State v. Paone

697 A.2d 1390, 142 N.H. 216, 1997 N.H. LEXIS 80
CourtSupreme Court of New Hampshire
DecidedJuly 28, 1997
DocketNo. 96-190
StatusPublished
Cited by3 cases

This text of 697 A.2d 1390 (State v. Paone) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Paone, 697 A.2d 1390, 142 N.H. 216, 1997 N.H. LEXIS 80 (N.H. 1997).

Opinion

BRODERICK, J.

The defendant, Enrico Paone, was indicted in 1992 on four counts of felonious sexual assault. See RSA 632-A:3 (1996). Following his apprehension in 1995, the defendant moved to dismiss the indictments, arguing that his State and federal constitutional rights to a speedy trial had been violated. The Superior Court (Smukler, J.) denied the motion and the defendant was convicted on all counts. The defendant appeals the denial of this motion. We affirm.

A grand jury indicted the defendant on May 14, 1992. On May 15, 1992, a capias was issued for his arrest. At the time, the defendant resided in Florida. Prior to November 1991, he had been living in Barnstead. In November 1991, the defendant moved to Massachusetts, where he lived until January 1992. He then moved to Virginia, living first in a motel and then in a rented house. He moved to Florida in March 1992. In Florida, he stayed at several different addresses until May 1993, when he returned to Massachusetts. Upon his return, he used his parents’ Medford, Massachusetts address as his mailing address and their phone number as his own. In late 1993, he moved to his own home in Medford.

Following the defendant’s indictment, the State attempted to locate the defendant in order to apprehend him. The Belknap County Sheriff’s Department notified the Barnstead police of the charges against the defendant, entered the defendant’s name in the National Crime Information Center (NCIC) database, and requested police in Medford and in Virginia to investigate address [218]*218leads. On August 2, 1992, the Belknap County Sheriff’s Department contacted the Medford police, sending them a copy of the capias. Though the Medford police stated they would locate the defendant, the residents of the defendant’s parents’ Medford home reported no police investigation. The Belknap County Sheriff’s Department did not contact the Medford police after August 1992, and the State’s subsequent efforts to locate the defendant apparently devolved to little more than maintaining his name in the NCIC database. Medford police arrested the defendant for shoplifting on July 17, 1995, and he did not challenge extradition.

On September 18, 1995, the defendant moved to dismiss the pending charges. The defendant argued that, as a result of the State’s negligence in attempting to apprehend him, the State violated his rights to a speedy trial under the New Hampshire and United States Constitutions. See N.H. CONST, pt. I, art. 14; U.S. CONST, amend. VI. In considering this argument, the superior court applied the balancing test for speedy trial claims developed by the United States Supreme Court in the sixth amendment context in Barker v. Wingo, 407 U.S. 514, 530 (1972), and adopted by this court for use in the State constitutional context in State v. Cole, 118 N.H. 829, 831, 395 A.2d 189, 190 (1978). This test requires a balancing of four factors: “(1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant caused by the delay.” State v. Stow, 136 N.H. 598, 602, 620 A.2d 1023, 1025 (1993).

The trial court concluded that the length of the delay in this case was sufficient to justify review under the remaining Barker criteria. See State v. Colbath, 130 N.H. 316, 319, 540 A.2d 1212, 1213 (1988). The court found that the delay in apprehending the defendant resulted from both the defendant’s itinerant lifestyle and the State’s search efforts. The court noted that there was “no question that the State could have done more to apprehend the defendant,” but that “the delay [on the State’s part] was not deliberate and was no more than negligent.” The court also found that the defendant did not demonstrate actual prejudice from the delay, and any presumptive prejudice was insufficient to warrant dismissing the charges. In sum, the court ruled that the defendant’s right to a speedy trial had not been violated, as he had “not provided the court with sufficient evidence of actual prejudice or reason for delay.”

On appeal, the defendant argues that the trial court erred in requiring him to demonstrate actual prejudice to his case in view of the State’s efforts to apprehend him. As the Federal Constitution [219]*219affords the defendant no greater protection in this instance than the New Hampshire Constitution, we address his argument solely under the latter, referring to federal decisions only as an aid to our analysis. See State v. Bernaby, 139 N.H. 420, 422, 653 A.2d 1124, 1126 (1995). In reviewing the trial court’s ruling, we defer to the trial court’s factual findings unless those findings are clearly erroneous, and consider de novo the court’s conclusions of law in respect to those factual findings. See State v. Grant-Chase, 140 N.H. 264, 267, 665 A.2d 380, 382 (1995), cert. denied, 116 S. Ct. 1431 (1996).

This court typically has required defendants to demonstrate actual prejudice from a delay to prevail on a speedy trial claim. See, e.g., State v. Tucker, 132 N.H. 31, 33, 561 A.2d 1075, 1077-78 (1989). The defendant contends that such a showing is not required here because the State was negligent in apprehending him, and prejudice should be conclusively presumed from the length of the delay. In support of this argument, the defendant relies upon the United States Supreme Court’s decision in Doggett v. United States, 505 U.S. 647 (1992), the facts and reasoning of which warrant attention.

Marc Doggett was indicted in February 1980 for conspiracy to import and distribute cocaine. Id. at 648. Unaware of the charges pending against him, Doggett left the country for Colombia before he could be apprehended. See id. at 648-49. After learning that Doggett had been imprisoned in Panama, the Federal Drug Enforcement Administration requested his expulsion to the United States in September 1981. See id. at 649. Panamanian authorities apparently freed Doggett in July 1982, and he entered the United States unhindered in September 1982, settling in Virginia. See id. For a variety of reasons, Doggett “remained lost to the American criminal justice system” until September 1988, when a credit check revealed his whereabouts. Id. at 650. He was arrested in September 1988, eight and a half years after his indictment. See id.

Doggett moved to dismiss the indictment, arguing that the government had violated his right to a speedy trial. The federal district court denied the motion; the court accepted a magistrate’s recommendation that Doggett had not demonstrated particular prejudice to his case under the fourth factor of the Barker analysis. See id. The United States Court of Appeals for the Eleventh Circuit affirmed, ruling that notwithstanding the government’s “negligence” in attempting to apprehend Doggett, see United States v. Doggett,

Related

State v. Locke
813 A.2d 1182 (Supreme Court of New Hampshire, 2002)
State v. Cotell
722 A.2d 507 (Supreme Court of New Hampshire, 1998)
Paone v. NH Dept, of Corrections
D. New Hampshire, 1998

Cite This Page — Counsel Stack

Bluebook (online)
697 A.2d 1390, 142 N.H. 216, 1997 N.H. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-paone-nh-1997.