State v. Crescenzo

• Decision Date: 19 July 1977
• Docket Number: No. 76-202,76-202
• Citation: 375 A.2d 933,118 R.I. 662
• Parties: STATE v. Grace C. CRESCENZO. C.A.
• Court: Rhode Island Supreme Court

Page 933

375 A.2d 933

118 R.I. 662

STATE v. Grace C. CRESCENZO.

No. 76-202 C.A.

Supreme Court of Rhode Island.

July 19, 1977.

[118 R.I. 670] J. Joseph Nugent, Providence, for defendant.

Julius Michaelson, Atty. Gen., Nancy Marks Rahmes, Sp. Asst. Atty. Gen., Providence, for State.

OPINION

PAOLINO, Justice.

This is an appeal from a judgment denying postconviction relief sought on the basis of the defendant's claim that she was deprived of her constitutional right to a speedy trial.

On November 29, 1968, a secret indictment charging Grace C. Crescenzo with embezzling was handed down by the grand jury. She was tried and convicted on that charge in December 1972. Ms. Crescenzo appealed that conviction to this court on a number of grounds, including denial of a speedy trial. In an opinion denying her appeal, we did not reach the issue of a speedy trial because of the inadequacy of the record before us. State v. Crescenzo, 114 R.I. 242, 251, 332 A.2d 421, 427 (1975). The defendant then sought postconviction relief, and after a hearing on this issue, a justice of the Superior Court found no such denial of her right to a speedy trial. It is from the judgment entered pursuant to that decision that defendant now appeals.

This court has repeatedly stated that the right to a speedy trial under our State and Federal Constitutions is a relative one and must be examined within the framework of the particular case. State v. McDonough,115 R.I. 383, 347 A.2d 41 (1975); State v. Rollins, 113 R.I. 280, 320 A.2d 103 (1974); State v. Crapo, 112 R.I. 729, 315 A.2d 437 (1974); State v. King, 112 R.I. 581, 313 A.2d 640 (1974); Tate v. Howard, 110 R.I. 641, 296 A.2d 19 (1972). Such an examination is to be made with an eye to balancing the four factors set out by Mr. Justice Powell in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); (1) length of delay; (2) reason for delay; (3) assertion of one's right to speedy trial; and (4) prejudice to the accused. As always, the application of these factors and their weighing is not an easy task.

The defendant claims the delay of 4 years between her indictment and trial is presumptively prejudicial. We note, however, that "(t)he passage of time, standing alone, does not justify a holding that the guarantee to a speedy trial has been violated." State v. Rollins, supra, 113 R.I. at 284, 320 A.2d at 106, relying on United States v. Daley, 454 F.2d 505 (1st Cir., 1972). The length of delay is one factor among the four, albeit the triggering one. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Crapo, supra, 112 R.I. at 734, 315 A.2d at 440.

The next factor to be weighed must be the reason for delay. From the testimony below of prosecuting attorneys who handled this case for the state, certain basic reasons for delay emerge. The case was first assigned to the attorney who had presented it to the grand jury. His simultaneous assignment to another long and complex criminal trial, however, precluded extensive work on Ms. Crescenzo's case. Thus, the state's position is that priority should be given to what it sees as more serious offenses. As we have stated before and once again emphasize, a backlog of cases or the normal precedence given to more serious crimes cannot suspend the accused's right to a speedy trial. State v. Palmigiano, 111 R.I. 739, 741, 306 A.2d 830, 832 (1973); Tate v. Howard, supra. When the first prosecutor to whom the case was assigned left his position in the Attorney General's office, the case was assigned to a second attorney who had had experience in preparing civil cases of a complex financial nature. Another reason for delay is offered: that the case was complex and required long and careful preparation. This attorney subsequently left the Attorney General's office, and the case was assigned to the third prosecutor, who represented the state at trial. He, too, encountered delaying factors. At this juncture of the case, he discovered that certain original documents which were to be used by the state were missing and that the investigating officer had died.

We find no deliberate attempt by the state to delay trial so as to hamper the defense. The other "more neutral" reasons for delay, such as the need to try other pressing cases and a certain degree of administrative shuffling in the assigning and handling of this case, are the responsibility of the state not the defendant and must be so weighed. Barker v. Wingo, supra 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

The state however does not bear sole responsibility for the delays which occurred in this case. After the defense made a motion to quash on May 26, 1969, both sides were allowed 3 weeks in which to prepare memoranda. This was not done by the prosecution. Nor was it done by the defense in support of its own motion. The defense also felt unable to go to trial prior to a tangible evidence viewing which occurred on November 4, 1969. That the defense found this viewing inadequate was not mentioned until defendant's motion to dismiss on grounds ¹ of that inadequacy was filed on June 26, 1972. Defense counsel testified below that he had, from the inception of the case, planned on the assistance of another attorney "of counsel"; no entry of appearance by this attorney was made until November 1972. Further continuances between June 1972 and trial the following December were granted at the request of the defense.

We must next examine defendant's assertion of her right to a speedy trial. The defendant and her attorney testified that she kept after him for news about her case. Both also say she neither requested nor authorized delays. However, this concern for progress was expressed in no way on the record before us to either the prosecution or the court until June 1972. If in Tate v. Howard, supra, the defendant was "banging at the courthouse doors," defendant in this case may be said to have tapped once, in the alternative. The 2-page June 1972 motion to dismiss concludes as follows:

"The defendant therefore never having received all orders of the Court, the defendant holds that she is prejudiced by the wilful calculated delaying action by the State and also motions in the alternative to dismiss on the grounds that the defendant has been denied a speedy trial." (Emphasis added.)

While failure to assert, or assert strongly, the right to a speedy trial is not fatal to a demonstration of a denial of that right, it is one of the factors to be weighed. State v. McDonough, supra, 115 R.I. at 391, 347 A.2d at 45. In this case it cannot be said to weigh in defendant's favor.

We must weigh, lastly, the prejudice which defendant may have suffered as a result of the delay.

"(D)elay between arrest, indictment, and trial * * * may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 478 (1971).

The defendant in this case claims to have suffered each of these examples of prejudice.

Ms. Crescenzo has not been imprisoned. She asserted in the hearing below that she felt restrained by her release on personal recognizance; although not so instructed by anyone, she felt she was not able to leave the state since her arraignment. She has shown neither desire nor...