State v. Smith

• Citation: 400 A.2d 749
• Parties: STATE of Maine v. Harry SMITH, Jr.
• Decision Date: 19 April 1979
• Court: Supreme Judicial Court of Maine (US)

Page 749

400 A.2d 749

STATE of Maine v. Harry SMITH, Jr.

Supreme Judicial Court of Maine.

April 19, 1979.

Michael E. Povich, Dist. Atty., Michael D. Seitzinger (orally), Asst. Atty. Gen., Augusta, for plaintiff.

Libhart, Ferris, Dearborn & Willey by Joseph L. Ferris (orally), Brewer, Wayne P. Libhart, Ellsworth, for defendant.

Before McKUSICK, C. J., POMEROY, ARCHIBALD, DELAHANTY and GODFREY, JJ., and DUFRESNE, A. R. J.

ARCHIBALD, Justice.

The Washington County Grand Jury on March 9, 1976, returned a fifteen-count indictment against the defendant, charging him with ten counts of receiving stolen property, 17 M.R.S.A. § 3551; ¹ two counts of cheating by false pretenses, 17 M.R.S.A. § 1601; ² and three counts of possessing a trailer without proper identification markings, 29 M.R.S.A. § 2185. Following a suppression order by a single justice, upheld by this court in State v. Smith, Me., 381 A.2d 1117 (1978), the State moved to dismiss three counts of receiving stolen property and all counts relative to violation of 29 M.R.S.A. § 2185.

In a subsequent jury trial the defendant was found guilty of three counts of receiving stolen property and one count of cheating by false pretenses. The defendant was acquitted on the remaining charges. From the entry of judgment of conviction upon each of the four counts the defendant has appealed, asserting essentially four reasons therefor:

(I) denial of a speedy trial;

(II) insufficient evidence to warrant the jury's conclusion beyond a reasonable doubt that the defendant knew a 1972 Steco dump trailer, a 1972 Hill dump trailer and a 1965 Strick semi-trailer, which were the vehicles identified in the counts of indictment upon which he was convicted, were stolen;

(III) judicial error in refusing to charge the jury as requested;

(IV) abuse of judicial discretion in refusing to impose sanctions upon the State for its failure to provide certain vehicles for the defendant's inspection prior to trial pursuant to a discovery order.

We deny the appeal and deal with each of appellant's points sequentially.

I

On March 14, 1976, two days after the State had filed its notice of appeal from the suppression order, the defendant filed a pro forma "Motion for a Speedy Trial" that did not state any particular prejudice that the defendant might suffer on account of a delay in his trial. Asserting a violation of his right to a speedy trial, the defendant, on February 15, 1978, filed a "Motion to Dismiss" the charges against him. Following an evidentiary hearing the justice below concluded that the defendant had failed to demonstrate any prejudice and denied his motion. After the presentation of all evidence at trial, the defendant renewed his motion, which was again denied. The appellant contends that the presiding justice erred in refusing to grant this motion.

We disagree.

The denial of the right to a speedy trial, guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States and Article I, Section 6 of the Constitution of the State of Maine, has but one extremely harsh remedy, dismissal of the charges. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1976); State v. Steeves, Me., 383 A.2d 1379, 1381 (1978). The presiding justice's ruling upon the appellant's motion must necessarily, therefore, be based upon his determination that the appellant's right to a speedy trial was not impermissibly infringed. The assessment of whether the appellant was denied his right to a speedy trial necessitates an Ad hoc balancing of four factors: (A) length of delay, (B) reason for delay, (C) the appellant's assertion of his rights and (D) prejudice to the appellant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Steeves, supra at 1381; State v. Carlson, Me., 308 A.2d 294, 298 (1973).

A. Length of Delay.

Preliminary to consideration of the remaining three factors we must find that a presumptively prejudicial period of time has elapsed between the time of the appellant's indictment and trial. In this case the appellant's trial did not commence until twenty-five months after his indictment on those charges. We find this a sufficiently long period of time ³ to be presumptively prejudicial thereby triggering consideration of the other relevant factors. Compare United States v. Greene, 578 F.2d 648, 655 (5th Cir. 1978) (thirty-month delay); United States v. Herman, 576 F.2d 1139, 1145 (5th Cir. 1978) (twenty-two month, twenty-day delay); and United States v. Pitts, 569 F.2d 343, 347 (5th Cir. 1978) (two and one-half year delay), With State v. Catlin, Me., 392 A.2d 27, 32 (1978) (five and one-half months). The length of delay in this case, however, is not so inordinate as to require a per se finding of a denial of a speedy trial. Delays longer than twenty-five months have not resulted in a deprivation of a speedy trial. See, e. g., Barker v. Wingo, supra (five years); United States v. Greene,supra (thirty months); Georgiadis v. Superintendent, Eastern Correctional Facility, Napanock, N. Y., 450 F.Supp. 975, 977 (D.C.N.Y.1978) (fifty-four months).

