State v. Monahan, 82-537

• Decision Date: 04 May 1984
• Docket Number: No. 82-537,82-537
• Citation: 125 N.H. 17,480 A.2d 863
• Parties: The STATE of New Hampshire v. Terrence H. MONAHAN, Jr.
• Court: New Hampshire Supreme Court

Page 863

480 A.2d 863

125 N.H. 17

The STATE of New Hampshire v. Terrence H. MONAHAN, Jr.

No. 82-537.

Supreme Court of New Hampshire.

May 4, 1984.

Gregory H. Smith, Atty. Gen. (John A. Malmberg, Asst. Atty. Gen., on the brief), for the State.

Terrence H. Monahan, Jr., pro se.

BATCHELDER, Justice.

The defendant was convicted of three counts of theft by deception, RSA 637:4. He appeals his convictions, alleging that the superior court erred in denying seven motions filed by the defendant prior to and during trial. For the reasons which follow, we affirm.

The trial record shows the following facts. On July 2, 1980, the defendant, Terrence Monahan, registered at a motel in Swanzey owned and operated by Viola Claus, the victim. The defendant registered as Thomas Johnson and gave a non-existent address. The defendant stayed at the motel intermittently for a total of approximately two weeks. During his stay, he and the victim discovered that they had a common interest in antique automobiles, and they entered into a verbal agreement to buy, restore and sell antique automobiles, and to split the profits evenly.

Pursuant to this agreement, on July 23, 1980, the victim gave the defendant three thousand dollars toward the purchase of an antique Ford. The defendant later told the victim that he had bought the Ford but had left it to have repairs done. Mrs. Claus never saw the car or any papers relating to the car.

On or about July 28, 1980, the victim gave the defendant ten thousand dollars toward the purchase of a Cadillac, a Lincoln and a Thunderbird. The defendant bought the Thunderbird and registered it in the name of Thomas Johnson. He also bought a Lincoln Continental and had a friend, Gloria Johnson, register the car in her name.

On August 4, 1980, the victim gave the defendant three thousand dollars for automobile parts. Later that day, the defendant left the motel in the Thunderbird, leaving, in his motel room, some clothes and the lights and television on. Although, the victim expected him to return, she never saw or heard from him again until the trial. At trial, the defendant's brother testified that the Lincoln and some parts were being stored at his home in Wyoming, New York and that the Thunderbird was garaged in Warsaw, New York.

I. Motion to Dismiss for Lack of a Speedy Trial

On July 15, 1982, the defendant filed a motion to dismiss for lack of a speedy trial. After a hearing on July 26, 1982, the Superior Court (Contas, J.) denied the motion.

The State and Federal Constitutions guarantee an accused the right to a speedy trial. N.H. CONST. pt. I, art. 14; U.S. CONST. Amends. VI, XIV. In order to determine whether this right has been violated under either constitution, the court employs a balancing test, weighing the conduct of the State against the conduct of the accused in terms of four factors. State v. Zysk, 123 N.H. 481, 485, 465 A.2d 480, 482 (1983); Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). These four factors consist of the length of the delay, the reasons for the delay, the defendant's assertion of his or her constitutional rights, and the prejudice to the defendant. State v. Zysk, supra; Barker v. Wingo, supra. However, unless the length of the delay is presumptively prejudicial, no inquiry need be made into the other factors. State v. Quinlan, 122 N.H. 51, 53, 440 A.2d 13, 14 (1982); Barker v. Wingo supra. In this case, the delay of twenty-three months between indictment and trial is presumptively prejudicial, thus requiring examination. See State v. Weitzman, 121 N.H. 83, 86, 427 A.2d 3, 5 (1981) (thirteen month delay in misdemeanor case requires further examination).

Several reasons exist for the delay of twenty-three months between the indictments in October 1980 and the trial in September 1982. While investigating the complaint, the New Hampshire State Police attempted to locate the defendant but were unable to do so. Nonetheless, on October 9, 1980, the grand jury indicted the defendant on three counts of theft by deception. At some point thereafter, the State filed a detainer with the federal authorities. On May 4, 1981, the federal authorities arrested the defendant on unrelated charges pending in Massachusetts, and on May 24, 1981, transferred him to the Rockingham County jail pursuant to an agreement between the federal and county governments. He then was transferred to the New Hampshire State Prison where he remained until August 12, 1981, at which time he was returned to the federal authorities. The county attorney's office claims that it was unaware that the defendant was incarcerated in New Hampshire from May 24, 1981, to August 12, 1981.

