State v. Dionne, 80-225-C

• Decision Date: 12 March 1982
• Docket Number: No. 80-225-C,80-225-C
• Citation: 442 A.2d 876
• Parties: STATE v. Kevin P. DIONNE. A.
• Court: Rhode Island Supreme Court

Page 876

442 A.2d 876

STATE v. Kevin P. DIONNE.

No. 80-225-C.A.

Supreme Court of Rhode Island.

March 12, 1982.

Dennis J. Roberts II, Atty. Gen., Michael J. McEntee, Sp. Asst. Atty. Gen., for plaintiff.

Norman L. Grant, Pawtucket, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal by the defendant, Kevin P. Dionne, from a judgment of conviction on an information charging him with operating a motor vehicle on a public highway in reckless disregard of the safety of others, with death resulting, in violation of G.L.1956 (1968 Reenactment) § 31-27-1. The defendant assigns as error certain evidentiary and other rulings.

The alleged offense occurred on Sandy Lane at its junction with Crane Street, a side road, in the city of Warwick at approximately 2 p. m. on December 23, 1976. Sandy Lane runs both east and west and is sufficiently wide to allow two lanes of traffic both eastbound and westbound, although the road has no lane markers. Two solid yellow lines divide the eastbound and westbound lanes except at the junction of Crane Street. There are no traffic control lights in the vicinity of Crane Street. In this area, Sandy Lane runs straight and the posted speed limit is thirty-five miles per hour.

The state's evidence concerning the events that occurred prior to and during the fatal accident consists essentially of the testimony of three witnesses, Thomas Williams, Ellen Cyronak, and Robert Pemberton. Williams testified to the following facts. He was driving his car eastbound on the inside lane of Sandy Lane on the day of the accident. At approximately one-half mile to one mile before the Crane Street junction, defendant's car, proceeding in the eastbound lane, passed Williams at a speed that Williams estimated to be in excess of sixty miles per hour. After defendant's car had overtaken him, Williams observed it cross the yellow center lines and drive in the passing westbound lane while it passed another car. After defendant's car had performed this maneuver, it returned to the easterly side of Sandy Lane and continued on its way.

Ellen Cyronak was also driving her car on the inside lane eastbound on Sandy Lane at the time the accident occurred. She testified that defendant's car had passed her at such a high rate of speed that she had remarked to her passenger, "Look at that car go." She further testified that after defendant's car had overtaken her, she saw it turn toward Crane Street. Upon reaching the Crane Street area and discovering that defendant's car apparently had struck someone, Cyronak yelled, "You nut," or words to that effect, at defendant.

Robert Pemberton, the only eyewitness to the accident, testified that he had been driving his car on the westbound side of Sandy Lane and that he had observed the victim on a bicycle riding ahead of him, in the same direction, along the edge of the curb. Pemberton stated that he had observed defendant's car, which he estimated to have been traveling at a rate of approximately fifty miles per hour, cross the center lines and move into the westbound lanes of Sandy Lane toward the Crane Street junction. He further testified that the bicyclist, apparently unaware of the impending danger, was crossing the Crane Street junction at this time, and she was struck by defendant's car.

The defendant's version of that day's events was as follows. He was driving at a speed of approximately forty-five to fifty miles per hour in the eastbound passing lane of Sandy Lane as he approached Crane Street. Because his path in that lane was blocked by a white Cadillac moving at a slower rate of speed, he attempted to pass the Cadillac by moving into the inside lane of the eastbound side of the road. As he was about to overtake the Cadillac, the Cadillac turned into the eastbound inside lane, cutting off defendant's car. In order to avoid a collision, defendant turned the wheel sharply to the left and applied the brakes lightly. Upon realizing that his car had crossed the yellow center lines and had entered the westbound side of Sandy Lane, defendant turned the wheel to the right and applied the brakes heavily. This maneuver caused the car to skid toward the Crane Street junction, where it struck the victim. The sole passenger in defendant's car that day, Timothy Buckley, gave testimony essentially identical to that given by defendant.

I

The defendant initially contends that the trial justice erred in denying defendant's motions to dismiss the charge under Rule 48 of the Superior Court Rules of Criminal Procedure because of unnecessary delay in bringing him to trial. Accordingly, a brief recitation of the travel of the case is required.