B. Reason for the Delay.

Of the twenty-five months that elapsed from the time of his indictment to the commencement of the appellant's trial, ninety-nine days were attributable to the appellant's motions for discovery, suppression of evidence and dismissal. The delay occasioned by appellant's motions cannot be charged against the State and must be weighed against the appellant's claim of a speedy trial violation. Georgiadis v. Superintendent, Eastern Correctional Facility, Napanock, N. Y., supra; State v. Lewis, Me., 373 A.2d 603, 609 (1977); Cf. State v. Heald, Me., 393 A.2d 537, 543-44 (1978) (statutory right to speedy trial).

Over twenty months of the twenty-five month delay were necessitated by the State's appeal of the order suppressing unlawfully seized evidence. With the exception of an extension of time in which to file its brief, ⁴ the State prosecuted its interlocutory appeal within the time frames established by the Maine Rules of Criminal Procedure. The State filed its notice of appeal on May 12, 1976, and presented oral argument on December 17, 1976. This court issued its opinion on the interlocutory appeal thirteen months later on January 23, 1978, a delay that the State cannot be held to have anticipated.

An interlocutory appeal undertaken by the prosecutor in good faith without attempting to tactically outmaneuver a defendant is generally an appropriate reason for delay. United States v. Herman, supra; United States v. Jackson, 508 F.2d 1001, 1005 (7th Cir. 1975); State v. Fernald, Me., 397 A.2d 194, 196 (1979). Public justice demands that the State be allowed to litigate an issue important to its case against a defendant. United States v. Jackson, supra.

Appellant argues, however, that the State should have moved to sever the prosecution of the six counts of the indictment to which the suppressed evidence was relevant from the remaining nine counts that the State ultimately brought to trial. That the State might have severed its prosecution of the appellant, thereby obviating the delay of the interlocutory appeal which was relevant only to the six counts that the State subsequently moved to dismiss, militates somewhat against the State's contention that the appeal was a legitimate reason for delay. The interests of judicial economy through avoidance of the duplication of evidence, time and energy of two trials, however, would mandate a joint trial upon all counts of the indictment if possible. Since the appellant did not seek to sever the counts and proceed to trial immediately upon the nine counts unrelated to the interlocutory appeal, the State, anticipating a successful appeal, could rationally conclude that the appellant did not desire to bifurcate his defense efforts. The State, therefore, acted reasonably in its reluctance to move for a severance.

That the State lost its appeal of the suppression orders does not demonstrate that the issues raised therein were not fairly litigable. We consider the questions examined in State v. Smith, supra, to have been far from settled and represented legitimate inquiries worthy of an interlocutory appeal. The State's appeal manifested no indicia of anything less than a good faith attempt to obtain a final determination upon an important point of law.

C. Defendant's Assertion of his Right to a Speedy Trial.

Although the appellant formally demanded a speedy trial some twenty-three months prior to the commencement of his trial, the timing of his demand does not support a conclusion that the appellant was suffering any prejudice from delay of his trial at the time of his assertion or that he foresaw possible prejudice. The submission of the appellant's "Motion for a Speedy Trial" two days after the State filed its notice of appeal might be construed as an attempt to chill the State's right to appeal the then pending suppression order. No assertion of actual or possible prejudice that the appellant might suffer was contained within the "Motion for A Speedy Trial," nor did the appellant move for a severance of the six counts of the indictment that were related to the suppression order. For these reasons the appellant's pro forma demand for a speedy trial does not give strong support to his claim or denial of a speedy trial.

D. Prejudice to the Defendant.

In attempting to evaluate the prejudice that a prolonged pretrial period might have caused to the appellant we must consider at least three factors: (1) oppressiveness of pre-trial incarceration; (2) anxiety and concern of the accused, and (3) impairment of the defense. Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. 2182; State v. Steeves, 383 A.2d at 1384. Findings made relative to these interests necessarily involve historical facts and will be overturned only when clearly erroneous. Cf. State v. Cefalo, Me., 396 A.2d 233, 240 (1979) (findings relative to...