On January 25, 1982, the federal authorities informed New Hampshire that the defendant was incarcerated in the federal penitentiary in Sandstone, Minnesota. Pursuant to the Interstate Agreement on Detainers, RSA 606-A:1, New Hampshire requested, on February 12, 1982, extradition and temporary custody of the defendant. The defendant was arraigned in New Hampshire on June 7, 1982.

The trial was scheduled for July 6, 1982. However, on June 28, the defendant informed the trial court that because of lack of access to the law library at the State prison, he would not be ready for trial. The trial was rescheduled for August 16, 1982. The trial was then continued until September 7, 1982, again at the defendant's request.

Although the great majority of the delay was due to the defendant's actions, the initial delay may be attributed to the State. From October 1980 until May 1981, the record is barren of any facts which would support a diligent, good-faith effort by the State to bring the defendant to trial. See State v. Hudson, 119 N.H. 963, 966, 409 A.2d 1349, 1351 (1979). The record shows that the State filed a detainer against the defendant but does not indicate when. See People v. King, 83 A.D.2d 674, 675, 442 N.Y.S.2d 227, 228 (1981) (State promptly issued bench warrant and placed it in interstate police teletype network). Thus, from the record, we cannot charge this delay to the defendant.

However, the rest of the delay is attributable to the defendant. From May 1981 until August 1981, the defendant was unavailable because federal charges were being brought against him. See RSA 606-A:1, art. IV(a) (applies to individuals serving term of imprisonment in other jurisdictions); Estrada v. State, 611 P.2d 850, 853-54 (Wyo.1980). The State, once it had learned of the defendant's whereabouts in the federal penitentiary, instituted extradition proceedings which necessarily encompassed some delay. The trial was scheduled for a month after the defendant's arrival in New Hampshire and was delayed until September only at the defendant's request. The defendant cannot take advantage of any delay that he has occasioned. State v. Fraser, 120 N.H. 117, 120, 411 A.2d 1125, 1127 (1980). Accordingly, the State may be charged only with the initial delay between October 1980 and May 1981, and there is no evidence that the delay was deliberate.

This court emphasizes the last two factors of this analysis--the defendant's assertion of his right and the prejudice which resulted from the delay. State v. Zysk, 123 N.H. 481, 485, 465 A.2d 480, 482 (1983). Although the defendant alleged that he asserted his right to a speedy trial twice in June 1981, once in a motion to dismiss and once in a petition for bail, neither the county attorney nor the superior court have any record of receiving such a motion or a petition from the defendant. A record exists only of the motion to dismiss which the defendant filed on July 15, 1982.

The defendant has alleged also that prejudice has resulted from this delay: that his memory has dimmed; that a witness has died; that he was precluded from a number of programs at the penitentiary; that he was not free to investigate; and that he was removed from his family. This court has held that the mere passage of time and the resulting impairment of memories is not a sufficient basis to wrench the right to a speedy trial from its proper context. State v. Little, 121 N.H. 765, 773, 435 A.2d 517, 522 (1981). Without adding any specificity to these allegations and without showing the prejudice which resulted, the defendant has merely alleged that his memory has dimmed and that a witness has died. State v. Zysk, supra 123 N.H. at 486, 465 A.2d at 483.

Additionally, the State cannot be held responsible for the defendant being unable to investigate or removed from his family. The defendant was not in prison because he was awaiting trial in New Hampshire but because he was serving a sentence for another crime. Although the defendant may have suffered some prejudice in being denied an opportunity to participate in certain programs while in the penitentiary, see Moore v. Arizona, 414 U.S. 25, 27, 94 S.Ct. 188, 190, 38 L.Ed.2d 183 (1973), which he has only alleged, little prejudice has been shown in the record.

Balancing the conduct of the State and the defendant in terms of the four factors, we conclude that the defendant's right to a speedy trial has not been violated. Thus, the superior court did not err in denying the defendant's motion.

II. Motion to Strike Alias

The indictments in this case were brought against "Terrence Monahan a/k/a Thomas Johnson." The defendant moved to strike the alias from the indictments on the grounds that its inclusion was irrelevant and prejudicial. After a hearing on June 18, 1982, the Superior Court (Dalianis, J.) denied the motion.

The inclusion of an alias in an indictment is not inherently prejudicial; it does not automatically raise the spectre of a hardened criminal. See United States v. Esposito, 423 F.Supp. 908, 911 (S.D.N.Y.1976). Rather, the inclusion of an alias is relevant and permissible when it is necessary to identify the defendant in connection with the acts charged in the indictment. E.g. United States v. Clark, 541 F.2d 1016, 1018 (4th Cir.1976...