State v. Dufield, 78-134

• Decision Date: 31 January 1979
• Docket Number: No. 78-134,78-134
• Citation: 119 N.H. 28,398 A.2d 818
• Parties: The STATE of New Hampshire v. Eugene DUFIELD.
• Court: New Hampshire Supreme Court

Page 818

398 A.2d 818

119 N.H. 28

The STATE of New Hampshire v. Eugene DUFIELD.

No. 78-134.

Supreme Court of New Hampshire.

Jan. 31, 1979.

Thomas D. Rath, Atty. Gen., and Peter W. Heed, Asst. Atty. Gen. (Mr. Heed orally), for the State.

S. David Siff, Concord, by brief and orally, for defendant.

PER CURIAM.

This case raises issues concerning the right to a speedy trial and the circumstances surrounding the testimony of an accomplice. The defendant was indicted for armed robbery by the Hillsborough County Grand Jury in September 1975, and the case was originally scheduled for trial in Hillsborough County on February 9, 1976. On that date the defendant's motion to continue and to transfer this indictment to Merrimack County for possible disposition by plea bargain along with seven other prior indictments then pending against him in Merrimack County was granted. In May 1975, the defendant had filed a petition for early trial on those seven indictments. In May 1976, he was brought to trial in Merrimack County on one of the seven indictments, which was a Rockingham County indictment which also had been transferred to Merrimack County, and found guilty of burglary. He was sentenced to a term of not more than three years nor less than one year at the State prison. In February 1978, the remaining six indictments, all of which had been returned by the Merrimack County Grand Jury, were dismissed by the Court (Batchelder, J.) for lack of speedy trial. The Hillsborough County armed robbery indictment was not dismissed but was sent back to Hillsborough County Superior Court on February 6, 1978. On February 8, 1978, defendant moved to dismiss the Hillsborough County indictment for lack of speedy trial. That motion was denied by the court. On March 9, 1978, approximately one month after it was transferred back to Hillsborough County, the defendant was tried and found guilty by a jury on the September 1975 Hillsborough County armed robbery indictment. Defendant was sentenced to the State Prison for a maximum of seven years and a minimum of three years. All questions of law raised by the defendant's exceptions were reserved and transferred by the Trial Court (Dunfey, J.)

The defendant alleges that the State's failure to bring him to trial on the Hillsborough County indictment until March 1978 constitutes a denial of his right to a speedy trial. This court recently had occasion to deal with the right to speedy trial. State v. Cole, 118 N.H. ---, 395 A.2d 189 (1978). In that case we stated:

The right to a speedy trial is guaranteed by both the sixth amendment to the Federal Constitution, which is applicable to the States, and the constitution of this State, N.H.Const., pt. I, art. 14. We have stated that this 'right is necessarily relative, and must be considered with regard to the practical administration of justice.' (citations omitted)

In considering speedy trial claims, this court looks to the four factors stated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Those factors "are (1) the length of the delay, (2) the reasons for the delay, (3) the responsibility of the defendant to assert his right, and (4) the prejudice to the defendant." State v. Cole, 118 N.H. ---, 395 A.2d 189, 190 (1978). See State v. White, 116 N.H. 687, 688, 366 A.2d 872, 873 (1976). The time between indictment and actual trial in this case was approximately two and one-half years. Defendant was arrested on a capias in connection with this indictment on December 29, 1975, arraigned on January 13, 1976, and his trial was scheduled for February 9, 1976, less than one month after his arraignment. The defendant requested a continuance, thereby temporarily waiving his right to a speedy trial and it was not until two years later, in February 1978, that he reasserted his right to speedy trial on this indictment. The motion for speedy trial filed in May 1975, before this indictment was returned, related only to the prior indictments.

Although a defendant who fails to demand a speedy trial does not forever waive his right, Barker v. Wingo, 407 U.S. at 528, 92 S.Ct. 2182, " failure to assert the right will make it difficult for the defendant to prove that he was denied a speedy trial." Id. at 532, 92 S.Ct. at 2193. The defendant's temporary waiver of his right to speedy trial after his trial had been scheduled and his failure to assert his right to a speedy trial for two years thereafter weigh heavily against him. The State was prepared to try the defendant in February 1976, and at that time it was he who moved both for a continuance and for a transfer of the Hillsborough County armed robbery indictment to Merrimack County, a tactic designed to consolidate indictments pending against him from several counties for purposes of a possible plea bargain disposing of all. The transfer removed the case from the continuing supervision of the officials who would have been responsible for its processing. When anticipated plea negotiations broke down, the defendant neither made a request for speedy trial on the indictment nor requested return of the indictment to Hillsborough County. Thus, unlike the defendant in Cole, the defendant in the present case is to a large extent responsible for the delay of which he complains.

