Tate v. Howard

• Decision Date: 31 October 1972
• Docket Number: No. 1302-M,1302-M
• Citation: 296 A.2d 19,110 R.I. 641
• Parties: Howard Warren TATE v. Francis A. HOWARD, Warden, et al. P.
• Court: Rhode Island Supreme Court

Page 19

296 A.2d 19

110 R.I. 641

Howard Warren TATE v. Francis A. HOWARD, Warden, et al.

No. 1302-M.P.

Supreme Court of Rhode Island.

Oct. 31, 1972.

Reargument Denied Nov. 30, 1972.

Amedeo C. Merolla, Providence, for petitioner.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., R. Raymond Greco, Sp. Asst. Atty. Gen., for respondents.

OPINION

KELLEHER, Justice.

In this petition for habeas corpus, Howard Warren Tate charges that he is being unlawfully detained at the Adult Correctional Institutions because he has been denied both his constitutional right to a speedy trial on an indictment charging him with rape and a fair hearing on whether he had violated the terms of a deferred sentence agreement. This is the second time this year that Tate has been before us. Earlier, we denied and dismissed his bill of exceptions stemming from a Superior Court jury trial culminating in his conviction of the rape charge. State v. Tate, 109 R.I. 586, 288 A.2d 494 (1972).

The record discloses that on May 13, 1969, Tate appeared in the Superior Court for Kent County and pleaded guilty to an indictment which charged him with breaking and entering. He was given a deferred sentence. Approximately three months later, he and several others were arrested and charged with having participated in what might be described as a gang rape of a 16-year-old girl. The assault occurred at a 'cook-out' which took place on one of the many beaches that populate the Warwick shore. Tate and his girl friend had attended the cook-out as did the prosecutrix. She had come to the party with her girl friend and three other males. ¹ The rape charge led to Tate's being returned to the Superior Court as a violator of the deferred sentence. When he appeared for the violation hearing, Tate's private counsel asked that he be released on bail until the District Court held a probable cause hearing on whether the rape charge should be referred to the Kent County Grand Jury. The Superior Court justice was amenable to this suggestion and Tate was released on bail pending a determination of probable cause by the District Court. The Public Defender's office was representing Tate on the rape charge.

Subsequently, the District Court found probable cause. The Grand Jury returned the rape indictment on December 6, 1969. Tate pleaded not guilty to this charge on December 11, 1969. Six days later, he was back in the Superior Court as an assistant Attorney General asked that a three-year sentence be imposed upon him for the breaking and entering episode. Tate asked that he be given a hearing on his deferred sentence status but the trial justice referred to petitioner's earlier brushes with the law and then said that Tate was entitled to no more than one hearing and that he had it in the District Court.

Tate was then sentenced to serve 34 months. ² He has been incarcerated since that time.

Earlier, in February, 1970, Tate began to bombard the various state agencies who were or should be concerned with his confinement and the disposition of the rape charge. He was demanding that he be brought to trial. His correspondence went to the Attorney General's office. It in turn referred Tate to the Public Defender's office. In mid-February, he wrote to the Public Defender and pointed out that he had not heard from the assistant Public Defender who had been assigned to him. Throughout his correspondence, petitioner constantly expressed concern with the dispatch with which his case was moving. In mid-June, 1970, he wrote to the Public Defender and once again asked that his counsel confer with him as a prompt trial of his case would be in his best interest. On June 19, 1970, he filed a pro se motion for a speedy trial in which he referred to the possible loss of witnesses and the apparent lack of effort by either the prosecution or the Public Defender's office to try the pending indictment.

In the latter part of July, 1970, petitioner filed a motion to dismiss the indictment because of the state's failure to grant him a speedy trial. He attached to the motion a newspaper clipping announcing the forthcoming marriage of the prosecutrix. Tate alleged that this event would amount to another roadblock in his efforts to be tried. He also enclosed a letter from a friend who had testified for Tate at the probable cause hearing. In this letter, petitioner's friend commented that the lapse of time had dulled his memory and he would not be able to testify.

