State v. Nordstrom

• Decision Date: 06 July 1987
• Docket Number: No. 86-253-C,86-253-C
• Citation: 529 A.2d 107
• Parties: STATE v. Carl NORDSTROM. A.
• Court: Rhode Island Supreme Court

Page 107

529 A.2d 107

STATE v. Carl NORDSTROM.

No. 86-253-C.A.

Supreme Court of Rhode Island.

July 6, 1987.

James E. O'Neil, Atty. Gen., Thomas Dickinson, Asst. Atty. Gen., Providence, for plaintiff.

John F. Cicilline, Providence, for defendant.

OPINION

SHEA, Justice.

This case comes before us for the second time. Following this court's reversal of the defendant's conviction in State v. Nordstrom, 122 R.I. 412, 408 A.2d 601 (1979), a second trial was held in which a jury convicted Carl Nordstrom (defendant) of one count of conspiracy and two counts of assault with a dangerous weapon. The jury returned not-guilty verdicts on several additional counts. We affirm.

The record in this case establishes that on February 15, 1976, several members of the Grimes family attended their father's wedding at Salve Regina College in Newport, Rhode Island. The wedding reception was held at Christie's Restaurant and lasted into the late-evening hours. After the reception some of the celebrants went to the Narragansett Cafe in Newport. Many people who had attended the wedding were distributed throughout the bar. Shortly after midnight, a group of five men entered. These men dispersed throughout the bar, and at one point one of them placed his arms around Steve Grimes's wife, Jeanne. When Steve and Gregory Grimes came to Jeanne's side, Gregory was struck in the face. A general melee that included defendant ensued in which Gregory Grimes was struck with a pool cue and his face was slashed. Medical testimony was also presented about the injuries suffered by other members of the Grimes-wedding party. Matthew Grimes suffered a serious stab wound to the chest that required extensive emergency surgery.

A summary of the procedural travel of this case, although lengthy and punctuated by numerous motions, is necessary to our review of the appeal before us.

The Superior Court record establishes that following this court's reversal of defendant's conviction on November 21, 1979, the retrial was scheduled for a pretrial conference on April 6, 1982. The defendant failed to appear, and a warrant was issued. This warrant was subsequently recalled on May 26, 1982. A Superior Court entry on June 2, 1982, notes that a warrant was requested but was recalled and canceled.

On September 2, 1982, defendant filed a motion for a speedy trial. According to defendant, on April 26, 1984, defendant moved to dismiss pursuant to Rule 48 of the Superior Court Rules of Criminal Procedures as well as on constitutional grounds. On August 16, 1984, that motion was denied in a written opinion. On August 30, 1984, defendant filed a petition with this court, alleging a speedy-trial violation that was denied without opinion.

On September 10, 1984 the case was again on the trial calendar and defendant did not appear. When the case was called for trial on February 25, 1985, defendant once again failed to appear.

The defendant refashioned his motion to dismiss for lack of speedy trial on April 11, 1985, and May 7, 1985, basing it on constitutional grounds. The case was reached for trial in Newport in May of 1985. Jury selection began on May 13. On May 14 defense counsel was unavailable. On May 15 defendant filed a motion to pass the case because of an article that appeared in a local newspaper. The trial justice granted this motion, and the case was transferred to Providence for trial. The trial began in late June and lasted for approximately three weeks. The defendant, during pretrial proceedings, reasserted his motion and sought dismissal on speedy-trial grounds that the trial justice denied.

On appeal defendant alleges that two justices of the Superior Court erred in failing to dismiss the information pursuant to Rule 48(b), as well as on state and federal constitutional grounds. Rule 48(b) has been repealed since the information was brought. In a written opinion filed on August 16, 1984, defendant's Rule 48(b) motion to dismiss was denied. The trial justice found that the delay in bringing the case to trial resulted from the unavailability of a codefendant. He found that a trial in this case would likely last several weeks and that joint trials would therefore be preferable. The trial justice noted that defendant had never requested a separate trial and therefore one could reasonably infer that defendant acquiesced in the delay. He added that the complexity of the case, given the number of witnesses called in the first trial and the expected length of the second trial, further justified the delay.