Prejudice to the defendant is also a consideration to be weighed in this type of case. See State v. Cole, 118 N.H. ---, 395 A.2d 189 (1978); State v. Blake, 113 N.H. 115, 122, 305 A.2d 300, 305 (1973). This court, however, will not speculate as to prejudice, and some showing of actual prejudice is normally required when the defendant is himself responsible for much of the delay. See State v. Cole, 118 N.H. at ---, 395 A.2d at 190. We find nothing in the record to support defendant's contention that this is a case where delay in trial has resulted in prejudice to him. After weighing the Barker factors, as they relate to the facts of this case, we hold that the defendant's right to a speedy trial was not violated.

The defendant also argues that he was denied a fair trial because of the circumstances surrounding the testimony of an unindicted accomplice, Steven Noel. After the jury was impaneled, the prosecutor informed the court that Mr. Noel, a material witness for the State, was reluctant to testify as a State's witness. His reluctance was based on his fear of making self-incriminating statements while testifying. The trial court ruled, however, that Mr. Noel was not entitled to assert his fifth amendment privilege because his sentence for a different crime took into account the present robbery. The court noted that Mr. Noel's disposition slip, dated May 2, 1975, indicated that the sentences imposed barred prosecution or conviction on the robbery charge.

Under RSA 651:4 II (prior to its amendment effective July 25, 1975), trial courts were permitted to take into account other offenses in sentencing and bar prosecution for those offenses. The court was therefore correct in ruling that Mr. Noel could not incriminate himself through his testimony.

After Mr. Noel stated that he was still unwilling to testify, the court warned him that he was subject to contempt penalties for his refusal to testify. Mr. Noel's reason for then refusing to testify was fear for his personal safety. The trial judge stated in chambers that he would take steps to ensure the safety of the witness. He stated that the primary interest of the court was the administration of justice, and that the ends of justice would not be served if the State could not go forward with its case because of Mr. Noel's refusal to testify. Although the trial judge stated that he had no preconceived notions about the guilt or innocence of the defendant, he entered into lengthy discussions spanning two days, with the prosecution, defense counsel, and Mr. Noel's counsel concerning protection for Mr. Noel. The judge finally ordered that Mr. Noel be transferred to a comparable prison facility in Connecticut. The defendant argues that this conduct by the judge deprived him of his right to an impartial judge under N.H.Const. pt. I, art. 35. He also argues that he was prejudiced by the delay caused by the discussion which took place after the jury had been impaneled.

Although the trial judge may have allowed himself to become too deeply involved in the negotiations preceding Mr. Noel's agreement to testify, we cannot agree that this involvement denied the defendant his right to an impartial judge. Although there can be situations that require a reversal on the grounds argued by the defendant, See generally State v. Aubert, 118 N.H. ---, ---, 393 A.2d 567, 568 (1978), the present case does not present such a situation. The trial judge stated in chambers that his goal was to serve the ends of justice on behalf of the State and the defendant and that he had no preconceived notion of the defendant's guilt or innocence. Further, the trial judge insisted that the prosecutor elicit testimony from Mr. Noel in the presence of the jury concerning his testimony, the promise of a transfer which had been made and the fact that the two-day delay was caused by the discussions concerning the transfer. The judge allowed defense counsel ample opportunity to cross-examine. Moreover, he properly instructed the jury on the subject of accomplice testimony. Although, in retrospect, the extent of the judge's involvement with the State's negotiations for Mr. Noel's testimony may have been ill-advised he conducted the trial in a fair and impartial manner. Mr. Noel's testimony was not coerced; he was simply promised a transfer to another prison in order to ensure his personal safety, and the details of this promise were explained to the jury. His testimony was corroborated to a significant extent by the testimony of one of the victims. The circumstances surrounding Mr. Noel's testimony and its admission do not amount to a denial of due process. See State...