Tate asked for the appointment of counsel other than a member of the Public Defender's staff. ³ Finally, on July 20, 1970, a staff attorney contacted Tate and told him that since the Superior Court for Kent County was closed for the summer, it would be impossible to schedule a trial prior to the beginning of the court's fall session, which would occur sometime near mid-September, 1970.

The motion to dismiss was heard on September 17, 1970. When the trial justice inquired as to the reason for the delay in trial, he was informed that five individuals had all been charged with raping the prosecutrix. The assistant Attorney General who was handling the criminal calendar told the court that, given enough time to bring the prosecutrix back to Rhode Island, Tate's case could be tried on any given day. Trial was scheduled for October 5, 1970. When Tate inquired if there was a guarantee that his case would go on that day, the trial justice remarked that he could make no promises, especially since there was a possibility that the state might move to consolidate the pending indictments for trial but went on to say that he would deny the motion before him '* * * on condition, however, that the State try the case not later than October 5, 1970.' The judge presiding at the fall session assured defense counsel that, if the case was not tried on that date, he would entertain a motion to dismiss. The assistant Attorney General assured the court that the prosecution would be ready. The petitioner left the courthouse in a much better frame of mind than when he had arrived.

October 5 came and went. There was no trial. Twelve days later, a motion to dismiss was once again filed. It alleged that another case was tried on that day because of the state's decision to try what it considered to be a more important matter. Tate returned to jail and resumed his literary efforts. He wrote to various justices of the Superior Court asking that he be tried. The record does show a habeas was issued on November 18, 1970, but Tate was not brought to court.

Another habeas was issued on December 10, 1970, and Tate appeared with his counsel before the same justice who had earlier suggested the filing of the motion to dismiss. The justice retreated from his earlier conditional promise to dismiss the indictment. His reason was that, when Tate appeared earlier, he thought Tate's awaiting-trial status was due solely to his inability to make bail and no because he was then serving a three-year sentence. The trial justice remarked as to the large number of criminal cases awaiting to be heard in Kent County and suggested that even though Tate had a right to be tried in that locality, there was a good possibility that, if he consented to the change of venue, he could be tried in January, 1971 in the Superior Court for Providence and Bristol Counties. When petitioner gave a negative reply to this suggestion, his motion to dismiss was denied.

Tate continued to file petitions for habeas corpus. One was filed during December, 1970 in the Superior Court. Two were filed with us. One arrived in February, 1971; the next came one month later. Before any action could be taken on either petition, Tate found himself back in the Kent County Courthouse for a trial. It was now March 1, 1971.

The record shows that the assistant Public Defender was about ten minutes late in arriving at the courthouse. When the case was called, Tate's counsel asked that the case be passed because Tate, in full view of the prospective jurors, had been led into the courtroom handcuffed to a member of the committing squad. At one point after defense counsel had insisted that this client's case had been prejudiced, the trial justice, in what might be described as an unfortunate departure from acceptable judicial temperament, excoriated the Public Defender and told him to withdraw his appearance because 'you are not fit to represent this man.' The attorney was told that he was not to appear before the court for the balance of the session. Tate, who was present as his attorney was being dressed down, once again left the courthouse after another fruitless attempt to be tried.

The trial was held in April, 1971. Tate's friend did not testify. The jury's verdict was affirmed by the trial justice who thereupon imposed a ten-year sentence upon petitioner. The sentence called for five years of the sentence to be served, at least in part, concurrently with the breaking and entering sentence with execution of the remaining five years suspended during a five-year probation period which would commence once Tate had completed the first five years.

The right of an accused to a speedy trial is guaranteed by the Declaration of Rights of the Rhode Island constitution, art. 1, sec. 10 and by the Sixth Amendment of the Constitution of the United States made applicable to the states pursuant to the Fourteenth Amendment. Orabona v. Linscott, 49 R.I. 443, 144 A. 52 (1928); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In seeking to determine if Tate's speedy-trial right has been violated, we need only to look at the most recent pronouncement made by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The Court first pointed out that it is impossible to determine with precision when this right has been denied. It refused either to specify any set period of time during which the accused must be offered a trial or to endorse the so-called ...