The defendant was arraigned on February 28, 1977. The case was assigned for pretrial conference on June 2, 1978, and was reassigned to June 16, 1978, at the request of defendant. On June 23, 1978, the case was assigned to the fall calendar for trial. On September 26, 1978, the case was reassigned; it was not reached for trial until May 30, 1979. On May 31, 1979, the trial justice granted the state's request for a continuance, continuing the case to June 20, 1979. On June 22, 1979, however, the trial justice again continued the case. The trial finally commenced on October 11, 1979.

The defendant filed a written motion to dismiss the charge pursuant to Rule 48(b) on February 9, 1979, and made oral motions to dismiss on May 31, 1979, and June 20, 1979, on the ground that he had been deprived of a speedy trial. All of these motions were summarily denied. On October 9, 1979, shortly before the trial, defendant renewed his motion to dismiss under Rule 48(b). After hearing oral argument but without holding an evidentiary hearing, the trial justice denied defendant's motion.

Rule 48(b) allows the court to dismiss an indictment, information, or complaint if there is unnecessary delay in bringing a defendant to trial. Because the rule is broader than the constitutional right to a speedy trial, it permits dismissal of an indictment even though no constitutional violation has occurred. State v. Paquette, 117 R.I. 505, 510-11, 368 A.2d 566, 569 (1977). In ruling on a motion to dismiss under Rule 48(b), the court should consider only whether the delay was unnecessary. The defendant need not make a showing of prejudice, nor must he have asserted his right to a prompt trial. Once the defendant shows that he was not responsible for the delay, he has established a prima facie case of unnecessary delay, and the burden of justifying the delay then shifts to the state. Id. at 511, 368 A.2d at 569. A motion under Rule 48(b) is addressed to the sound discretion of the court. The trial justice's ruling, therefore, will be set aside only if there is a clear abuse of discretion. State v. Grover, 112 R.I. 649, 652, 314 A.2d 138, 139 (1974).

The trial in this case commenced over thirty-one months after the arraignment. The record indicates that none of this delay was properly attributable to defendant other than a two-week period in June 1978. The state, therefore, bore the burden of justifying the remainder of the delay. The state, however, never submitted a memorandum in opposition to defendant's motions to dismiss; and in its oral argument at the October 9, 1979 hearing on the motion, it failed to offer any explanation for much of the delay. Consequently, the record is silent regarding why it took fifteen months from the date of the arraignment for the case to be put on the calendar for pretrial conference, or why eight months elapsed before the case was called for trial after being continued on September 26, 1978.

Because the record is barren concerning the reasons for much of the delay in this case, we cannot properly determine whether the trial justice abused his discretion in denying the motion to dismiss under Rule 48(b). Accordingly, we must remand the case to the Superior Court so that the trial justice may conduct an evidentiary hearing on the motion and make a ruling supported by findings. If the trial justice finds that the delay in this case was necessary, the judgment will be affirmed in conformity with our resolution of defendant's other grounds of appeal. The defendant may, of course, bring an appeal to this court should the trial justice so rule, but on such appeal defendant may raise only those issues relating to the denial of his Rule 48(b) motion. If the trial justice finds that the delay was not necessary, the charge will be dismissed.

II

The defendant also apparently contends that he was denied due process by the trial justice's granting of a continuance at the request of the state on May 31, 1979. The state requested the continuance principally on the grounds that a material prosecution witness was not available. The state also noted at that time that the names of three possible witnesses for the state had not been furnished to defendant, which constituted a violation of Super.R.Crim.P. 16(a) (6). ¹ The trial justice continued the case to June 20, 1979, over defendant's objection.

A motion for a continuance is addressed to the sound discretion of the trial justice, and his decision will not be overturned on appeal in the absence of an abuse of discretion. State v. Allan, R.I., 433 A.2d 222, 225 (1981); State v. Dias, 118 R.I. 499, 503-05, 374 A.2d 1028, 1029-30 (1977). Nevertheless, this court has noted that there may be occasions when a denial of a request for a continuance is so arbitrary that it violates the accused's Sixth Amendment right to procure the attendance of such witnesses and to obtain such evidence as may be necessary to permit a full defense. State v. Levitt, 118 R.I. 32, 41, 371 A.2d 596, 601 (1977); State v. Carillo, 113 R.I. 32, 39-40, 317 A.2d 449, 454 (1974); State v. Patriarca, 112 R.I. 14, 37-38, 308 A.2d 300, 315 (1973). In the instant case, however, the trial justice granted, rather than denied, a request for a continuance because of the unavailability of a prosecution witness. We fail to...