"The Sixth Amendment to the United States Constitution and art. I, sec. 10 of the Rhode Island Constitution guarantee to a criminal defendant the right to a speedy trial. Rule 48(b) was designed to implement that right." State v. Isaac, 477 A.2d 62, 64 (R.I. 1984). This court has noted that the statutory right conferred by Rule 48(b) is actually far broader in scope than the constitutional basis from which it springs. Id. Indeed, Rule 48(b) "places a greater burden on the prosecution to bring a defendant to trial with a minimum of delay, and permits dismissal of an indictment even though there has been no constitutional violation." State v. Paquette, 117 R.I. 505, 511, 368 A.2d 566, 569 (1977).

In his written opinion below the trial justice correctly noted that under the rule, a defendant need only demonstrate that he was not responsible for any of the delay in question; a presumption of unnecessary delay is then raised. The burden then shifts to the state to rebut this presumption by showing justification for the delay. Id. This court has repeatedly stressed that because "[a] motion under this rule is addressed to the sound discretion of the court, * * * the trial justice's ruling will be set aside only where it is a clear abuse of discretion." Id.

The trial justice who heard defendant's motion found that "upon a review of the record, this court is satisfied that defendant did not contribute to the delay." Hence the state must justify the delay in order to avoid dismissal. The defendant faults the trial justice's conclusions and, in particular, his application of State v. Anthony, 448 A.2d 744 (R.I. 1982). In Anthony codefendant DePari claimed that delays attributable to Anthony were not attributable to him. DePari had moved to sever his case to avoid the consequences of Anthony's delays. This court held that given DePari's aggressive attempts to separate himself from Anthony's delays, those delays could not be attributed to DePari. The court stated that the delays arose "from Anthony's situation and are not attributable to DePari merely as a codefendant in the absence of some evidence that he acquiesced in or contributed to these delays." Id. at 748.

The trial justice stated that defendant in the case before us never moved to sever, nor did he take any action that tended to show that he objected to any delay caused by his codefendants. We find that the trial justice's inference that on these facts defendant acquiesced in the delay attributable to the codefendant was not a clear abuse of discretion.

This court has held that delays attributable to joinder are sometimes necessary in order to avoid duplicative trials. State v. Brown, 486 A.2d 595, 602 (R.I. 1985). Moreover, "[a]s a general rule, persons jointly indicted as alleged conspirators and the substantive acts they have allegedly committed should be tried together since separate trials on the conspiracy and substantive offenses, respectively, would necessarily involve the repetitive use of the same evidence and facts." Id. For this reason in State v. Isaac, 477 A.2d at 65, we stated that "[t]he delay occasioned by the state's refusal to sever the case * * * was also necessary."

In the case before us the trial justice determined that the delay was necessary. He noted that much of the delay here hinged on the complexity of the case, including presentation of thirty-one witnesses in the first trial, the expected length of the trial, and most importantly, the unavailability of codefendant Marco Nordstrom. We are not prepared to state that the trial justice, whose firsthand familiarity with the facts and circumstances surrounding the procedural history of this case is entitled to great deference, abused his discretion in finding the delay justified and necessary. Accordingly, we conclude that the trial justice's denial of defendant's Rule 48(b) motion to dismiss did not amount to a clear abuse of discretion.

After the denial of his motion for a speedy trial in June of 1984, defendant's case again was presented for trial in June of 1985. The defendant reasserted his speedy-trial claim. The trial justice then sitting also denied defendant's Rule 48(b) motion. When the trial justice ruled in June of 1985, Rule 48(b) had already been repealed and the rule therefore could not form the basis for a proper dismissal. As this court recently held in State v. Borges, 519 A.2d 574 (R.I. 1986), the repeal of Rule 48(b) became effective in November 1984. In Borges this court held the application of the repeal to cases that were pending was not violative of the ex post facto clause. ¹ Thus, in Borges we affirmed a Superior Court justice who refused to apply the rule's remedy after its repeal. Borges was decided in 1986 and was therefore unavailable to the trial justice when he ruled on defendant's Rule 48(b) motion. Nevertheless we are able to apply the Borges rationale to the case before us. Consequently, because Rule 48(b) was repealed by the time the June 1985 motion was heard, that rule no longer forms a viable basis for defendant's claim.

The defendant also asserts a violation of his right to a speedy trial based directly on constitutional grounds. U.S. Constitution, Amendment VI; R.I. Constitution, art. I, § 10. The defendant was heard twice on this motion and concedes that there was insufficient prejudice to him in June of 1984 to require dismissal. However, defendant contends that sufficient evidence...