State v. White, 7373

• Decision Date: 30 November 1976
• Docket Number: No. 7373,7373
• Parties: STATE of New Hampshire v. Frank E. WHITE.
• Court: New Hampshire Supreme Court

Page 872

366 A.2d 872

116 N.H. 687

STATE of New Hampshire v. Frank E. WHITE.

No. 7373.

Supreme Court of New Hampshire.

Nov. 30, 1976.

David H. Souter, Atty. Gen., and Edward N. Damon, Concord, Atty., for the State.

Leonard, Gall, Shapiro & Jordan, Nashua (Richard W. Leonard, Nashua, orally), for defendant.

PER CURIAM.

The defendant was charged under RSA 262:27--b (Supp.1971) with illegally operating a motor vehicle on July 9, 1971, after suspension of his license. He was tried in the district court, found guilty on August 3, 1971, and he appealed the next day to the superior court.

Thereafter, following numerous delays and continuances, as later detailed, he filed a motion on February 14, 1975, to dismiss the complaint for lack of prosecution and '(i)n the interest of justice. . . .' This motion was denied. The defendant excepted, then pleaded guilty after filing an acknowledgment of rights. He was sentenced by the Trial Court (Johnson, J.), who reserved and transferred the question whether the motion to dismiss should have been granted.

The State argues that the motion to dismiss for lack of prosecution does not properly raise the constitutional issue of whether the defendant was denied the right to a speedy trial under N.H.Const. pt. I, art. 14 and the sixth amendment of the United States Constitution. We do not accept this argument, and resolving any doubts in favor of the defendant, we hold that the issue is properly before us as urged in his brief.

Under both constitutions the defendant is entitled to be free from capricious and oppressive delay. State v. Coolidge, 109 N.H. 403, 412, 260 A.2d 547, 554 (1969). To determine the answer to the question here, an examination of the facts is required. This is so because, 'Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights.' Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). Furthermore, the length of the delay alone is not determinative of the claim. State v. Blake, 113 N.H. 115, 305 A.2d 300 (1973); Barker v. Wingo, supra.

As articulated in Barker, certain specific tests, not necessarily in order of their importance, are as follows: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's responsibility to assert his right, which is closely related to the other actions; (4) prejudice to the defendant, to be assessed in the light of his right to a speedy trial. The first delay was from August 4, 1971, the date of the appeal, to May 9, 1972. We feel that the request for a continuance signed by both the defendant and his attorney, Mr. Shortlidge, on that later date, forbids the defendant from placing blame on the State for the original nine months lapse of time.

No activity appears on the record between May 9, 1972, and January 15, 1973, when the defendant defaulted and the case was remanded to the district court for sentence. On February 7, 1973, the present attorney for the defendant, Richard W. Leonard, an experienced and able trial lawyer, appeared and asked that the default be stricken. He alleges that on or about January 16, 1973, Attorney Shortlidge, acting contrary to his client's wishes, withdrew the appeal and allowed the default. No record appears of Shortlidge's withdrawal or other conduct at this time in the superior court files.

On September 9, 1973, the defendant's motion to strike the default and reinstate the case was granted. The hearing was then set for January 8, 1974, and the defendant's lawyer notified. As counsel admits through 'inadvertence' he never notified his client, who did not appear, and the new case was again...