to secure a speedy disposition of his case. He also explained how the failure to dispose of the Rhode Island charges affected defendant with respect to his inability to make parole in Massachusetts or to enjoy other benefits while serving his term there. Finally he stated that during the delay one of defendant's witnesses died.

In the absence of a satisfactory explanation by the state for the delay, the trial justice held that under the circumstances in the case, he would grant defendant's motion because defendant was prejudiced by the extreme length of time between the arrest and the indictment which was not only unreasonable, but also unexplained. He noted that there was an unjustifiable delay of almost three years which resulted in the loss of a defense witness considered vital by defendant and who might be so considered. Further, in granting the motion, he pointed out that this case presented a somewhat novel case in this state, because it involved a pre-indictment delay. Notwithstanding the novelty of the situation, the trial justice believed the motion should be granted and in doing so he gave weight to the rationale of the court in United States v. Colitto, 319 F.Supp. 1077 (E.D.N.Y.1970), a case which also involved a delay between arrest and indictment.

In urging error the state relies to a great extent on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). ³ After discussing the four factors which the Court in that case suggested should be asserted in determining whether defendant was deprived of his right to a speedy trial, that is, length of delay, reason for the delay, assertion of the right, and prejudice, the state concluded that the trial justice erred in granting defendant's motion. For the reasons which follow we find no merit in the state's arguments and, therefore, affirm. We hold that Barker v. Wingo, supra, and our own case of Tate v. Howard, 110 R.I. 641, 296 A.2d 19 (1972), are controlling here and support the trial justice's decision. In addition, his decision is supported by Moore v. Arizona, 414 U.S 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), which was decided on November 5, 1973.

Before considering the specific point argued by the state, we note that during oral argument before us the prosecuting attorney stated that he was raising no issue about the fact that this case involved a pre-indictment delay. He admitted that the fact that the delay took place between the arrest and the indictment had no legal significance with respect to defendant's right to a speedy trial, because he was an 'accused' within the meaning of the sixth amendment. In view of the state's position this question requires no further discussion.

I. Length of Delay

In discussing this factor the state merely makes a comparison between the unjustifiable delay of over four years in Barker v. Wingo, supra, and the nearly three-year delay in the case at bar and concludes that since the delay here was substantially less than in Barker the trial justice erred in finding a violation of defendant's right to a speedy trial in this case. There is no merit to this argument. It is true that in Barker the Court held that a four-and-one-half-year delay in the circumstance of that case did not violate the defendant's right to a speedy trial, but the reason for so holding was the fact that the Court considered two counter-balancing factors which offset the otherwise ordinarily impermissible delay of over four years.

We considered this question only recently in Tate v. Howard, supra, where we pointed out that in the Barker case the Court said that the right to a speedy trial is a relative one and that the determination of the time within which trial must be had to satisfy the guarantee is dependent upon the facts and circumstances of each case with due consideration being given to the following four factors, namely, length of delay, reason for the delay, assertion of one's sixth-amendment right, and prejudice to the accused. Thus, the passage of time, standing alone, is not enough to justify a holding that the guarantee to a speedy trial has been violated. See note 5 in Tate v. Howard, supra. Other factors must be considered. As the Court said in Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117:

'The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.'

II. Reason for the Delay

The state presented no evidence in the Superior Court hearing to explain the delay. In its brief it readily and frankly admits that it is somewhat at a loss to account for it. The state now claims that the delay was caused by the peculiar system in Rhode Island whereby the prosecution in this case was under the control of the City Solicitor's Department of the City of Providence until such time as defendant was bound over to the grand jury. In the circumstances, the state argues, the Attorney General's Department had no knowledge of defendant's arrest and therefore was not in a position to act.

We do not question the truth of the state's statement relative to the lack of knowledge by the Attorney General's Department of the fact of defendant's arrest. However, for the purpose of determining any possible violation of defendant's sixth-amendment right to a speedy trial the city must be considered as acting as an agent of the state in carrying out a state function, and the City Solicitor's Department and that of the Attorney General must be considered as a single unit. On this record the only reasonable conclusion is that the delay experienced by this defendant was caused by the state through inadvertence on the part of the municipal prosecuting authorities and through a lack...